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"PARKS, RESERVES AND RECREATION AREAS IN NEW SOUTH WALES
A PERSPECTIVE OF PUBLIC RESOURCE DEVELOPMENT".
THESIS FOR MASTER OF LAWS
VOLUME I
JOHN A. COLE
1985
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I, John Alexander Cole of 32 Ellesmere Road, GymeaBay, hereby certify that the thesis - "Parks, Reserves and Recreation Areas in New South Wales - A Perspective of Public Resource Development" has not been submitted to any other university or institution for the award of a higher degree.
PREFACE
The last two decades saw an explosion of
concern and awareness for the environment which involved the
recognition of many of its various components as valuable
public resources for present and future generations.
Pollution emerged as an early focus of concern. The market
economy which worked so well to produce large affluent
middle classes in most western economies, failed to deal
with the disposal of waste from the production process.
Major components of the environment were unpriced and this
lead to overuse and misuse. The philosophical questions
involved in the response of the law to this phenomenon are
similarly at the foundation of the law surrounding those
public lands which could be classified as Parks, Reserves
and Recreation Areas or Public Recreation Areas.
The benefits of economic development also
precipitated the rapid expansion in recreational demands.
Increasing pressures are being experienced on land resources
suitable for recreational use. Those areas in public
ownership are the major focus of this paper.
Within the context of the recognition and
development of "environmental law", the evolution of legal
frameworks governing the creation, care, control, management
and development of these public areas are examined. Here
the public's 'ownership1 and common property rights are of
fundamental concern with both the conflicting priorities of
individuals having varied intentions toward the environment
and the fiduciary duties of decision makers being apparent.
The political nature of decision making along
the resource allocation continuum sees preservation and
development as conflicting goals. The ability of the law to
strike the optimum balance is in question.
Long term planning achieved through legal
frameworks is necessary to avoid future conflict on public
resource allocation. This must involve both the expansion
of decision making assessment to encompass the environmental
and political dimensions and the 'delineation' of the
public's common property rights. This is the perspective of
public resource development which underlies the following
analysis of the law surrounding one public resource ~ Parks,
Reserves and Recreation Areas in New South Wales.
1
CONTENTS
PageCHAPTER 1 THE CONTEXT 1
1. Introduction.............................. 12. The Environment...........................73. Common Property Rights.................. 114. Scope of Environmental Law.............. 165. Early "Environmental Laws".............. 216. Stimulus for Change..................... 23
a) Increased impact of man on theenvironment....................... 24
b) Increased public concern for theenvironment....... , . ............. 25
7. Legislative Response in New SouthWales................................... 28a) Pollution...........................28b) Land Use Control................... 31
8. The Rationale for Change................ 349. Environmental Politics.................. 38
CHAPTER II PARKS, RESERVES AND RECREATION AREAS -PUBLIC RECREATION AREAS 44
1. Introduction.............................442. National Parks...........................503. Wilderness Areas........................ 604. Nature Reserves..........................685. State Game Reserves....... 706. Wildlife Districts, Wildlife Refuges
and Wildlife Management Areas.......... 717. Protected Archaeological Areas.......... 748. Aboriginal Areas........................ 749. Historic Sites.......................... 7510. State Forests........... 7611. National Forests.........................7812. Timber Reserves..........................7813. Flora Reserves and Forest Preserves.... 7914. State Recreation Areas..................8215. Aquatic Reserves........................ 9016. Public Reserves..........................91
a) Local Government Act, 1919.........91b) Crown Land Consolidation Act,
1913...............................9417. Travelling Stock and Camping Reserves... 9518. Drainage Reserves....................... 9619. Miscellaneous........ 97
11
CHAPTER III NATIONAL PARKS 99
1. Introduction............................. 992. The Concept of National Parks.......... 1013. The Need for National Parks............ 1054. Historical.............................. 1095. The Creation of National Parks
in New South Wales.....................115a) Introduction.......................115b) Inception Process................. 120c) The Border Ranges National Park...131
i) Introduction................. 131ii) Background................... 132
iii) Government Decision MakingInitiatives................ 135
iv) The Inquiry.................. 140v) The Decision.................146vi) Comment...................... 149
d) Rainforest Resource Allocation -The Aftermath of the BorderRanges............................ 150
6. Development in National Parks.......... 154a) Introduction.......................154b) National Parks and Wildlife
Service Developments............. 156c) Concessionaire Development........ 165
i) General...................... 165ii) Mining and Forestry
Resource Development.......167iii) Recreation - Tourist
Development................ 176iv) Miscellaneous Developments..182
d) Overdemand and 'DemocraticResource Development'............ 185
e) Management Plans.................. 1917. Conclusion ............................. 204
Ill
CHAPTER IV PUBLIC RESERVES IN NEW SOUTH WALES -CREATION AND TYPES 206
1. Introduction............................2062. Reserves under the Crown Lands
Consolidation Act, 1913 for Public Purposes .............................210
a) Introduction...................... 210b) Dedication under the Crown
Lands Consolidation Act, 1913....216 c) Reservation under the Crown
Lands Consolidation Act, 1913....223d) Dedication or Reservation
under the Closer SettlementActs .............................227
e) "Public Reserves by User"......... 228f) Fee Simple Lands Given Over by
the Lands Department to Local Government........................230
g) Miscellaneous Crown Lands usedas 'Public Reserves andRecreation Areas'................ 232
3. Public Reserves Acquired by LocalGovernment......... .................. 237
a) Introduction...................... 237b) Open Space Acquired Under the
County of Cumberland Planning Scheme Ordinance................. 238
c) Replacement Scheme for theCumberland Development Fundunder the 1979 PlanningLegislative Package............. 245
d) Public Reserves Acquired UnderDeemed Environmental Planning Instruments and LocalEnvironmental Plans.............. 250i) Zoning...................... 250
ii) Reservations................ 253e) Dedication of Public Reserves
(Land or Money) arising from Council's Powers to AttachConditions to SubdivisionApprovals........................ 256
f) Lands Given Over for Public Reserve as a Condition of Building Approval................275
IV
g) Lands Dedicated as PublicReserves (or money in lieu thereof) and given over to Council in Fee Simple as a Condition of Development.Approval..........................282i) Pre Environmental Planning
and Assessment Act, 1979...282ii) Post Environmental Planning
and Assessment Act, 1979 -Section 94................. 291
iii) Section 333 Local Government Act and Section 94 - Subdivision Contribution...295
iv) "Reasonableness"............ 299v) The Formula..................309
vi) Discounting......... 315vii) Reservation under a Deemed
Environmental PlanningInstrument................. 321
viii) Severability...... ......... 322ix) Summary - Section 94
Public Open Space Contributions.............. 323
h) Local Government - OtherStatutory Powers and Limitationson Acquisition and Disposal ofFee Simple Public Reserves....... 325
CHAPTER V PUBLIC RESERVES IN NEW SOUTH WALESCARE, CONTROL, MANAGEMENT & DEVELOPMENT 331
1. Introduction.......... 4422. Crown Lands Public Reserves............ 335
a) Trustees Powers................... 335i) General...................... 335
ii) Trustees Powers - ToDevelop.................... 340
iii) Trustees Powers - To Leaseand Licence................ 358
b) Crown Lands Reserves with Care,Control and Management Devolving on Local Councils under Section 344 of the Local GovernmentAct, 1919......................... 362i) General...................... 362
ii) Council's Power to Develop'Section 344 Public Reserves'.................. 366
V
iii) Council's Power to Lease and License 'Section 344 Public Reserves'........... 368
c) Overriding Ministerial PowersRegarding Crown Land Public Reserves..........................373
d) De Facto Open Space or PublicReserves..........................375
3. Local Government Public Reserves.......379a) Introduction...................... 379b) Common Property Rights in Public
Reserves............. ........... 380i) Entry as of Right........... 380ii) Not a Source of Private
Profit................... .389c) Councils Power to Develop Public
Reserves under Part XIII -"Public Recreation".............. 394i) Division 2 - "Public
Reserves, Parks and c".... 394ii) Ancillary Argument..........414iii) Division 3 - "Baths and
Bathing"................... 418iv) Division 4 - General........420v) Division 5 - Ordinances
under Part XIII............ 4-21d) Councils Power to Grant Leases
and Licenses Over Fee SimplePublic Reserves under "PartXXIV - Ancillary Powers".........427
e) The Interrelationship of PartXIII of the Local Government Act, 1919 and Part IIIB of the Crown Lands Consolidation Act,1913 .............................444
f) Miscellaneous Restrictions on Useand Development....... 447
g) Summary............................4-514. Town Planning Controls.................453
a) Introduction...................... 453b) Zoning.............................464c) Reservation.............. 490
5. Conclusion.............................498
CHAPTER VI CONCLUSION 500
APPENDIXES
BIBLIOGRAPHY
1
CHAPTER I
THE CONTEXT
1. INTRODUCTION.
Environmental law is the newly emerging
discipline governing decisions on resource allocation. This
thesis seeks to explore resource development from a legal
viewpoint, particularly public resource development. In this
first chapter the evolution and definition of "environmental
law" are analysed to provide the context for the following
chapters. These chapters examine the law relating to an
example of a public resource - "Parks Reserves and Recreation
Areas" - being areas of public land used for recreation. It
is to be noted at this early stage that the term "Reserves"
covers a broad spectrum of public lands put to various uses
beyond those of concern to the paper - recreation and
conservation. Because of this, "Public Recreation Areas" is
a useful description for the topic.
The choices in public resource allocation can be
viewed as lying along a continuum:
Preservation Developmenttr r - T7.v----------- --------......................................................................, .... - _____ i
Resource Allocation Continuum
1. See Appendix A for "List of Purposes declaredunder the Crown Lands Consolidation Act and Closer Settlement Acts from 1st January 1885", Appendix to internal Lands Department document, unpublished.
2
At either end are the conflicting goals of preservation and
development. When an individual resource is isolated, its
allocation ultimately involves a political decision as to the
position on the continuum which is to be adopted in any
particular case. Environmental law provides the framework in
which this decision is taken. In doing so it seeks to
'resolve' the conflict.
The context within which this law has been
recognised and developed is important in setting up some basic
perspectives which underly the chapters to follow. This
requires analysis of some terminology important for
environmental law as well as the factors stimulating its
emergence and the task it has had to face. The scope for
environmental law has proved to be enormous. Consequently, by
way of illustration, the development of new environmental laws
concerned with pollution and land use control will receive
only brief analysis in this first chapter to provide some
historical background for the perspectives this thesis takes.
It is stated above that public resource
allocation is ultimately a political decision. The same is
arguably true for all resource allocations when "political" is
used in the broadest sense. At the individual and societial
level "environmental politics" is an apt description of the
3
resource allocation conflict. This is not "politics" in the
normal sense of government. It is the priorities, interests,
rights and powers of all the legal entities (individuals,
associations, corporations and government bodies) operating
within the framework of environmental law and interacting to
influence resource allocation decisions.
This thesis examines the law and "politics"
surrounding resource allocation decisions in relation to the
creation and development of parks, reserves and recreation
areas and how this has or has not coped with the conflict
inherent in the continuum and the stimuli for change in the
law governing resource development.
Chapter One tries to identify some of the
concepts identified in the above discussion. It attempts to
define "the environment" and point to its resource break-up
for the purposes of analysis. In looking at the scope for
environmental law, its stimulus for development and "old
environmental laws" a twofold perspective becomes apparent.
Firstly, in resource allocation generally there
has been a shift in the continuum toward preservation/
conservation. This shift has itself been a stimulus for
concern about and review of various legal frameworks governing
decision making for many resources.
4
Secondly, in developing legal frameworks during
this shift there has been an expansion of the traditional
concerns and processes. Environmental assessment,
traditionally the concern of town and country planners, has
been increasingly legalised. This has involved the creation
of new duties and rights to influence decisions in resource
allocation. The expansion of environmental assessment and the
recognition of the importance of both the environmental
dimension and the competing interests and priorities of
various interested parties, has resulted in new environmental
laws exhibiting a departure from more traditional legal
approaches.
Some basic principles of jurisprudence may have
even been called into question with the law's response to the
expanding recognition and importance of the continuum for
resource allocation. The separation of powers doctrine saw
the strict division of decision making power in our system of
government. The High Court pointed out in New South Wales v
The Commonwealth that the separation of the legislature,
executive and judicial powers under the constitution leaves2these arms of the Commonwealth interdependent.
The legal framework set up in New South Wales by
most new environmental laws established the courts as the
2. New South Wales V Commonwealth (1915) 20 C.L.R. 54, 88-90.
5
appellate body from decisions of government authorities. In
many cases problems arising from the political nature of a
decision on the continuum are apparent. Traditionally, though
the judiciary has often been called upon to make 'political
decisions' they have been very reluctant to do so. The overt
recognition of any political decision making power was
consistently avoided at common law. In the environmental area
this was well reflected in one of the earlier High Court
decisions m the Black Mountain Tower case . As Jacobs J.
stated:
"The Post Office Tower is not proposed as a commemorative monument, but would be a striking construction on the skyline. Hence the controversy. Some see it as a desecration of the skyline; others see it as an exciting structure reflecting the century and the society in which we live. The lines of battle are not unique. But the substance of the battle is not one which easily lends itself to determination by the courts along established avenues of legal decision. So what was at base a dispute involving community attitudes and purposes, a political dispute in the broad sense, had perforce when it was brought before the court to turn itself largely into a technical legal dispute on the question whether there was legal authority to erect the structure". (Emphasis added).
The change necessary in the evolution of
Environmental law, to deal with these disputes was pointed to
in the observations of Professor Whalan in 1977. He stated:
3. Johnson v Kent (1975) ALJR 27.
4. Ibid, pp. 30 and 31.
6
"Although technically sustained, there are many respects in which the separation of legislative and executive functions and powers is something of a fiction nowdays . . But the executive and judicial interface is, I would argue, subject to great overlap and, in recent years, has been subject to considerable erosion of the judicial function."'*
The more recent comments of Chief Justice
McClelland of the New South Wales Land and Environment Court
also point to this phenomona:
" some of the decisions we are called upon to make are better described as political than judicial".
In summary, environmental law in regulating
resource allocations, both public and private, must face such
political disputes (in the broad sense) as that exhibited in
the Black Mountain Tower case. With environmental and
'political' assessment so difficult and varied regarding
individual decisions on the continuum, the most environmental
law can hope to do is set up the framework within which
informed decisions can be taken on the allocation of
resources. Within this, the role of what was traditionally
termed town and country planning, and now often referred to as
environmental planning, is paramount.
5. WHALAN, D.J. "Structure and Nature of Australian Environmental Law", (1976) 8 F.L.R. 294, 316.
6. McLELLAND, C.J. "Development Control Decisions - Judicial or Political", Environmental Law Association Symposium, 1982.
7
The perspective of new environmental laws
outlined above could be described as a macro approach to
resource allocation decisions. This has sought to expand the
inputs into decision making and diversify the goals of
resource allocation. The blinkered, narrow or micro
approaches of early environmental laws, directed to the right
of the continuum - development, have been severely
curtailed.
The analysis of the response by the-law relating
to the creation and development of public recreation areas
(specifically national parks and public reserves for
recreation) is the task at hand for this thesis. The context
for this is set in the remainder of this chapter.
2. THE ENVIRONMENT.
Environment is a term which has come into vogue
in the last two decades Despite its wide usage at all levels
however, it is a term which avoids precise definition. In
general usage "environment" can be defined as "the aggregate
of surrounding things, conditions or influences".^. Prima-
facie such a definition could include almost everything.
7. DELBRIDGE, A. (ed.) The Macquarie Dictionary,Macquarie Library Pty. Ltd., Sydney, 1981, p.601.
8
Legislative initiatives at both Commonwealth andQ
State levels have resulted in similarly broad definitions.
The Commonwealth Environmental Assessment (Impact of9Proposals) Act, 1974 and the New South Wales Environmental
Planning and Assessment Act, 1979^ both define the
environment to include "all aspects of the surroundings of man
whether affecting him as an individual or in his social
groupings".
An alternative approach seeks to limit the above
definition by reference to the physical components of the
environment. The Tasmanian Environmental Protection Act,
1973, for example, limits the meaning of "environment" to
land, water and the atmosphere of the earth.^ The New South
Wales Government document, Proposals for a New Environmental
Planning System for N.S.W., is more expansive and lists the
land, water, noise, wind, energy and air as the
internationally recognised components of the physical 12environment. This 1975 document was one of the earlier
8. See, for example, State Regional Planning and Development, Public Works Organisation and Environmental Control Act, 1971 (Qld.), s. 5 and Environmental Protection Council Act, 1971,(S.A.), s.3.
9. See section 3.
10. See section 4.
11. See section 2(1).
12. MINISTER FOR PLANNING AND ENVIRONMENT, Proposals for a New Environmental Planning System for N.S.W., Government Printer, June, 1975, inside cover (generally referred to as "the Blue Book").
9
government analyses of the development processes for land
resources. Its synopsis well reflects the rationale behind
the legislative responses to the growing awareness interest
and concern for the physical environment. This states there
is a:
"....widely expressed need to broaden the scope of planning to encompass environmental factors, including social and economic considerations".^
This thesis examines a number of interrelated
uses to which one of the environment's physical components -
land - is allocated i.e. parks, reserves and recreation
areas. Legal analysis of the environmental laws relating to
land is facilitated by such a 'usage' breakdown. A particular
use to which land may be put can thus be described as a
resource, for example national parks, mining or forestry. Its
usage reflects its resource value.
The 'use' classification of resources splits
them into renewable and non-renewable. Of the renewable ones,
some require action by man, like human capital and
technology, while others depend on his inaction. Forests for
example, are a renewable resource only if man does not
substantially alter the physical parameters necessary for re
growth. The "die-back" problem in N.S.W. and Western
Australia is frightening evidence of man's failure to
recognise these environmental limitations on a renewable
13. Ibid, p.4.
10
resource.^ The atmosphere and water courses, on this basis,
provide further examples of naturally renewable resources.
Technology is now the dominant man- made
renewable resource. It has provided man with unprecedented
power to affect his environment. The present physical
environment well reflects technology's power. Man's future
environment will depend on its use.
Non-renewable resources, on the other hand, are
those which are finite in supply and not capable of
reproduction either by man or nature. The obvious examples
here, are oil and minerals. For development purposes an
important distinction within non-renewable resources is their
capability for recycling or destruction in the production
process. For example oil and coal are used up in producing
energy whereas copper and iron are capable of being recycled.
Traditionally, the law focused its operation in
the environmental area on those resources which are capable
and desirable of alienation to private ownership. Here it was
concerned with the recognition and enforcement of private,
alienable interests. The most common example is 'land',
defined at law to include fixtures on the land such as houses,
14. See also BRADSEN,J.R. "Soil ConservationLegislative Measures" and BRUNKER, R. "Soil Conservation Policy in Australia", Papers in Session 5, Third National Environmental Law Symposium, Adelaide, August, 1984; BLYTH, M.J. and KIRBY, M.G. "Impact of Government Policy on Land Degradation in the Rural Sector" Paper, Third National Conference on the Economics of Environmental Management, Sydney, September, 1984.
11
roads and fences; minerals and trees (timber). Such resources
have long been the subject of common law actions and
legislative pronouncements. A distinguishing characteristic
of these resources is their relative scarcity.
In more recent times, environmental law has
become increasingly concerned with what are commonly referred
to as "common property assets", "social assets" or "public
resources". Common examples are the air and water. These
resources are not easily alienated to private ownership. It
is submitted that the underlying legal principles surrounding
parks, reserves and recreation areas have a very similar
rationale to those legal controls over use of air and water
which are also publicly owned resources.
3. COMMON PROPERTY RIGHTS
In common usage "property" refers to things,
land etc. However, in law "property" is not things but
rights, i.e. rights in or to things. Macp’nerson argues that
to have property in something means that rights are created:
".... in the sense of an enforceable claim to some use or benefit of something whether it is a right to share in some common resource or an individual right in some particular thing. What distinguishes property from momentary possession is that property is a claim that will be enforced by society or the State, by custom or convention or law."
15. MACPHERSON, C.B. (ed.) Property - Mainstream and Critical Positions, Basil Blackwell, Oxford, 1978, pp. 2-3.
12
The common factor in relation to all parks, reserves and
recreation areas is that some "property" in the particular
area has been given to the public.
If "property" is defined as an enforceable claim
of a person to some use or benefit of something, this cannot
be taken to rule out the idea of "common property". Society
or the State may declare that some things e.g. common lands,
public parks, city streets, highways - are for common use.
The right to use them however, is not a right of society's but
a property of individuals, in that each member of society has
an enforceable claim to use them.^ This need not be an
unlimited claim. The State may, for example, have to ration
the use of public lands, as will be seen in the discussion of
management initiatives regarding over use in national parks.
It may limit the kinds of uses anybody may make of the
particular social asset (e.g. streets or waterways) just as
society limits the use of private property. But the right to
use the common things, however limited is a right of the
individual.
It is important to note that though the term
"common property" is used to distinguish such rights from the
exclusive individual rights, which are private property, this
does not mean that the public's rights to a public recreation
area are common rights and not individual rights. They are
16. Ibid.
17. Ibid.
13
the property of the individual, not the State. The position in
relation to public recreation areas and common property is
best summed up by noting that the State creates and enforces
the right which each individual has in things which the State18declares to be for common use. The delineation and
enforcement of these rights regarding public recreation areas
is of major concern in this thesis.
The State creates the rights, the individual has
them. In relation to public reserves, "common praperty" is
created by the guarantee to each individual that he will not
be excluded from the use or benefit of the land. This is to
be distinguished from private property which is created by the
guarantee that an individual can exclude others from the use
or benefit of something. The extent to which individual
members of the public can enforce their right not to be
excluded by sectional or' private' interests and exercise
these common property rights are examined in the thesis. Both
kinds of property, being guarantees to individual persons, are19individual rights.
Artificial persons (corporations or
unincorporated groupings created or recognised by the State as
having the same or similar property rights as an individual)
can also hold private property rights. These give the group
the right to use and benefit and the right to exclude non-
18. Ibid, p.4.
19 Ibid.
14
members from the use and benefit of the things to which the
group has legal title. Corporate property is thus an20extension of individual private property. It is such rights
which, if recognised, would allow clubs to use and occupy
sections of public recreation areas.
Another kind of property identified by
Macpherson is important in relation to these lands. This
concerns the legal ownership of parks, reserves and recreation
areas by Government bodies. "State property" consists of
rights which the State has not only created, but has also kept
for itself or has taken over from private individuals or
corporations. For example, minerals or the right to use air
waves for radio or television communications, may be retained
wholly or partially by the State. Again various enterprises
e.g. railways and airlines, are in many countries owned by
the State. The rights which the State holds and exercises
over these things, the rights which comprise the State's
property in these things, are akin to private property
rights. They consist of the right to use and benefit, and21the right to exclude others from use and benefit.
In effect the State itself is taking and
exercising the powers of the corporation and acting as an
artificial person. "State property" does not give an
individual citizen a direct right to use, nor a right not to
20. Ibid,
21. Ibid, p .5.
15
be excluded from, the assets held by the State acting as a
corporation. It is thus completely distinguishable from
"common property", as previously defined, as there is no
individual right in the citizens of the State not to be
excluded. In fact, State property is akin to a corporate22private property right. Examples of such property would be
vacant residual Crown land, not reserved for some public
purpose, and State forests.
This situation may be considered paradoxical as
such things as unreserved Crown Land and State forests are
clearly the property of the public, yet under the previous
analysis there is no common property rights in them other than
some macro initiatives contained in legislation allowing for
public input into management plans and environmental impact 23statements. The paradox is somewhat resolved if the State
is viewed not as the whole body of citizens but that smaller
body of persons who have been authorised (whether by the whole
body of citizens or not) to command the citizens. Though
idealist philosophers may see the community of all citizens as
being equal to the State, political realists view the State
as those persons acknowledged to command (this was more
obvious before the rise of democracy, when the king was "the 0 /State"). If this body then holds the rights called State
22. Ibid.
23. See, for example, Chapter V discussion of Part V of Environmental Planning and Assessment Act,1979, pp. 438-442.
24. MACPHERSON, C.B., op. cit., note 15, p. 6.
16
property, this property becomes classified as corporate
property which is exclusive property and not common
property. The "State” has the enforceable claims to use and
benefit and the right to establish any common or private
property rights.
Common property rights are important for the
analysis of the resource chosen for this paper. These areas
are in public ownership with State or local governemnt holding
formal legal title subject to the public's rights. As such a
decision on the continuum in any particular case should be
heavily influenced by "common property rights". Whether this
is in fact the case will appear from later discussion on
national parks and public reserves. The interraction of
individuals and the State in the decision making on the
creation and development of public recreation areas is
important in understanding the framework set up by
environmental law, and the expansion of inputs it has sought
to bring about.
4. SCOPE OF ENVIRONMENTAL LAW
The broad definition of "environment" as
including all natural and man- made resources, highlights the
large potential scope of the areas of law which could be
gathered together under this umbrella. The exploration of
17
this potential by the legislature and courts during the 1960's
and 70's has brought about the emergence of "environmental
law" as a distinct branch of law.
Some commentators have defined environmental law
by reference to those factors which precipitated its 'birth
and growth' i.e. the public concern and awareness for
conservation of the environment. Sir Garfield Barwick for
example, saw environmental law as embracing:
"the concept of the maintenance whether by positive or negative action, of a proper framework both natural and contrived, in which humans can have and enjoy a life which engages and satisfies their capabilities both as of nature and as cultivated by education and social contact." 3 (Emphasis added).
Though environmental protection provided the
impetus for environmental law's emergence, the term must
encompass development of resources as well as conservation of
them. In fact, development and conservation can be seen as
two sides of the same coin. It is the determination of what
is "proper" in relation to individual and societal resource
allocation decisions that provides the problem for
environmental law i.e. the optimum point on the continuum in
any particular case.
The law has been concerned with issues affecting
the environment for some considerable time. Accepting that
environmental law is concerned with development and
conservation, examples of early laws which should be so 25
25. BARWICK, G. "Problems of Conservation", (1975-76) 1 U.N.S.W. 3, 4.
18
categorised are many. In the Australian experience most of
these laws were designed merely to facilitate the development
of individual resources, for example mining and forestry. °
They are in sharp contrast to the more recent legislation
and associated cases reflecting a conservation orientation to
the left of the continuum.
Any conception of the area must recognise the
playoff or conflict between the "conservation ethic" and the
traditional economic-profit based development orientation of
the law which it sought to change. Given the continuum, both
are behind the various laws concerned with the administration
and development of the environment, but to varying extents for
different resources. Development and conservation as
previously suggested can be seen as two sides of the same
coin.
Take the example of legislation controlling
pollution. Most would classify it as conservation
legislation. In the alternative, however, it could be viewed
as development orientated legislation, governing how much the
environment may be developed for polluting purposes, i.e. the
disposal of waste from the production process. On this basis,
the author would stress the importance of including all
resources law, whether orientated towards development or
conservation under environmental law. 26
26. See for example the New South Wales Mining Act 1906, Forestry Act, 1916, Water Act, 1912, Fisheries and Oyster Farms Act, 1935.
19
One possible limitation which could be placed on
the subject matter of environmental law would be to exclude
laws already classified under existing legal categories. A
glance through university law school subject lists or at the
names of various legal associations produces many recognised
areas of law which are foreseeably encompassed by the broad
statutory definition of the environment. For example, Local
Government Law, Town Planning Law, Mining and Petroleum Law,
Industrial Law and various aspects of the Common Law. To
exclude such areas would however, be intolerable. It would
fail to recognise the opportunity for environmental law to
conceptually bring together various fragmented sections of the
legal system long ignored in their specific isolation.
Environmental law does not and cannot have the mutual
exclusiveness which facilitates the ordered pigeon-holing of
many areas of law.
A. distinguishing characteristic suggested for
environmental law is noted by Fisher:
"The law is accustomed to regulating relationships, but normally those between individual persons having recognised legal status such as companies, corporations, statutory institutions or the Crown, The distinctive feature of environmental law is that it deals with the relationship between man and his surroundings. It is this relationship that creates the challenge of environmental law."27
This is at best a half truth. A realistic
approach to the environment in fact sees that "physical
27. FISHER, D.F. Environmental Law in Australia,University of Qld. Press, Brisbane, 1980, p. 4.
20
phenomena are intrinsically without meaning; we have to giveO Q
meaning to them according to our intentions towards them".
If this is accepted, the law is in fact regulating the
relationships between those legal personalities having
divergent intentions towards the environment, rather than the
relationship between these legal entities and the environment
itself. Thus the rights of these parties (common property
rights, where public recreation areas are concerned) are of
fundamental importance.
The author believes that the regulation of these
interrelationships between legal entities with diverse
environmental intentions and resource allocation priorities,
presents the challenge for environmental law in the future.
The law, both legislative and judicial, is seen
as constantly evolving or changing. Often this is stimulated
by the recognition of changes in society's standards or
priorities. Environmental law in general, and in regard to a
particular decision on the continuum, should represent the
delineation of generally accepted standards or priorities.
However, an incredible diversity of individual opinion on the
environment exists. This diversity of environmental
priorities, points to the difficulties inherent in any attempt
to develop general principles for environmental law regarding 28
28. BAILEY, J. Social Theory for Planning, Routledge and Kegan Paul, London & Boston, 1975, p. 52.
21
• 29what is 'proper'. Consequently, previous comments that it
is confined to defining procedures under which decisions are
produced are reinforced. This reflects the ultimate political
character of the resource allocation decisions which
environmental law facilitates.
5. EARLY "ENVIRONMENTAL LAWS". 29
With colonization the English legal and social
system were superimposed on the Australian environment and
'culture'. First as a penal colony and later with the
pioneering settlers, the priority was to tame the wild
bushland and create a safe, civilised, ordered environment
similar to that of the English shores left behind. The early
timber getters and squatters are strong evidence of the
developmental ethic of early Australians.
After Federation, the States held most of the
powers relating to resources and the environment. Early
environmental laws were passed at a State level to facilitate
the ordered development and exploitation of the country.
Resources such as forests, minerals, soil and Crown lands were
controlled by State legislation.
29. The problem of general standards from alegislative point of view is seen in section 16 of the Clean Waters Act, 1961 (N.S.W.) which attempts to set up the general rule that pollution of water is illegal. The remainder of the Act then proceeds to qualify this principle by allowing pollution under various circumstances.
22
Health issues were another early environmental
interest of government. In Europe, public health issues had
become apparent with industrialisation and urbanisation. Early
legislative responses in England reflected a concern by those
in power with the quality of the resource - labour It was
apparently recognised that England had a commercial advantage
in its work force potentiality which was being eroded by poor
health and housing conditions. A classic example is seen in
the passing of the first Alkali Act in 1863. This -sought to
prevent three quarters of a ton of acid hydrogen being
discharged into the atmosphere with the manufacture of every
ton of soda. Early New South Wales concern in this area is
seen in the Local Government Act, 1919 (N.S.W.), Part X,
Division 5 - "Interference with Health Safety or Convenience"
and in the N.S.W. Public Health Act, 1902 Part VII, dealing
with "Nuisances" and Part VIII covering "Polluted Water
Supplies".
The third major area of early environmental law
for N.S.W. was the Common law. This had been inherited from
England where it was primarily developed to protect private
property. It dealt mainly with the rights of adjoining land
owners. Though doctrines such as Rylands v Fletcher, private
nuisance and public nuisance slowly evolved, these provided
only limited potential for environmental protection. The
concentration on private property rights and locus standi
requirements demanding an interest in land, were major
obstacles to a greater involvement of the early Common law in
23
the environmental area. Concepts of common property rights
did not provide the rationale for any of the early New South
Wales laws concerned with resource allocation. Thus to a
large extent "early environmental laws" were pre-occupied with
either resource development decisions to the right of the
continuum, public health or protection of private property
rights.
6. STIMULUS FOR CHANGE
An explosion of activity in relation to the
environment has been witnessed at a national level in the last
two decades.
"Since the late I960's virtually every government in virtually every country in the world has taken some action to deal with its own national environmental problems and to establish policies and machinery for that purpose."
The need for government decision making to take into account
increased demands and changing priorities for public and
30
30. See for example Malone -v- Laskey (1907) 2 K.B. 141; 97 LT 324.
N.B. Public Nuisance actions did not require interest in land for locus standi. For discussion of current legal position regarding standing see KIRBY, M.D. "Standing and the Future" Paper 54th ANZAAS Congress, Canberra, 1984; THOMPSON, A.J.J. "Locus Standi under the Environmental Planning and Assessment Act, 1979 (N.S.W.)" (1983) 75 Shire and Municipal Record 466. 31
31. STRONG, M. "Only One Earth" A.B.C. Insight No. 320 Radio Broadcast on the 9th February, 1975,10.45 a.m.
24
private resources has required new environmental laws. Factors
stimulating this activity can be broadly grouped under two
inter-related headings:
a) Increased impact of man on the environment.
Industrialisation and its associated development
of natural resources lie historically at the heart of man's
massive capacity to affect his environment. Mass production
and economies of scale have ensured the continuing escalation
of the industrialisation process. The result has been an
unprecedented extension of man's ability and capacity to
change the environment.
Industrialisation has fostered the accumulation
of large amounts of capital which in turn facilitated the
modification of the environment on a very large scale. In the
development of company law, legal personality was given to an
organisation fiction and it was allowed to raise the required
capital from a number of individuals. With the increasing
sophistication of industrial society came the rise of
financial institutions and varied money markets to assist in
industrial funding.
Following the industrial revolution came the
technological revolution. From the early days of the
industrial revolution when man began to use large and
sophisticated machines to aid him in the conversion of
resources into marketable goods , there has been a rapid
expansion in man's capacity to "develop" the environment.
Technology, itself a man made resource, has further enhanced
25
man's capabilities in this regard. Examples are innumerable.
Nuclear power is perhaps the most frightening, as man now
possesses the capacity to make the whole environment of the30planet uninhabitable.
b) Increased public concern for the environment.
The growth of technology and knowledge has
generally allowed man to better understand and monitor his
impact on the environment. Machines and computers have given
him a capacity to collect and analyse data, previously beyond
his reach, and at an ever-increasing rate. The impact of a
particular activity can now more readily be quantified and
subjected to qualitative assessment. Associated with this has
been a reallocation of manpower and technology to such tasks.
As man's understanding in this regard expanded
so did his fears concerning the ramifications of his
activities on the environment. Growing educational standards
of the general public have further permitted this awareness to
permeate all levels of society . Higher education is no
longer necessary to secure an understanding of the physical,
social, economic and political environments and their inter
relationship .
This groundswell of educational awareness of the
environment has been further strengthened in the last two
decades by ever increasing media interest in the area. World
32. The ramifications of technology's rise to powerhave been well documented and are beyond the scope of this paper.
26
communications systems now inform the public of such
happenings as international nuclear reactor disasters the very
day they happen. 'Live-eye' news, current affairs programmes,
television documentaries, as well as the newspapers all give
environmental issues extensive coverage. Information factors
such as these must be seen as having played an important role
in the awakening of public awareness and concern in the33environmental field.
Associated with the above has been a- change in
the expectations of ordinary people with regard to their
environment. In the development of society, ordinary people
have now come to expect standards of cleanliness, safety and
wholesomeness in their surroundings that previously have been
the exclusive birthright of the well born or rich. As
economic growth distributed the benefits of industrialisation,
a high "quantity of life" (consumer durables, money and
assets, for example) was obtainable by a greater percentage of
the population in modern western economies. As the middle
classes achieved this, their interests may be seen to have
shifted towards "quality of life" issues. <4
33. See for example: the pollution readings given onthe nightly television news and the Terania Creek forestry dispute, where effective use of the media by protestors turned a local dispute into a major state wide "political hot potato". (See textpp. 150-151 and footnote 219). 34
34. KNEESE, A. Economics and the Environment, Penguin Books, Hammondsworth, 1977, p. 70.
27
The shift from the dominant development
priority, i.e. from the right of the continuum, and the
recognition of the public's rights and divergent interests in
public and private resources, has been fundamental in new
environmental laws. The changing public awareness and concern
has, through the democratic process, stimulated a shift in the
concerns of government policy. Resource development no longer
reflects the unchecked pursuit of traditional goals of
government economic policy i.e. -
"...full employment, price stability, balance of payments equilibrium, a satisfactory rate of economic growth, efficient use of resources, and equitable distribution of income." ^
In seeking to cope with this shift, pollution
emerged as a major centre of concern for law, politics and
economics. In its examination economists coined the term
"common property resources" for "those stable natural assets
which cannot or can only imperfectly be reduced to private
ownership". Common examples are the air-shed and water
courses. These resources had unpriced, open and unlimited
access and it was apparent that this led to over use, misuse,37and quality degradation. As Kneese noted:
35. NEVILLE, J.W. Fiscal Policy in Australia - Theory and Practice, Cheshire Publishing Pty. Ltd., * 36Melbourne, 1970, p. 7.
36. KNEESE, A. op. cit., note 34.
37. Ibid.
28
"market forces while marvellously efficient in allocating owned resources, worked to damage or destroy common property resources. Though the market system worked effectively in stimulating the exploitation of basic resources, and the processing and distributing of them, it failed almost completely in the efficient disposal of residue"
These factors pointed to the need for government
involvement in the processes of resource development to give
effect to the public's emerging concern for and awareness of
the environment. Inherent in the governments response was the
covert recognition of the public's common property, in the air
shed and water courses.
7. LEGISLATIVE RESPONSE IN NEW SOUTH WALES.
a) Pollution.
In N.S.W. various powers to control pollution
had been scattered through a number of unrelated acts39implemented by equally unrelated government bureaucracies.
38. For detailed economic analysis of the pollution issue see discussion of cost and market externalities in SENECA, J.J. and TAUSSIG, M.K. Environmental Economics, Prentice-Hall Inc., 39Englewood Cliffs, New Jersey, 1974 and BAUMOL, W.J. and OATES, W.E. The Theory of Environmental Policy, Prentice-Hall Inc., New Jersey, 1975 .
39. For example: Maritime Services Board (MaritimeServices Act, 1935), Metropolitan Water Sewerage and Drainage Board (Metropolitan Water Sewerage and Drainage Act, 1924), Local Government (Local Government Act, 1919), Soil Conservation Service (Soil Conservation Act, 1938), Health Commission (Public Health Act, 1902) and Water Resources Commission (Water Act, 1912).
29
These were relatively unknown and practically ineffective.
The passing of the Victorian Clean Air Act in 1956 heralded
the political recognition in Australia of the need for
specific legislative programmes to preserve the public
interest/public rights in the physical environment. Other
states followed.
The N.S.W. Clean Air Act, 1961, passed by the
Askin Government, took advantage of the extent and popularity
of the pollution issue at the time. The legislation attacked
waste emission sources from the large scale commercial and
industrial plants The various State schemes almost
universally adopted programmes based on the licensing of
discharges from such plants. It is not the intention of this
thesis to examine these schemes in detail nor to review the
alternative approaches available in controlling pollution at
either the State or Commonwealth levels.̂
In many ways the pollution issue is now less
significant in the analysis of the public's rights regarding
their environment, as the political compromise has already
been struck between the government, representing the'public
interest', and industry. In consequence the position on the
continuum has been set. The law provides the framework for
the enforcement of this compromise which may vary to a minor 40
40. See generally TEDESCHI, I. "Environmental Law in N.S.W.", (1973) A.L.J. 711; OPIE, H. "Commonwealth Power to Regulate Industrial Pollution", (1975-6) 10 M.U.L.R. 577.
30
extent from case to case. The law concerning parks, reserves
and recreation areas is far more ambiguous with regard to the
public's rights,the public's interests and the balance on the
continuum.
As with most States a government agency was
necessary to implement the pollution legislation and monitor
environmental quality. The State Pollution Control Commission
Act, 1970 (N.S.W.) set up such an authority (the S.P.C.C.) for
New South Wales. Once the political commitment had been made
to a policy of pollution control, the details were left to
this agency. Broad delegations of power were necessary, with
discretions lying in enforcement bodies. The Clean Waters Act
administered by the S.P.C.C. and the Waste Disposal Act
(setting up the Metropolitan Waste Disposal Authority) were
also passed in 1970.
The regulatory schemes in the air and water
areas were imposed with minimum conflict, as standards
reflected a compromise between industry and the public
interest (defined here by the S.P.C.C.). The community
pressure for reform was appeased and the electorate could
sleep soundly knowing that their bureaucratic watch dog, the
S.P.C.C., was at work securing environmental quality.
The problem of noise pollution was attacked in
1975 by the Noise Control Act, 1975 (N.S.W.). The area
presented even greater difficulties for the legislature, as
the problem was far more intangible and arose not only in the
31
industry -v- public context (private property -v- common
property) but increasingly in the public -v- public context
(private property -v- private property). Rights had to be
identified and allocated to individual members of the
public.
b) Land Use Control
In England, administrative controls over such
matters as subdivisions, residential districts, flat buildings
and other buildings came with industrialisation and/ 1urbanisation. Here was an early form of town and country
planning, arguably the most important resource development
control capable of falling under the auspices of environmental
law. In fact town planning legislation has existed in the/ 0United Kingdom since 1909 and in New Zealand since 1926.
Part XII of the Local Government Act, 1919 made
the initial inroads into land use control in N.S.W. The
first comprehensive action, however, was taken by the
Government in 1945 when "Part XII A - Town and Country
Planning Schemes" was introduced. This legislation, which was
in force until 1980, was modelled on the 1932 United Kingdom
Act. Amendments were made purely on an ad hoc basis either in
response to changing political policies on an individual issue
41. WHITMORE, H. "Town & Country Planning", Ch. VII of U.N.S.W. Law School Course Notes for Local Government Law, 1979. See also WHITMORE, H. Local Government and Environmental Planning Law in New South Wales, Law Book Co., Sydney, 1981, pp. 2-7.
42. Ibid.
32
or as a stop-gap measure to counter a problem raised by
litigation. Rather than examine this legislation in detail it
is sufficient to note that due to its practical problems and
lack of environmental standards and assessment procedures most
involved parties and observers considered it long overdue for/ Q
review and overhaul when this was done in 1979.
The transition from local government law to
environmental law had clearly been established by 1967 when
the N.S.W. State Planning Authority Act charged the Authority
with the responsibility of securing orderly and economic
development of the State's land. The legislative processes
leading up to the N.S.W. statutory package of 1979 were
lengthy. The previous Liberal-Country Party State government
(N.S.W.) officially commenced the review process in 1974 with
the publication of its report, generally referred to as the
"Green Book".̂ This was followed by two further reports the
"Blue Book"*^ and the "White Book"^^, before the final
43. WILCOX, M. "The Environmental Planning andAssessment Bill, 1979: A Conceptual & LegalFramework" Australian Seminar Services transcript of Seminar - Environmental Planning & Assessment Bill 1979, Sydney, June 11th, 1979, p. 11.
44. MINISTER FOR PLANNING AND ENVIRONMENT, Towards a new Planning System for N.S.W. government Printer, December 1974, 1st Report.
45. MINISTER FOR PLANNING AND ENVIRONMENT, Proposals for a New Environmental Planning System for N.S.W. Government Printer, June 1975, 2nd Report.
46. PARLIAMENT OF N.S.W., Report to the Minister for Planning and the Environment, Government Printer, November, 1975.
33
presentation of a draft bill. The bill lapsed after being
introduced into Parliament shortly before the 1976 state
elections. Prior to the 1979 environmental reforms in New
South Wales, Murray Wilcox stated:
"...the process of review has been one which had been undertaken over a number of years on both sides of politics and undoubtedly represents a consensus amongst politicians that the present legislation is obsolete and needs to be replaced."^
The Environmental Planning and Assessment
Act, 1979(E.P.A. Act) and the Land and Environment^Court Act,
1979, have crystalised environmental law in the legal system
of New South Wales. This legislation attempted to change the
orientation of a traditional approach - "town and country
planning" - to a more expansive one - "environmental
planning". As such it reflects the macro approach previously
noted. Gone is the old individual resource development
control (or encouragement) approach which was reflected in the
objectives of the State Planning Authority Act, 1967, i.e.
the orderly and economic development of land. The objects of
the Environmental Planning and Assessment Act, 1979, are far
more expansive. Section 5 seeks to encourage the proper
management, development and conservation of natural and man
made resources for the purpose of promoting the social and
economic welfare of the community and a better environment;
the protection of the environment; and to provide increased
opportunity for public involvement and participation in
47. WILCOX, M. op. cit., note 43, p. 13.
34
environmental planning and assessment. These aims exhibit
the perspecitves previously noted - the 'recognition' of
common property and the expansion of environmental assessment.
8. THE RATIONALE OF CHANGE
New environmental laws as described herein are
concerned with the expansion of the inputs into the processes
governing resource allocation decisions. This must involve
both the introduction of the environmental dimension and the
expansion of existing processes so as to define and
incorporate the public's rights in decisions controlling
development of all resources. This factor is of predominant
importance regarding publicly owned resources such as air,
watercourses and the subject of this thesis, parks, reserves
and recreation areas.
To be successful these laws must recognise the
tension between conservation and development in relation to
all legal systems and processes concerned with the
environment. Individual statutes may have a particular
preoccupation with either conserving or exploiting the
environment. Notwithstanding this, they should allow adequate
assessment of the environmental and public (political)
dimension in the production of 'optimum' resource allocation
in both the public and private sectors.
35
The assessment of the environmental and
political dimensions in new environmental laws can be
contrasted with the earlier environmental laws with their more
single-minded concerns. A useful comparison from the related
discipline of economics may be the break up into macro and
micro economics. Micro economics is the anlaysis of
individual markets. Macro economics, on the other hand is
concerned with total flows of income expenditure and
employment within the overall economic system. Briefly, macro
economics deals with the economy at the general or total level
where micro theory is concerned with the operation of the
economy in detail through the analysis of particular market
situations within it.
Environmental law is concerned with regulation
of resource use. Economics deals with the operation of the
economy. Early environmental laws were generally micro in
approach and rationale. Laws processes and decision making
were resource-use specific. Inputs of information and
interests were limited. A number of statutes set up
particular regulatory frameworks under which an individual
resource use was achieved.^ They were usually 'closed 48
48. Examples are: The Mining Act, 1906, the StateCoalmines Act, 1912, the Water Act, 1912, the River Murray Waters Act, 1915, the Crown Lands Consolidation Act, 1913, the Pastures Protection Act, 1934,the Fisheries and Oyster Farms Act, 1935, the Forestry Act, 1916 and the Soil Conservation Act, 1938.
36
system' and exploitation orientated at both state and private
levels.
Some new environmental laws,on the other hand,49are more akin to the macro economic approach. These
statutory inroads have sought to introduce in government and
private decision making an awareness and consideration of the
total environmental and political spectrum. In doing so they
must examine the divergent priorities of various interests in
attempting to determine the 'proper' allocation, in a
particular decision on the continuum.
An early example in N.S.W. of this reorientation
in environmental law is seen in the policy document -
'Principles and Procedures for Environmental Impact Assessment
in N.S.W. - S.P.C.C'; Environmental Standard El - 4 published
in October 1974.^ It was a vague document of uncertain
application and was never enacted into law. Though its
fundamental concern was with environmental considerations, it
stressed that these were only one factor to be taken into
account along with social and economic factors. The State
Pollution Control Commission, the Planning and Environment
49. For full discussion of the development of environmental laws and their conceptual and chronoligical evolution. See WHALAN, D.J., op. cit., note 5, pp.306-316.
50. STATE POLLUTION CONTROL COMMISSION Principles and Procedures for Environmental Impact Assessment in N.S.W. - S.P.C.C. Environmental Standard El - 4, * *issued under the authority of Sir John Fuller M.L.A. Minister for Planning and Environment,Government Printer, Sydney, October, 1974.
37
Commission, Local Government and other public authorities who
were "determining authorities" were charged with the
implementation of the document. Use was made of inquiries
and environmental impact statements in ensuring that matters
"significantly affecting the environment" were taken into
account in government decision making. One principle of
particular interest to the later analysis of conflict and
environmental politics, required development authorities to
demand an environmental impact statement where the. proposal
".... may generate significant public controversy".^
These principles were later replaced by Part V
of the Environmental Planning and Assessment Act 1979 and Part
IV regarding designated development. These Parts now provide
the basic macro thrust expanding the inputs required by the
law controlling land use in New South Wales. This orientation
provides for consideration of the interrelationship of the
various factors and interests important in resource
development. This formalisation of environmental inputs can
only be achieved to a limited extent, as factors such as: the
social and economic effect [s.90(1)(d)], and the public 51
51. Even the United States National EnvironmentalPolicy Act was limited in scope to "major Federal actions". For general discussion of this qualifications see ANDERSON, F. "N.E.P.A. in the Courts" as cited in KELLY, G. "Commonwealth Legislation Relating to Environmental Impact Statements", (1976) 50 A.L.J. 498. See also MARTIN, B. "Environmentalism and Electoralism" (1984) 14 Ecologist 110.
38
interest [s.90(l)(r)] must by nature involve subjective
assessment in individual cases.
With regard to environmental impact assessment
in Australia the comments of John Whitehouse provide an
interesting insight:
"Certainly in its early development in Australia, most attention was applied in the environmental impact assessment to impacts on the physical environment.However, as the technique has evolved in Australia greater attention is being given to social and economic considerations and the various trade-offs involved in holistic decision making. Any systems that fails to take account of the complete range of physical, social and economic considerations will be confined to a very narrow area of limited utility because of its inability to provide the source of final integrated advice." ^
It is here that the prevous comments surrounding
environmental politics and their influence become important.
9. ENVIRONMENTAL POLITICS. 52
For lack of a better term, 'environmental
politics' is used in this thesis to describe the involvement
of various parties in the allocation of public lands to
various uses. In fact, the distinction between environmental
politics and environmental law is not easy to discern in
regard to developing public resources. Environmental law
provides the framework within which environmental politics is
52. WHITEHOUSE, J.F. "Scope of Environmental ImpactAssessment: Public and Private Development", Paper to Environmental Law Association (N.S.W.) 17th August, 1984; See also WOOTTEN, J.H."Environmental Impact Assessments - Do they Work?" Paper, Third National Environmental Law Symposium, Adelaide, August, 1984.
39
practised. The close connection between the two is noted at
all levels of analysis. Politicians pass environmental laws
in response to political pressure from the electorate. Most
of the powers under them are in turn placed in the hands of
executive government or its delegates in the form of the
Government Agencies, Commissions, Statutory Authorities or
other Government Bodies. The ultimate responsibility for
decisions relating to the environment is, in this sense,
political.
Two levels of state involvement can be outlined.
Firstly, the establishment of general policy reflecting the
priorities of the democratically elected political party.
Secondly, at the more specific level, are the policies
developed by the various government agencies involved in the
implementation of environmental laws, for example, the
National Parks and Wildlife Service.
As with government agencies, individuals and
groups within a community have formed various attitudes with
respect to particular environmental issues. Usually these
reflect their personal interest in the outcome of the issue,
for example, employment, profit or recreation. Where this
situation exists the opinion of individuals may be termed
their 'environmental politics' on the question. The conflict
between preservation/conservation and development is usually
present. It must be stressed that "...practical
40
disagreements about environmental policy .are rarely simple
conflicts between growth and conservation. They are conflicts
about what to use, what to produce and how to pay for it -
conflicts between people competing in familiar ways for rival5 3values or shares of scarce resources".
This situation is further complicated by the
unstable nature of the 'environmental politics' of particular
groups and individuals. Policies and attitudes change quickly
according to changes in the vested interests of th‘e parties
involved.
The broader perspective on 'environmental
politics' is seen when the resolution of conflicting interests
is viewed at the societal level. The way society is organised
encourages group participation of individuals. A peripheral
effect of this is the standardising of individuals opinions
and priorities to reduce conflict which would otherwise be
unmanageable. In practice this trend is often seen in the
environmental field as many groups do not have any power or
desire to stop the terminological translation of their
sectional interests by those with power into the elusive and
ever changing 'public interest'. Conflict often remains
latent. In this way, 'consensus' is achieved through a
political decision imposed on the groups involved. Democracy 53
53. STRETTON, H. Capitalism Socialism and theEnvironment Cambridge University Press, London, 1976, p. 10.
41
asserts that in so doing the Government has acted in the
public interest. The institutionalisation of government power
in imposing a solution to resolve conflicting interests brings
into play the notion of political authority:
"Authority is power which is believed by the powerless to be justified. Conflict occurs to the degree that the authority has been unsuccessful".^
In the environmental arena in Australia and
most of the industrialised western world some questioning of
authority can be detected in the growing dissatisfaction with
the traditional justifications for development. Petitions,
demonstrations, objections under relevant laws and even court
actions provide evidence of this phenomenon.
The effectiveness of participation by any group
or individual within the environmental arena must ultimately
depend on the "power" of that participant. Power is the
medium of conflict. Environmental laws often control the
amount of power which any given participant in environmental
decision making may wield.
The political and legal systems represent the
main avenues for the institutionalisation of power.
Historically they have both been developed by man. Power
relationships are consequently expressed in these terms.lt is
difficult to infuse into these any respect or recognition of
the value of the natural environment per se. The new
environmental laws have modified traditional power 54
54. BAILEY, J., op. cit., note 28, p. 36.
42
allocations. Members of the public are i\ow recognised as
having varied powers regarding resource allocation. The
interested media and public has given extra political weight
to any sectional interest which can attract significant media
coverage to force into operation "band-aid" democracy.
Governments have increasingly found themselves in the
environmental arena facing powerful pro-or-anti-development
lobbies holding the moral support of large sections of the
media-educated public.
With the growing scarcity of resources,
conflicting priorities must become more frequent and more
volatile. Environmental law, in providing the regulatory
framework under which resources are developed, sets the ground
rules for the inter-play of sectional interests influencing
resource allocation.
Tor Hundloe's comments are of particular
relevance to this thesis:
"Diverse and conflicting views exist in society on the merits of preserving land, by setting it aside as national parks or other types of reserves or by using it in a sustainable manner. On the one side are those who believe land only has value if "developed". On the other side of those who want to leave natural environments relatively untouched. There are to be found extreme views on each side as well as those in the middle. It might be too much to expect that those with extreme views will be converted to a more reasonable attitude. One can only try".
55. HUNDLOE, T.J. "The Dollars and Sense of Preserving the Natural Environment", Paper, Second National Environmental Law Symposium, Melbourne, October, 1983, p.l.
43
Systems developed must produce balanced judgements taking into
account the various interests involved, in the resolution of
conflict. This is the task at hand for environmental law.
This thesis attempts to analyse the existing law
surrounding parks, reserves and recreation areas with this
task in mind. Here the interrelationship of environmental law
and environmental politics is viewed to shed light on the
common property rights of individuals in their public lands.
44
CHAPTER II.
PARKS, RESERVES AND RECREATION AREAS -
PUBLIC RECREATION AREAS
1. INTRODUCTION.
This Chapter has two aims. Firstly, to outline
why the topic - Parks, Reserves and Recreation Areas, was
chosen. Secondly, to provide a descriptive outline of the
various types of parks, reserves and recreation areas in New
South Wales and the various terms or titles used in relation
to them.
The task of delineating any area of
environmental law for legal analysis is a difficult one. A
topic must be broad enough to allow the analysis to have some
more general application while at the same time specific
enough to present relevant insights into the operation of the
law in practice.
The usage break up of the environment suggested
in the first chapter recommends itself for the purposes of
this paper.
Parks, reserves and recreation areas are one
particular use to which land may be allocated. As such one
resource value of land is recreation. The thesis does not
however, isolate this usage as its sole concern. The topic
45
"Public Recreation Areas" was not chosen as the usage
delineating the areas to be examined in this paper. To have
done so would have been to isolate analysis to the right of
the continuum. Recreation, as a resource value of land,
implies development, though with varying degrees of
environmental impact. "Parks, Reserves and Recreation Areas",
on the other hand, includes areas where preservation values
are paramount in decisions on usage allocation. Reservation
processes are applied to Crown (and private) land for a
variety of purposes. Recreation and conservation are the
purposes of particular interest to this thesis.
These uses have been selected for analysis for a
number of reasons. Given the interest of this paper in public
resource development, parks, reserves and recreation areas
provide a good example for analysis. In terms of monetary and
usage value these areas are of fundamental importance in the
overall resource value of public lands. Yet there has been no
overall analysis of these lands. They have long been created
and managed under a variety of unrelated statutes with some
macro orientated change occurring only recently. As such,
they will reflect old and new environmental laws, depending on
the response to the stimuli outlined in the first chapter.
The two perspectives put in that chapter - the shift to the
left on the continuum and the expansion of inputs to include
the assessment of the environmental and political dimensions,
are well exhibited in the area chosen for analysis.
Being in public ownership, parks, reserves and
46
recreation areas also provide an effective vehicle for the
review of environmental politics, in the sense discussed in
the first chapter. In decisions concerning their creation and
development the conflicting interests and rights of various
parties having divergent priorities, come sharply into
focus. It is hoped that the analysis of the conflict arising
from the interraction of those parties may point to some
underlying legal principles of more general application to
resource development and the public interest in general. If
the law is in a state of evolution with regard to the creation
of rights in the public to influence resource allocations on
the continuum, then public recreation areas represent an
important example for review.
The first chapter pointed to man's massive
capacity to destroy his natural landscapes. The permanence of
such modifications is well exhibited in modern urban
lands. Land is not as divisible or interchangeable or
reproducible as many economic resources are; its development
is very often irreversible. This is especially the case in
urban areas where deliberate distributions of open space for
public recreation areas are commonly made only once. This
initial allocation most often happens in the early stages of
the area's urban development. Once allocated for development,
the preservation/conservation value of an area is often
permanently precluded.
Allocation decisions on the continuum are often
only able to be made once. With urban development, demands
47
made upon the land set aside for parks, reserves and
recreation areas are increasingly being experienced by public
authorities exercising control. Economic growth has brought
drastic increases in the competition for varied land uses
among divergent sections of the 'public interest'. Along with
this increased demand for development of public lands is the
gradual shrinkage of the supply of these lands.
The rapid rise in demand for parks, reserves
and recreation areas from a societal viewpoint has been
precipitated by increasing leisure time and personal incomes
and the accompanying increase in the tensions of modern
life.56
The above demand and supply realities make the
expansion of the environmental and political inputs into the
decision making on the continuum regarding parks, reserves
and recreation areas imperative. The extent to which this has
occurred will be seen in Chapter 3 and 4 regarding the two
major examples examined - national parks and local
government/Crown land public reserves. "Parks, Reserves and
Recreation Areas in New South Wales" is a broad topic and
these examples are by far the most important for legal
analysis. National parks have been the subject of new
56. MICHIO, O.I., "The Role of National Parks inSocial and Economic Development Processes", Paper 8, Second World Conference on National Parks, USA,Sept., 1972, published for National Parks Centennial Commission by the International Union for Conservation of Nature and Natural Resources, Morges, Switzerland, 1974.
48
environmental laws. Local Government/Crown land public
reserves on the other hand, are governed by a number of old
environmental laws, badly in need of reform. The following
chapters look to the analysis of the law surrounding the
creation and development of these public recreation areas.
This chapter continues to review the descriptive
terms used for parks, reserves and recreation areas in New
South Wales. The various types are defined and their legal
status and control outlined. Though brief and mainly
descriptive the author feels that it is important to cover the
field before concentrating on national parks and public
reserves for recreation. These will be analysed in light of
the context outlined in Chapter 1. There is lack of written
material presenting an overview of the inception, control,
maintenance and development of these important areas of public
land. This chapter goes some little way towards correcting
this .
The analysis below will encompass both the legal
definition and, where possible, the various popular meanings
of the terms . The problem which appears obvious is the lack
of uniformity in the use of various titles or classifications
for individual parks, reserves or recreation areas. Various
government and non- government instrumentalities and
authorities exercise powers over individual areas. Often
classification problems initially arose from the ad hoc way in
which the various areas came into existence.
Added to this is the absence of any general
49
classification of parks, reserves and recreation areas based
on usage. The development of such an approach is further
aggravated by the growing shift towards management of many
areas under a "multiple use" approach. This is often very
difficult, given the conflicting nature of development and
preservation. A decision on the continuum must be taken in
regard to individual areas.
The number of different types of parks, reserves
and recreation areas which can be isolated points to the
problems in attempting any extensive usage classification at a
general level whether for New South Wales in particular or for
wider application. It is regrettable that in Australia,
there is no common form of nomenclature for the components of
the park spectrum. It is obvious that many people would
be "greatly assisted if a uniform system of classification57and nomenclature for parks was developed."
Some classifications have been attempted. These
usually reflect the specific purpose at hand and the
orientation of the body seeking to classify. An example here
would be the attempt by the Interim Committee on the National
Estate to identify and classify the various aspects of the
National Estate.^
57. GRAY, J.E. and CULLEN, P. Guidelines for the Management of Urban Park Systems, Management Aid No. 1, Australian Institute of Parks and Recreation, Northcote, p. 4.
58. REPORT OF THE INTERIM COMMITTEE ON THE NATIONAL ESTATE, Australian Government Publishing Service,Canberra, 1975. See Appendix B.
50
In consequence of classification problems, the
following list simply sets out the various terms which the
author has encountered in his research into the area.
2. NATIONAL PARKS.
Chapter III deals with New South Wales national
parks in detail. Below are some preliminary comments on the
concept and definition of national parks and Commonwealth
involvement.
Broadly the national parks concept states:
"Some areas of remarkable value are too special, too precious ever to be reduced to private ownership and exploitation, those areas should instead be retained for the enjoyment and inspiration of all people"-*^
The concept may be further elaborated by
reference to the 1969 meeting in New Delhi of the
International Commission of National Parks of the Union for
Conservation of Nature and Natural Resources, The Commission
worked for a long time to achieve a situation in which the
general assembly of the Union would agree to a text defining
the concept of national parks. This definition had five basic
conditions: extensive areas; outstanding contents; an
effective system of protection; creation and management by
59. PENFOLD, J.W. et. al., National Parks for theFuture, The Conservation Foundation, Washington D.C., 1973, p. 31.
51
the highest competent authority of the country and
authorisation of tourism.^
From a global perspective, the need to attempt a
definitional analysis and set out a series of basic standards
for national parks is necessary in order to ascertain which of
the world's so called national parks can be accepted as
such. It appears that many of those responsible for the
creation, preservation and development of national parks had,
consciously or unconsciously, adopted or acquiesced
in practices and standards in conflict with the national
park concepts outlined above. Dr Max Nicholson gives
some examples:
"A number of purely suburban parks in metropolitan areas have been glorified by the prefix "national". In other cases towns and villages, factories and farms, mines and timber plantations had been indiscriminately included within park boundaries. In many cases there is not only no management plans, but no adequate budget or trained staff."51
Some confusion exists as to the significance of
the prefix "national". The term would seem to imply that the
park displays features which are of more than local or even
regional or provincial importance. They are to be among the
best examples of their kind within the national territory and
60. UNITED NATIONS LIST OF NATIONAL PARKS AND EQUIVALENT RESERVES, International Union for Conservation of Nature and Natural Resources, Morges, Switzerland, 1975, p. 11.
61. NICHOLSON, E. MAX "What is wrong with the National Parks Movement?" Lesson 11, Paper 2 The Second World Conference on National Parks, op. cit., note 56, p. 34.
52
form a worthy contribution towards world heritage. In
Australia the power over most national parks resides in thecnState governments. L In the author's opinion this fact does
not deny their national significance, which is generally a
characteristic of New South Wales national parks.
Notwithstanding that the power with regard to
national parks remained in the States at Federation, the
Commonwealth Government has made legislative inroads into the 62
62. Much interest was shown in the Australianexperience (with eight governments involved in national parks), at the Sixteenth General Assembly of the International Union for the Conservation of Nature and Natural Resources (I.U.C.N.) held in Madrid, Spain, 5-14 November, 1984. The general feeling of I.U.C.N. members was that national control was essential if effective conservation is to occur. DAVIS, B., "Sixteenth General Assembly of I.U.C.N.", (1985), 2 E.P.L.J. 87, 88.
53
£ narea within the last decade. J Legal justification for these
relate to the external affairs power under s.51(29) of the
Contstitution, and the internal enforcement of international
obligations under Treaties and Conventions dealing with* i * f t Aenvironmental issues.
Other powers which appear relevant are:
63. Section 6(1) of the National Parks and Wildlife Conservation Act, 1975, (Commonwealth) points to the motivations behind the Commonwealth's involvement, when it outlines the Act's objects, in Part II - "Parks and Reserves":"6.(1) The object of this Part is to make
provision for the establishment of parks and reserves -
(a) appropriate to be established by the Australian Government, having regard to its status as a national government;
(b) in the Territories;
(c) in the Australian coastal sea;
(d) for the purposes related to therights(including sovereign rights) and obligations of Australia in relation to the continental shelf of Australia;
(e) for facilitating the carrying out by Australia of obligations under, or the exercise by Australia of rights under, agreements between Australia and other countries; or
(f) conducive to the encouragement of tourism between the states and between other countries and Australia;
and this Act shall be administered accordingly."
64. See Commonwealth v Tasmania (1983) 57 A.L.J.R. 450; 46 A.L.R. 625 and see generally BATES, G."The Tasmanian Dam Case and Its Significance in Environmental Law" (1984) 1 E.P.L.J. 325.
54
s .51(1) - trade and commerce with other countries; s. 51(x) -
fisheries in Australia waters beyond territorial limits;
s.51(xxxi) - the acquisition of property on just terms from
any State or person for any purpose in respect of which the
Parliament has power to make laws; the inherent power derived
from the character of the Commonwealth as a national
government - "the nationhood power";^ s.51(xxxix) - matters
incidental to the execution of powers vested in the Federal
Govenment.
Though strictly beyond the scope of this paper,
some brief comment regarding Commonwealth involvement in
national parks is appropriate in the interests of clarifying
the overall position of national parks in New South Wales.
In September 1973, Dr. Moss Cass, Minister for
the Environment and Conservation, announced the details of the
Labour Government's decision to establish an Australian
National Parks and Wildlife Commission and Service. This
decision sought to implement one of the major recommendations
of the report of the House of Representatives Select Committee
65. See BATES, G. Ibid, pp.330 - 331.
55
on Wildlife Conservation. During October, 1974 Dr. Cass
introduced into the Australian Parliament a Bill for a
"National Parks and Wildlife Conservation Act". In his second
reading speech, the Minister said:
"Despite the excellent initiatives taken in some States, our record in Australia has not been good. Since the arrival of the white man some five species of marsupial and several species of bird have been wiped out Many other species have been endangered. The area of our vast continent dedicated as parks and reserves is far from sufficient. Both the House of Representatives select Committee on Wildlife Conservation and the Committee of Inquiry into the National Estate have underlined the pressing need for action at various levels to rectify deficiencies in the system in this country."”7
The Act aimed at establishing a professional
service which the Australian Government could use to manage
nature conservation resources in the areas under its control
i.e., the Australian Capital Territory, the Northern Territory
and the external territories of Australia. The Act also
anticipated the creation of the Great Barrier Reef National
Park and other marine national parks.
In August 1977, the functions of the Australian
National Parks and Wildlife Service were redefined. In the new
Liberal Ministry, the portfolio was given to the Minister for
Environment, Housing and Community Development, then Kevin
66. AUSTRALIAN ENVIRONMENTAL REPORT, NO. 19-73, CCH, Sydney, 12 October, 1973, p. 425. It is also interesting to note that around this time (November, 1973) the Council of Nature Conservation Ministers was conceived with a view to developing national policies with regard to Wildlife and National Parks. 67
67. CASS, M. , as cited by PRINEAS, P. "Towards a National Parks System", The National Parks Journal, Sydney, Dec. 1974/Jan. 1975. p. 6.
56
Newman. He announced that the Service would become the
Commonwealth's main adviser on national conservation
policies. Among the responsibilities of the Service would be
the framing of national principles on wildlife and nature
protection. At the national level it was intended that the
Service would develop, research, survey, and provide inventory
and monitoring facilities for nature conservation
activities. The planning and operation of all parks and
reserves in the A.C.T. and Jervis Bay however, remained the68responsibility of the Minister for the Capital Territory.
To date no Commonwealth controlled national
parks have been established in any of the States, though there
may be some limited potential for doing so under international
treaties. In practice, the State National Parks Service will
usually approach the Australian National Parks and Wildlife
Service to get them to secure the listing of an area within
State control under the relevant treaty or convention, rather
than the Commonwealth taking independent action. At present
the Australian National Parks and Wildlife Service have three
national parks under their control - two in the Northern
Territory, Kakadu and Uluru (Ayers Rock - Mt. Olga) and the
Christmas Island Nature Reserves (all marine based, in thef. oCoral and Timor Seas).
68. AUSTRALIAN AND NEW ZEALAND ENVIRONMENT REPORT, * 69NO. 3. 16-77 CCH, Sydney, Aug 1977 , pp. 304-6;National Parks and Wildlife Conservation Act, 1975 (Com), s. 6(1) (c).
69. Inquiry, Commonwealth National Parks and Wildlife Service, Canberra, January, 1985.
57
With the negligible Commonwealth involvement
outlined above, the N.S.W. Government has the dominant role in
relation to national parks within state boundaries.
The National Parks and Wildlife Act, 1974
(N.S.W.) states, in s.5(l), that "national park means land
reserved as a national park under this Act". As a national
Park, in other words, they are simply lands reserved by the
Governor, through proclamation published in the gazette under
s.33 of the Act. By this process public lands are placed in
the care, control and management of the New South Wales
National Parks and Wildlife Service (N.P.W.S.). Section 8 (1)
of the Act states that the Director "shall consider and may
investigate . . . . proposals for the addition of areas to any
national park or the reservation of any new national park".
For the purpose of any such proposal, the Director shall have
regard to the principle that:
”the areas to be reserved as national parks are spacious areas containing unique or outstanding scenery or natural phenomena”(s. 8(2)(a))
Extensive examination of N.S.W. national parks will be
undertaken in the next chapter.
One further point is of importance to the
national park concept described in this chapter. In different
countries, decisions on the resource use of national parks are
at variance. In the United Kingdom, for example, by the time
the first national park was designated in 1950, vast areas of
virgin land were not available for allocation to this use.
Accordingly, spacious areas containing unique or outstanding
58
scenery or natural phenomena, such as the Peak District
National Park, were designated as national park despite the
inclusion of privately owned areas under agricultural
cultivation as well as surrounding hamlets.^
Some commentators have in fact pointed to
advantages of not reducing the park to public ownership.
Vincent states:
"These national parks should not be regarded as areas set apart from the rest of our countryside and' embalmed' , as it were, as museum pieces or given over to the public as large scale playgrounds; as indeed might be said to be the case in respect of the large national parks in the United States of America and in Canada. The normal life and economy of the areas which they cover remain unchanged, and the land does not become public property except perhaps for a few comparatively small areas which it may be found desirable to acquire, to ensure adequate public access to particular beauty spots or for such things as car parks. The designation of an area as a national park confers on the public no greater rights in the area than they possess already, and it is very important that this should be understood by the public and land owners alike.
In New South Wales, to date, such an approach
(very much to the right of the continuum) has not been taken,
with the National Parks and Wildlife Service preferring to
isolate areas of vacant Crown land more easily dedicated to
national parks. It is interesting to note however Bruce
Davis' comments concerning the 1984 I.U.C.N. Assembly, that:
70. ABRAHAMS, B. The History of National Parks, Ruteledge and Moore, London, 1959, pp. 11-17.
71. VINCENT, S. Lee "National Parks - Their Planning and Administration" as cited in NATIONAL TRUST Sydney 2000 - Requirements for Conservation of Natural Areas Scenic Preservation & Recreation, National Trust, Sydney, 1968, p. 10.
59
"There is also some concern about the current tendancy in several Australian States to weaken the national park concept by permitting grazing, mining, ski developments and holiday villages in unsuitable locations
This conflict concerning the type and amount of
development/use allowed within national parks boundaries is
reflected in the distinction between the terms "natural park"
and "national park". Natural park is a term often used in
Europe where, as in England, suitable virgin land was not
available for allocation to national parks. They represent a
political reaction to expanding social tourism and demand for
natural areas. Within them agriculture and forestry, hunting
and fishing can still be pursued. However further
urbanisation or industrialisation is banned. This conflict
will be further examined in the following chapter where it is
treated as a continuum/management decision once the national
park has been created. 72 73
72. DAVIS B. op. cit., note 62, p. 88.
73. Op. cit., note 61.
60
3. WILDERNESS AREAS
Unlike England and Europe, Australia has been
fortunate with its large land area and small population. A
wide range of environments have managed to escape the
axe,plough, fires and dynamite of modern man. A similar
situation exists in the United States and Canada. In
consequence, much discussion has centred around the setting
aside of wilderness areas in these countries.
Under the N.S.W. National Parks and Wildlife
Act, 1974, wilderness areas are defined in the same manner as
national parks - i.e. land declared to be a wilderness area
under the Act. Section 59 provides that, subject to s. 60, the
Director may, by notification published in the gazette,
declare any area of lands within a national park or nature
reserve to be a wilderness area. He also has power to
revoke such a declaration wholly or in part. The proviso in
s.60 ensures that where a management plan is in force in
respect of a particular national park or nature reserve ,"...a
declaration shall not be made under s.59 with respect to those
lands except in accordance with the plan". In practice, in
New South Wales, it is possible to 'create' a wilderness area
either by specific declaration under the Act, or by zoning and
management of an area within a national park as a
61
wiIderness.̂ The zoning approach using management
initiatives is the favoured approach.
The only New South Wales statutory pronouncement
as to what constitutes a wilderness area is set out in s.61 of
the Act. This section recognises the importance of the
absence of buildings (with minor exceptions) for maintaining
the area "in a wilderness condition" and that scientific
research should be possible in the area. There is, however,
no other statutory guidance about what should constitute a
"wilderness condition". This is left to management decisions
by the National Parks and Wildlife Service (N.P.W.S.) from
time to time. Various powers under the Act could be used to
enforce such management decisions.
Under s.155 the governor may make by-laws, inter
alia for:
"(n) the reservation of any portion of the park for such separate or exclusive use as the by-laws may prescribe;(o) the closing off or regulation, control or prohibition of entry of any person or class of person into, a park and to the conditions observed with regard thereto; ... (s) the regulation of the use of vehicles and the conditions under which they may be used in a park and the regulation, control or prohibition of the erection of buildings, marinas, structures, signs or other improvements in a park."
74. For general discussion of this see JOHNSTONE, I.M. "Wilderness and the Law - A Discussion Paper"Paper, Symposium/Workshop Wilderness Australia organised by R.W. Robertson et. al. of the Division of Natural Resources, School of Applied Science, Canberra College of Advanced Education, Belconnen, A.C.T., 20th to 23rd July, 1978.
62
It appears that no by-laws have been made
outlining any special provisions for wilderness areas.
Section 72 (4) does however provide that:
"In the preparation of a plan of management referred to in this section, regard shall be had to the following objectives:-....(c) the prohibition of the execution of any works
adversely effecting the natural condition or special features of each national park or nature reserve;....(j) the setting apart of the whole or part of a
national park or nature reserve as a wilderness area; . ."
Some insight into New South Wales wilderness
areas can be gained by comparison to the former Kosciusko
National Park Plan of Management (August 1974) with the
current one.
Under the previous plan, four major wilderness
areas were provided for within the national park. The
management plan stated:
"For the purposes of this plan wilderness areas are defined as large tracts where man's disturbance has been minimal and the landscape and vegetation is essentially in a natural condition, supporting the harmonious balance of wildlife population. The principle management aim in these areas is to preserve the natural environment in accordance with the National Parks and Wildlife Act 1967".75
Except for management purposes authorised by the Act, no
development was permitted under this plan other than walking
tracks, signs, tents, survival huts and essential track
markers and snow poles. Further, some existing developments
such as service trails, power lines, hydro electric
installations, gauging stations and other huts were to be
75. JOHNSTONE, I.M., Ibid, p. 5.
63
removed when they were no longer required. Prohibited
activities, except for management purposes, included the use
of mechanised forms of transport including power boats, the
construction of and/or use of further pipelines, public
vehicular roads, power lines, communication systems
equipment, and grazing of domestic and ferile livestock.
When necessary to prevent environmental damage,
controls would be exercised restricting the frequency and/or
numbers of walking, fishing , camping or riding parties on any
particular track or location.
This same plan of management also referred to
’’natural areas",which appearred to be a less stringent form of
the wilderness area. They differred from wilderness areas in
that they can include public roads, interpretive signs,
survival huts, safety fences, parking areas, water supplies,
public toilets, road-side viewing points, organised camping
and picnic sights, boat launching ramps and similar ancillary
facilities. Furthermore, within them, existing developments
such as power lines and hydro-electric installations were
allowed to remain, although new development other than that
required for park management purposes or the Snowy Mountain1 f\Hydro Scheme, was not be permitted. °
Johnston notes that in New South Wales, the
National Parks and Wildlife Service started to use the term
"natural area" where previously it referred to "wilderness 76
76. Ibid, pp. 3-6.
64
area" in its plans of management for national parks and nature
reserves. It seems that this change had only been made to
remove the confusion surrounding the word "wilderness".̂
The current Kosciusko National Park Plan of
Management isolates various "wilderness management areas" to
the left of the continuum. It states:
"Wilderness is a cultural concept and is difficult or impossible to define to the satisfaction of everyone. The most common themes running through the many different ideas of wilderness in the Australian community are:-* solitude in a natural setting* perception of isolation from habitation* perception of spaciousness;* perception of landscape and ecosystems that are
relatively undisturbed by man-made intrusions;* recreation in a relatively large expanse of
undeveloped country;* preservation of plant and animal communities,
landforms, and other features;* scientific research into natural features and
environmental processes;* absence of mechanised transport;These concepts of wilderness fall into two broad categories:
nature conservation and scientific research; perception of isolation in natural landscapes and ecosystems, and various kinds of dispersed recreation in such a setting.
For the purposes of this plan the term "wildernessmanagement area" is used to describe the second category .
ii 7o
The term "wilderness" thus envisages the
experience of this naturalness by man - i.e. the wilderness
experience. This is a recreation value of the land and per se
77. Ibid , p. 6.
78. NATIONAL PARKS AND WILDLIFE SERVICE, Kosciusko National Park - Plan of Management, N.P.W.S., Sydney, 1982, p. 49.
65
to the right of the continuum. An area preserved in its
natural state is usually seen as a decision to the left of the
continuum - preservation. In this sense wilderness - natural
areas should present the minimum conflict for continuum
decision making as it lacks the mutual exclusiveness of uses
often prevalent in environmental decision making. The plan
goes on to note that areas managed for wilderness recreation
opportunities on the one hand and nature conservation values
on the other can overlap, but chances to provide for both do79not always coincide. Thus the plan also provides for areas
with "Management of natural values", "Management of special
scientific values" and "Management of outstanding natural
resources" .̂
The Commonwealth National Parks and Wildlife
Conservation Act, 1975 follows similar initiatives to the New
South Wales legislation with management practice control
rather than reservation or dedication of specific wilderness
79. Ibid, p. 50.
80. Ibid.
66
areas, as is the case in the United States. 81
81. Some overseas jurisdictions provide a usefulinsight into the concept of wilderness. The U.S. Wilderness Act, 1964 states:
"A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognised as an area where the earth and its community of life are untrammelled by man, where man himself is a visitor who does not remain."
An area of wilderness is further defined in the Act, as:
"An area of undeveloped Federal land retaining its primeval character and influence, without permanent improvement or human habitation, which is protected and managed so as to preserve its natural conditions and which:(i) generally appears to have been
affected primarily by the forces of nature with the imprint of man's work substantially unnoticeable;
(ii) has outstanding opportunities for solitude or a primitive and unconfined recreation;
(iii) has at least 5,000 acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition;
(iv) may also contain ecological, geological, or other features of scientific, educational, scenic or historic value".
JUDGE, J., "America's Wilderness: How much can wesave?" National Geographic, Feb., 1975.
The Canadian legislation provides a more detailed classification of national park and wildernessareas. A five class zoning system is used:(i) special areas,(ii) wilderness recreation areas 3
( iii) natural environment areas,(iv) general outdoor recreation areas, and(v) intensive use areas.
Wilderness recreation areas are defined as "natural zones where hiking, canoeing, nature observation, horseback riding, viewing and fishing are allowed as well as wilderness camp sites". Natural environment areas on the other hand are "natural zones with some modifications by man" and in those areas swimming, boating, picnicking,
67
Section 7 (2) of the Commonwealth Act provides that the
Governor-General may "...declare the whole or any specified
part of the park or reserve to be a wilderness zone". Similar
sections to the N.S.W. legislation covering amendments and
revocation, zoning and management plans are contained in the
Commonwealth legislation. As noted however, this legislation
has no practical operation in New South Wales.
There has been some discussion of the necessity
of a Wilderness Act for Australia similar to the 1964 U.S.
Wilderness Act. Such moves suggest that wilderness is a
matter requiring separate legislation from that covering
national parks. This approach has not been adopted and
wilderness areas are a management function of the National8 9Parks and Wildlife Service m New South Wales. Work has
camping, riding, viewing and fishing are allowed as well as "semi-serviced camping grounds, and picnic sites".KETTLE, D.H.C. "The Planning Process in the National Parks of Canada" as cited by JOHNSTONE, I.M. op. cit., note 74, p. 15. 82
82. The National Parks and Wildlife Act, 1974,(N.S.W.) is an expansion of the 1967 National Park and Wildlife Act, which only briefly mentioned wilderness areas. Section 29 of that Act simply provided that in the preparation of management plans regard shall be had to the "setting apart of the whole or part of a National park or State park as a wilderness area" (s. 29(3)(f)).
68
begun however on a project to establish an Australian national8 8system of wilderness reserves.
4. NATURE RESERVE.
Unlike wilderness areas, nature reserves are
given legal status under the National Parks and Wildlife Act,
1974 (N.S.W.). They may be dedicated by proclamation of the
Governor and publication in the gazette under s.49 (1) and
(2). As the name implies, they are areas set aside for nature
conservation with their care, control and mangement vested in
the Director of the National Parks and Wildlife Service.
Section 49 (3) gives a true indication of the
character of a nature reserve where it states that they shall
be deemed to be dedicated for the purposes of -
"a) the care, propagation,preservation and conservation of wildlife;
b) the care, preservation, and conservation of natural environments and natural phenomena;
c) the study of wildlife, natural environments and natural phenomena; and
d) the promotion of appreciation and enjoyment of wildlife, natural environments, and natural phenomena."
Nature reserves are very tightly controlled
areas which may exist in a national park or separately. They
can only be resumed or appropriated by Act of Parliament
(s.52(l)). Management plans closely follow the purposes 83 *
83. DAVIS, B. "A Wilderness Reserve System forAustralia's Bicentenary" (1984), 1 E.P.L.J. 194. THOMPSON, J. "Australia - Proposed Wilderness Preservation Act", Environmental Law Reporter S0042, S0047.
69
outlined in s.49 and strict provisions are contained in the
National Parks and Wildlife Act in respect of killing animals
and the taking of vegetation, timber and plants, within
them.84
From the perspective of resource development it
is interesting to note that, despite the strict requirements
outlined above, s.54 (3) of the Act previously allowed mining
interests to be granted in respect of lands within a nature
reserve, subject to the concurrence of the Director of the
National Parks and Wildlife Service and any conditions
imposed. The National Parks and Wildlife (Amendment) Act,
1983, Schedule 3, Clause 16 repealed s. 54 and made s.41 of
the Act (mining provisions) applicable to nature reserves, as
it is to national parks and historic sites. An Act of
Parliament is now required for the granting of a mining
interest. This section will be further discussed in the85following chapter.
In relation to forestry resources, s.55 suspends
the operations of the Forestry Act and new licences cannot be
granted in respect of lands within a nature reserve. Any
licences or permits, however, which were in existence at the
time of dedication of the nature reserve do continue until
they expire or are cancelled (s.55(2)).
84. National Parks and Wildlife Act, 1974 (N.S.W.) ss.56, 57. It should be noted here that s. 52, covering the revocation and resumption of nature reserves, requires an Act of Parliament. 85
85. See pp. 166-175.
70
Nature reserves fill an essential role in the
national parks system of N.S.W. by providing samples of
natural plant and animal communities and of natural phenomena
essential for the purposes of scientific and educational
reference. Management practices aim at maximising the value
of the area for these purposes. Of secondary interest is
provision for low density passive recreation aimed at the
appreciation of naturalness. As at June, 1984 there were 166Q £
nature reserves in N.S.W. totalling 490,974 hectares.
5. STATE GAME RESERVE
These areas were established by initiatives
introduced in the National Parks & Wildlife (Amendment) Act,
1983. Under the new s.58A(l) the Governor may, by
proclamation, published in the Gazette, dedicate any Crown
land or lands acquired under sections 145, 146 or 147 of Part
XI - "Acquisition and Disposal of Property", of the National
Parks and Wildlife Act 1974, as a state game reserve. Such
lands under s .58A(3) are dedicated for the purposes of:
"(a) the care, preservation and conservation of natural environments and natural phenomena;(b) the study of wildlife, natural environments and natural phenomena;(c) the promoting of the appreciation and enjoyment of wildlife, natural environments and natural phenomena;
86. NATIONAL PARKS & WILDLIFE SERVICE Annual Report 1983-84, Government Printer, Sydney, 1985, p. 72.
71
(d) the propogation of fauna for taking or killing as game; and(e) the provision of suitable land for the taking or killing of fauna as game."
Their dedication, from Crown lands or lands acquired under ss.
145, 147, 148 can only be by Act of Parliament. Similarly any
appropriation or resumption requires an Act of Parliament
(s.58l). Mining is again to be dealt with under s.41 and
forestry operations prevented subject to existing licences
until they expire or are cancelled (s.56G).
6. WILDLIFE DISTRICTS, WILDLIFE REFUGES AND WILDLIFE
MANAGEMENT AREAS
These areas are outlined in ss.67-71 of the
National Parks and Wildlife Act, 1974 (N.S.W.). They extend
the powers of the N.P.W.S. over rural areas where the Service
does not have legal title over the land. Regulations deal
with the taking of flora or the taking or killing of fauna in
areas other than those within a state forest, timber reserve
or flora reserve. Any N.P.W.S. action in these three areas
requires the consent of the Forestry Commission.
Wildlife districts are dealt with in s.67 of the
Act. This allows the N.P.W.S. under a proclamation of the
Governor, to control periods or conditions relating to taking
of fauna or killing of wildlife within any area proclaimed as
a wildlife district.
72
The role of wildlife refuges receives more
detailed treatment in s.68 (2). This sets out thieir aims of:
"a) preserving, conserving, propagating and studying wildlife;b) conserving and studying natural environments;c) creating simulated natural environments."
Wildlife refuges reflect cooperation between
private landholders and the National Parks and Wildlife
Service to conserve native wildlife. Of them, the 1982-83
National Parks and Wildlife Service Report states:
"The refuges complement the nature conservation activities carried out in national parks and nature reserves, and some form wildlife corridors between these parks and reserves. Other refuges may provide an educational asset for the local community where students can survey native flora and fauna and improve their understanding of the relationship between native plants and animals, livestock and people." ^
The main problem with these areas obviously arises from their
potentially limited tenure. A proclamation of an area as a
wildlife refuge has few direct benefits for the landholder.
It can only be proclaimed with his consent and it can be
revoked at will by him or an incoming purchaser. Thus
permanent conservation of valuable wildlife habitats in
privately held lands is impossible. The National Parks and
Wildlife Service is currently reviewing this situation with
the South Australian Heritage Act, 1980, in mind. This
provides for agreements which run with the title of the land. 87
87. NATIONAL PARKS AND WILDLIFE SERVICE, Annual Report 1982-83, Government Printer, Sydney, 1984, p. 12.
73
Notwithstanding these problems, in 1983-84 the
number of wildlife refuges in New South Wales increased from
429 to 435 covering 1,574,440 hectares.^
’’Wildlife management area" was a term introduced
by the 1983 Amendment Act. Previously they were termed "game
reserves" and management is more directed toward propogating
fauna for taking or killing. They are subject to the similar
provisions to those applying to wildlife districts. As at
June 1984 there were some 34 covering some 371, 361
hectares .̂
These three classifications allow the National
Parks and Wildlife Service to extend its control over
privately owned lands. Many farmers and graziers have taken
the opportunity presented by these classifications to put
forward their land for these public purposes. Like the
English national or natural parks they also afford the
opportunity of allowing land to be managed for both production
and conservation. 88 89
88. Op. Cit., note 86, p. 78.
89. Ibid. Many of these areas are farms in the Riverina where large dams provide a habitat for ducks which can be hunted during specified seasons. With private ownership management is apparently very difficult. Interview with GEOFF CAHILL, National Parks and Wildlife Service (N.S.W.), 29/4/85.
74
7. PROTECTED ARCHAEOLOGICAL AREAS.
Under s.65 (1) of the National Parks and
Wildlife Act, 1974 the Minister may, by order published in the
gazette, declare any lands on which a relic or Aboriginal
place is situated to be a protected archaeological area. They
are declared with the consent of the owner or occupier of the
land on which they occur. They cannot be made in respect of
unoccupied crown land (s.65(2)(a)) and if occupied consent of
the occupier is required. The Director may, under s.66, give
directions prohibiting or regulating the entry onto and the
use of such lands by specified persons or classes of persons.
They may be made available for public inspection with the
consent of the owner subject to conditions designed to protect
the relics they contain.
8. ABORIGINAL AREAS.
Under s.62 (1) the Governor may, with the
concurrence of the Minister administering the Crown Lands
Consolidation Act, 1913, by proclamation published in the
gazette, dedicate as an Aboriginal area, any unoccupied Crown
land. The Governor also has power under s.62(3) to revoke
the whole or part of any such dedication.
The purpose of such areas is to preserve,
protect and prevent damage to Aboriginal places or relics
thereon. The Director of the N.P.W.S. is once again charged
75
with the care, control and management of these areas for the
purposes outlined. There were eight of these areas totalling
87 hectares as at 30th June, 1983.^
9. HISTORIC SITES.
The final areas under the control and management
of the National Parks and Wildlife Service are historic
sites. These are areas of historical significance to
Australia. They are treated in ss.31-48 of the National Parks
and Wildlife Act, 1974. Again the process of reservation is
by proclamation of the Governor in the gazette.
As with national parks, s.40 requires that no
land within the historic site be sold, leased or otherwise
dealt with except as provided for in the Act. The dedication
of an historic site does not however effect any "existing
interests" (any authority, authorisation, permit, lease,
licence or occupancy), unless this is specifically referred to
in the Act or the conditions of reservation. As in the case
of nature reserves,mining permissions (under s.41) are subject
to tabling before both Houses of Parliament.
At the 30th June 1984 there were 13 historic91sites with a total area of 2873 hectares.
90. Ibid.
91. Ibid p. 73.
76
10. STATE FORESTS.
Under the Forestry Act 1916, s.4, a "State
forest" means "any land dedicated under this Act or under the
Act hereby repealed, as a State forest." State forests may be
dedicated by the Governor under s.18(1) of the Forestry Act,
1916 and their care, control and management is vested in the
Forestry Commission of New South Wales. The Forestry Act
itself is an old environmental law directed towards the
exploitation of the timber resource The process of
dedication is similarly an old legal method of alienating
Crown land to specific uses. Arguably,State Forests should not
even be included as parks, reserves or recreation areas.
In 1972 the objects of the Forestry
Commission were amended, with the addition of s.8A to include
the use of State forests and flora reserves for the promotion
and encouragement of recreation and the conservation of birds
and animals, and generally the preservation and enhancement of92the quality of the environment. This attempts to introduce
a macro approach into the resource use. Since this time the
Commission has pursued an active policy encouraging various
forms of recreation within State forests. This is sufficient
justification for including the areas in this analysis.
92. Amended by Act No. 61 of 1972.
77
The multiple use approach is well reflected in
the Forestry Commissions Research Note 47 - Forest
Preservation in State Forests of New South Wales. In the
discussion of forestry uses it states:
"To a large extent these various uses of the forest, other than those involving clearing the forest cover away, are compatible with each other. An area of forest, carefully managed for the sustained production of timber, will continue to beautify the landscape, allow for recreational relaxation and enjoyment, shelter wildlife, protect local catchments, . . "
The move to multiple use of the State's forests
reflects the public resource allocation trends outlined in the
previous chapter. It is a clear departure from the objectives
of the Forestry Commission of New South Wales when it was
established by Act of Parliament in 1916. Then its objectives
were firmly aimed at the management of forest areas for the94production of timber. 93
93. BAUR, G. Forest Preservation in State Forests of N.S.W., Forestry Commission of N.S.W., Research Note 47, Sydney, 1981, p. 7.
94. Ibid, p. 8.
78
11. NATIONAL FORESTS.
Under S.19A of the Forestry Act, 1916 the
Governor is given power to declare that any State forest or
part thereof shall be a national forest. Although in the past
areas have been so established, there appears to be no
information indicating the current significance of such a
classification. Section 19 deals with the revocation of a
State forest. This does not apply or extend to a national
forest. The declaration cannot be revoked other than by Act
of Parliament. The original motivation behind these areas was
to give the lands so dedicated some further security for
forestry usuage in comparison to State forests, which can be
revoked by merely being tabled before Parliament. The current
Forestry Commission policies clearly indicate management for9 5foes try-1imber uses in areas so dedicated.
12. TIMBER RESERVES. * 95
The process of reservation of Crown land for
timber uses is contained in s.22 of the Forestry Act 1916.
The Governor may by notice in the gazette on the
recommendation of the Minister, with the concurrence of the
95. In the Terania Creek dispute in northern New South Wales the area had been declared a National Forest. The Forestry Commission established a management policy supporting logging in the area. See text pp. 150-151.
79
Secretary of Lands,temporarily reserve from sale any Crown
land as a timber reserve. It appears however, that such a
dedication is for purposes concerned with the exploitation of
the area and the granting of leases and licenses for various
activities. Timber reserves have some recreational value and
usage. This has increased with off road recreational vehicles
and the expansion of the management objectives with increasing
recognition of the conservation and recreation value of96publicly owned forests.
13. FLORA RESERVES AND FOREST PRESERVES 97
Another area managed by the Forestry Commission relevant to
this analysis the flora reserve, again under the Forestry Act,971916. Dedication powers are outlined in s.25A. The
Governor can dedicate Crown lands or set apart the whole or a
portion of a State forest as a flora reserve for the
preservation of native flora. Such a dedication could be
limited so as to exclude any land below the surface of the
specified land. Once dedicated, the Commission is obligated
to draw up a "written scheme of operations" (s.25A (5)(a))
and no operation shall be undertaken in relation to the
reserve unless it is in accordance with the working plan. The
working plan may also contain provisions authorising the local
96. See s. 8A, Forestry Act, 1913 and p. 76.
97. Introduced by Act No. 35 of 1935.
80
council to participate in the working plan and management of
the reserve.
Though the ability to set aside flora reserves
was established in 1935 by amendment to the Forestry Act,
1916, little use was made of the powers for many years. Two
areas were notified as flora reserves and a third set aside
but not gazetted prior to World War II. A fourth was notified
in 1951. All were sites where the emphasis in preservation9 8was for scenic and recreation values.
In 1965 the Commission decided to introduce a
specific Native Forest Preservation Programme. This sought to
organise and rationalise previous, rather spasmodic
initiatives, setting aside areas because of their scenic,QQscientific or recreational values.
This programme represented a shift to the left
of the continuum. Its aims related to research, scientific
study and preservation of undisturbed or little disturbed
examples of forests, thus maintaining a yardstick for
comparison of the effects of subsequent land utilisation and
managment.
The programme is still in operation. The
initiatives are management orientated with areas classified
initially as forest preserves. It is important to note that 98 *
98. BA UR G.^op. cit., note 93, p. 8.
99 . Ibid.
100. Ibid.
81
the tenure has no legislative backing, though they are often
subsequently notified as flora reserves.^^
Similarly some areas set aside for scenic or
recreational purposes may also ultimately be notified as
flora reserves, though apparently this is not usual. More
commonly local forest management plans classify such areas asi n t"special emphasis areas".iUJ In fact, a number of forest
preserves have been rejected for conversion to flora reserves
due to their main value being for recreational use. In
reserves where a high level of recreational use is expected an
Advisory Committee with nominees representing local bodies is
cerated to assist in their management.
The main features of the future management for
flora reserves are listed in the working plan prepared for
each reserve. The conservation orientation of many of these
features have been outlined by the Commission:
'** Complete protection of native flora and fauna, except for limited collection or trapping in the course of bona fide scientific studies specifically approved by the Forestry Commission.
* No logging or other similar operations within the reserve,and the very careful performance of any such operations outside, but adjacent to, the reserve.
* As far as practicable the elimination of grazing by domestic stock in reserves.
101. Ibid, p. 9. From 1965-1981 of some 177 forest preserve proposals 133 were accepted. Of these 34 have proceeded to formal notification as Flora Reserves. 102
102. Ibid, p. 9.
103. Ibid.
82
* Prohibition on soil or rock removal and efforts to have the reserve removed from the provisions of the Mining Acts.
* No further road construction through the reserve, or else a clear and limited definition of what further roading will be permitted."^^
Finally, on forest preserves and flora reserves,
it must be emphasised that they are often transitory. As
noted, preserves can be eliminated or dedicated by
notification as reserves. Flora reserves can be revoked by
Act of Parliament (s. 25A(4)). In recent times this has often
occurred due to the inclusion of the area in a national
park.* 104 105 * * *
14. STATE RECREATION AREAS.
State recreation areas (S.R.A.'s) were
established to fill what was considered by the N.S.W.
government to be a significant omission from the park
spectrum. The need was for " . . . parks designed
specifically for recreation purposes, which will serve a
104. Ibid, p . 15.
105. For example, from 1981-1984 five flora reserves in the Casino region were revoked all for subsequent inclusion in a national park.FORESTRY COMMISSION OF N.S.W. Native Forest ,Forestry Commission of N.S.W., Sydney, 1984,p. 4.
83
regional community and which will also attract tourists from
other regions. MJ-uo The government was seeking to provide the
opportunity for a predominately urban society to engage in
many and varied recreational experiences in an outdoor
environment.^ ^
State recreation areas also have the beneficial
side effect of helping to alleviate the recreational pressures
presently posing conservation problems for national parks.
This has in fact become a stated aim for these areas since the
National Parks and Wildlife Service has taken over
responsibility for them, in accordance with the provisions of
the National Parks and Wildlife (Amendment) Act, 1983.^^
The legislative roots of State recreation areas
were in the Crown Land and Other Acts (Reserves) Amendment Act 1 DQ1974. Under this, a new Part IIIA, "State recreation
areas", of the Crown Lands Consolidation Act 1913 was
introduced. Under s.37B reservation processes could
permanently allocate Crown land as a State recreation area for
the purpose of public recreation and enjoyment (s.37B(l)).
106. DEPARTMENT OF LANDS (N.S.W.), State Recreation Areas, undated pamphlet, p. 1.
107. Ibid.
108. NATIONAL PARKS and WILDLIFE SERVICE Annual Report, 1982-83, op. cit., note 87, p. 46. 109 *
109. Act No. 37 of 1974, amending the Crown LandsConsolidation Act, 1913.
84
This reservation was to be laid before both Houses of
Parliament and could be disallowed.^ ^
Four types of State recreation areas have been
identified119(i) coastline areas.
1 1 O(ii) water storage areas.
(iii) river valley areas.^^
(iv) general or specific interest areas^^
The criteria originally established to determine the
suitability of a particular site for a State recreation area
were:-
(i) optimum development required, beyond the scope of
finance or powers of local council;
(ii) large areas in natural settings with the capacity for
intensive recreational use in part;
110. Section 37C.
111. NEW SOUTH WALES DEPARTMENT OF LANDS op. cit., note 106, p. 1.
112. Four areas exist in this category located at widely separated points along the coast from Merimbula (Bournda) in the south to Kempsey (Ceraboon) in the north. NATIONAL PARKS AND WILDLIFE SERVICE, 1982-83 Annual Report, op. cit., note 87, p. 46.
113. There are seven areas in this category, all located in central New South Wales - Ibid.
114. There are five areas in this category, all in the Sydney region. Ibid. 115 * *
115. Two of these areas exist, one in the southerntablelands and one along the IllawarraEscarpment. Ibid.
85
(iii) attractive features or areas of particular interest
with emphasis on water settings.'*'^
These have changed little with National Parks
and Wildlife Service management but have been expanded with
the inclusion of an additional factor: ". . it should
contain resources to provide for recreational use, but also be• 117able to serve other compatible uses".
Resource development in State recreation areas
was previously treated in s.37E of the Crown Lands
Consolidation Act, 1913. Under this, the reservation of lands
as a State recreation area did not affect the terms and
conditions of any authority, or permit given by the Crown
or trustees under the Act, or the terms and conditions of
certain leases under the Coal Mining Act. However, no such
authority or lease could be renewed or extended (with some
renewal exceptions). Mining interests were granted in
respect of these lands only with the written consent of the
Minister for Lands. The Forestry Act 1916, however, did
not apply to land in a State recreation area except for119existing leases and licences. Easements could be granted
over State recreation areas by the Minister under s.37J.
116. Op. cit. note 106.
117. National Parks and Wildlife Annual Report 1982- * 11983, op. cit., note 87, p. 46.
118. Section 37G.
119 . Section 37H.
86
State recreation areas were previously
controlled and managed on behalf of the Minister for Lands by
trusts comprising members of the local community and
representatives of the concerned government and local
government authorities (s.37D). The trusts were provided with
funds by the government for management and development
purposes. The technical resources of the Department
of Lands were also made available. In the trust's day-to-day
activities a government-established ranger service performed
many of the management duties. The rangers were actually
employees of the Department of Lands seconded to the various
trusts. They acted as executive officers of the park and were
responsible for its day to day management, supervision of120public use, control of park workers and so on.
This situation has changed with State recreation
areas being removed from the portfolio of the Minister of
Lands, put in the portfolio of the Minister for Environment
and Planning and placed under control of the National Parks121 .and Wildlife Service. The purposes and principles outlined
above, however, still remain valid, the major change being
the substitution of the Department of Lands, its Minister
and officers, by the Minister for Environment and Planning
and the National Parks and Wildlife Service. The trusts are
120. Interview with JOHN McNEILY, Lands Department,Land Resource and Environment Section, 23/10/80. 121
121. In the opinion of most observers, a commendable decision. See National Parks and Wildlife (Amendment) Act, 1983, No. 183 of 1983.
87
still responsible to the new Minister for the care, control
and management of its own park. As corporate bodies they
control their own finances and are able to enter into leasing123arrangements, with Ministerial consent.
The relevant legislation dealing with State
recreation areas is now found in the National Parks and
Wildlife (Amendment) Act, 1983. Under this, a new Division 1A
- "State recreation areas" - ss. 47A-N and Schedule 9A -
"Management of State recreation areas by Trustees",- were added
to the National Parks and Wildlife Act, 1974.
Section 8(2) of the National Parks & Wildlife
Act refers to the principles the Director shall have regard to
in any proposals concerning areas for national parks, historic
sites, nature reserves or Aboriginal areas. This was amended
to include:
"(bl) the areas to be reserved as State recreation areasare areas containing features of regional recreationalsignificance in a natural setting and which are capableof providing a range of recreational opportunitieswithout detriment to the natural environment or cultural
1 94significance of the areas 122 123 124
122. See Schedule 9A(s.47N(2)) National Parks and Wildlife (Amendment) Act, 1983, No. 183 of 1983.
123. Section 47(N)(8).
124. Act No. 183, 1983 Schedule 2, cl. 4(c).
88
Procedures for establishment are now outlined in
s.47B which allows the Minister, by publication in the
Gazette, to any reserve prescribed lands for the purpose of1 2 S
"public recreation and enjoyment" (s. 47B(1)). J Upon
publication, the previous trustees under Part IIIB of the
Crown Lands Consolidation Act, 1913, cease to hold office
(s.47B(2)(a)) and are reappointed trustees (s.47B(2)(b)).
Notifications under s.47B are to be laid before each House of
Parliament (s,147D). Parliament can disallow the
reservation. Revocation, reappropriation or resumption of
State recreation areas can only be carried out under s.47L.
This requires Ministerial notification in the Gazette and the
laying of this before both Houses of Parliament, which have
the power to disallow the proposal.
With regard to development within State
recreation areas s. 47J now deals with mining. This allows
mining with Minister ial concurrence. Fores try is not
permitted, with s.47K adopting s.42 of the National Parks and
Wildlife Act 1974. Leases and licences are dealt with by
trustees appointed under s.47N(2). Ministerial consent is
required for leases and mortgages (s.47N(15)) though no
indication is seen of the purposes for which such leases may
be given, other than a resolution passed by the trustees that 125
125. These lands which can be reserved are Crown lands, reserves under Part IIIB of the Crown Lands Consolidation Act, 1913 and lands acquired under ss.145, 147 and 148 of the National Parks and Wildlife Act.
89
it is desirable to lease (or mortgage). This is a carbon copy
of the original provisions in the Crown Lands Consolidation
Act, 1913, S.37KK (see Chapter 5 on Crown land reserves).
Temporary licences may however, be given for grazing or
prescribed purposes without Ministerial consent (s.47N(19)).
The National Parks and Wildlife Service aims to
prepare a plan of management for each State recreation area to
ensure effective future management and development of them.
Public participation in the planning processes surrounding1 9 Athese initiatives will be invited. This has in fact
occurred with the current review of considerable public
comment and written submissions by the Service and the Trust127m regard to three draft Management plans.
In June 1984 there were 18 State recreation
areas in New South Wales with areas totalling 18,296128hectares. 126 127 128
126. NATIONAL PARKS AND WILDLIFE SERVICE Annual Report 1982-83 op. cit., note 87, p. 48.
127. Op. cit., note 86, p. 70.
128. Ibid.
90
15. AQUATIC RESERVES
These are reserves set up to protect all inter
tidal marine life from bait and food gatherers and other
collectors. They are set up under the 1979 amendment to the1 9QFisheries and Oyster Farms Act,1935, N.S.W. To date, six
130such reserves have been declared m N.S.W. under S.16A.
This process involves notification in the Government
Gazette. The taking of all animal life by hand, trap or any
similar device is prohibited in the reserves, from the high
water mark to one hundred metres off shore. Anglers and spear
fishermen however, are still allowed to fish within
reserves. Anglers must bring their own bait as they are no
longer allowed to gather bait such as rock crabs or ■ 131Cungevli. The Fisheries Department is presently
investigating 30 other sites in N.S.W. as marine reserves.
129. Fisheries and Oyster Farms (Amendment) Act, 1979, No. 112 of 1979. See Schedule 2(11).
130. These are at Long Reef, Sydney; Manly - North Harbour, Sydney, Shell Harbour, Wollongong; Port Hacking; Port Stephens; Byron Bay and an unusual reserve which forms an extension of Boudi National Park, North Coast. Interview with Mr.G. CARTER, Legal Section, Department of Agriculture, 20th October, 1984. 131
131. The regulations under the Fisheries and Oyster Farms Acts, 1935, cover management, protection and development. For examples, the Fisheries and Oyster Farms (Fly Point - Halifax Park Acquatic Reserve) Regulation, 1982.
91
16. PUBLIC RESERVES.
The term "public reserve" implies a reservation
process by which land is allocated to some public purpose. In
its use, however, the term is seen to apply to various areas
of public land whether dedicated, reserved or simply used for
public reserve purposes. The areas to which this title is
applied both at law and through common usage are many and
varied. The detailed examination of those concerned with
conservation and recreation will be presented in Chapters IV &
V. A mere summary of this complex term is presented below.
The areas reserved under the National Parks and
Wildlife Act, 1974 and the Forestry Act 1916 could be
described as public reserves. The normal areas identified by
the term however, are Local Government public reserves and
Crown Land reserves. Accordingly the following simply
represents the definitional analysis of the term under the
Local Government Act, 1919 and the Crown Lands Consolidation
Act, 1913.
(a) Local Government Act, 1919. *
This originally defined public reserve to be a:
"public park and any land dedicated or reserved from sale by the Crown for public health,recreation,enjoyment or other public purpose of a like nature but does not include a common". (s.4)
92
Thus encompassed within the Local Government Act definition of
"public reserve" are those Crown lands alienated for public
recreational and health interests by reservation, dedication 132or usage.
1 33This definition has been amended. Added to
the above lands were:
"any land conveyed or transferred to the council pursuant to S .3 4 0 A of this Act,any lands dedicated or deemed to be dedicated as a public reserve pursuant to S .3 4 0 C orS .3 4 0 D of this Act....".
Section 340A deals with the provision of lands
for public garden and recreation space arising from
subdivisions under Part XII prior to the commencement of the
Local Government and Conveyancing (Amendment) Act, 1964.
Council can require such space to be conveyed or transferred
to it. Where the land is adjacent to a reserve under the
Crown Lands Consolidation Act, council can direct it be
surrendered to the Crown and it is deemed Crown Land and dealt
with accordingly (s. 340A(1)). The process here required the
Registrar General to create a separate lot which had to be
conveyed by way of transfer to the council.
The introduction of sections 340C and 340D
expanded the vesting process for lands given over to councils
by developers during sub-division. Where, under S.340A, (or
132. See Chapter IV discussion of "public park" possibility of dedication by usuage under the Public Parks Act, 1912. This concept is not specifically defined in any statute. See text pp. 228-230. 133
133. Amended by Act No. 15 1964, s. 2(a).
93
s. 340B where the area is for a drainage reserve), council can
require the conveyance or transfer of land and this land is
marked in the sub-division plan - "public garden and
recreation space", with the registration of the plan a
separate lot is created and vested in the Council upon
notification in the Gazette. Such land vests in it in fee
simple without formal transfer. The land is deemed to be
dedicated as public reserve (s. 340C(l)(b)). A certificate of
title is created by the Registrar-General indicating the land
is dedicated as a public reserve.
Under S.340D the simple registration of an
approved (by council) sub-division plan (strata or otherwise)
at the Registrar General's office on which any land is marked
"public reserve", has the effect of dedicating that land and
vesting it in Council. A fee simple title is then issued to
the council.
The final category of land to be included in the
Local Government Act definition of public reserve was:
"....any land vested in the council, and declared to be a public reserve, under section 37AAA of the Crown Lands Consolidation Act, 1913".
Section 37AAA allows the Minister for Lands by notice in the
Gazette to vest prescribed lands in a council, in fee simple,
where the lands were a public reserve or suitable for public
94
reserve use or are used or suitable for use for other purposes
for which councils can acquire land.'3
(b) Crown Lands Consolidation Act,1913.
"Public reserve" is not defined in this Act as such.
"Reserve" however is defined in s. 37M(1) to mean:-
lands dedicated or reserved under the Crown Lands Acts or the Closer Settlement Acts for any public purpose; orany other lands in respect of which a trustee appointed or purporting to have been appointed under the Public Trusts Act 1897, or the Public Parks Act,1912, was holding or purporting to hold office immediately before the commencement of the Crown Lands and Other Acts (Reserves) Amendment Act, 1974, and includes lands within a State Recreation Area but does not include:-(a) any common within the meaning of the
Commons Regulation Act, 1898;(d) any lands within the meaning of the
Trustees of schools of Arts Enabling Act, 1902; or
(e) any lands or class of lands in respect of which an order under section 37N is in force."
(Section 37N refers to a Ministerial declaration that any
lands or class of lands are not subject to the provisions of
Part IIIB.)
"(a)
(b)
"Public purposes" is defined under Part III B ~
"Management of and dealings with dedicated or reserved lands
and certain other lands". This states:
134. See Appendix C for an example of a "Notification of Vesting of Lands in pursuance of section 37AAA of the Crown Lands Consolidation Act, 1913". N.S.W. Government Gazette, Sydney, 25th February,1977 .
95
"public purpose in relation to lands dedicated or reserved under the Crown Lands Acts or the Closer Settlement Acts, means a purpose that is a public purpose in relation to the provision of the Act under which the lands were so dedicated or reserved;" (s.37M(l))
13 5As noted m Chapter I, and as set out m
Appendix A there are a vast number of public purposes for
which Crown land is set aside by reservation or dedication
processes. The ones of particular importance for this paper
are . public health or recreation convenience or enjoyment
- public park. . ." (s.24(l) Crown Lands Consolidation Act,
1913).* 135 136
17. TRAVELLING STOCK AND CAMPING RESERVES
Under the Crown Lands Consolidation Act, 1913,
s.34, the Minister may define and set apart routes not
exceeding one mile in width, through any land held under lease
or licence, for the passage of stock travelling pursuant
to the provisions contained in s.48 of the Pastures
Protection Act, 1934. He may also define and set apart
135. See p. 1.
136. Other purposes noted under s.24(l) which could be of relevance to public recreation areas are: "public quay or landing place - public reservoir aqueduct or watercourse"; "... other institution for public instruction or amusement"; "permanent common"; "cricket ground"; "racecourse" and "public baths - or for any other public purpose".
96
camping places for travelling stock, not in any case
exceeding one square mile. The routes and camping places
are determined, in the first instance, by the Local
Land Boards.
The use of these reserves for their original
purposes has largely fallen into abeyance with modern
transportation. They could thus be included in the
Miscellaneous areas under the last heading of this chapter.
In fact, some of these areas have been used for walking tracks
which are referred to under that heading.
18. DRAINAGE RESERVES
These are reserves vested in the local councils
under the Local Government Act ss.340B and 340E. The obvious
example of how such a reserve could be set up is in the
subdivision of land where provision is made for drainage, land
set aside and this conveyed to the Council. Such areas are
often used for recreation by members of the public and as such
are quasi recreation areas.
97
19. MISCELLANEOUS
The above outline covers major parks, reserves
and recreation areas in N.S.W. Other open space, public and
private, used for public recreation can be isolated. It is
not the intention of this paper however to attempt an analysis
of all such quasi public reserves. An important example would
be Department of Main Roads reservations for roads which are
not yet requried for these purposes.
One specific area of involvment for the New
South Wales Department of Lands still remains, following the
transfer of State recreation areas to the Minister for
Environment and Planning. This relates to Crown lands used as
walking recreation areas. The Department is seeking to
establish a network of scenic walking tracks throughout New
South Wales. The system of marked walking tracks seeks to
link various types of existing reserves and, where necessary,
allow access through private property, avoiding trespass 13 7problems. The Department of Land's walking tracks should 137
137. McNEILY, J., op. cit., note 120.
98
not be confused with those opened by the National Parks and
Wildlife Service, for example, the North Head track in the1 38Sydney Harbour National Park. J
The paper now goes on to examine particular New
South Wales parks, reserves, and recreation areas - national
parks, local government public reserves and Crown lands public
reserves. The various ways in which these areas are allocated
to their particular resource usuage will be outlined. The
processes by which they are used and developed will be
analysed. In doing so, the expansion of decision making to
include the environmental and political dimensions and the
attempts to resolve conflicts regarding resource development
will be investigated. 138
138. The North Head track is interesting as JohnFairfax and Sons Ltd. provided the funds for the track and lookouts, to the National Parks and Wildlife Service. It was named the Fairfax Walking Track and opened by the Premier to mark the 150th anniversary of the Sydney Morning Herald. These factors are revolutionary in terms of development of National Parks, as private funds are being used to develop public lands for public purposes.
99
CHAPTER III
NATIONAL PARKS
1. INTRODUCTION
National parks are a major resource use to which
public land is allocated for purposes of recreation and
conservation. The law surrounding them well reflects the
conflicts facing environmental laws. As land use allocations
they compete with other activities, such as agriculture,
mining and forestry, for political priority.
Because of the political nature of the decision
to alienate land for national park purposes, environmental
politics are important. Conflict at the individual level
within the general public is apparent. Even after issues
surrounding the creation of national parks have been resolved
conflicts and compromises must be accommodated by the law in
relation to use decisions on the continuum.
What is the legal standing of national parks?
What are the laws surrounding their use? What roles should
they serve? How should they be developed? What are their
objectives? The answers to these questions depend on the
interplay of environmental law and environmental politics in
directing the actions of those exercising control.
This chapter treats such issues in its
examination of the history and role of New South Wales
100
national parks. It focuses on the concepts of a national park
and their creation and development. Other legal issues
surrounding them such as trespass, protected flora and fauna,
endangered fauna, noxious plants and animals, pesticides,
fire, boundary issues, and aboriginal relics are not dealt
with.
The operation of various new environmental laws
and processes which have expanded the inputs into decision
making are surveyed in relation to the issues surrounding the
creation and development of national parks. The conflicting
interests and priorities inherent in public land allocation
are considered within the legal - administrative framework.
The public's participation in and influence on the decision
making processes surrounding the allocation and use of this
public resource is emphasised.
101
2. THE CONCEPT OF NATIONAL PARKS
In the previous chapter's analysis of the
definition of a national park some preliminary comments on the
concept of national parks was made. Professor J.P. Harroy
has crystalized three main motivations with regard to creation
and preservation of national parks:
"(a) to prevent human exploitation in order toconserve species, ecosystems or areas of natural beauty;
(b) to enable visitors to benefit at different levels (recreational, educational, and cultural) from the favourable results of this conservation; and
(c) to benefit from this conservation by scientific studies which would be impossible elsewhere.
These are consistent with the concept as
expounded by the New South Wales Ministry of Environment and
Planning and the National Parks and Wildlife Service. The
Kosciusko National Park Plan of Management states that:
"The concept has evolved over the years, though themes of nature conservation, compatible use, conservation of aesthetic values and recreation have remainedthroughout
139. See pp.50-34 and 57-59.
140. HARROY, J.P. "A Century of Growth of the National Parks Concept throughout the World", Session 11 Paper 1. Second World Conference on National Parks, op. cit., note 56.
141. NATIONAL PARKS AND WILDLIFE SERVICE Kosciusko National Park - Plan of Management, N.P.W.S., Sydney, New South Wales, 1982, p. 1.
102
This document adopted the national parks definition of the
International Union for the Conservation of Nature and Natural
Resources:
"A national park is a relatively large area: (1) whereone or several ecosystems are not materially altered by human exploitation and occupation, where plant and animal species, geomorphological sites and habitats are of special scientific, educative and recreative interest or which contains a natural landscape of great beauty; and (2) where the highest competent authority of the country has taken steps to prevent or to eliminate as soon as possible exploitation or occupation in the whole area and to enforce effectively the respect of ecological, geomorphological or aesthetic features which have led to its establishment; and (3) where visitors are allowed to enter, under special conditions, for inspirational, educative, cultural and recreative purposes
These concepts are reflected in the United Nations list of
National Parks and Equivalent Reserves which specifies certain•I / Q
criteria for inclusion. These can be summarised:
(a) Legal Protection: To qualify for the U.N. list, a
protected area must enjoy statutory legal protection,
establishing it as a permanently protected area and
providing sufficiently strict safeguards to achieve the
objective of conservation of the natural or man-made
landscape. Such protection must stem from the "highest
competent authority" having jurisdiction over the region
in which the protected area is situated. In Australia
the break up of power between Federal and State
government has determined the States as the highest
142. Ibid.
143. Op. Cit., note 60.
103
competent authority regarding the areas of land within
their boundaries. The Commonwealth, as noted, does,
however, exercise national parks jurisdiction with regard
to the Australian Capital Territory and the 144territories.
(b) Effective Protection: To qualify for the list, a
protected area must enjoy de facto protection as well as
de jure. This means that a budget and staff have to be
provided to prevent exploitation, carry out essential
administration and management, and supervise the
activities of visitors. No strict rules have been laid
down on either the amount of the budget or the number of
staff, as this depends on the particular park.
(c) Size: the minimum surface area for inclusion in the U.N.
list is 1,000 hectares and this must consist entirely of
zones in which protection of nature takes precedence (for
example strict natural zones, managed natural zones or
wilderness zones). Zones developed or modified for
administrative or tourist purposes are excluded in
calculating the minimum area. Exceptions are however
made for islands and for nature reserves of unique biotic
interests.
144. See pp. 32-56.
104
(d) Exploitation: in general, exploitation of natural
resources must be prohibited. Such exploitation includes
the removal of mineral resources, timber and other
vegetation, and animal life, or the development of dams,
or other structures for hydro electric power. The U.N.
suggests that prohibitions should extend to agricultural
and pastoral activities, hunting, fishing, lumbering,
mining, public works construction (transportation,
communications, power etc.) and residential or commercial
or industrial occupation.
(e) Management Activities: these are the activities
necessary for the administration and management of the
protected area or the reasonable development of the park
as a site for public outdoor recreation or tourism. They
are not to be considered as exploitation. Such
activities include: construction and maintenance of a
road network, setting aside areas for public
accommodation and consequent cultivation of gardens and
construction of recreational facilities and related
services. Zoning is suggested for the purpose of
accommodation and recreational facilities to ensure that
they are not scattered throughout the protected area and
occupy only a minimal location. In fact it is preferable
that such facilities are located outside the park where
possible.
105
These criteria are strict and can only be met to
varying extents by N.S.W. national parks. The concept however
is satisfied by most of the lands under the control of the
Director and the National Parks and Wildlife Service.
3. THE NEED FOR NATIONAL PARKS
There is general agreement that usage of
national parks has increased dramatically and that this trend
will inevitably continue into the f u t u r e . I n c r e a s e s in
leisure time have undergone a significant expansion during the
first half of the twentieth century and are predicted to 146increase. This trend has been reinforced by the growing
affluence of western society. Reliable criteria are readily
found to establish the fact of widespread comparative
affluence. There is also some evidence that, in the situation
of increased prosperity, people will spend larger amounts on
r e c r e a t i o n . A spin-off effect of increased affluence is
145• REPORT TO FOURTH MINISTERIAL CONFERENCE ON * 146 147NATIONAL PARKS, "Recreation Requirements and the National Parks System of Australia", Melbourne, August, 1970, p. 4.
146. Ibid, p. 5.
147. Ibid, p.ll.
106
increased mobility. This increased mobility allows greater
access to national parks, thus adding to demand pressures.
Movement of visitor-use rates in Australia has
been fairly erratic. Australia's small population probably
accounts in some way for this position. A distinction
regarding demand can also be drawn between parks within 100
miles of capital cities or large metropolitan areas, and those
outside these boundaries. With the rapid expansion of city
dwellers, parks within close proximity to them are obviously
experiencing heavier pressure. It has been suggested that it
is wise to plan on a yearly growth rate for visitor numbers of
at least twelve percent for parks within 100 miles of149metropolitan areas. By way of example, the Blue Mountains
National Park in New South Wales had an annual compound rate150of increase m visitor use of 14.2%. It is notably here
that Sydney is well serviced with National Parks, having three
- Blue Mountains, Kuringai Chase and Royal National Parks,
within a close radius. Despite this, problems arising from
pressures of usage are being experienced in these parks.
148. Some early American figures give an indication of these trends. Between the years 1950 and 1967 the number of visitors to the National Parks system in the United States quadrupled.Attendances in 1967 were more than ten percent above that for 1966 and the compound average increased rate from 1950 to 1966 was greater than eight percent per annum. Ibid, p. 7.
149. Ibid, p. 9.
150. NATIONAL PARKS AND WILDLIFE SERVICE, Annual Report 1976-77, Government Printer, Sydney, 1978,P-8.
107
The growth of urban population is apparent in
Australia. The world of the future seems destined to be
increasingly an urban and suburban one, despite many valiant
efforts which may be made to prevent it.^^
Major national parks are typically located some
distance from population centres. Increased mobility and
rising incomes have ensured usage demands exerted on national
parks will increase. First, the nearby, and later the more
distant, parks will come within the economic reach of greater
proportions of society. The economic growth which achieves
this also increases other demands on the resources of the
physical environment for more production. Greater demands are
experienced for food,forest products, minerals,water 152and land itself. The conflicts along the continuum become
more acute and the availability of land for resource use
allocation becomes scarcer.
151. Op. cit., note 145, p.ll.
152. FISCHER, J.L. "Population and Economic Pressures on National Parks" Session V, Paper 9, Second World Conference on National Parks, op. cit., note 56, p. 103.
108
As population and economic pressures increase,
the desire for national parks also increases. The more
crowded people become, the more desperately they need the153natural and open spaces which the parks provide. It would
appear that the long sustained high rate of increase in the
use of national parks nearly everywhere in the world has
probably been propelled,in part at least, by such a
psychological f o r c e . U r b a n dwellers are driven to seek
153. Ibid.
154. Similar trends have been noted in England where the Report of the National Park Policies Review Committee suggests that the " . . . great increase in the past twenty years in recreational use of the countryside and the use of the NaturalParks . . . " are commonly attributed to the leisure explosion. The Committee saw this and mobility arising from car ownership and spending power as likely to increase for "many years".They also stressed increasing inclination to participate in countryside recreation, especially in the young. All this led the Committee to believe " . . . that the demand for countryside recreation will continue to increase, probably at no less a rate and that it will have doubled, at least, before the end of the century." Interest in more active pursuits (hill walking, climbing, camping and nature study) may grow even more rapidly. The effect of this phenomenon is further reinforced by the fact that these activities " . . . once developed, tend to persist through life, unlike many more organised forms of physical recreation, so that the proportion of the population which follows them is likely to grow with the passage of time." DEPARTMENT OF ENVIRONMENT (Welsh Office) Report of the National Parks Policies Review CommitteeH.M.S.O., London, 1974, pp. 30-33.
109
park experience as an escape or offset to the pace and noise
of congested living.
These people are becoming increasingly active
in lobbying, joining with the 'Conservation Movement' in
applying political pressure for the increased provision of
parks. Once created however, divergent priorities along the
continuum often reflect the conflict between preservation and
recreation 'usage'.
4. HISTORICAL.
New South Wales, along with the United States,
was the world leader in the national park concept. Sir John
Robertson as acting head of the N.S.W. Government, conceived
and developed the idea of bequeathing to the people of N.S.W.1 Sfta national domain for rest and recreation. This iniative
again reflects the early emphasis towards the right of the
resource use continuum. It represented a resource use
orientation rather than the heavy preservation/conservation
ethic applying to current New South Wales national park
management.
155. As the ex-Minister for Lands, Mr. Crabtree,stated, National Parks play a recognised role in providing "a refuge from the stresses and tensions of life in our modern world": CRABTREE,W.F., Minister's statement in the Annual Report of the National Parks and Wildlife Service, * 1561975-76 , Government Printer, Sydney, 1977 , p. 2.
156. FERGUSON, J.A. "Human Factors in relation to National Parks" in Practical Problems of National Parks, Proceedings of Seminar held at the University of New England, February, 1966, p. 61.
no
On March 31st 1879, seven years after the
creation of the world's first national park at Yellowstone in
the United States, eighteen thousand acres of Crown land on
the ocean immediately south of Port Hacking were dedicated as
a reserve to the use of the public forever as a national park.
The motivations behind the setting up in the United States of
Yellowstone National Park in 1872 - i.e. to "... set apart as
a public park, a pleasuring ground for the benefit and
enjoyment of the people"^^, again emphasised resource usage
rather than conservation.
The development culture of Australian and
American society at this time was shown in their early
environmental laws. The use of then abundant public land for
its various resource values, including recreation, was in
accordance with this orientation. Though the pioneers
practised little economy in their utilisation of natural
resources it was still possible at this time to segregate
large unoccupied areas and impose a blockage on exploitive
development within them. Strong central government, with
little public involvement, further assisted the allocation
process under which such areas were dedicated for recreational
use. The preservation/conservation value of these initiatives
was of great and long lasting benefit. Decisions facing
governments today are far more complex.
157. HARROY, J.P. op. cit., note 140, p. 25.
Ill
By way of comparison, in Europe such areas were
not readily found. Development had been curbed however, and
various areas set aside by monarchs or powerful aristocrats
for their own personal hunting reserves. As poaching in them
was strictly guarded against these areas were of immeasurable
importance in Europe's ability to later pursue the national-158natural parks concept. J
In N.S.W., development was blocked in various
areas of public land used for recreation. By 1955. about seven
hundred and eighty thousand acres of such land in N.S.W. bore159the title National Park. Conceptual and legal
justifications for applying this term however are difficult to
find. As a rule, the favoured process of creating these areas
had been by dedication of vacant Crown land. These old
National Parks were established by government proclamation and
it was possible for them to be decreased in size or otherwise
subjected to interference at the whim of government. They
were mostly controlled by governing boards of trustees and
financed by an annual grant from the government in addition to
funds raised in other ways, for example, parking fees. 158 159
158. Ibid, p. 28.159. THE GRALIER SOCIETY OF AUSTRALIA, The Australian
Encyclopedia, Sydney, 1965. The N.S.W. National Parks in 1955 were -Shoalhaven (Morton Primitive Reserve)
45 ,000 acresNew England 41,000 acresKuring-gai Chase 40,000 acresRoyal National Park 34,000 acresWarrumbungle Range 18,300 acres
112
By way of example the background information
presented by the judgment of the court in the case Attorney
General ex. rel. Dorman v Director of National Parks and1 £ r \
Wildlife Service1 provides an interesting historical insight
into the evolution of an old national park - Kr-ring-gai Chase
National Park - (i.e. before the introduction of the National
Parks and Wildlife Act, 1967). Initially, the temporary
control of some 35 ,000 acres of Crown land in the area were
vested in 9 trustees in 1894. This followed a petition to the
Government from a group of citizens seeking the establishment
of a national park for North Sydney. A Crown grant in 1900
vested the land in these trustees with the instruction to
permit its use for the recreation by the inhabitants of the1 ft O
colony. Various additions of some 200 acres were made up
until 1961. Justice Powell notes that, by this time " ... the
legal position as to the title to and the control over theI £ O
park had become complex and obscure." This obscurity,
arising out of the inadequate procedures by which areas for
park and recreation purposes were set aside, applies to public
reserves in general as will appear from the final chapters. 160 161 162 163
160. Unreported Supreme Court 19 May, 1978, No. 2258/77; 530 A.C.L.R., 1978. Known as the Akuna Bay Case.
161. Ibid pp. 2-8.
162. Ibid p. 2.
163. Ibid.
113
Due to the above problems, the Ku-ring-gai Chase
Act, 1961 was passed. This revoked all prior dedications and
Crown Grants and re-dedicated the whole area as a public park
within the meaning of the Public Parks Act, 1912 and appointed
trustees. When the National Parks and Wildlife Act 1967 was
passed, it repealed (inter alia) the Kur-ring-gai Chase Act,
1961 (s.14) and permanently reserved the area under the title
of "Ku-ring-gai Chase National Park", with care, control and
management vested in the Director.
Mr. Justice Powell's comments above could have
applied to all early national parks. By 1956 the situation in
New South Wales concerning national parks was confused and
unsatisfactory. Early moves in the 1940's and 50's for
legislation relating to national parks were disjointed.
People in the popular park movement and in the administration
of parks wanted a Parks Bill which gave a "better deal" for
all parks, from playing fields to wilderness areas and
reserves for scientific reference.
From the definitional chapter, it is obvious
that such a task was a legislative nightmare. At this time,
all playing fields, cemeteries, racecourses, showgrounds,
natural reserves, public reserves and so called "national
parks" were lumped together for administration in an
unimportant fragment of the Department of Lands known as the 164 * *
164. STROM, A.A. A Small Nature Reserve, unpublishedpaper to Mosman Parklands and Ashton ParkAssociation, 19th June, 1968.
114
Parks and Miscellaneous Branch (now called the Land Resource
and Environment Branch).
The National Parks and Wildlife Act, 1967 (later
replaced by 1974 Act) changed the above situation by bringing
national parks and state parks under the control of the
National Parks and Wildlife Service. By 1977 the Service had
under its control forty four national parks covering some
1.85% of the state.x By way of comparison, at this time New
Zealand had set aside 7.7% and the accepted international1 f\f\minimum standard was 5%. In 1984 the Service had 63
national parks under its control covering some 2,833,250 1 ft 7hectares.
165. NATIONAL PARKS & WILDLIFE SERVICE, op. cit . , note 150, p. 5.
166. THOMPSON, P. "There are Lessons to be Learnt from Kiwi Parks" National Parks Journal July/August, Sydney, 1977, p. 7. 167
167. NATIONAL PARKS AND WILDLIFE SERVICE, Annual Report 1983-84, op. cit., note 86, p. 73.
115
5. THE CREATION OF NATIONAL PARKS IN NEW SOUTH WALES
(a) Introduction.
This section deals with the legislative basis of
national parks, the activities of the New South Wales National
Parks and Wildlife Service and issues relating to dedication
of a national park. One practical example is examined which
will reflect the various conflicts, parties, priorities, and
political processes involved in the allocation of sections of
the public's physical environment to national park usage.
The N.P.W.S. plays the dominant role in the
establishment of National Parks. The setting up of this
organisation and its success in expanding New South Wales
national parks has been stimulated by the growth in the
general public, of an awareness of and adherence to the
national parks concept. This has created a more favourable
political environment where it has been possible to find funds
and mobilise action to convert into national parks, areas
which are still relatively unaffected by human exploitation.
The important public input in the process is usually rep
resented by the various N.S.W. conservation organisations such
as the Nature Conservation Foundation (N.C.F.), National Parks
Association (N.P.A.) and the Total Environment Centre
(T.E.C.). These organisations fulfil an important role in
mobilising public opinion and imposing political pressure in
116
favour of national parks, through organising publicity for
national park issues.
Professor Harroy sees the effective
establishment of a national park as necessitating at least
four basic conditions:
"1. a firm political will on the part of the country's leaders;
2. a trend in public opinion which demands, supports or at least accepts this official will;
3. the mobilisation of funds required to bring this into fruition;
4. the intervention of an administration having the necessary powers"
Much political conflict usually relates to condition one. The
political will of the government is usually founded upon re-
election aspirations. Consequently, it must reflect
condition two i.e., what public opinion demands. The problem
here is that the public's opinion is never unitary.
Environmental laws may establish and control decision-making
processes; the government must, in the end, balance these
sectional interests and attempt to trade off conflicting
priorities in the production of a decision which is'best' in
the public interest. The public interest, however, is not
homogeneous. As noted, people's "environmental politics"
often depend on divergent vested interests.
This is highlighted in the national parks area,
where potential dedications are located in country areas.
Here, local public opinion often opposes N.P.W.S. proposals,
seeing them as tying up large tracts of land which contain
168. HARROY, J.P. op. cit., note 140.
117
development/employment potentialities for the local
community. The majority of the New South Wales population
however, are city dwellers. Strong support for the national
park concept is found in these urban dwellers who place minor
emphasis on issues surrounding the economic priorities of
small country communities.
In relation to public resources in general,
traditionally the status quo was clearly in favour of
exploitive development. The point is well illustrated by
reference to a letter to the editor of The Sydney Morning
Herald on October 4th 1979. Bruce Adams, manager of
Associated Sawmillers of N.S.W., stated:
"Where the National Parks and Wildlife Service can prove that the need for a national park outweighs the needs of the community for raw materials such as timber, coal, minerals, water or food production can still be maintained at current levels through alternative planning then we can agree with the national park development.But we cannot let ourselves be swept up in a wave of emotion which suggests that we put aside the community welfare, we sacrifice our standards of living, we do without housing, electricity, food or even newspapers (which are produced from forest products).” (Emphasisadded).
This comment points to one of the major problems
facing the conservation movement in attempting to secure the
reservation of public lands from development. It is easy for
a developer to point to the economic value in real terms i.e.
monetary terms, of the timber or coal produced from a
particular development. It is easy for him to show the number
of jobs generated by the activity. Conservation values on the 169
169. ADAMS, B. S.M.H., October 4, 1979, p. 10.
118
other hand, are necessarily far more intangible. How does one
quantify such values as - relief of tension, preservation of
an environmental yard stick, use for study and ecological
information, protection of wildlife and its habitat for future
generations, the vista of remarkable scenery, provision of
recreation and its bearing on the health and spiritual life of
people. Professor Harris states:
"Methods of quantifying the economic benefits arising from factors such as recreation and conservation, to evaluate the tangible social benefits from the use of national parks, scientific recreation areas, gene pools, wildlife habitats and the like, are in a very primitive stage of the development in the methodology of the subject."170
It is interesting to note that the work he has done so far
suggests that the economic benefits from national parks are
often much greater than the commercial benefits acruing from
the development of mines and industries in particular park
areas. He also points out the reluctance of many people to
quantify and measure the benefits from environmental aspects
such as national parks, with the result that it is much easier
for commercial arguments to win out. 171
170. HARRIS, in ANU Reporter, Vol. 18, No. 14, as cited in CCH, Australian and New Zealand Environmental Reporter, No. 18, September 1977,p. 541.
171. Ibid, p. 543.
119
Much of the economic, development or resource
value of national parks will be in the form of non-consumptive
use such as research, education, passive recreation and
protection of gene pools. On economic analysis indirect
advantages or externalities can be identified but the
specifics are usually not very weighty compared to jobs and
money. Surplus animals may disperse to surrounding areas, and
if they are suitable, they can be cropped for protein and
hides. Protection given to migratory birds along their fly
ways, in due time, will also yield protein and recreational
opportunities outside the preserved areas. Protection of
coral reefs will indirectly favour lagoon and offshore
fishing. But such externalities by definition are not very
weighty considerations in the overall economic equation where
jobs and money are paramount.
The government's executive authority over
decision making is generally accepted by all sections of the
public. Consequently, the solution simply involves the
weighing of these various interests and the imposition of the
official will of the political party in power. In New South
Wales it appears from the example which follows that the
establishment of Harroy's first condition, a firm political,
can be achieved by conjuring up sufficient publicity
surrounding the dedication of a particular area as national
172. CURRY-LINDAHL, K. "Protecting the Future in the World Wide National Park Movement" in Second World Conference on National Parks, op. cit., note 56.
120
park. This exposes the conflicts involved and forces the
government to take a stand on the decision of allocation.
1 7 o(b) Inception Process . J
Section 8(1) of the National Parks and Wildlife
Act, 1974 formally charges the Director with responsibility to
consider and investigate proposals for the reservation of
national parks, historic sites, nature reserves or Aboriginal
areas, or for additional areas to be added to existing
areas. In doing so section 8(2) lists the principle
previously noted to which he must have regard:
"(a) The areas to be reserved as national parks are spacious
areas containing unique or outstanding scenery or natural
phenomena".
Proposals for national parks often come from
various environmental groups or the public. These and
N.P.W.S. suggestions are thoroughly researched and analysed
before any action is taken to secure their creation. The
Director has under his control an investigating branch of the
National Parks and Wildlife Service which consists of twelve
people, six of whom are situated in the field and six who are
173. The following information was abstracted from a number of interviews with a National Parks and Wildlife Service Officer, JOHN HIBBARD. At the relevant time he was acting as an assessment officer with the N.P.W.S. (1980).
174. See p. 57.
121
in the head office in Sydney. This branch has the initial
responsibility of identifying, from aerial photographs and
other information, areas suitable for national parks, nature
reserves, wilderness areas,aboriginal areas, and historic
sites. In doing so, one of the primary concerns of the
investigator is to find areas for reservation which provide a
representative sample of all New South Wales eco-systems. The
area must be capable of being a secure and viable reserve.
This security is achieved by the requirement for
an Act of Parliament to revoke a national park or nature175 . . .reserve once dedicated. Viability refers to the size of
the area. It must be manageable and not too small (as is the
case in a number of Queensland reserves). The investigator
must determine the minimum amount of land required for the
viability of the particular park or reserve in question. For
example, in a study done in Western Australia it was
determined that to protect the genetic diversity of the Red1 -7£
Kangaroo, forty thousand acres were needed.
Another emphasis in the investigation is on
flora and fauna, particularly flora, as it is easier to find,
investigate, classify and compare. Other information which
must be established concerns the status and tenure of the land
as well as its potential for recreation, education, scientific
research and other objectives. Thus an investigator must
175. Section 37(1) National Parks and Wildlife Act, 1974. 176
176. Op. cit . , note 167.
122
determine facts, such as: who owns the land; what was the
previous fire history of the land; what is its inventory in
terms of flora and fauna; what are its scenic values; whether
it is an area already well sampled within the national parks
system, and any other information which may be of particular
importance in the particular case.
After the initial investigations outlined above,
a report is prepared which delineates the boundaries of the
suggested reserve. It makes clear reference to similar
reserves and the possibilties of duplication within the
State. In fact this is often the case due to reasons of
security of habitat or species. Any particular reserve or
park may be subjected to fire or other natural disasters which
could wipe it out. The critical process of trying to fix
boundaries is a difficult one as it must take into account
realities concerning the possibility of the land being
acquired by the N.P.W.S.. These realities would normally
involve legal, political and economic issues. For example, it
is clear that the N.P.W.S. with an annual budget for
acquisition of less than half a million dollars, concentrates
its efforts on Crown lands which, practically, are far easier
to acquire. By way of example, Wollemi National Park, various
north coast national parks, and Bedura and Wollibigula
National Parks on the south coast were dedicated from Crown
land.^^ It further appears that the Service may draw a
177. Ibid.
123
boundary smaller than it would like, in the interests of
avoiding a clash with other interests (especially government
departments) in the hope that at some future date the reserve
or park, once established, may expand into these desirable
areas.
One possible problem with conversion of Crown
lands concerns existing permissive occupancies and leases
(e.g. timber and mining). These are generally granted on a
yearly basis and in theory are easily revoked by the
Service. Problems foreseeably can occur where an individual
has an extensive capital investment in the area. An example
here could be a quarry, in which the case, the Department of
Mineral Resources would probably object to a national park
'take-over' of the area.
Section 39 of the National Parks and Wildlife
Act 1974 deals with "existing interests", being "any
authority, authorisation, permit, lease, license or1 7 8occupancy". According to s. 39(2), the terms and
conditions and the permitted use are not affected so far as
national parks and historic sites are concerned. Such
interests, however, will not be renewed or the term extended
without Ministerial approval. In granting this, he has the
right to impose conditions under s.39(3). This does not
however apply to any authority, authorisation, lease or
license under the Mining Act, 1973, the Coal Mining Act, 1973,
178. Section 39(1).
124
the Fisheries and Oyster Farms Act 1935 or the Petroleum Act
1955 or any permit or license under the Petroleum (Submerged
Lands) Act 1967. These interests can be renewed by the
N.P.W.S. without Ministerial approval (s. 39(3)(4)). Upon
termination, surrender, forfeiture or determination of the
existing interest, the reservation as national park or1 79historic site automatically takes effect.
The Lands Department until only recently,
appeared to have a basic philosophy and understanding of
themselves as a distributor of Crown land for a minimum
price. With the upsurge of the conservation movement this
situation has changed. Crown land has become increasingly
difficult to bring into private ownership. Previously
property owners adjoining Crown lands initially applied for
grazing rights which, after a couple of years, would be
converted into leasehold at minimum rents (e.g. $1U.U0 per
year). These leases could later be converted into a
conditional purchase and finally into freehold land,
purchased at a minimum price. The first indication of change
in this policy was seen in the Department's attitudes towards
travelling stock routes and camping reserves. As a matter of
policy the Department no longer converts these areas into
freehold where they have some trees and other conservation
values. Further, steep timber slopes which reflect some
179. Section 39(5).
125
conservation values are no longer to be converted in to
freehold land.^^
The Department of Lands has now jointly
published with the Department of Environment and Planning a
document dealing with the land assessment and disposition for
N.S.W. Crown land - "The Philosophy and Objective for Land 1 8 1
Management". This document arose from concern with the:
" . . . lack of explicit statements concerning the philosophy, aims and objectives of the Crown Lands Office with respect to its land management functions. A secondary concern was the lack of systematic and sound procedures that permitted the assessment of land for various uses as is used in making decisions concerning land disposition."
Again, such concerns are in keeping with the context for
legislative and procedural change outlined in the first
chapter. Paragraph 9 of the Statement of Policy for Land
Management should be noted:
"9. Lands identified in management plans as being able to maximise net public benefit only by being dedicated for a specific purpose or transferred to the management of appropriate government agencies should be madeavailable to those authorities." 183
180. Interview JOHN McNEILY, op. cit., note 120.
181. WOODWARD, R.G. & MORGAN, C. The Philosophy and Objective for Land Management in the Crown Lands * 182 183Office, Department of Environment and Planning/Department of Lands, Sydney, July, 1984.
182. Ibid, p.l.
183. Ibid, p. 2.
126
Communications between the N.P.W.S. and the
Crown Lands Office are fairly close. The N.P.W.S. draws up
'parishes of interest' i.e. lands in which they may at some
future date, have some interest. A practice has developed of
reference by the Crown Lands Office to the N.P.W.S. of any
application for conversion of these lands to freehold
property. If the Service objects usually the Department will
refuse to convert the land into freehold title. By way of
comparison the New South Wales Department of Mineral Resources
and the Forestry Commission do not follow similar consultation
procedures, although the N.P.W.S. is attempting to get such a
policy accepted by them.
The investigator's report is sent to head office
where it is reviewed and amended. Copies of the resultant
documentation, including a map, are then forwarded to the
Lands Department, Department of Mineral Resources, Department
of Environment and Planning, Forestry Commission and State
Fisheries. These government departments send back their
written reactions which may contain objections to the planned
reservation. Other government departments, for example Water
Resources and Defence (Commonwealth), may also receive a copy
of the report if the area proposed will affect land under that
department's control. 184
184. Op. cit., note 173.
127
After the inter-play of the various government
departments, the final boundaries are agreed upon or the
proposal refused or shelved. Boundaries so established are
then sent to the various local councils concerned and Flood
Mitigation Authorities (for flood plains where relevant) and
county councils (where relevant) for a reaction.
If there are no objections, and the land is
Crown land, it only remains for the proposals to be approved
by the Minister and then gazetted under s.33 of the National
Parks and Wildlife Act, 1974. Under s.35 of this Act, a copy
of the proclamation published under s.33 (2) or (3), must be
laid before each House of Parliament within the prescribed
time after the publication thereof. Parliament may then pass
a resolution disallowing the proposal.
Under s.37, the appropriation, revocation or
resumption of a park or park site cannot take place except by
Act of Parliament. This ensures the security of lands
dedicated under the national parks concept and their care and
control by the N.P.W.S. Section 40 of the Act also provides
that no lands within a national park or historic site shall be
sold, leased or otherwise dealt with except as provided for in
the Act.
128
If the land involved is privately owned under a
freehold title then the Minister has the power under the Act
to negotiate and enter into an agreement for its 185purchase. In such cases the land is valued by the Valuer
General and negotiations are carried out between the Service
and the owner. Sometimes these are quite lengthy. The
Minister does have the power of compulsory acquisition under
s.147. However, this has only been seldom used in N.S.W. since188the Labour Government came to power after 1976. °
Occasionally the land sought is owned by the
Commonwealth. This is often dealt with by the exchange of
land. Sydney Harbour National Park provides a perfect example
of the lengthy time period necessary to organise bureaucratic
and political decision-making processes to achieve such an
exchange. The first stage of the park was established by the
reservation of 73 hectares of State-owned land in 1975. The
first suggestions for such a move were, however,made in
1971. The then Prime Minister, Mr. McMahon, had written to
the New South Wales Government proposing an exchange of land
between the two governments. Under the proposals, the New
South Wales Government would relinquish land adjoining the
Holsworthy Army Camp and the Nuclear Reactor Site at Lucas
Heights. In return, the Commonwealth Government would
185. National Parks & Wildlife Act, 1974, Part XI, ss. 145, 146. 186
186. Op. cit., note 173.
129
withdraw from a number of defence installations around Sydney187Harbour, thus making way for an extensive National Park.
Discussions between Commonwealth and State
officials were directed towards an agreement with the State
surrounding the future management of the park. Mr. Daly, the
then New South Wales Minister for Land and Tourism, stated
during these discussions, that it was the view of the
Commonwealth that any lands made available for national park
or for recreational purposes, should be held for those uses
for all time and an important part of any agreement to be188entered into with the State would be to ensure this.
The Australian Government finally agreed to
release the land to the New South Wales Government on 1st
January, 1975. Approximately three hundred and twelve
hectares of land, including two hundred and fifty acres of
Sydney Harbour foreshore holdings were released for the
creation of the Sydney Harbour National Park. Another sixty
hectares was released for recreational purposes. The
Australian Government also agreed to vacate at a later date a
187. AUSTRALIAN ENVIRONMENTAL REPORT No. 8-71, C.C.H., Sydney, 5 May, 1971, p. 101.
188. Ibid, No. 7-74, p. 127.
130
further one hundred and twenty-six hectares of foreshore 189land. The New South Wales Government, in return, agreed to
sell the Australian Government land at Holsworthy and on the
Beecroft Peninsular.
After ten years of negotiations, the Federal
Government finally handed over the harbour foreshore defence
lands on 27th April, 1979. The then Prime Minister, Mr.
Fraser, and the Premier, Mr. Wran, in announcing the Agreement
on the land transfer, said it would:
" ... preserve for all time public ownership of the magnificent vantage points of one of the world's finest harbours and the gateway to the City of Sydney."*^®
Of the three hundred and seventy six hectares to
be added to the embryo of the park dedicated in 1975, two
hundred and fifty hectares were immediately transferred. The
Commonwealth undertook to try and vacate the remaining lands
by 1983. It did this in 1984.
The gestation period for the Sydney Harbour
National Park was some fourteen years. This, of course, is
not an unduly lengthy period of time where there are
conflicting interests and resource allocation priorities to be
resolved. For the Sydney Harbour National Park, however, all
concerned parties were in agreement with the proposal and it
189. Ibid, No. 1-75, p.ll. The Commonwealth has now vacated the Quarantine Station on the North Head of Sydney Harbour.
190. GLASCOTT, J. "Harbour National Park now a Reality", S.M.H., Saturday, April 28th, 1979, P-2.
131
still took fourteen years for the Federal-State Governments to
bring plans to fruition.
The paper now moves to the detailed analysis of
the processes and problems surrounding a continuum decision on
the creation of a national park in N.S.W. Taking the Border
Ranges National Park as an example, the conflicting resource
usages of national park and forestry, are viewed. The various
parties and interests concerned in the decision to create a
national park are brought into focus. The example shows the
legal system coping with the conflict inherent in the politico
- legal decision making process relating to the issue of
resource allocation of public land to national park usage.
(c) The Border Ranges National Park.
(i) Introduct ion
Continuum issues previously discussed and the
need to expand the approach to resource development decisions
regarding public lands, are seen in the practical context in
the processes behind the dedication of the Border Ranges
National Park. The dispute preceding its creation was the
first major confrontation over rainforest logging. The
government was forced to make a continuum decision allocating
public land between logging and national park usage. The
power of the societal factions having divergent priorities
regarding the use of the area was evident. The political
nature of the decision was apparent. Use was made of the
public inquiry technique in an attempt to resolve and balance
132
conflicting interests and expand the inputs of an
environmental and political nature. Whether this was real
attempt, or simply a public relations exercise motivated by
political expediency, is questionable.
The lessons learnt by the government were later
relevant to the Terania Creek dispute and the ultimate
publication of the "New South Wales Government Rainforest 191Policy 1982". A detailed analysis of the dispute follows:
(i i) Background.
The "Border Ranges" is a name that appears to
have no circumscribed definition but is applied generally to
the broken, mountainous land along and adjoining the eastern
section of the New South Wales-Queensland Border. The area's
national park value is reflected in the conservation movements
reference to it as "the last large sub-tropical rainforest in 192N.S.W.". Much of the area is of volcanic origin
containing spectacular peaks, broad plateaux and sheer
cliffs. It is an area of high rainfall which supports a193rainforest of particular luxuriance. The forests contain
many species of trees with valuable timber which supported an
191. DEPARTMENT OF ENVIRONMENT AND PLANNING, New South Wales Government Rainforest Policy, 1982, D.E.P.,Sydney, 1983.
192. See generally the Border Ranges information and posters published by the Coolong Committee.
193. STATE POLLUTION CONTROL COMMISSION, Review of Management Policies for the Border Ranges, Paper distributed at SPCC Inquiry, Sydney, 28th March,1978, p. 2.
133
extensive local timber industry.
The area had been managed with a single minded
approach which allocated the public land to private interests
for its development as a timber resource. The underlying
public interest rationale was the creation of employment and
cheap timber for the developing state.
In earlier years, logging of the forests in the
area was virtually unrestricted. "Sawmillers were allocated
areas from which they cut all useable timber." In 1951 the
Forestry Commission introduced a quota system. However, this
did not even bear any relationship to the capacity of the
forests to produce a sustained yield of timber (i.e., a
logging rate which allows a natural regrowth of trees to
replace those logged, thus providing for timber-getting195indefinitely, without destroying the forest). In fact it
was determined regarding the Kyogle management area (Forestry
Commission classification) that continued logging at the rate
existing prior to the dispute would have resulted in the
exhaustion of timber resources by 1986!
The interest in the Border Ranges' allocation to
national park usage dates back to the very early days of the
national parks movement. In 1878, Robert Collins, a
Queenslander, returned from California inspired by the
national park concept. Collins wrote and lectured on national
194. GLASCOTT, J. "Controversy Disturbs the Calm of the Forests", S.M.H., 28th February, 1978, p. 4.
195. STATE POLLUTION CONTROL COMMISSION (S.P.C.C.),Review of Management Policies for the Border Ranges, op. cit., note 193, p. 10.
134
parks always pointing to the Border area as in every way an
ideal choice. Despite his attaining membership of the
Queensland Parliament in 1896, progress towards the park was
slow. The Queensland Government declared the Lamington
National Park (47,000 acres) in 1915. In New South Wales
things were different, with timber-getting in full swing. At
the suggestion of John Lever, a timber mill manager, Lever's
Plateau was one area excluded from exploitation. In 1948-49
Arthur Groom mounted a campaign for a national park linked
with Lamington. It was supported by well-attended local197meetings at Kyogle. Little progress was made, however,
with only a small strip of land adjacent to the highway being198declared a reserve.
Early in 1969 the Kyogle Community Development
Association and the Local Chamber of Commerce raised the
question of a Border Ranges National Park once again. In this
they were supported by the National Parks and Wildlife Service
which invited them to nominate an area. The campaign
commenced here was taken up in 1972 by the Border Ranges
196. CHICK, B. "History of the Border Ranges National Parks Movement", National Parks Journal, April/May 1976, pp. 3-4. 197
197. It is interesting to compare this fact with the almost total lack of support in the local community for the 1978 national park proposal. The poor local employment situation in country areas in more recent times goes far to explain this change in environmental politics.
198. CHICK, B. op. cit., note 196, p. 6.
135
Preservation Society who were later joined by the Coolong 199Committee. These groups represented the
institutionalisation of interested members of the public with
a common national parks priority for the area.
(iii) Government Decision Making Initiatives.
The controversy was examined twice by private
government inquiries. The former Liberal-Country Party State
Government held a Government Parties Inquiry which recommended
against a park. The Forestry Commission later approached the
Minister for approval for the construction of a major logging
and access road on the Lever's Plateau. In August 1976 the
government deferred its decision until the future management
policy for the Border Ranges had been determined. To this
end, an Interdepartmental Committee was established. The
Committee attempted a macro approach, with the Forestry
Commission, the National Parks and Wildlife Service, the
Department of Decentralization and Development and the
Planning and Environment Commission (now the Department of
Environment and Planning) being represented. It deliberated
for fourteen months but could not reach agreement. The
eventual report reflected the micro approaches of the
organisations involved and suggested seven options ranging
199. Ibid, p. 7.
200. STATE POLLUTION CONTROL COMMISSION, Review of Management Policies for the Border Ranges, op. cit., note 193, at p. 2.
136
from the delcaration of a national park covering the whole of
the Border Ranges, to complete logging to the limits of
utilisation.^®^"
This report was referred to the State Pollution
Control Commission (S.P.C.C.) to conduct a public inquiry.
The S.P.C.C. is a statutory corporation constituted under the?02State Pollution Control Commission Act, 1970.
201. Ibid, p. 2.
202. Act No. 95 of 1970. The Commission consists of twelve members appointed by the Government. Each member represents a particular interested section of society or a government department. The members are:- a chairman and director simply nominated by the Minister, one each from the Local Government Association of N.S.W. and Shires Association of N.S.W., and one member each representing primary industry, secondary industry, commerce, conservation and recreational activities. The remaining three members are the President of the Metropolitan Water, Sewerage and Drainage Board, the Under Secretary of the Department of Local Government and a member of the Health Commission nominated by it. The Commission is charged generally with the prevention, control, abatement or mitigation of pollution of the environment; the control and regulation of the disposal of waste; and the protection of the environment from defacement, defilement or deterioration (ss.11(b), 12(d) and 13(1)). In carrying out these responsibilities the Commission "co-ordinates, monitors and inspects the activities of all public authorities in N.S.W., and may direct any public authority to do anything within the powers of that authority that will in the opinion of the Commission, contribute to ... the protection of the environment generally." See STATE POLLUTION CONTROL COMMISSION, The SPCC and Environmental Control Legislation in N.S.W. , Publication EL-1, 1st October, 1974; see also SPCC Act,Sections 11(b), 12(d) and 13(1).
137
Under s.23(l) the Commission has power to
conduct an inquiry into any matter relating to its duties. The
Minister, can require the Commission, the technical Advisory
Committee, any other committee, sub-committee or member of the
Commission to conduct an inquiry. The person or body
conducting the inquiry has extensive powers to require
attendance, production of information, evidence on oath,
authorise any person to enter any industrial premises when in
operation and any other premises (not a dwelling house) at
any reasonable time for the purpose of examinations, inquiries203and taking samples. The maximum penalty provided under the
Act for failure to co-operate with the Commission's inquiry
powers is one thousand dollars. This was the original
statutory foundation of public inquiries directed to the
assessment of environmental matters in N.S.W. It has now been
replaced in practice by provision in the Environmental
Planning and Assessment Act, 1979.
The decision to hold a public inquiry to assist
in resource allocation decisions is generally a political
one. The circumstances stimulating this decision are
consequently difficult to discern with any certainty. The
predominant motivation stimulating 'environmental inquiries'
would appear, from this example, to be controversy. This was
also reflected in the New South Wales Government's stated
environmental, impact assessment policy prior to the
203. State Pollution Control Commission Act, ss. 24- 27.
138
Environmental Planning and Assessment Act 1979 (EPA Act).^^
This policy required that where proposals might cause
significant environmental impact or generate significant
"public controversy" a comprehensive environmental205investigation had to be carried out. It was however, of
vague and uncertain application. The criterion of
"significant public controversy" represented the only overt
political recognition of the importance of conflict and
'environmental politics' in the determination of environmental
priorities regarding public resource allocation. The
Environmental Planning and Assessment Act, 1979, does not
follow such initiatives, however. Here the criteria requiring
a public inquiry are not identified, the decision being simply
left to ministerial discretion, except in those cases207where it is mandatory (e.g. s. 101 and s. 98(3)).
204. STATE POLLUTION CONTROL COMMISSION, Principles and Procedures for Environmental Impact Assessment in N.S.W., Environmental Standard * 205 206 207EL-4, Government Printer, Sydney, 1975, p. 12.
205. Ibid.
206. Section 119, Environmental Planning and Assessment Act, 1979.
207. For a full discussion of the new procedures for Commissions of Inquiry under the Environmental Planning and Assessment Act, 1979, see WOODWARD, J. "Environmental Inquiries in New South Wales", (1984) 1 E.P.L.J. 317, 321-323.
139
The public controversy which surrounded the
issue of the Border Ranges was obviously paramount in
stimulating the political decision to hold a public inquiry.
It arose from the varied priorities of the opposing factions,
the conservation movement and N.P.W.S. on the one hand and the
timber industry and the Forestry Commission on the other. Its
significance, to a large extent was due to the efforts of the
conservation movement (especially the Coolong Committee and
the Border Ranges Preservation Society) who sought to mobilise
public opinion by use of posters, public meetings and
information provided by telephone and personal contact. Here
can be observed one of the greatest problems faced by the
conservation movement in stimulating environmental and
political assessment i.e., the mobilisation of public opinion
in an apathetic society. Once sufficient media coverage had
been achieved, however, a political decision was demanded on
the matter. The announcement of the public inquiry was seen
as an important victory by the conservationists in their fight
to save the rain forests. 208
208. GLASCOTT, J. "New Inquiry Planned on BorderRanges Park Plan", S.M.H., 20th May, 1978, p. 1.
140
(iv) The Inquiry
The political control over the public inquiry
was obvious. The S.P.C.C. tribunal, chaired by the then head
of the S.P.C.C., Mr.E.J. Coffey, with two investigation
officers, had the task of advising the government. The
ultimate allocation decision was always political. Further,
the terms of reference for the review limited the orientation
of the Inquiry. These were to:
"Consider the management options for the Border Ranges
identified in the Report of the Inter-Departmental
Committee on Management Policy for the Border Ranges
area;
Inquire into the likely -
(a) environmental
(b) social
(c) economic impact of the above mentioned
management options
(d) make recommendations, after consideration of
the above and any other factors which the
Commission believes relevant, in respect of
future management of the Border Ranges area,
having regard to the need to ensure the209maintenance of employment within the area."
209. STATE POLLUTION CONTROL COMMISSION, Review of Management Policies for the Border Ranges, op. *cit., note 193, p.1.
141
These terms, laid down by the then Minister for Planning and
Environment, Mr. Paul Landa, were criticised by the
conservation movement as they "perverted its (i.e. the
Commission's) statutory role and turned the hearings into an
inquiry into North Coast employment; all environmental210considerations were subservient."
On March 2nd 1978, the S.P.C.C. invited written
submissions on the Border Ranges. The deadline for these was
March 31st, a rather brief period considering the-amount of
information, technical and otherwise, which had to be
collected, assessed and put into submissions. A detailed
summary of the various submissions will not be attempted. Of
more importance to this paper is the process involved. There
were approximately 170 written submissions comprising some
1,350 pages and 30 oral submissions in Kyogle (the local
township) alone. Copies of the written submissions are
available for perusal at the S.P.C.C. library.
The oral presentation of submissions was before
the tribunal at Kyogle on March 21st-22nd and in Sydney on
March 28th-29th. The author was present at the Sydney hearing
and following are some personal observations of relevance to
an assessment of the decision-making process leading up to
the creation of the Border Ranges National Park. 210
210. PRINEAS, P. (then Executive Secretary of theNational Parks Association of N.S.W.) in a letter to the editor, "Border Ranges and the threat to unemployment", S . M . 11. , May 15, 1978.
142
The Chairman and investigating officers were
seated at a table in front of the theatrette. The first five
rows of seats were reserved for people representing the
various interested groups - about 24 people in all. The
remainder of the audience varied between 13 and 5 0 . These
numbers were about half of the number of people who attended
the Kyogle discussions. This reflects environmental politics
based on local interest and concern in a small country town
directly affected in terms of local employment, and compares212with the general apathy of a large city.
Mr. Coffey, in his introduction, outlined his
approach to the meeting. Individuals seeking to make
representations were to proceed to a dias at one side of the
room. The whole proceedings were to be taped. Each
individual's discussion (presentation or speech are probably
closer descriptions) was to relate only to the seven options
outlined in the Inter Departmental Committee Report. Mr.
Coffey assured potential speakers that if they kept to the
211. Figures are based solely on personal observation. It is obvious that numbers fluctuated throughout the day, for example at one point 50 people were counted. The STATE POLLUTION CONTROL COMMISSION, Border Ranges Environmental Review, Government Printer, Sydney, * 2125th April, 1978, lists 56 people in attendance.
212. Factors influencing this relate to areas and information. Almost everyone in the Kyogle district and surrounding areas would have been aware of the local meetings. On the other hand, in the city very few people would have been aware of the discussions despite publicity and stories in major metropolitan newspapers.
143
point he would be patient. If not, he would have to ask them
to desist. These statements apparently represented the only
outline of the rules of evidence and procedure for the 213inquiry. In fact, on occasions, various statements by
speakers were ruled out as "irrelevant" by Mr. Coffey - for
example, information which conservationsists sought to
introduce concerning the Forestry Commission's past record was
disallowed.
At the end of each address Mr. Coffey taped a
summary of the speaker's submission stating that from this he
would make representations to the S.P.C.C., who as a body,
would meet and make further representations to the
Government. These summaries were in fact made with the
speaker still at the dias. The speaker could object to any of
Mr.Coffey's summary statements or to clarify and re-state any
of his points. This happened on several occasions - for
example in his summary of Dr. Newman's speech Mr. Coffey was
corrected at least eight times.
213. Procedures for Environmental Inquiries had been evolved during 1975. "To the round table discussions are invited all the persons and organisations who made submissions . . . The public may attend as observers. At the discussions points are taken one by one, and when the discussion on each point is concluded, the chairman dictates a record of the outcome".STATE POLLUTION CONTROL COMMISSION, Report of SPCC for year ended 30 June, 1975, Government Printer, Sydney, 1976, p.26.
144
At the end of each submission, questions could
be asked of the speaker by the audience Here also the
Chairman made it clear that these must be questions and not
further submissions by the audience.
The approach of the Tribunal may appear to be
restrictive in light of the Government's description of the
proceedings as "round-table discussions".
Submissions came from the Forestry Commission,
the Country Sawmillers Association, the Australian Timber
Workers Union, and the National Parks and Wildlife Service.
Various conservation organisations - the Nature Conservation
Foundation, the Nature Conservation Council, the Coolong
Committee, the Total Environment Centre, and the National
Parks Association also put in submissions. One interesting
procedural point was the presentation by the Coolong Committee
of a film on the area as part of its submission.
The following comments can be made regarding the
presentation of the conservation movements submissions. The
speakers were, as orators, unimpressive. If their aim was to
state forcefully the case for a national park, they failed.
This aim would perhaps have been more effectively pursued by
use of professional skills such as those of an experienced
barrister, rather than retired scientists who were easily
caught flat-footed by well rehearsed questions from the
powerful organisations (government and private) opposing the
park proposals. Furthermore, co-ordination amongst the
conservation lobby was not apparent.
145
One submission well reflects the compromise
approach necessary to resolve conflict in resource allocation
disputes. Dr. Neville Schaefer, lecturer in Town Planning at
the University of New South Wales, and 17 of his final year
students prepared a detailed report on the area which was
submitted by the Coolong Committee. The importance of this
report was in its specific treatment of the employment issue,
obviously so important in the resolution of the park
proposals. The Schaefer Report suggested that the national
park could be a catalyst for a strong tourist industry in the
region, attracting an estimated two hundred and fifty thousand
visitors a year. The loss of jobs in the timber industry (an
estimated 200 foresters and 170 in service industries) would
be, in the long term, covered by this increase in tourism. In
the short term Dr. Schaefer proposed a scheme with re
allocation of timber quotas, use of imported timber and
government compensation to the tune of one million dollars to
Standard Sawmilling to forego its supplies of rainforest
brushwood trees from the Border forests.z Also suggested
was the use of private unproductive farm land for pine
forests. Many private farms in the area were prepared to
plant pine forests if the trees were supplied by the Forestry
Commission. This proposal envisaged a long term perspective
on the resolution of the immediate conflict i.e. planning to
avoid future conflicts.
214. GLASCOTT, J. "Plan to solve rainforestcontroversy", S.M.H., 18th March, 1978, p. 3.
146
Schaefer also suggested that the Forestry-
Commission was keeping quiet about alternative reserves in the
Urtenvill Forest in order to strengthen its case against the
park proposal.
(v) The Decision
Following the Inquiry's report the New South
Wales State Cabinet decided on 2nd May,1978 to create a
national park in the Border Ranges. Its declared area,
however, was only some seven thousand six hundred hectares,
covering a narrow strip (2 kilometres wide) along the
border. The high altitude forests included were, to a large
extent, inaccessible to commercial timber loggers.
Conservationists, who had asked for a park of some twenty
eight thousand hectares, were, to say the least,disappointed.
The decision was described by Milo Dunphy, Vice
President of the Australian Conservation Foundation as a"sell-
out":- "The Government has destroyed its meagre standing with215the Conservation Movement". Cabinet also decided to allow
the timber industry to log the Grady's Creek Flora Reserve -
the largest flora reserve in the State - reflecting the
impermanency of conservation values in forestry reservations.
Provision was made for a two million dollar reafforestation
programme to be spread over six years. The Premier, Mr. Wran,
alluded to the compromise nature of the decision, saying:
215. Ibid.
147
"Speaking for myself, I think we have acted as responsibly as we can in the circumstances, having regard to the threat of unemployment which has been balanced against the national heritage factors"
For satisfactory decision making along the
continuum, it is important that environmental decisions are
not based upon short-term political priorities i.e. re-
election , but rather on longer term, broad-based
environmental planning, to achieve sound resource allocation
priorities exhibiting minimum conflict. The importance of the
employment issue in this case also reflects the author's view
that environmental conservation, in general, is functionally
related to the existing economic climate i.e., it is a luxury
item the cost of which can only be born by society in times of
economic up-turn. In this case, local employment issues, in
an adverse economic climate clouded decision making. This and
Mr. Day's - the then local State government member and
Minister for Decentralisation, and Development and Primary
Industry - precarious political position with the proximity
of a State election at the time, appeared to dictate the park
decision.
The Commission's findings and recommendations
had been published on 5th April 1978. These contained the
statement:
216. Ibid.
148
"In issues such as this, there are no rules which govern the resolution of the conflicting viewpoints and there is no scientifically based method of determining what the answers should be. The Commission has the task, as a community based body, of making a value judgement having regard for the seemingly irreconcilable arguments put by the opposing factions"^^
The mood of the conservation movement was well represented by
Joseph Glascott in the Sydney Morning Herald:
"Conservationists are back on the street to campaign for National Parks . . . Conservation group protests outside the N.S.W. Forestry Commission headquarters in Clarence Street. The demonstration signalled the end of the conservation movements's two year honeymoon with the State Government
The importance of short-term political
expediency in public resource allocation processes comes
sharply into focus in this dispute. With State elections
being held shortly after the decision was handed down, it was
undoubtedly true that the blow to local employment and
business in the region, which would have been caused by the
establishment of the conservationists' proposed park, was
given overriding importance. The acceptance of this proposal
would have made it very difficult for the governemnt to have
retained its Casino seat. Mr. Day, it appears, argued the
timber industry's case strongly in Cabinet on the basis of
such short-term considerations.
217. STATE POLLUTION CONTROL COMMISSION, Border Ranges Environmental Review, op. cit., note 211. This * 218again reflects the political nature of environmental decision making.
218. GLASCOTT, J. "Border Ranges Park Decision",S.M.H., 10th May, 1978, p. 4.
149
(vi) Comment
Clearly here conflict had not been effectively
treated. The decision was obviously one-sided. The official
power of the sitting government was sufficient to ensure the
ultimate "acceptability" of its decision. It should also be
added that due to the limited resources of the organised
conservation movement, once a particular issue is 'lost1 it
must move quickly to the next issue if it is to continue
effectively its role in the decision-making processes
surrounding allocation and development of public lands.
Here again is seen the challenge for the
evolution of environmental laws to govern the development of
resources and deal with the conflicts involved. It seems
apparent, however, that, no matter how this challenge is met
the ultimate decision is political and as such short term
political expediency may often override decisions on
allocation which the processes surrounding it suggest.
The inadequacies of the public inquiry technique
as used in this case are apparent. The 'procedures', in
precluding any real discussion or interchange amongst the
parties, can be severely criticised as not seeking any real
compromise of conflicting interests. One could be forgiven
for thinking that the decision regarding the park was a
foregone conclusion based on political realities as seen by
the Cabinet. The inquiry's effectiveness in environmental and
political assessment can only be viewed as a one way
information process useful to the government as a public
) 5 0
relations exercise in the pursuit of its own short term
political priorities. It was seen to give an air of justice
and fairness to the decision.
(d) Rainforest Resource Allocation - The Aftermath of the
Border Ranges
In 1982 the Border Ranges National Park as
outlined above, was expanded, with the inclusion of Wiangarie,
Roseberry and part of Mt. Lindesay State Forests. This gave
the park an additional area of some 30,000 hectares. Once
again this highlights the political expediency of the initial
decision creating the small park area. Proper environmental
assessment obviously supported the allocation of a far greater
proportion of the rainforest area to national park usage. The
Gradys Creek Flora Reserve was also included in the amended
park boundaries. It had not been logged, as proposed in the
original park decision.
The public inquiry technique was ultimately used
in another public controversy involving the rainforest usage219issue, relating to the Terania Creek Basin. This area is
also situated in northern New South Wales. The conservation
lobby here was not so much the usual State conservation
219. See generally COLE, J.A. "Terania Creek:Conservation Movement holds the Line", Lega1 Services Bulletin, Vol. 4, No. 6, December, 1979, p. 243. Also note s. 119, E.P.A. Act, now provides the mechanism for public inquiries to be held in regard to decision making on public resource allocation decisions.
151
organisations but a local resident action group - The Terania
Native Forest Action Group.
In this dispute, the battle lines were actually
drawn and overt social conflict was apparent. The
conservationists established camp in the area; threats of
violence had to be investigated by the police, walls of
protestors stopped bulldozers; over one hundred police were
bought in; laws were passed allowing the Forestry Commission
to prohibit the public from entering land or obstructing
loggers; a senior state government advisor on forestry
resigned and twelve politicians visited the site. The
conservationists held out for a public inquiry and they got
one. The importance of public controversy in implementing and
changing priorities for public resource allocation was again
apparent.
Nardi in the
Yet another logging dispute blew up
Goonimbar State Forest near Lismore.
at Mount
The
220. Ibid. It is also interesting to note the similar protests and clashes between conservationists and police in the Gordon-below-Franklin Dam dispute. Civil rights issues may arise in regard to such disputes. "In the context of demonstrations and protests on environmental issues police powers and the lawful limits of protest are difficult to define with precision." WARNER, K. "The Gordon-below- Franklin Dam: Obstructing Police in theExecution of Their Duty", (1984) 1 E.P.L.J. 283.
152
National Parks Association had written to the Forestry
Commission requesting an environmental impact statement before
logging started in this area, which was just across the ridges
from Terania Creek. The Association argued that this was
required under the Environmental Planning and Assessment
Act. The Commission sent the loggers m at 4.00 a.m. one
morning escorted by a large number of police. In a re
enactment of the Terania Creek dispute scores of local222protesters camped m the forest were arrested.
The State Government did examine the rainforest
issue. In September, 1979, the then Minister for Conservation
and Water Resources, Mr. Gordon, was asked to prepare a policy
statement on all rainforest regions in New South Wales. In
1983 the Department of Environment and Planning published the2 2 SNew South Wales Government Rainforest Policy 1982. This
document examines the major rainforest areas of New South
Wales and outlines the policy of conversion of some Crown land
previously held for forestry purposes, into national park.
This was achieved by the revocation of certain dedications of
State forest and flora reserves and the reservation of such
lands as national parks under the Forestry Revocation and
221. PRINEAS, P. "Forests and the Law. The New South Wales Situation" in 26 National Parks Journal,24, 25, December, 1982/January, 1983.
222. Ibid.
223. DEPARTMENT OF ENVIRONMENT AND PLANNING, New South Wales Government Rainforest Policy 1982, D.E.P., Government Printer, Sydney, 1983.
153
National Parks Reservation Act, 1983.^^ The policy deals
separately with various areas under the headings -
Policy, Alternative Strategies, Timber Supply and Conservation
Attributes. Some 64,051 hectares of land were reserved for
national parks under the new Act. A further 23,688 hectares
were proposed for new national parks and nature reserves and225some 1,825 hectares proposed for flora reserves.
These initiatives show the recognition by the
State Government of the importance of the rainforest issue.
This was due, partially at least, to overt conflict generated
by the issues. Authority was threatened. The irreconsilable
nature of these opposing interests demanded macro anlaysis and
long term planning for effective decision making along the
continuum. This document points to the role which planning
and environmental assessment can play in reconciling
priorities before conflict erupts in relation to a particular
activity.
As can be seen from the above example, the
creation of a national park is in practice far more difficult
than appears from the simple reading of legislation. The
allocation of public assets to particular purposes must
involve the government in a difficult process of weighing 224 225
224. Act No. 37 of 1983.
225. Op. cit., note 223, p. 17.
154
competing interests. This usually involves the interplay of
many different parties having diverse resource allocation
priorities.
6. DEVELOPMENT IN NATIONAL PARKS
(a) Introduction
Once a national park has been declared a myriad
of interests and priorities must be resolved in determining
the management of the area. Fortunately this task falls to
the specialist administrative agency, the National Parks and
Wildlife Service. In carrying out its legislative charter
this organisation must pay heed to both the development and
conservationist lobbies, as well as satisfying the demands of
the 'owners' and users of the park - the general public. This
paper now proceeds to examine some of the problems facing the
N.P.W.S. in pursuing this task. The discussion concentrates on
the processes of development within national park boundaries.
The divergent conservation/development interests
observed in the decision making processes relating to the
creation of national parks are similarly present in decisions
on use and development of them, once created.
Once a park has been dedicated, the traditional
onus is reversed in relation to commercial development within
them. The land has been dedicated for public purposes and it
155
is up to developers (public or private) to justify their
activities in light of this priority. Though the arguments
relating to creation and development of national parks are
basically the same, those supporting conservation obviously
gain more weight when related to an area set aside for
conservation, recreation and similar public purposes.
Bambrick puts this position even more strongly when he noted:
”If then,a certain forested area is regarded by the public as barred to development, the opportunity cost of non-development, i.e. the income foregone, is of no importance. There are limits as to how far we would want to carry that argument. Obviously if all development ceased and the population continued to grow, we might wish to revise our ideas on the infinite value of preservation. However, at the margin, for specific areas, it is true enough"
Two basic types of development can be discerned
within national park boundaries. Firstly those carried out by
the National Parks and Wildlife Service in performing their
role under the Act. Secondly, developments carried out by
other private and public interests under various concessions
granted by the Government (the Minister and, occasionally, the
Director of the N.P.W.S.). Here private individual rights are
given over the public lands allocated for national park
resource usage. 226 *
226. BAMBRICK, S. "The Economic Impact of NationalParks", National Park Journal, September/October, 1975, p. 17.
156
(b) National Parks and Wildlife Service Developments.
Section 40 of the National Parks and Wildlife
Act, 1974 provides that:
"(i) Notwithstanding anything in the Crown Lands Consolidation Act, 1913, or any other Act, no lands within a national park shall be sold leased or otherwise dealt with except as provided in this Act or in the Snowy Mountains Hydroelectric Agreements Act, 1958".
The Act makes it clear that development by the N.P.W.S. must
be for purposes traditionally associated with national
parks. These would certainly include nature conservation and
apparently include tourism. The Director under s. 8(3) (b)
can only arrange to have works carried out if they are related
to . . the management and maintenance of . . . " a national
park or " . . the protection and care of fauna and the
protection of native plants".^ Even s.8(10), which gives
the Minister for Environment and Planning power to control and
direct the Director, is subject to s.12 which requires that
such directions for works or activities shall be . . for
the preservation and protection of national parks . . . ". It
would appear the only legal way to get around these provisions
would be to revoke the national park reservation over the land 228in question. This can only be done by an Act of
229Parliament.
227. Section 8(7).
228. FARRIER, D. "Development in National Parks", Environmental Law Newsletter, No. 17, January, * 2291985, p. 23.
229. See section 37(1).
157
In practice developments carried out by the
Director - National Parks and Wildlife Service in accordance
with the above legislative principles, are by far the greater
part of development carried out and found within national
parks, for example, roads, carparks, rangers' facilities and
visitors spaces.
A new system has been developed fairly recently 230with regard to these. Previously the impetus for a
development in a park came from the park staff. They would
then apply to the head office for a financial grant to allow
the construction of the particular work planned. The monies or
part thereof, would then be forthcoming and the development
would go ahead. Under the new system the impetus still comes
from the staff of the park concerned. However before any
money is given over, a series of forms assessing the
evironmental impact of the proposed development must be
submitted to the environmental impact assessment officer at
the N.P.W.S. head office in Sydney. This officer then agrees
or disagrees with the proposal. In the case of disagreement
the matter is dealt with at an executive level. If the
proposal meets the assessment officer's requirements the
decision is then handed up to the Regional Director (there
being four in New South Wales stationed at Grafton,
Parramatta, Queanbeyan , and Broken Hill) for the approval. 230
230. Information from interviews with JOHN HIBBARD,previously a National Parks and Wildlife Service investigations officer. Op. cit., note 173.
158
It appears that the impetus for the development
of this new system was the possibility of action being taken
against the N.P.W.S., under the Environmental Planning and
Assessment Act 1979 (N.S.W.)j if it made a decision without
fully satisfying its duties under s.lll to assess
environmental impact.
This Act sets out two mutually exclusive
approaches to environmental assessment under Parts IV and V.
If development consent is required under the relevant231environmental planning instrument applicable to the site in
question, then the operation of Part V is excluded by the
proviso to s.110. In this situation the environmental impact
assessment procedures under Part IV will apply in relation to
the assessment of the proposal for the purposes deciding232whether to grant development consent. For those operations
which are not covered by an environmental planning instruemnt,
or where the applicable instrument does not require consent
for the particular development proposed, Part V applies.
The issue of whether development consent is
required or not will be dealt with in detail in Chapter V in 231 232
231. See the Act for definition in s. 4.
232. Under this, consent bodies, usually local councils (occasionally bodies such as the Minister) make a specific decision on whether a development should be allowed to proceed where an applicable planning instrument provides for consent to be obtained for such development. See text pp.453-464.
159
the analysis of development m public reserves.
Development in national parks, historic sites, Aboriginal
areas, nature reserves, state game reserves and state
recreation areas no longer requires development consent.
Recent amendments to State Environmental Planning Policy No. 4
- Development Without Consent - clause 11A, have taken away
the need for development consent in the above areas regardless
of the provision of any applicable environmental planning
instrument. Where, however, the development will result
in the capacity of the local road system being strained or
will otherwise significantly affect other land in the
locality, the local council must be notified and its views
considered. Thus as a result of this provision, development
within national parks will now always fall to be assessed
under Part V of the Environmental Planning and Assessment Act,
1979.
Under Part V, section 111 imposes a duty on a
determining authority (here the N.P.W.S.) to examine and take
into account to the fullest extent possible all matters
affecting or likely to affect the environment i.e. the
activity's environmental impact. Section 112(1) further
states:- 233 234
233
233. See pp. 453-464.
234. State Environmental Planning Policy No. 4, Gaz. 181, 4th December, 1981, amended 31st August, 1984.
160
"A determining authority shall not make a final decision to undertake, or to approve the undertaking of, any activity that is a prescribed activity, an activity of a prescribed kind or an activity that is likely to significantly effect the environment unless(a) the determining authority has obtained and
considered an evironmental impact statement in respect of that activity .
Together, these two sections set up a statutory duty capable
of being enforced by any person in the Land and Environment
Court. Section 123 of the Environmental Planning and
Assessment Act allows any person to commence action in the
Land and Environment Court to restrain or remedy a breach of
that Act. The ambit of Part V and the requirements for
environmental impact statements, has been considered by the
Land and Environment Court in relation to Forestry Commission
activities.
During the Mount Nardi logging dispute,
previously noted a local resident Diane Kivi bought a s.o o £
123 action against the Forestry Commission. She sought an
order that the Commission stop logging until an environmental
impact statement required under s.112 had been obtained,
examined and considered. The Commission operated without the
necessity of development consent under Part IV of the
Environmental Planning and Assessment Act.
Mr. Justice Cripps decided that the proposed
logging was "likely to have a significant effect on the
235. See pp.151-152.
236. Kivi -v- Forestry Commission of N.S.W. and Standard Sawmilling Co. Pty. Ltd. (1981-82) 47 L.G.R.A. 38.
161
environment" under Part V and an environmental impact
statement (E.I.S.) was required. In doing so he was
influenced by evidence of expert witnesses from the Australian
Museum and the National Parks and Wildlife Service, as well as
the fact that there was a serious national park proposal which237included the area m dispute. He did not feel however that
an environmental impact statements were necessarily required
for all logging operations. The question is obviously a
factual one to be determined in each case. It had been
necessary to raise $15,000 in damages undertakings before the
court would grant and continue to enforce a temporaryo o o
injunction.
Another logging case looked at the content of an
environmental impact statement which had been prepared under
Part V. In this Mr. Prineas, the applicant, sought to
restrain the Forestry Commission from carrying out certain239roadworks prior to rainforest logging. The environmental
impact statement (E.I.S.) prepared by the Commission in
accordance with Part V was alleged to be inadequate and failed
to comply with s.lll in that it failed to examine to the
fullest extent possible, all matters affecting or likely to
affect the environment by reason of of the proposed activity. 237 238 239 * *
237. PRINEAS, P. op. cit., note 221.
238. Ibid.
239. Prineas v Forestry Commission of N.S.W., WoodProducts (Xarras) Pty. Ltd., Hancock Bros. Pty.Ltd. (1981-83) 49 L.G.R.A. 402.
162
The Commission accepted that the proposal was an
activity "likely to significantly affect the environment".
The applicant alleged the E.I.S. was defective because it
failed to treat hardwood logging (as required by the Director
under cl.56 of the E.P.A. Regulations) and looked at
rainforest l o g g i n g . T h e court held any such "requirement"
had ceased during discussions between the Department and the
Commission. It was also alleged that the E.I.S. failed to
examine the logging option as well as, logging impacts on
invertebrates, the Rufous Scrub Bird, the Hastings River mouse
and the Southern Angle Headed Dragon. Omissions regarding
aboriginal sacred mythological sites and the examination of0 / 1feasible alternatives were also alleged.
The Court found the document to be comprehensive
and of a high standard, attempting a broad analysis of the
proposal to log 1401 hectares of rainforest in the Hastings 2 A <ZValley. Various rainforest logging options were canvassed
in detail. Topography, geology, soils, climate, vegetation,
fauna, aboriginal culture and the European history of
240. Part VII, cl. 56 sets out that "factors to be taken into account when consideration is being given to the likely impact of an activity on the environment include whether that activity may cause" and lists various impacts (a) - (m).
241. Cl.57(2) Environmental Planning and Assessment Act Regulations sets out a list of matters the E.I.S. should include - (a)-(i). These include (h) - feasible alternatives and (i) consequences of not carrying out the proposed activity. 242
242. Op. cit., note 239, p. 407.
163
rainforest logging were all described. The social and economic
conditions of the Hastings valley, the environmental
interactions and measures for minimizing impacts were dealt
with. Impacts on visual and recreational activities,
hydrology and the air were considered. The court expressed
that the E.I.S.'s failure to cover every topic and explore
every avenue advocated by experts did not necessarily
invalidate it. While the E.I.S. had to be "sufficiently
specific to direct a reasonably intelligent and informed mind"
to the environmental consequences of an activity and had to be
written in a language understandable by lay persons and
specialists, Part V did not impose a standard of "absolute243
perfection". A concept of reasonableness (for example in
terms of money, time and manpower) had to be imported into
the statutory obligation. According to Mr. Justice Cripps,
provided an E.I.S. is comprehensive in its treatment of the
subject matter, is objective in its approach and alerts the
decision maker, the Department of Environment and Planning,and
members of the public to the environmental impacts, it meets
the required standards. ^
Thus, under Part V, if a third party could prove
that a proposed action within a national park was likely to
significantly affect the environment and that the N.P.W.S.
had failed to obtain and consider an adequate environmental 243 244
243. Ibid, p. 417.
244. Ibid.
164
impact statement an action would be available under s.123
against the Service. This would invalidate the decision and
ensuring compliance with the Environmental Planning and
Assessment Act, 1979.^^
Under s. 29 of the National Parks and Wildlife
Act, 1974, the National Parks Advisory Committee of Architects
has been set up. Section 30 outlines the functions of this
Committee, which include considering and furnishing reports
and advising the Minister or the Director on any matters
relating to the design and sighting of structures, planning,
development or asthetics within national parks,historic sites,
nature reserves, aboriginal areas, protected archaeological
areas, wildlife refuges and state game reserves. The Minister
and the Director have power to refer such matters to this
Committee for expert advice. An improvement of this procedure
could possibly be brought about if the Committee was able to
raise matters on its own initiative and not be restricted to
those areas referred to it by the Minister or Director.
Examples of such initiatives could be plans of management
and fire plans. °
245. For full discussion of civil enforcement proceedings under s.123 see FOGG, A. "Third Party Objections and Appeals in Development Control Decisions under Town Planning Legislation",(1985) 2 E.P.L.J. 4, 11-13. 246
246. NATIONAL PARKS ASSOCIATION, "National Parks and Wildlife Bill, 1974", National Parks Journal, September, 1974, p. 5.
165
(c) Concessionaire Development.
(i) General
Once allocated to national park use, members of the public
have certain common property rights over these areas. In the
development of public lands for profit by private
organisations or by public authorities for various purposes,
these rights or interests should be foremost in the minds of
political decision makers who act in the 'public interest'.
In the granting of leases and licenses for the exploitation
and development of publically-owned land for mineral and
forestry resources, (extractive development) the conflict of
the public's rights and interests is more extreme than in
relation to tourist developments within national parks.
Tourism can be in keeping with the national
parks concept and the general limitations placed on the
Director and the N.P.W.S. by the Act, previously outlined.
Similarly N.P.W.S. developments for nature conservation
purposes are within the conept. Extractive development for
forestry and mining purposes however offends the concept of a
national park. Once a continuum decision has been made and
the area allocated to national park use the development
priorities of the area are established. These areas have been
dedicated for public purposes - recreation, scientific study,
and conservation for future generations. Development of them
for commercial gain should not be undertaken lightly. Given
the limitations placed on the Director and the Service by the
166
Act, there must be some question as to whether such activities
can or should be undertaken at all. Fortunately, in New
South Wales these activities are only carried on in a very0/7small percentage of the total area of national parks.
One point is clear, as resources become scarcer
demands for the development of resources within national parks
will increase. Similar pressures will be experienced in the
competition for land (public and private) to be allocated to
national park usage.
It should again be emphasised, before proceeding
to the specific analysis of the scope for extractive, public
utility and tourist orientated development, that Part V of the
Environmental Planning and Assessment Act, 1979 potentially
applies to all development within all New South Wales national
park boundaries. In consequence proponents seeking leases or
licences for activities in national parks must provide
environmental impact statements to N.P.W.S. for prescribed
activities or activities which significantly affect the
environment. As the "determining authority" it must examine 247
247. These facts would probably justify the retention of the national parks title in favour of the natural parks classification which is applied in England to areas where the whole of the park is the subject of commercial activity. See generally Chapter 2 on national parks and comparison to European Natural Parks, pp. 57-58.
167
and consider this before making its final decision to approve 248the undertaking.
(ii) Mining and Forestry Resource Development
Under the Act there is scope for mining and
forestry activities to be undertaken by public and private
intersts on N.P.W.S. lands. Though this may appear to
conflict with the national parks concept and be more in
keeping with the idea of natural parks, such provisions have
been considered necessary. To allow for the 'optimum'
development of the public land resource, mining potentials
have been preserved. In practice such activities are not
encouraged nor often allowed. The situation does however
arise where an area proposed for parks acquisition has already
been subject to mining and forestry development. In these
circumstances, if the park is to be declared at all, these
activities must be tolerated, at least for a short period. 248 *
248. See definition, Part V, s.110 - " 'determiningauthority' - means a Minister or public authority and in relation to any activity means that Minister or public authority by or on whose behalf the activity is or is to be carried out or whose approval to the carrying out of the activity is required."
168
As previously noted s. 39 deals with "existing
interests". Under s. 39(2) the reservation of lands as a
national park or historic site does not affect:-
"(a) the terms and conditions of any existing interest in respect of those lands from the Crown or the trustees, current and in force at the time of the reservation; or(b) the use permitted of those lands under the interest
However, no existing interest shall be renewed nor the term
extended except with Ministerial approval and subject to any250conditions he chooses to impose (s.39(3)).
An example of continuation of mining interests
is seen in the dedication processes surrounding the Myall
Lakes National Park. Here, sand mining was allowed to
continue in small areas as the immediate closing down of the
local country industry with its employment ramifications,
would have meant adverse political effects for the sitting
government. This would have outweighed the political
advantages of declaring the national park. Thus given
political expediency, for the park to be declared at all, a
compromise on the national parks concept was necessary for a
249
249. Section 39(1) "In this section existing interest means any authority authorisation permit, lease, licence or occupancy." See pp. 123-124. 250
250. This subsection does not apply to any existing interest under the Mining Act, 1973, the Coal Mining Act, 1973, the Fisheries and Oyster Farms Act, 1935, the Petroleum Act, 1955 or the Petroleum (Submerged Lands) Act, 1967. This section and s. 41 reflect that at the time of the 1974 Act national parks were not under the portfolio of the Minister for Environment and Planning.
169
25 1short time.
Sections 41,42,54 and 55 of the National Parks
and Wildlife Act, 1974 deal with new mining and forestry
activities on N.P.W.S. lands. Generally, under s.41, mining
interests may be granted in respect of lands within a national
park, nature reserve, or historic site, assuming that notice
of the application has been laid before both Houses of
Parliament and has not been objected to (s.41(3)). Renewals
or extensions of the term of ''mining interests", as defined in
s.41(l), may be granted with the concurrence of the
Minister. Previously, where the mining interests were applied
for within the boundaries of a nature reserve they could only
be granted with the concurrence of the Director of the
National Parks and Wildlife Service and subject to such
conditions as he determines (s.54(3)). Section 54 has now
been repealed and s.41 applies to nature reserves the same as252it applies to a national park or historic site.
New forestry interests are treated under s.42
which prevents the application of the Forestry Act 1916 to
lands within a national park or historic site (s.42(1)).
Notwithstanding this however, all pre-existing licenses and
permits under the Forestry Act 1916, covering the relevant
251. On such compromise see "New South Wales Government Rainforest Policy 1982" and the * 252Forestry Revocation and National Parks Reservation Act 1983, as noted previously. See footnote 223.
252. National Parks and Wildlife (Amendment) Act,1983, Schedule 3, Clause (16).
170
lands are deemed, under the Act, to continue until their2 5 3expiration or until they are cancelled. Thus the scope
exists under the Act for forestry and mining activities to be
carried out in national parks, where they existed prior to
acquisition and also they can be granted after acquisition.
At the time of the passage of the 1974 Act the
National Parks Association of New South Wales strongly
objected to provisions allowing mining within national parks,
historic sites, Aboriginal areas or nature reserves on the
basis of the previously discussed national park concept. This
body recommended that an amending Bill should be required to
be passed through both Houses of Parliament as a necessarya r /
requirement to allow mining within these areas. This
course was not followed, however, due to the apparent need to
allow flexibility in priorities for political decision makers
attempting to resolve competing interests upon the merits of
the particular case at hand.
The conflict between mining and national parks
was specifically considered by the New South Wales Government
in its policy document Resolution of Conflicts between
253. Section 42(2) and note s. 39 - "existing interests" also appears to cover existing forestry licences and permits. 254
254. Op. cit., note 246.
171
Underground Extraction of Coal and Dedication and Management
of Areas as National Parks and Nature Reserves - Statement of
Policy. As this document states m its forward:
"This policy document was prepared by the National Parks and Wildlife Service and the Department of Mineral Resources as a basis to resolve a major land use conflict which has arisen in New South Wales, that of dedication of land for purposes of nature conservation versus the perceived need to explore and extract the coal resources which lie beneath that land.
These two land uses have traditionally been 256 Jirreconcilable".
The policy's principles apply to areas proposed
to be reserved under the National Parks and Wildlife Act,
1974, as at April 19th, 1979. The policy does not apply
retrospectively. Decisions on this were to be taken on an
individual park basis "as the need for extraction of coal
arises in the public interest".
The continuing growth in the recognition by the
community of the importance of national parks is emphasised in
the document. The dual roles of providing recreational areas
for the population at large and ensuring that adequate samples
of the natural environment on a sufficiently large scale are
preserved in a relatively pristine state for the future, are
255. DEPARTMENT OF ENVIRONMENT AND PLANNING, Resolution of Conflicts between Underground Extraction of Coal Resources and Dedication and Management of Areas as National Parks and Nature Reserves - Statement of Policy, D.E.P., 80/35, * 256 257Sydney, September, 1980.
256. Ibid, p. 2.
257. Ibid, p. 6.
172
identified by this policy.
On the other hand the "oil shock" of 1973-74 and
the 'energy crisis' are used in the document to bring home the
'necessity' to develop land utilization management plans which
will allow for the realisation of the latent potential of theOCO
State's coal resources (particularly in the Sydney Basin). J
Where coal reserves are located close to the
surface and extraction would be best undertaken by open cut
operations, the conflict is clearly resolved against mining.
The policy states that, due to the gross disruption of the
land surface, open cut mining and national parks are mutually
exclusive.
The policy recognises management practice as the
key to resolving the conflict between mining and national park
operations. The major initiative outlined in this regard
involves management planning and zoning. Mangagement plans
will be dealt with in detail under the last, heading in this
chapter. Zoning is a technique of town planning directed
toward land use control. In the national parks context the
areas of the national park are isolated and zoned according to
the degree of protection required for nature conservation,
scenic values and Aboriginal sites. Where important coal
resources are present the zoning principle provides the259planning framework for coal exploration and extraction. 258 259
258. Ibid, p. 5.
259. Ibid, p. 8.
173
The policy sets out four zones in national
parks:
1. Special Protection Areas.
These areas contain outstanding scenic features, 9 ft 0wilderness areas'^ or natural features that are particularly
9 ft 1sensistive to degradation by disturbance. ° No surface
disturbance is allowed. Special protection to prevent
subsidence effects must be implemented. In certain cases,
dedication of the national park is to be made without depth9 ft 9restriction in order to totally exclude mining.
2. Restricted Areas.
In these areas, some existing tracks can be
temporarily retained for exploration use. Ventilation shafts
are allowed with strict control, but no new tracks are
allowed. Helicopter access is required to ensure minimum 260 261 262
260. N.B. Section 61 requires that where a wilderness area is declared it ". . shall be kept and maintained in a wilderness condition"(s.61(1 ) (a)). The Special Protection area is directed toward preserving the land surface in this natural state.
261. Op. cit., note 255, p. 10.
262. Ibid, pp. 8 and 53.
174
O C Odisturbance to the surface. These areas are of high value
for nature conservation purposes or for protection of
outstanding scenery or natural phenomena.
3. Protection Areas.
These are, in effect buffer zones to restricted
areas. Provision can be made for temporary surface works for
exploration and some permanent works associated with
underground mining. Strict environmental controls are264exercised over any works.
4. Mine Service Zones.
These are relatively small areas where mining
facilities such as head works and transport services are
permissible. Environmental constraints required by the
National Parks and Wildlife Service and Department of
Environment and Planning (D.E.P.) are to be incorporated in9 A Sall leases and authorities issued under the Mining Act. OJ
The Policy provides a "Diagrammatic National
Park or Nature Reserve Zoning Plan Example" setting out a266possible application of the above zones.
The decision-making surrounding allocation of
these zones is handled by three government departments.
263. Ibid, pp. 10 and 53.
264. Ibid.
265. Ibid.
266. This is contained in Appendix D.
175
Environmental impact appraisal of development proposals are
prepared jointly by the Department of Mineral Resources and
the National Parks and Wildlife Service and submitted to the
Department of Environment and Planning before allocations of
any new mining or exploration titles are given over national
park areas. Where such a title is given, the project requires
an environmental impact statement prepared by the company who
has the title. Normal controls in other legislation also
apply (e.g. the State Pollution Control Commission exercises
controls under the Clean Air Act 1961 and the Clean Waters
Act, 1970).
The policy presents a system whereby new
national parks can be established over natural areas of the
Sydney (geological) Basin, while still allowing access to coal9 A 7resources of in excess of 37,000 million tonnes. It
reflects the recognition of conflicting 'environmental
politics' and the divergent public interests which a
government must accommodate in its resource allocation
decisions over large areas of national park. The response
attempts to reconcile the opposing interests and priorities
through use of the town planning technique of zoning in
management plans. This is a feasible technique which is
available over the longer term to reduce potential conflict
over resource allocation such as that between loggers and
conservation demonstrators in the previously noted rainforest 267
267 . Op. cit., note 255 , p. 53.
176
logging issue in Northern New South Wales.
(iii) Recreation - Tourist Development
In each country, national parks have played
varying roles. These often depend upon the social and
economic development of the country. A marked contrast is
apparent between industrialised western countries and
developing nations. The former seem pre-occupied. with
protecting flora and fauna within their natural eco-system and
preserving the natural values which the area holds. For
example, the Kosciusko Plan of Management isolates thirteen
management objectives, eight of which relate to such9 (L Q
preservation aims.
Though such aims may be expounded by developing
nations, their major thrust toward protecting wildlife and its
habitat is often based on commercial motivations. The
relatively recent establishment of national parks in many
developing countries can be closely linked with the growing
interest among their political leaders in the economic and
monetary advantages of international tourism, and the
multilateral and bilateral aid offered to these leaders to
help them in their efforts to establish, organise and269correctly manage their national parks. 268 269
268. Op. cit., note 78.
269. HARROY, J.P. op. cit., note 140, p. 27.
177
Though such considerations have not been the
basic impetus behind the creation and development of national
parks in New South Wales, their recreational values are
obviously of prime importance in management principles
Recreational activities very often require facilities which
can most 'efficiently' be provided to the public by private
enterprise. The provision of tourist and recreational
facilities in New South Wales national parks is a complex
development issue to be faced at the management level.
Prior to the introduction of national parks
legislation in 1967, the political power wielded by the
Minister for Lands over private development in national parks
was sole and discretionary. As with most political powers its
use was arbitrary and produced decisions which adhered to the
national parks concept to varying degrees.
Though this situation has changed somewhat,
there still exists a broad scope under legislation covering
national parks in New South Wales for various kinds of
development and commercial activity. Under the 1967 National
Parks and Wildlife Act (N.S.W.) the Minister for Lands was
empowered to grant leases of land within a national park for
the purposes of erection of hotels or houses, or the
178
provision of facilities and amenities for tourists and 270visitors (s.30). These powers also covered existing
developments which were present in areas when dedicated to
national park or historic sites. This scope was further
extended by powers to grant licenses to occupy or use lands of
a national park. In granting these and various franchises to
conduct certain activities (s.32) the Minister could determine
such terms and conditions as he saw fit.
An important example of existing tourist
recreation development within a national park in 1967 was the
skiing development in what was Kosciusko State Park. Leases
over various areas within the Park were granted in about 1960
by the then Minister for Lands, Mr. Tom Lewis. The leases were
granted on very favourable conditions - 50 years with 50 year
options, and no real terms or conditions were laid down
limiting the development under such leases, except the
provision that they could not be "unreasonable". The
vagueness of such a term is obvious and it later provided many
problems for the National Parks and Wildlife Service.
Developments of this type are now governed by
Part XII of the National Parks and Wildlife Act, 1974. Section
151 deals with leases and licenses over lands in a national
park, historic site or nature reserve and s.152 covers trade
270. As previously noted the control of national parks is now under the Minister for Environment and Planning. 271
271. Op. cit., note 78.
179
within a national park or historic site. Under s.151 the
Minister for Environment and Planning may grant leases of land
in national parks or historic sites for the erection of
accomodation hotels and accomodation houses and the provision
thereon of facilities and amenities for tourists and visitors
(s. 151(1) (a)). These powers also extend to the erection and
occupation of buildings for use in protecting and preserving
the park or site from fire, the provision of first-aid
services and facilities for the transportation of.the sick and
injured, surf life-saving and any similar purposes
(s.151(1)(c)).
Section 151(l)(d) allows the Minister to grant
leases over nature reserves for the erection and/or occupation
of buildings. These however can only be for the limited range272of purposes specified for nature reserves under s.49.
Finally, licensing powers over national
parks,historic sites, and nature reserves are set down in
s.l51(l)(f). This allows the Minister to grant licences "to
occupy or use" such lands. The scope of this section is973somewhat ambigious. Two issues can be isolated." Firstly
does the reference to use and occupation include the carrying
out of works and the erection of structures. These terms are 272 273
272. Previously outlined in Chapter II, p. 68.
273. FARRIER, D. op. cit., note 228.
180
not elsewhere defined in the Act, but it would seem unlikely
that they do. Licences are usually temporary.
The erection of buildings under a mere licence
(s.15 1 (i ) (f)) would also be difficult to achieve in practice.
If the applicant/developer erected a building this would
automatically become the property of the public, as it would
at general law be a fixture and part of the land. It is
unlikely under these circumstances that the tenure achieved by
a licence would be adequate to justify the capital
expenditure. A lease on the other hand is under normal
circumstances a more secure form of tenure capable of being
registered on the title to property (if one exists). Further,
under the Act 'occupation and use' may be types of
development, but use is usually distinguished from the
carrying out of works and the erection of structures in
definitions of "development" contained in other environmental 275legislation.
The second issue relates to the possible
274. For example, under the Local Government Act,1919, Ordinance 48A allows for occupation licences in public reserves, but only for three consecutive days at any one time. A similar approach to leases - licences is evident under the Crown Lands Consolidation Act where licences to occupy reserves are allowed for any purpose under S.37RR. These are actually called temporary licences and have a maximum duration of two years. 275
275. FARRIER, D. op. cit., note 228. Cf.Environmental Planning and Assessment Act, 1979 s.4(i); Coastal Protection Act, 1979, s.37(i); Heritage Act, 1977, s.4(l).
181
limitations on the purposes for which use and occupation
licences may be granted. If use and occupat ion can be read
broadly to include construction of buildings, can this
development be of any kind, for any purposes, even those which
in no sense further the national parks concept?^'0 If they
could, this would be in contradiction to the earlier parts of
s.151(1) which deal specifically with the erection of
buildings by lessees for strictly limited purposes, all of
which can be reconciled with the national parks concept.
Again, in the author's opinion, a limited interpretation of
s,151(l)(f) is in order.
The above constitutes the statutory power base
for allowing operation of skiing activities in Thredbo,
Perisher Valley, Smiggins Hole and Guthega which are all
within the boundaries of Kosciusko National Park. As
previously noted when this area was Kosciusko State Park, much
concessionaire development had taken place. Accordingly27 7Schedule 3 of the Plan of Management (1982) contained a
long list of development within that national park the
existence of which had, according to the plan, to be
regularised under the provisions of the Act within five years
or it would then become inconsistent with the provisions of
the plan. Much of it would be permissible because of special
arrangements regarding developments of the Snowy Mountain
276. Ibid, p. 24.
277. Kosciusko Plan of Management, op. cit., note 78, p. 144.
182
Authority. Some could be dealt with by easement agreements
under s.153. For the remainder, the plan indicated it was to
be legitimated, if at all, by the issuing of licences under
s.151 (l)(f). This would include various facilities
(buildings and structures) operated by the Department of Main
Roads, the Bureau of Meteorology and the N.S.W. Police
Department.
The above powers are supplemented by s.152 which
allows the Director to grant licences to carry on trades,
businesses or occupations within national parks or historic
sites (s.152(1)). The Minister also has powers under this
section to grant franchises to any person, with such terms and
conditions as he determines, for "the sale of goods and
services, provision of public transportation or the supply of
other facilitiies or amenities ...."(s.152(3)).
(iv) Miscellaneous Developments
The above discussion concerning Kosciusko
National Park points to various other kinds of development by
public authorities. The Department of Main Roads and the
Electricity Commission are two authorities important in this
regard. Section 153 allows the Minister to grant joint or
several use easements or rights of way through, upon or in a
national park, historic site or nature reserve. This section
278. FARRIER, D. op. cit., note 229, citing Kosciusko Plan of Management, op. cit., note 78, p. 101.
183
provides for access to lease or license areas within the park,
the construction of pipe lines, the construction of towers for
the transmission of electricity or easements for "any other
purpose deemed necessary".
This would appear to be a very broad power
regarding purposes and could foreseeably provide for freeways
through a national park. It is interesting to compare this
broad base with the previously outlined limitations on
purposes for development. It reflects the ability of the
national parks concept to accommodate broader continuum
decision making on the use of public resources even after
allocation to a particular use - national parks.
Section 152(l)(e) should be noted here. It
allows for leases over national parks, historic sites or
nature reserves regarding " . . buildings which have been
erected for residential occupation." This obviously deals
with pre-existing structures.
One final form of development within national
parks should be noted. This is seen in the National Parks and9 79
Wildlife Service's - "Ground Water Development Policy".“
This deals with the exploration for groundwater and the
installation and maintenance of water supply bores in lands
reserved under the Act. The policy applies to proposed
shallow ground water development in coastal sand masses rather
279. NATIONAL PARKS AND WILDLIFE SERVICE, Ground Water Development Policy, unpublished document, N.P.W.S., p.l.
184
than "artesian” ground water development. It states that
though such bores are alien to national parks purposes, they
will be considered where:-
(i) there are no technically feasible
alternatives; and
(ii) the proposed development can be demonstrated to
be in the wider community interest; and
(iii) there is no significant environmental impact (as
established by environmental impact
assessment).
Under these circumstances exploration drilling will be
considered. Similarly easements and licences (s.151(1)(f))
will be given where necessary. Where permanent bores existed
prior to the declaration of the park the appropriate lease281and/or easement will be given for continued operation.
Finally on the question of leases and licences,
the Minister has power under the Act to attach any terms and
conditions to them as he may determine (s.151(4)). 280 281
280. Ibid.
281. Ibid.
185
(d) Overdemand and 'Democratic Resource Development1
The problem is how to preserve the natural
values of national parks while still adequately catering for
the demands, recreational and otherwise, of their public
owners. The dilemma is well reflected in the United States
where statute created the U.S. National Parks Service:
"to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations
In N.S.W., the National Parks and Wildlife
Service faces these inconsistent goals of protecting the
ecological integrity of areas under its control while, at the
same time, fulfilling the recreational demands of the
public.* 283
The issue of people 'loving parks to death' is
most interestingly viewed from a perspective of 'democratic
resource development'. Luckily this problem has not yet
reached crisis point in Australia. It has,however, been
viewed from this perspective overseas. The problem is one of
access to a particular national park and the need to ration
dictated by demand pressures. Legal regulation must equate
282. FUTRELL, J.W. "Parks to the People: NewDirections for the National Parks System" Environmental Law Review, 1977, p.461, citing 16U.S.C. SI (1970).
283. See the new Kosciusko Management Plan, op. cit., note 78.
186
demand and supply. The only other alternative would be to
allow it to be fixed by price in the open market place. This
is not acceptable given the public ownership of the
resource. The democratic tradition must support the rights of
all individuals over their national parks i.e. common property
rights. Allocation on the basis of price would obviously
disadvantage the poorer sections of society. This is not in
keeping with the basic premise of public ownership. The
inequity of this would be amplified because of the relative
desirability of cheap outdoor recreation to the poorer
sections of the public.
Stretton focuses on the broader nature of these
issues in the English situation by reference to a few
examples:
"If an unspoilt coast has room for a compact holiday village, should the flats and cottages be owned by people who leave them empty for most of the year? If a forest or lakeside or countryside can stand a weekend shack every two or three hectares - i.e. if it can stand the use which that density of people will make of it - can the shacks be kept sanitary and unobtrusive without requiring that they be expensive? If locations are scarce should they sometimes go by lot or waiting time or be means tested, rather than by auction to the richest bidders.
Several national parks in the Uni ted S tates and
South Africa have had to face the problem of increasing
numbers of visitors seeking recreation in a pristine
environment. These countries have been forced to regulate the
number of visitors in their areas at any one time during peak 284
284. STRETTON, H. op. cit., note 53, p. 12.
187
periods. Other national park systems have discussed reducing
the number of visiting tourists by charging high prices to
stem the flow of visitors and maintain environmental quality.
A more sympathetic and perhaps desirable method, would be to
increase the number of national parks so that they can absorb
the same number of visitors wanting to go to these areas.
This also has the added advantage in that the tourists
visiting many parts of the country stimulate various local
economies and spread the benefits to local populations
involved in the infra-structure of the tourist industry. This
is particularly important in developing countries, for example
in East Africa, where the tourist industry is based on2 8 Snational parks and their animals. The practicalities of
such expansions in most developed countries however is far
more difficult. Here the conflicts surrounding use of
national parks, at least those in the vicinity of large,
metropolitan areas, must be faced at the management level.
At the present time the problem of 'democratic
development' or 'democratic distribution' of resource use has
been most thoroughly examined in relation to wilderness
areas. Here the idea of management is closely tied to the
concept of 'carrying capacity'. This concept limits visitors 285 *
285. CURRY-LINDALL, K. "Projecting the Future in theWorldwide National Park Movement" in Second World Conference on National Parks, op. cit., note 56.
188
to a number that can be safely supported by the natural eco-
system^ . It looks at how many people can use the area as
well as the way. in which people may use it. The law must
provide the framework in which the planning involved in the
application of these concepts is realised.
In determining the carrying capacity of an area
three points can be identified:- the physical, the ecological
and the psychological carrying capacity of a wilderness 287area.
The physical relates to the effect of man on the
inanimate aspects of the habitat e.g., the ability of the
terrain to resist track erosion or its ability to 'absorb'
man-made tracks, roads and other objects. The ecological
concerns the effect of visitors on the areas eco-systems.
When the natural plant and animal features are altered, when
the presence of visitors causes a bird or an animal to vacate
its normal habitat, when the streams are fished out, then the
ecological carrying capacity has been exceeded and the, wild
area' function will have been aborted. The psychological
carrying capacity is based on the assumption that a certain
atmosphere or setting is necessary in order that various
attributes of the environment may be perceived and enjoyed.
This generally resolves itself into a question of when the
286. ROWNTREE, R. "Managing Visitors to protect Park Values" in THE CONSERVATION FOUNDATION National Parks for the Future, Washington D.C., 1972, p.163. 287
287. THE CONSERVATION FOUNDATION, Ibid, p. 35.
189
presence of others will destroy that experience for the
visitor.288
The concept of carrying capacity can be legally
applied through the use of a management plan. These must
provide feasible solutions to the development-demand problems• . • 289experienced by parks i.e. continuum decision making.
Management plans may seek to constrain demand by market
rationing, through pricing. Proponents of this method would
argue that there are given maintenance costs in managing parks
and wild areas and that these costs should not be born by non
users, i.e. the tax payers in general. Rather the user should
pay for the privilege. This approach has ideological problems
arising from common property rights. Even more, it fails to
recognise the inherent scientific, historical, asthetic and
cultural values of national parks, placing sole emphasis on
their recreational functions to the right of the continuum.
Other possibilities which could be pursued in290management plans m facing such problems are:
288. Ibid, pp.35-36.
289. It should be stressed even with regard to the Australian experience that:"Problems from the need to develop tourism and at the same time protect the environment are likely to become more complex in the future". REPORT OF THE TOURISM COMMITTEE of the ORGANISATION for ECONOMIC COOPERATION AND DEVELOPMENT, Government Policy in the Development of Tourism, A.G.P.S. * 290Canberra, 1974, p.8.
290. DRAFT COLORADO RIVER MANAGEMENT PLAN AND ENVIRONMENTAL STATEMENT, summarised in Conoeing,No. 16, June 1978, pp.24-25.
190
- First come first served. This system would operate by
allowing visitors to come into an area until the carrying
capacity is filled. It would reward 'the early riser' or
those who live close to the particular site and would
discriminate markedly against people who must travel a long
distance.
- Built in frictions. By failing to maintain tracks and to
provide roads, access would be made more difficult and
rationing would be effectively carried out by restricting
entry on this basis. Of course, this is in contradiction to
the objects of preserving an area so that the whole population
has an equal opportunity to enjoy the wilderness or park
experience. The basic dilemma is once again confronted
headlong.
- The lottery system. While this system would be extremely
egalitarian, it would necessarily involve a large
administrative apparatus which would be costly. Potential
visitors would be forced to plan long ahead, removing any
spontaneous decision to visit. Also an undesirable 'black
market' could develop.
- Booking systems. Again this system is egalitarian, and
desirable from this point of view. It has disadvantages,
like the lottery system, of requiring a large administrative
apparatus and long term planning on the part of the• • 291visitor.
291. Ibid.
191
The aim is to provide equitable usage of
wilderness areas (and, in the future, normal park areas),
while at the same time restricting the number of visitors to
the carrying capacity level. A combination of the lottery
(reservation) and first come/first served options would appear
to be the best to investigate. A suitable ratio could be
formulated which would allow both long term planning and
spontaneous visiting. Park regulations could be fairly easily
drafted to reflect this. Further restrictions could be placed
on specific areas through the additional use of the built-in
friction plans. Such combinations would provide park and
wilderness managers with greater scope in their administration
of visitor use and the public with equitable opportunities to
exercise their rights over national parks.
(e) Management Plans. * 292
As the New South Wales Government policy
statement on coal mining and national parks states:
"It is well recognised that within any system of land use planning as applied to any area there is a need to develop some form of management control.”
292. Op. cit., note 255, p. 7.
192
Part V of the National Parks and Wildlife Act outlines the
powers of the Minister and the Director in this regard in ss.
72 to 82. Here the Director must, under s.72, prepare
management plans for all national parks, historic sites and293nautre reserves "as soon as practicable". Further,
s.72(4) lists objectives to which such plans must have
regard. The Director theoretically can also cause a plan of
management to be prepared for any State forest, but this
requires the written consent of the Forestry Commission, which
is unlikely to be forthcoming.
Where a management plan deals with land within a
catchment area under the control of either the Metropolitan
Water Sewerage and Drainage Board, the Hunter District Water
Board or the Broken Hill Water Board, or where N.P.W.S. lands
discharge water into such areas, s.74 comes into operation.
293. This is discretionary with regard to Aboriginal areas, wildlife refuges and state game reserves (s . 72 (1)(d)). Section 76 covers the adoption of plans of management for nature reserves. These are to be referred to the N.P.W.S. Advisory Council whose comments must be taken into account before adoption. The Minister has power to amend and alter, cancel and substitute a new plan.
Similar procedures are outlined (under s. 77) for the Aboriginal areas' plans of management. Plans for wildlife refuges and state game reserves are dealt with in s. 78. These require consent of the owner or holder, and the occupier of the lands to which they relate. No public input is sought in relation to plans of management for these areas.
193
This requires the Director to refer the proposed plan to the
relevant Board and to take into account their submissions
before adopting it.
Section 75 of the National Parks and Wildlife
Act, 1974, allows for public input into management plans for
national parks and historic sites. This reflects an attempt
to expand the inputs into continuum decision making in
management of national parks. After the plan has been
prepared it must be advertised and can be inspected.
Representations are to be forwarded to the Director. The plan
and representations are then referred to the National Parks
and Wildlife Advisory Council(ss.22 and 23). The Council's
comments and suggestions must then be considered by the
Minister before adopting the plan. The Minister has power to
amend and alter management plans and can cancel and substitute
new ones (s.75(7)). These powers are again subject to public
participation procedures (s . 75(8 ) (9 )).
194
Management plans are very important in governing294development m national parks and historic sites. Here it
is fundamental to realise that once development activities
have been undertaken within a park this usually involves
commitment of resources to stated purposes for the long
term. The recent controversy surrounding the management plan
for the Kosciusko National Park well represents this. This
plan is to govern development from the present time until the29 5end of the century. It well reflects the conflict between
conservation and development. The Service is faced with the
difficult task of resolving these conflicts. Some specific
analysis of this plan is useful.
294. Section 72(4) provides:Section 75A introduced in the 1983 amendments (Act No. 183 of 1983) also allows for the preparation of a plan of management for state recreation areas. Under s.75A(l) the Minister shall refer this to the trustees (if any) of the state recreation area in question and may refer a copy of the draft to "any other person". These people may then make representations to him which he must consider before adopting the draft plan, with or without amendment (s.75A(1)(5)). The Minister may also amend, alter or cancel a plan or substitute a new plan, subject to similar procedures. Once a plan of management has been adopted under s.75A(5) -"(a) The plan shall be carried out and given
effect to by the trustees of the area to which the plan relates; and
(b) No operation shall be undertaken on orin relation to the lands to which the plan relates unless the operations are in accordance with the plan."
(Emphasis added).
295. NATIONAL PARKS AND WILDLIFE SERVICE, Kosciusko National Park - Draft Management Plan, N.P.W.S., Sydney, June, 1980, p.2.
195
Kosciusko National Park is a large area in the
south west of New South Wales covering some six hundred and
seventy five thousand hectares of alpine country, fifteen
percent of which is above the snow line. Parts of the park
are managed as wilderness areas and others as skiing resorts
for intense recreational activities. Various demands have been
experienced by the area for over 40 years. With regard to
recreation/tourist usage, these have now reached crisis
point, with there being nowhere to accomodate any more people
within park grounds. The N.P.W.S. had expressed a desire to296keep accomodation developments outside park boundaries.
Various business interests and skiers legitimately felt that
this is not in the best interests of the general public.
Arguments have been put by pro-development lobbies that the
N.P.W.S.'s charter is based on protection of animals and the
natural environment and consequently accused the Service of
having no feeling for people's recreational needs.
Tensions previously outlined in relation to
development and use of parks are well represented in the
management of Kosciusko National Park. In attempting to
resolve these the Service published a draft plan of management
and made it generally available to any interested groups or• • 29 7individuals. 296
296. Ibid, p.3.
297. Op. cit., note 78.
196
The Kosciusko National Park Plan of Management
which was finally adopted in 1982 represents an excellent
example of environmental assessment and town and country
planning principles applied to public resource use continuum
decision making. Given its preparation by the N.P.W.S. some
have, as with the original 1974 plan, criticised it for its
emphasis on conservation. It is not proposed to here give a
detailed description of the plan, which is in excess of one
hundred and fifty pages. The general approach is similar to
the zoning approach outlined earlier regarding coal mining in
New South Wales national parks.
Management areas are isolated. These represent
the various resource values the park holds. In the Table of
Contents, the Scheme of Operations specifies:
1. Management of areas of outstanding natural resources.
2. Management of areas with special scientific values.
3. Management of areas - Aboriginal sites.
4. Management of areas - historic sites.
5. Management of areas - natural values.
6. Management of areas - outdoor recreation opportunities_ r- . . _ . _ . . 2987. Management of areas - skiing facilities.
Under these headings specific areas are outlined and detailed
management objectives applied to them as particular
"management units". The plan outlines a wide range of
management functions, park protection initiatives, wildlife
298. Ibid, pp. 5-10.
197
management and biosphere reserve management and provides a
basis for assigning priorities in works programming and
budgeting.
An important legal issue regarding management
plans relates to their ability to bind various parties in
their actions in national parks and other N.P.W.S. lands. The
1974 National Parks and Wildlife Act included s.81 which dealt
with this issue at that time. This stated:
s.81(l) "Where the Minister has adopted a Plan ofManagement for a national park . . . it shall .. . be carried out or given effect to by the Director . . . "
These principles were also applied to other N.P.W.S.
management plans applying to their other lands. The Act
continued in s. 81(4):
"Notwithstanding anything in any otherAct, where the Minister has adopted a plan of management for a national park, historic site, nature reserve or Aboriginal area, no operations shall be undertaken on or in relation to the park, site, reserve or area unless the operations are in accordance with that plan of management."
The interpretation of the ambit of this section in preventing
various development activities in national parks was examined
by the Supreme Court of New South Wales in Attorney-General
299
299. The area is now a UNESCO Biosphere Reserve, Kosciusko Plan of Management, op. cit., note 78 p. ivx. 300
300. Ibid, p. viii.
198
ex rel Dorman and Others -v- Director of National Parks and301Wildlife Service and others. The case also provides an
excellent example of many of the problems previously outlined
in regard to development in national parks.
The proposal was for a multi-million dollar
marina development in Ku-ring-gai Chase National Park about 20
miles north of Sydney. The park has an area of about 36,083
acres of disected sandstone plateau incorporating and fronting
on to the drowned river valley estuaries of Cowan'
Water,Pittwater and Broken Bay. The original park was
established in the nineteenth century. It exhibits all of the
necessary national park attributes of flora, fauna, scenery
and historical significance stemming from aboriginal
occupation.
The proposal by Clippers Pty. Ltd was for a
marina facility with 288 berths, 108 dry stack berths, 50
hire cruisers and 80 small boats for hire. The previous
parking problems were to be provided for in two areas and
various public facilities, including a triple boat ramp, were303to be built and maintained by the development company.
The lease, granted in 1976 to enable the
development to go ahead was for 37 years. It followed
301. Attorney-General ex rel Dorman and Ors. v Director of National Parks and Wildlife * 302Service. Decided by Mr. Justice Powell, 15th May, 1983, unreported.
302. Ibid, p. 2.
303. Ibid, p. 4.
199
extensive (over 6 years) negotiations and examination by
various bodies, including a Committee within the National
Parks and Wildlife Advisory Council (ss. 22 and 23), the Ku-
ring-gai Chase National Park Local Committee, the Advisory
Committee of Architects and officers of the National Parks
and Wildlife Service. The s.22 Committee voted five votes to
four to recommend the proposal. The company also obtained
development consent from the Warringah Shire Council. During
the attainment of various consents by Clippers a wide range of
statutory bodies including the State Planning Authority, the
Police Department, the Department of Main Roads and the
Maritime Services Board examined the proposal. An
environmental impact statement was called for.
The public controversy surrounding the
development was evident following the environmental impact
statement. The interest of the press was even noted by the
Court. A conservation group, the Friends of Ku-ring-gai Chase
National Park, and the National Parks Association represented
the main organised opposition to the plans for Akuna Bay.
Concern was for the preservation and conservation values of
the national park and the inherent conflict of these with
expansion of commercial and recreational uses. The national
parks - natural parks distinction was thus in question. The
competing priorities of individual members of the public and
interested parties were again reflected.
Following the granting of the leases in 1976,
construction was commenced. In 1977 the legal challenge was
200
made in an attempc to halt construction of the project on the
basis that it was not in accordance with the plan of
management for the Park. The President of the National Parks
Association, Mr. Dorman, sought the fiat of the Attorney-
General to bring a relator action, seeking to enforce the duty
of the Director under s.81(1) of the 1974 National Parks and
Wildlife Act, to ensure that the management plan was carried
out and given effect to. An attempt was made to enforce the
prohibition on operations not in accordance with the
management plan contained in s.81(4) against the Crown, the
Director and Clipper, in order to prevent the erection of the
building and the proposed activities.
The management plan was analysed by the Court in
two sections, the first of which provided descriptive and
background material and the second set out the scheme of
management proposed for the future. The Court stated that:
"...of necessity much of the proposed scheme is couched in generalities a fact which has given rise to the problems in the present proceedings.
Various sections of the plan could be interpreted as
supporting the development. The zoning approach of the plan
which classified the whole area as 'Natural Area1 did note
exceptions - "Development Areas". Concessions for visitor
services previously been granted and operated from Akuna Bay
and Illawong Bay. The applicant, however, argued that in the
management plan the Akuna Bay facilities were only envisaged
304. Ibid, p. 14.
201
and treated as existing development and not proposed for
expansion.
The Court analysed a number of sections of the
Act which it felt had bearing on the interpretation of section
81 (i.e. ss.22(l); 27(l)(a), (2),(3),(4) (a)-(b); 75(l)-(9);
81(1 )(4); 151(1 )(a),(4),(5); 175(1)) before concluding that
s.81 had no operation in this case. The reason for this was
that the s.81(l)~(3) duties and the s.81(4) prohibition, were
held to apply to the Director or persons (trustees) in whom
the care, control and management of the area was vested. The
sections therefore did not extend to cover lands which had
been removed from their care, control and management by virtue
of some lease or easement. In other words in this case the
plan was only enforceable against the Director where he had
care, control and management of the particular area. In
granting the lease under s. 151 he gave up this care, control
and management and thus the plan could not be enforced against
him.
The Court went on to note that though the above
conclusion was enough to decide the case, there was no breach
of s.81(4) on the facts of the case. This was because the
plan of management provided a 'scheme' of operations rather
than detailed plans and specifications. Consequently "in
accordance with" as required in s.81(4) should be interpreted305" m substantial accordance with". The Court felt the Akuna
305. Ibid, p. 39.
202
Bay project satisfied this broad interpretation of s.81 as it
involved various concepts envisaged in the plan. wo It was
also apparent when the Court refused the relief sought that it
was acutely aware that 1.6 million dollars already spent on
the project prior to legal proceedings being commenced.
An obvious problem with the legal status and
enforcability of management plans under s. 81 arose from the
interpretation suggested by this case. A s.151 lease could,
in effect, suspend or at least make unenforcable the Plan of
Management. Accordingly, the National Parks and Wildlife
(Amendment) Act 1983 amended s.81(4) to read:^®^
"Notwithstanding anything in this or any other Act or in any instrument made under this or any other Act where the Minister has adopted a plan of management for a national park, historic site, nature reserve, state game reserve or Aboriginal area, no operations shall be undertaken on or in relation to the park, site, reserve or area unless the operations are in accordance with that plan of management". (Emphasis added)
This, along with the omission of s.151 (5) which invalidated
lease or licence conditions inconsistent with management plans
for national parks, historic sites or nature reserves "that
are lands submerged by waters", appears to overcome Mr.
Justice Powell's rationale that the Director gave up his care,
control and management. Thus management plans now bind the
Director "notwithstanding anything in . . . any instrument
made under this Act . . . " i.e. a s.151 lease or licence.
306. Ibid, pp. 39-40.
307. See National Parks and Wildlife (Amendment) Act 1983, Clause 29, Schedule 3 and Clause 3,Schedule 5.
203
This is made quite explicit by s.BlA:
"Without affecting of the provisions of this Part, this Part has effect in respect of any part of a national park, historic site, nature reserve or state game reserve that is subject to a lease, licence or easement granted under Part XII."
These amendments however, did not greatly expand
the enforceability of management plans such as was attempted
to be achieved in Dormans's case. They did not affect the
basis of Powell J.'s decision that the requirements of s.81
are directed solely at the Director and not at the Minister or
other persons conducting operations in a N.P.W.S. area
contrary to the Plan of Management. The suggestion has been
made that the contravention of s.81(4) by anyone should be, „ 308made an offence.
With regard to the enforceability of management
plans in national parks and other N.P.W.S. lands one point
should be made. Under the Environmental Planning and
Assessment Act, 1979, local environmental plans must be
adhered to by everyone, at risk of an enforcement action in
the Land and Environment Court under s.123. A similar broad
standing requirement to that of s.123 (or the lack of any
requirement at all) may be appropriate in regard to management
plans under the National Parks and Wildlife legislation with
recourse being available to the Land and Environment Court, a
specialist jurisdiction in the environmental - resource use
area.
308. CANNINGS, D. "Plans of Management for National Parks and Other Conservation Reserves in New South Wales: The Akuna Bay Amendments",Environmental Law Newsletter No. 15, June 1984,p. 16.
204
In summary, regarding N.P.W.S. plans of
management, one point should be emphasised. The continuum
conflicts which arise in individual areas isolated to a
particular resource allocation or use must be faced at the
management level. As such, management plans provide a legal
instrument for control based on environmental assessment and
long terra priority planning. They are fundamental in the
law's response to the usage pressures and conflicting
priorities of various parties in relation to public lands.
The N.P.W.S. has, in its use of management plans, adopted a
planning approach which attempts to deal with the conflicts
faced by new environmental laws. As such, it suggests an
approach which may be paramount in the future management of
all parks, reserves and recreation areas.
7. CONCLUSION
In New South Wales, the national parks concept
gained early recognition, with the dedication of the Royal
National Park, the world's second. From this time, various
areas have been set aside for national park usage. It was not
until the National Parks and Wildlife Act 1967 however, that
an effective and comprehensive approach to dedication-
reservation and management was established.
The system for control of New South Wales
national park lands is considered by the author to be adequate
and effective. These areas have been segregated from the
various other parks, reserves and recreation areas in terms of
205
management and control. The alternative of placing them at
one extreme of an overall parks system covering all parks,
reserves and recreation areas would, in the author's opinion,
create even greater problems regarding priorities, conflicting
interests and effective management.
The National Parks and Wildlife Service set up
under this legislation provided a specialist body to deal with
establishment and management of these public lands. The 1974
amendments and the change in the ministerial portfolio to
Environment and Planning, further enhanced the performance of
the State government in the national park area.
The N.P.W.S. in both the creation and management
of lands under its control has had to face the challenge
underlying environmental law - the resolution of conflicting
priorities or interests. The initiatives stemming from Part V
of the Environmental Planning and Assessment Act, 1979,
regarding environmental impact assessment, have assisted the
expansion of the political and environmental dimensions in the
management of N.P.W.S. lands. This process is likely to
continue as conflicting priorities become more accute and
management plans become more important in their resolution.
National Parks' legislation in New South Wales
represents one of the most important new pieces of
environmental legislation and well exhibits the conflicts
which they must face. Here lessons can be learned which may
prove useful for the reform of the law surrounding other
parks, reserves and recreation areas.
206
CHAPTER IV.
PUBLIC RESERVES IN NEW SOUTH WALES.
CREATION AND TYPES
1. INTRODUCTION. * 309
The terra "public reserve" is a very complex one for
definitional analysis. The reservation or dedication
processes by which Crown or private land is allocated to
various public purposes are contained in a variety of
statutes, for example, the National Parks and Wildlife Act,
1974, the Forestry Act, 1916, the Local Government Act, 1919,
the Crown Lands Consolidation Act, 1913 and the Environmental
Planning and Assessment Act, 1979. Public purposes requiring
such reservations are many, for example, forestry, flora and
fauna conservation, national parks, roads, mining, cemeteries,309public utility installations and community facilities.
The purpose of importance to this paper has
a number of particular designations - open space,parks and
gardens or public recreation. In fact in popular usage,
309. See for example "List of Public Purposes Declared under the Crown Lands Acts and Closer Settlement Acts from 1st January, 1885 Appendix 'A'.Appendix to internal Lands Department document.
207
public reserve is the generally accepted description of an
area set aside for these purposes. The title is also attached
to some areas that have simply been used for public recreation
purposes and have not been subjected to any reservation or
dedication process under the legislation to legally establish
a public reserve.
In summary,many areas are reserved or dedicated
for various public purposes. As such they can be described as
public reserves. The common usage of the term however, is to
identify those areas in public ownership used for open space,
parks and garden or recreation purposes. This point will be
explored more fully in Chapter V where the judicial analysis
of what is a public reserve purpose is presented in the
context of development within public reserves.
In dealing with the reservation processes for
alienating land to public recreation purposes two distinct
approaches are discernible. Firstly, the reservation or
dedication of various Crown lands by the Crown Lands
Department to achieve their allocation and management for the
public purposes specified in the reservation or dedication
(the creation of public reserves). Secondly, the reservation
under the Environmental Planning and Assessment Act, of lands
determined suitable for future public purposes. Environmental
planning instruments earmark lands to be acquired for future
public purposes and regulate their usuage not for these
purposes, but merely with them in mind, i.e. a planning
approach to ensure that the ultimate achievement of the public
208
purpose of the reservation is not precluded.
The two important statutes concerning the
'acquisition'of public reserves are the Crown Lands
Consolidation Act, 1913 and the Local Government Act, 1919.
The first chapter provided a definitional
analysis of the lands held for public recreation purposes
under these Acts. In this regard it is important to note that
the Local Government Act definition of "public reserve"
includes "any land dedicated or reserved from the sale by the
Crown for public health, recreation, enjoyment or other public
purpose of the like nature, . . " i.e. a Crown land "reserve".
Under these statutes the New South Wales Crown
Lands Office and the various Local Government authorities
exercise the majority of powers in relation to acquisition and
control of public reserves. The powers are exercised by
these bodies, independently as well as jointly, depending on
the history of acquisition of the public reserve being
examined and whether it is reserved Crown land or fee simple
lands acquired by local government for public recreation
purposes. These powers will be further explored in this
chapter and Chapter V.
The fundamental point common to both State and
local government public reserves is that individual members of
the public have rights in relation to areas dedicated,
reserved or purchased as a public reserve. The extent and
classification of these rights, as proprietary or otherwise,
is very difficult.
209
The first chapter presented a general analysis309aof private common and state property rights. Under this
public reserves are those areas owned by the State in which
the citizenry has been granted common property rights. In
other words the process of reserving, dedicating or acquiring
land for a public reserve or a national park usually involves
the distribution of some "common property" rights in the land
from the State who holds "State property" rights arising from
ownership. Once this has been achieved the individual members
of society acquire individual rights in relation to the area,
usually giving them some right to use and, at a minimum, a
right not to be excluded from the use or benefit of the public
reserve.
The purpose for which the particular area of
public lands is reserved or dedicated, usually sets the
parameters of the common property rights, if any, individual
members of the public hold over the area. The processes by
which such rights are acquired by the public are outlined in
this chapter. Difficulties arise, however, (to be examined in
the next chapter), concerning the legality of allowing
development within public reserves which offends the common
property rights of the individual and allocates exclusive
individual or private rights akin to private property, to
various groups by way of lease or license. The scope and
enforceability of the individual's common property rights are
very unclear and have only been the subject of comment in a
handful of cases which have dealt with particular fact
309a See text pp. 11—16.
210
situations. It is hoped the following analysis and that of the
next chapter, throws some light on to this question.
This chapter now proceeds to analyse the
allocation of lands to public reserves, which has this effect
of granting to the citizens of New South Wales some "common
property" rights in relation to them. For the purposes of
analysis these reserves are segregated into two areas: Crown
land reserves and local government public reserves.
2. RESERVES UNDER THE CROWN LANDS CONSOLIDATION ACT,1913
FOR PUBLIC PURPOSES.
(a) Introduction.
The territory of New South Wales had been possessed by British
subjects, in the name of their sovereign. It therefore
belonged to the British Crown:
” in a newly discovered country, settled by British subjects, the occupancy of the Crown, with the respect to the wastelands of that country, is no fiction. If, in one sense, those lands be the patrimony of the nation, the sovereign is the representative, and the executive authority of the nation; the "moral personality" (as Vattel calls him, Law of Nations, Book 1, Chapter 4) by whom the nation acts, and in whom for such purposes its power resides.
310. SACKVILLE, R. & NEAVE, M.A. Property Law Cases and Materials, Butterworths, Sydney, 1971,p.201.
211
Following the colonisation of Australia by England, the above
and various other principles of property law were adopted by
the colonies. The doctrine of tenure for example still
lingers on and is still formally part of Australian law,
though it has little practical significance. The principle
states " . . . that no person can, in the technical sense, own
land, since all land is held by the Crown." Land was
alienated to private ownership by a grant from the Crown.
Often this contained a clause or proviso which reserved to the
Crown any parts or so much of the land as could be required
for public ways or mines (with full and free liberty and power
m the Crown to search for and mine minerals). Usually in
part of the intrument of grant there was a proviso for making
the grant void if the conditions, reservations and provisos of
it were not observed. As a result private individual property
rights were given to the grantee with the Crown retaining some
residual "corporate private property" rights in the land. At
the time of making the grant of land to the individual the
Crown was presumed to have had title to that land. In fact,
all the lands in the colony of New South Wales have, as a
matter of judicial cognizance, their title originally in the
Crown. This is the basic premise on which all other titles
rely.313
311. Ibid, p.202.
312. Ibid.
313. See the 1947 N.S.W. Supreme Court decision in Attorney General -v- Brown (1947) 2 S.C.R. 9, 30(N.S.W. C. App.).
212
From these foundations a system of fee simple
ownership of land in New South Wales has grown. The Common
Law determined at a very early stage that flexibility in the
system of land holding was desirable. The result was the
evolution of the doctrine of estates. This permitted
interests in land to be carved out on a temporal basis, while
also allowing a person who did not have the right to possess
the land until a future time to hold a disposable interest.
The Common Law developed the notion that:
"...there was a thing called the 'estate', quite separate from the land. Ownership of the estate entitled the owner to possession (seisin ) of the land at some time, but not necessarily to immediate possession (or seisin)." 314
Originally the lands of New South Wales were
"State property". Over the period of time since colonisation
much of this land has been transferred and made subject to
individual private property rights. The fee simple estate
became the cornerstone of the system. The proprietary
interests which such an estate gives are clearly a creation of
law and quite distinct from the objects with respect to which
it is held. This provides the flexibility necessary for
proprietary interests to be ".... created and moulded to serve
the needs of society and, in particular, proprietary
314. Op. cit., note 310, p.209.
213
interests in land can be divided between persons on the basis
of time". The fee simple is the greatest interest in land
recognised by the common law and is the closest it comes toO 1 £
recognising "absolute ownership". 10
It is clear that "the State" of New South Wales
is now the owner of vacant Crown lands as the British Crown is
no longer the executive authority in relation to the State.
Thus when for example the Minister of Lands (the Department)
acquires any lands (a fairly unusal occurrence) the title
issues in the name of the State of New South Wales. This
title is a fee simple one issued by the Registrar General
under the Torrens system. In relation to vacant Crown land
already owned by the State however, most of it has not had any
Certificate of Title issued by the Registrar General. It
appears that the 'title' of such lands is based on the
original presumption stemming from British colonisation and it
now lies in the State of New South Wales. Steps are presently
being taken however by the Registrar General, to achieve the
issue of titles in relation to various Crown lands. These
initiatives to date are related to Crown land held privately317under lease from the Lands Department. 315 316 317
315. Ibid, p. 210.
316. Ibid, p. 211.
317. From an interview with JOHN McNEILY, Department of Lands, Environmental Resources Section, 17th February, 1983.
214
The initiatives from the Registrar General
(R.G.) involve survey and registration at his office to enable
the issuing of titles over all Crown lands (even vacant Crown
land). Following the current treatment of all the leasehold
lands the R.G. may move on to other lands such as reserves.
At present there is no Certificate of Title being issued over318Crown land reserves.
Historically, to change Crown land into Torrens
title and give either common or private property rights to
it, the issue of a grant was necessary. Crown grants are no
longer favoured however, and a Certificate of Title can be
issued by the Registrar General in relation to Crown lands
sought to be converted. This process requires a survey of the
land and the registration of the relevant documents at the
Registrar General's office with instructions from the Crown
Lands Office to issue title in relation to the land.
Apparently the Registrar General and the Lands
Department have, not yet worked out who would get title in
relation to the various types of Crown land public reserves319when titles issue. (i.e. the trustees or the Department).
It is noted that in relation to Crown land
public reserves, s.37 X(1) of the Crown Lands Consolidation
Act, 1913, provides that trustees are,for the purposes of Part
IIIB of the Act, "deemed" to have an estate in fee simple in 318 319
318. Ibid.
319. Ibid.
215
the reserve (except to the extent that they already have an
estate in fee simple apart from the section). Section
37(X)(4) divests trustees of any estate in the reserve upon
its revocation.
In summary, vacant Crown lands held by"the
State" are in a sense, corporate private property.
Individual citizens have no personal right to use and
enjoyment, or to not be excluded from these lands. Once Crown
land has been established as a "public reserve" however, by
either dedication, reservation or setting apart, it is clear
that individual citizens are, by this process(es), given
certain common property rights, even though they are not given
any legal interest in the area. These rights rely on some
form of trust relationship created with the appointment of
trustees and deeming that they hold a "fee simple" estate.
It is these rights which are paramount in the
management, control and development of public reserves once
they have been changed from "state property" to "common
property". Crown lands public reserves are for various
purposes. These purposes and their enabling legislation
outline, in relation to each particular area, the extent of
any "common property" rights vesting in individual citizens
i.e. the terms of the trust.
The enabling legislation for Crown land public
reserves - the Crown Lands Consolidation Act, 1913 - is a
lengthy and complex document. It consolidated sixteen Acts
passed between 1814 and 1912 and contained parts from a
216
further fourteen Acts. Since this time it has been amended by320more than ninety Acts. This paper now proceeds to outline
those provisions relating to the creation of Crown land public
reserves. These are of fundamental importance, both
historically and currently, to the provision of parks,
reserves and recreation areas in New South Wales. As outlined
in Chapter II, where the s.37M(l) definition of "reserve" was
set out in full, there are three basic processes by which
reserves were created through the alienation of vacant Crown321land - dedication, reservation and user. The paper now
proceeds to analyse these.
(b) Dedication Under the Crown Lands Consolidation Act, 1913.
Section 24 of the Crown Lands Consolidation Act states:
"(1) The Minister may by notification in the Gazette dedicate Crown lands in such manner as may seem best for the public interest, for any railway or railway station-public road, canal or other means of internal communication - public quay or landing place-publie reservoir aqueduct or watercourse - the preservation of water supply- hospital asylum or infirmary- public library museum or other institution for public instruction or amusement - town-hall court-house or gaol - permanent common - public health or recreation convenience or enjoyment - public park - cricket ground - or racecourse - interment of the dead - use and general purpose of pastoral and agricultural associations - public baths or for any other public purpose.
And upon any such notification being published in the Gazette, such lands shall become and be dedicated accordingly," (Emphasis added).
320. Ibid.321. See pp. 94-95.
217
Under s.24(2) the Minister may also add lands to an area322dedicated under s. 24(1). A dedication under s.24(l) or
s.24(2) has the effect of revoking any previous
classifications or reservations covering such lands, provided
that revocation of timber reserves require the consent of the
Minister administering the Forestry Act, 1916 (s.24(3)).
Dedication or addition under s.24 must be laid before both
Houses of Parliament one month before such dedication or
addition is made (s.24(4)).
In early times the normal process for Crown land
allocation to public park, reserve or recreational purposes
was through securing its dedication as a reserve for public
purposes under s. 24. By way of example, in the Rockdale
Municipality, as early 1878, moves were made by private
citizens to secure a public park from Crown land. A deputation
waited upon the Minister for Lands and presented him with a 322
322. These lands which can be added include "closersettlement lands" which are defined in s.24(6): " 'closer settlement' means lands acquired under the Closer Settlement Acts, and without affecting the generality of the foregoing provisions of this definition, includes lands within a settlement purchase area set apart under section 21 of the Closer Settlement (Amendment) Act,1909, but does not include -(a) any lands reserved or dedicated under
section 13 of the Closer Settlement (Amendment) Act, 1914;
(b) any lands sold or lawfully contractedto be sold under the Closer Settlement Acts;
(c) any lands disposed of under section 21(6) of the Closer Settlement (Amendment) Act, 1909; or
(d) any lands held under a lease under the Closer Settlement Acts."
218
petition requesting the dedication of a public park at323Scarborough, a newly laid out town. In the course of
discussions for the dedication, the Minister made several
stipulations, including one that the Mayor of West Botany
should become the trustee of the proposed park. It was
dedicated to public use in 1879.
Another example from this Municipality shows
that the Department even purchased land for dedication to
public reserve as well as alienating existing vacant Crown
land to this purpose. In 1898, after negotiations and many
petitions, the Council persuaded the Department of Lands to
purchase an eight and a half acre paddock which was then
handed over by the Department to three trustees as Rockdale
Park.* 324 325
Historically the appointment of private trustees
was the favoured mode of regulation and management used by the 325State Government. Prior to the 1974 amendments to the
Crown Lands Consolidation Act, 1913, the Minister had power
under s. 26 of the Crown Lands Consolidation Act, 1913 to
appoint between three and seven trustees to be charged with
the care and management of the lands for the recreation,
323. PARISH, T. Planning for Recreation in the Municipality of Rockdale, submitted to Universityof Sydney as a dissertation for Dip T. & C. Planning, 1971, p.2.
324. Ibid, p.8.
325. See Public Trusts Act, 1897. Interview with JOHN McNEILY, Department of Lands, 8 August, 1982.
219
convenience, health or enjoyment of the inhabitants of any
city, town or district or for any public purposes whatsoever.
As noted in the above example, local council officials were
also on occasion appointed as trustees.
The provisions of s. 26 also allowed the
conferring upon the trustees of "such estate in such lands
accompanied by such powers and with such conditions as he (the
Minister) may think fit and as may be specified therein." It
appears here that the Minister could secure the granting of a
fee simple estate to the trustees (though a certificate of
title did not issue).
The approach of dedicating land had problems.
Once the lands had been so dedicated it was no longer Crown
land under the Crown Lands Consolidation Act, 1913 and would
not revert to the Crown until the Deed of Dedication was
revoked.
This situation arose from the definition of
"Crown lands" in s.5:
"means lands vested in His Majesty and not permanently dedicated to any public purpose or lawfully contracted to be sold under the Crown Lands Acts." (Emphasis added).
Revocation of a dedication required a resolution of
parliament.
220
This was an involved process under s.25 326 This section
326. Section 25, Crown Lands Consolidation Act: "Inany case in which the Minister shall be of opinion that the purposes for which any reservation or dedication of Crown lands made before or after passing of this Act have failed wholly or in part - or that there is any doubt or uncertainty as to such purposes - or that it is expedient in the public interest to resume the land which is the subject of such reservation or dedication - or to make an exchange of any portion of any such land for other land of equivalent value or nearly so to be dedicated on similar trusts or for like purposes - or that the trusts annexed to any land reserved or dedicated under the Crown Lands Acts have failed or cannot reasonably be carried out - or that such lands should be dedicated with other lands as one area - or that such lands should be reserved from sale for similar purposes - then and in every such case a notice under the hand of the Minister shall be published in the Gazette, which notice shall be set forth the mode in which it is proposed to deal with the reservation, dedication or land in question (hereinafter termed "proposals"), a copy of which notice shall be laid before each House of Parliament within the prescribed time after publication thereof. Where a House of Parliament passes a resolution of which notice has been given within 15 sitting days of that House after a copy of the notice so published has been laid before it under this section, whether or not those sitting days occur during the same session and the resolution disallows the proposals set forth in the notice, no further action shall be taken in the matter.If no such resolution is passed, it shall be lawful for the Minister to direct the proposals so notified to be carried out, and the same shall be carried out accordingly, and for that purpose the Minister may revoke by notification in the Gazette any such reservation or dedication, and make any new dedication sanctioned by such proposals; and such instruments may be executed as the circumstances may require.
The provisions of this section shall be held to extend to land in respect of which, after dedication, a Crown grant has issued or there has been or is created a folio of the Register, and to any land which, after alienation by the Crown, has been or is resumed, purchased or otherwise
221
required notification in the Gazette and tabling before both
Houses of Parliament. It should be noted that s.25 is stated
to apply to reserves and other lands as well as those
dedicated under the Act. In its practical operation it was
applied only to dedicated lands as the section states:
"The provisions of this section shall be held to extend to land in respect of which, after dedication, a Crown grant has issued or there has been created a folio of the Register and to any land which, after alienation by the Crown, has been or is resumed purchased or otherwise acquired by the Crown and dedicated for any purpose."'*^*
By comparison reservations had available the
alternative means of revocation under s.30, by simple
notification in the gazette. This process had practical
advantages. The issuing of the grant, created problems as the
Deed appointing the trustees and charging them with various
responsibilities, made replacement of trustees difficult. The
Grant itself had to be altered. To do this Ministerial
acquired by the Crown, and dedicated for any purpose.
And the powers conferred by this section may in all cases be exercised in respect of any part of the land reserved or dedicated, as well as in respect of the whole thereof.
Upon the revocation under the provisions of this section of any dedication, the lands shall forthwith be vested in His Majesty, His Heirs and Successors, and shall become Crown lands within the meaning of this Act.
In this section, "prescribed time", in relation to a House of Parliament, means 14 sitting days of that House, whether or not they occur during the same session." (Emphasis added). 327
327. Ibid.
222
approval was required. Again notification had to take place
of the proposed revocation of the Deed and it had to be tabled
before both Houses of Parliament. Following this the final
revocation of the Deed had to posted in the gazette. In
earlier days when Parliamentarians had more time than at
present, this situation was acceptable. Increasingly,
logistical problems forced the change of approach from the
original position where all such areas were handled by deed,
to the present situation where lands are dealt with by way ofTOO
reservation. °
Prior to its repeal in 1974, and its
replacement by Part IIIB - "Management of and Dealings with
Dedicated or Reserved lands and Certain Other Lands", s. 26 -
dealt with the management of dedicated lands and outlined the
various duties and powers of trustees. These bodies had
powers in relation to the making of rules and regulations
governing: the care, control and management of the land; the
regulation of the use and enjoyment of it; meetings; decency
and order on the land; removal of trespassers and other people
causing annoyance or inconvenience; the use of intoxicants on
the land; control and regulation of animals, camping, parking
and residing on the land; the preservation and protection, 328
328. McNEILY, J. op. cit., note 317.
223
prevention of damage to flora; the removal of timber, logs,
rocks, soil etc.; the preservation and protection of any
birds, animals, fish etc.; the charging of entrance fees; the
closing off of the area; private trading on the area;329rangers.
(c) Reservation Under the Crown Lands Consolidation Act. *
Section 28(1) gives the Minister power to
declare, by notification in the gazette, that portions of
Crown land shall be reserved temporarily or otherwise from
sale for any public purpose or for commonage. Lands reserved
for this later purpose are excluded from the s.37M(l)
definition of "reserve".
Again the Minister has power to add any Crown
land or closer settlement lands to a reservation. Such
additions are :
"....subject to the like reservation and trusts as the reserve, any rules and regulations or by-laws, applicable to the reserve shall be applicable to such lands and any trustees of the reserve shall be deemed to be appointed trustees of the lands so added under the provisions of the Act whereby they were appointed trustees of the reserve." (s.28(2))
Land which has already been dedicated or reserved may be again
subjected to either a s.24 dedication or a s.28 reservation
( s . 31) .
329. Section 26 Crown Lands Consolidation Act, 1913,repealed by Crown Lands and other Acts (Reserves) Amendment Act, 1974, No. 37, assented to 23rd April, 1974.
224
Part IIIA previously provided for permanent330reservation of State Recreation Areas. Section 37B (1)
stated:
"Subject to this section, the Minister may, by notification published in the gazette,permanently reserve, as a State Recreation Area, any prescribed lands described in the notification for the purpose of public recreation and enjoyment"
Part IIIA however has recently, December 1983,
being removed from the Crown Lands Consolidation Act, 1913,
and placed almost intact, in the National Parks and Wildlife
Act.330 331 332
Part III B - "Management of and Dealings with
Dedicated Reserved and Certain other Lands " - outlines the
Ministerial powers with regard to appointment of trustees
over both dedicated and reserved lands. Under Section 37o
between 3 and 7 individuals can be appointed trustees.
Section 37P allows a corporation, either a council or any
other corporation whatsoever, to be given trusteeship of a s.
37M "reserve". In practice the recent approach has been to
seek to appoint councils as trustees where the purposes of the
reservation or dedication are for public health, recreation or
330. Added by Act No. 37, 1974. Ibid.
331. Prescribed lands include lands within a reserve,Crown land not within a reserve and lands of the Crown.
332. Act No. 183 of 1983; see text pp.87, 88.
225
• • 333other public purposes of a like nature. This represents a
change from earlier times when private citizens, as well as
councils, were regularly appointed as trustees. The new policy
has been motivated by the growing demand for increased
recreational facilities and services attached to reserves.
Councils are obviously in a far better financial position to
bear the increased costs of maintenance and development of
reserves than groups of local citizens. These financial
realities would in fact make it difficult for local councils
to give up trusteeship of Crown land reserves and they are
usually appointed in perpetuity. Private trustees appointed
for five years (s.37o (8A)) but are eligible for
reappointment. Private trustees are now found mainly in
country areas where demand is substantially less in comparison
with metropolitan reserves. They are usually a group ofO O flocal residents.
As for reserves for public purposes other than
public recreation, private corporations such as local progress
associations or kindergartens, can be appointed trustees under
s.37P. Further, various government departments or
instrumentalities such as the Water Board, the Electricity
Commission, the Department of Main Roads and the Department of
Defence may be given trusteeship and control. These lands are
then managed for the stated public purpose, e.g. domestic
water or electricity supply. In practice they, or parts of 333 334
333. McNEILY, J. op. cit., note 317.
334. Similar to committees set up under s. 527 of the Local Government Act, 1919.
226
them, may not be used for the stated purpose and the public
may unofficially use them for public recreation. Bombo beach,
north of Kiama on the South coast, for example, is reserved
for coal supplies and Stockton beach, Newcastle, for 335defense.
Under new reservation procedures the land
remains Crown land even though trustees are appointed. In
consequence, the procedure for changing trustees now only
takes a few weeks instead of six to twelve months -as was the
case with dedications. As previously noted, trustees acquire
a deemed fee simple estate under s.37X, with the landO O fi
remaining Crown land.'
335336
McNEILY, J. op. cit. note 317.It is important to note that the operation of dedication and reservation procedures is not confined to existing Crown land or lands acquired under the Closer Settlement Acts. In recent times joint acquisition by councils and the Lands Department have on occasion secured the purchase and reservation of open space lands to public recreation. Under these circumstances, the Crown retains the title (i.e. is registered as the transferree on the existing certificate of title) and the Council is appointed trustee. One of the most active councils in New South Wales with regard to such joint ventures has been Wollongong City Council.
The Lands Department also on occasion assists councils to acquire the freehold of areas for recreational purposes, i.e. council becomes the registered proprietor. In practice, this usually occurs (almost exclusively) in country areas because of the relative economic positions of city and country councils. The Department asserts that no reasonable request will be refused and the purchase is made on the basis of a 50/50 cost sharing arrangement between the Department and the Council, with the Department picking up the bill for legal costs.Interview with JOHN McNEILY, Lands Department, op. cit., note 317.
227
(d) Dedication or Reservation Under the Closer
Settlement Acts
The Minister for Lands has similar powers of dedication and
reservation to those outlined above under the Closer
Settlement Acts. There are 13 such Acts in New South 337Wales. The powers to create reserves are exercisable over
lands acquired under these Acts. The Acts were passed to bring
about the break up of very large rural holdings and get more
people onto the land. Examples of their operation occur in
areas of the Upper Darling and Murray Rivers and the Upper andO O Q
Lower Murrumbidgee River.
The Acts were required to solve problems which
had stemmed from original grants where holdings could be 500
yards wide and some 15 miles in length along the river
frontage. The Western Lands Act had the same purpose west of
the Murrumbidgee, though no public "reserves" under the
definition in S.37M were created under this Act. The Acts
gave power to cut pieces of land off surrounding properties
and add these to areas of vacant Crown lands which, by
themselves, were not suitable for farms. Initiatives under
these Acts gave farms to returned service men after the two 339world wars. 337 338
337. Ibid.
338. Ibid.
339. Ibid.
228
The purposes for which public reserves can be
created under the Closer Settlement Acts are broad and
included public recreation. Processes for reservation or
dedication are essentially the same or very similar to the
appropriate sections of the Crown Lands Consolidation Act.
Notification, publication and parliamentary involvement were
the same. As most of the land acquired was existing
freehold, a Certificate of Title had been created and this was
registered in the Crown. The reserves of both Crown and
'freehold' land were mainly 'town size' blocks of 5 acres used
for local recreational facilities in country districts, for] r\
example, cricket fields and tennis courts.
(e) "Public Reserves by User"
Historically it was possible for Crown land to
be allocated to public recreation use as a result of user.
This arose from the public simply using an area of Crown land
for recreation purposes over a long period of time. Specific
reference to such areas is contained in the Public Parks Act
340. Ibid.
229
1912. Under Part II - "Appointment of Trustees" the Governor
could under s.4, appoint trustees of any lands which:
"(a) have been or are hereafter dedicated byproclamation or notification in the Gazette;
(b) have been or are hereafter purchased for the purposes of public recreation, convenience, health, or enjoyment; or
(c) have been used by the public with the acquiescence of the Crown for such purposes” . (Emphasis added).
In relation to the lands envisaged in (c), "reserves" for
recreation have in effect been established. In terms of
their practical importance there are only about 20 or 30 still
existing in New South Wales. This is due to the Crown Lands
Office policy of "re-reserving" them and appointing trustees
under current procedures, whenever they are dealt with. They
still exist therefore in areas which seldom come under the
purview of the Department, for example in towns that
have’died ?.̂ ^
These lands are presumably the "...Certain Other
Lands" referred to in the heading of Part III B. The
definition of "reserve" in s.37M refers to them as:
"(b) any other lands in respect of which a trustee,
appointed or purported to be appointed under the
Public Trusts Act, 1897 or the Public Parks Act, 1912,
was holding or purporting to hold office immediately
before the commencement of the Crown Lands and Other Acts
(Reserves) Amendment Act, 1974,..."
341. Ibid.
230
Part IIIB powers, previously outlined, therefore apply to
these lands.
They also appear to fall under the s. 4
definition of "Public reserve" in the Local Government Act,
1919, where "Public park"is specified with no reference to any
statutory basis providing for definition of them or indicating
how they are created. It may be however that this term
"Public park" is not restricted to only these areas.
(f) Fee Simple Lands Given Over by the Lands Department to
Local Government. * 342
Section 37AAA of the Crown Lands Consolidation
Act provides that the Minister may, at his discretion, vest
any prescribed lands in a council in fee simple where he is of
the opinion that:
"(a) The lands -
(i) are a public reserve within the meaning of the342Local Government Act, 1919, or are suitable
for use as such a public reserve; or
(ii) are used for any other purpose for which lands
may be acquired by a council under the Local
Government Act, 1919, or are suitable for use
for any such other purpose".
342. See Chapter II, p. 93-95.
231
Under s. 37AAA(2) the council must concur with the vesting of
the lands in it and the area must be wholly within its Local
Government area. The Minister may specify that only the
surface vests in the council or he may specify a particular
depth below the surface. He has power to reserve minerals and
place any other reservations or exceptions upon the grant of
title as he deems "expedient in the public interest"
(s.37AA(4)). The Minister may also declare the lands vested
under this section to be a public reserve for the purposes of
the Local Government Act, 1919.
From a practical point of view this section is
no longer of any great importance in the provision of public
reserves. The Lands Department's current policy is not to
give fee simple title to Local Government. It appears that
this practice ended with the replacement of Mr. Tom Lewis as
Minister for Lands in New South Wales in 1976. It has been
indicated however, that this is not a hard and fast rule and
examples can be found where in recent times, the fee simple
has been given over to a council. For example,Regimental
Square in Sydney was recently given over to the Sydney City
Council.3^3
When council receives a public reserve in this
manner, the reserve, so far as the powers council exercises
over it, is more like a fee simple public reserve acquired by
council than a Crown Lands reserve. These lands do not fall 343
343. McNEILY, J. op. cit., note 317.
232
within the s.37M definition of "reserve" and there does not
appear to be any residual control remaining in the Lands
Department once the reserve has been given over to council in
fee simple.
(g) Miscellaneous Crown Lands used as 'Public Parks
Reserves and Recreation Areas'. 1 2
(1) As noted previously, there are large tracts of land
reserved for various purposes other than public recreation
where these purposes have not yet been carried into effect.
These areas add to the open space areas reserved for public
recreation insofar as they are used by the public for
recreation. They are therefore "quasi or de facto" public
reserves for recreation.
Such areas of "de facto " recreational open
space are important in the overall picture of public lands
used for recreational purposes. It is not proposed however,
to investigate these lands any further.
(2) "Travelling stock routes and camping places". These are
set apart under s. 34 of the Crown Lands Consolidation Act,
1913. They are determined in the first instance by the Local
Land Board for the passage of stock, travelling pursuant to
the provisions of s. 48 of the Pastures Protection Act,
1934. These areas can be up to 225 hectares in area and up to
233
1,500 metres wide (s.34 Crown Lands Consolidation Act,
1913). There are many of them which are no longer used for
these purposes due to the advent of changing stock
transportation systems. However, they are still kept in
existence and the public can enter on them.
(3) The Crown Lands Department "Reserves Branch" also manages
some areas of vacant Crown Land for recreational purposes ie.
walking tracks. These may, for example, link various other
parks, reserves or recreation areas. 4
(4) The final areas of residual Crown land being of major
importance in the provision of areas for public recreation are
various sections of the New South Wales coastline - beaches.
Beaches are rarely stable, being constantly altered by marine
erosion, long shore movements and renewed deposition. In New
South Wales the beach environment is essentially a sculptured
sand mass. Three distinct parts can be identified: that part
under water - the off-shore bar and surf zone; that part
adjacent to the water with no vegetation - the beach and
berm; and the parts further back from the water with a
vegetative cover - frontal, secondary and back dunes.
234
Vegetation ranges from salt spray resistant Spinifex grass,
predominantly on the frontal dunes, to coastal wattles, She-
Oaks, Tea-Trees and Puckaroo on the dunes further landward.
Eucalyptus are found on some of the back dunal areas. This
cover of vegetation stabilises the dunes and enables them to
function as a natural barrier between the ocean forces and the
land behind.
Many of the beach and dune areas are Crown land
reserves. In fact in Metropolitan areas where recreational
demand pressures are high, all beaches have either been
dedicated or reserved as Crown land reserves. Trustees here
are local councils. In more isolated country areas beaches
and dunes are either private lands or those of the National
Parks and Wildlife Service, the Crown (as vacant Crown land),
or Local Government.
With regard to jurisdiction over the offshore-
surf zone the question has fairly recently been clarified
after years of ambiguity. In N.S.W. -v- Commonwea1th (1975),
State claims to sovereignty over the 3 mile territorial sea3 /̂
were rejected in favour of the Commonwealth's power. The
Commonwealth Seas and Submerged Lands Act, 1973, which
declared Australian sovereignty and rights under the 1958
Geneva Convention over the Territorial Sea and the
Continental Shelf and vested them in the Crown in right of the
Commonwealth, was upheld. The legislation was held to be a 344
344. (1975-76) 135 C.L.R. 337, Barwick C.J.,McTiernan, Mason, Jacobs and Murphy J.J.; Gibbs and Stephen. J.J. disenting.
235
valid exercise of the Commonwealth's external affairs power
under s.51(29) of the Constitution. The majority held that
rights over the sea bed and territorial sea were not, at the
time of Federation, vested in the States. Rather they were
vested in the Imperial Crown. Thus the Court found that the
1973 legislation was not in derogation of any territorial or
proprietary rights held by the States.
At the Premier's Conference on June 29th,1979,
the Commonwealth and States completed an agreement- which paved
the way for the settlement of Commonwealth-State tensions
surrounding offshore constitutional issues. Two recent
Commonwealth Acts now distribute sovereignty with regard to
coastal waters and the resources thereunder. These are the
Coastal Waters (State Title) Act, 1980 (Clth.) and the Coastal
Waters (State Powers) Act, 1980 (Clth.). By these Acts and
complementary State legislation, the Commonwealth vested broad
powers and limited title in the States in relation to the 3 A- 5territorial sea. These extend over the "coastal waters of
the state" which under s.4(2) are effectively limited to that
part of the territorial sea within 3 miles of the coast .
In relation to "coastal waters of the State",
State Governments exercise extensive power over the areas as
if they were within the State borders. Section 5(a) states
that these powers can be exercised in relation to the soil or
sub soil beneath and the air space above the coastal waters of
the State. Section 5(b) deals with State authority to
345. See New South Wales legislation: Application of Laws(Coastal Sea) Act, 1980 and Constitutional Powers (Coastal Waters) Act, 1979.
236
legislate with regard to subterranean mining from land within
the limit of the state; ports, harbours and other shipping
facilities; dredging and coastal works. Other powers are
given in s.5(c) with regard to fishing beyond the outer limits
of coastal waters. This is allowed only to the extent that
the Commonwealth agrees.
Two limitations on State powers given by the
Commonwealth in the 'Powers' Act are s.7(a) which states that
"nothing in the Act extends the limits of any state"; and
s.7(c) which outlines the supremacy of Commonwealth
sovereignty in relation to any inconsistencies in the exercise
of powers.
Also important for public recreation purposes
are those coastal-estuarial inshore water bodies. The land
bed under various bays, harbours, rivers, waterways, lagoons,
etc. in New South Wales are residual Crown land usually
controlled by Local Land Board Offices. There are however,
notable exceptions such as Botany Bay, Sydney and Newcastle
Harbours whose freehold title vests in the Maritime Services
Board. There is also at least one privately owned waterway in
the State at Cawley Bay (commonly known as Sylvania Waters) in
Sydney though such areas are very rare and apparently arise
from dredging and reclamation works.
237
3. PUBLIC RESERVES ACQUIRED BY LOCAL GOVERNMENT.
(a) Introduction.
Fee simple lands have been purchased or resumed
by State and Local Government in New South Wales under various
town planning initiatives. Originally, the County of
Cumberland Planning Scheme Ordinance pioneered acquisition of
land for parks, reserves and recreation areas (open space).
These initiatives were followed in various Local Planning
Scheme Ordinances and Interim Development Orders. They
involved reservation processes which committed either the
State or Local Government to purchase the lands, when and if
called upon to do so by private owners. Similar procedures
now exist in Local Environmental Plans under the Environmental
Planning and Assessment Act, 1979.
The Environmental Planning and Assessment Act,
1979 also provides, in s. 94, for the acquisition of lands for
public recreation during the development control porcess.
Local councils achieve dedication of land in fee simple or
money (used to purchase or embellish public reserves) by
private developers in accordance with conditions of approval
attached to subdivision and development consents.
The thesis proceeds to analyse the legal
principles surrounding the creation of public reserves under
deemed environmental planning instruments (Planning Scheme
Ordinances and Interim Development Orders in force at the
time of the coming into operation of the Environmental
Planning and Assessment Act, 1979 and deemed by Clause 2 of
238
Schedule 3 of the Miscellaneous Acts (Planning) Report and
Amendment Act, 1979 to remain in force), Local Environmental
Plans, the Environmental Planning and Assessment Act, 1979 and
the Local Government Act, 1919.
(b) Open Space acquired under the County of Cumberland
Planning Scheme Ordinance.
The future provision of areas of open space for
recreational purposes was of primary importance in early post
war town planning for the Sydney district under the Cumberland
Planning Scheme. This was concerned to see to the reservation
of various areas of land under private ownership which were
suitable for public recreational use, the prevention of
development on them contrary to their ultimate use for this
purpose and their eventual purchase and use for public
recreation.The Planning Scheme for the County of Cumberland
had its inception in the Local Government (Amendment) Act,
1951. Among other things, the Scheme provided for the
reservation of open space and the prevention of non-
conforming development in such areas. It considered essential
the immediate acquisition of selected vacant lands which might
otherwise be developed for a non-conforming purpose, and those
reserved lands where the owner had been refused permission to
develop his land due to this reservation. The right of the
owner to request the purchase or resumption of such lands was
provided for in the scheme. The acquisition was to be at the
expense of the responsible authority: the State, where the
239
proposed open space was of county significance or the local
authority, where the reservation was made at its request and
was only of local significance.
The report of the Cumberland County Council
(C.C.C.) stated in the section - "Acquisition of Land - Open
Spaces and Foreshores" , that the Council could, after
acquisition, transfer any open space situated wholly within
any shire or municipality, to the care, control and management
of the local council. If the land was in two local government
areas joint care, control and management could also be given
to the councils concerned Further, the Cumberland County
Council could also delegate responsibility for areas purchased
under the scheme, by leasing ".... the whole or any part of
the open space area to any private individual, club,
association or trust for any purpose which would give theO A /
public greater facilities for its beneficial use."
The Scheme also reserved as open space areas
which were already wholly or partly built up. It was not
proposed to disturb the use of any buildings or occupancies
existing at the time within these areas, the acquisition of
them being seen as part of a long term program to be
implemented when the existing improvements had outlived theirQ / -7
economic usefullness.
346. CUMBERLAND COUNTY COUNCIL, The Planning Scheme for the County of Cumberland, New South Wales, * 347The Report of the County of Cumberland Council to Hon. J.J. Cahill MLA, Minister for Local Government, 27 July, 1948, p. 216.
347. Interview with KEITH LUND, Town Planner, Sutherland Shire Council, 20 November, 1983.
240
The long term nature of the Scheme was also seen
in relation to its recommendations regarding the financing of
acquisitions of vacant county open space, other than foreshore
areas. This was to be by means of a long term loan of 20-50
years by the County of Cumberland Council. Repayment was to
be made from the proceeds of a county rate levied on local
councils, (an amount exceeding a half penny in the pound on
all rateable land within the county, provided that the
rateable levy on urban farmland was half the rate levied on
other land). The foreshore lands reserved were excluded from
this system because it was claimed that they served the State
as a whole and not just the local government area. It was
considered unfair to rate the municipality or shire to pay for
them. Their acquisition was consequently an expenditureOAO
financed from State revenue.
The Scheme was proclaimed in the Local
Government (Amendment) Act, 1951 and associated legislation.
A Town and Country Planning Fund was established under s. 5 of
the Act, which allowed the County of Cumberland Council to use
its general fund known as the "Cumberland Development Fund"
for purchase of open space. This applied in respect of the
development area constituted under the Act as the Cumberland
Development Area.
All the fixed assets and liabilities of the
Council were later transferred to the State Planning Authority
(S.P.A.) under s. 26 of the State Planning Authority Act, 348
348. CUMBERLAND COUNTY COUNCIL, op. cit., note 346.
241
1963. The Cumberland Development Fund (C.D F.) was continued
to be used for open space purchases of regional
significance. This legislation gave the S.P.A. (later the
Planning and Environment Commission, P.E.C.) and now the
Department of Environment and Planning (D.E.P.), a role which
continued and extended the land acquisition powers which had
been earlier held by the Authority's predecessor, the
Cumberland County Council, under the Local Government Act.
The Development Fund comprised of monies from
various sources:
- all advances made to the Authority - Commission under
section 342AN of the Local Government Act;
all borrowed monies;
all proceeds of land sales or leases;
all monies specifically directed to the fund the proceeds
of investments.
242
The Development Fund could be used for various purposes:
- the acquisition and development of acquired land in the
development area;
loan interest, repayments and reserves;
investments for reserves;
- creating assets and discharging liabilities;
rates and charges on land;349certain incidental purposes.
The Commission and the Authority could acquire land,subdivide
it and have work carried out on it. They could also sell,
lease, exchange or otherwise deal with any acquired lands.
The obligatory acquisitions under the County of
Cumberland Planning Scheme and other Planning Schemes, for
county open space and county road purposes, as well as certain
other acquisitions, were on the basis of a dollar for dollar
contribution with the local government authority. As
previously noted the Cumberland Scheme also placed an annual
levy for contribution to the Fund on all constituent councils
in the Cumberland area.
One important limiting factor on the Cumberland
Fund should be noted. This fund could only be used to acquire
vacant land as open space. Consequently in areas where most
of the land was already built up, local government was
looked to to provide the finance to purchase any improvements
on the land. Thus the fund would purchase the land for county
open space and local government would be required to purchase 349
349. Op. cit., note 346, p.220.
243
the improvements upon it. A good example of this is seen in
the Sutherland Shire in an area known as Shackles Estate,
situated on the north-eastern banks of the Woronora River.
Other negotiated arrangements between the State
and local government have also been developed in the
utilisation of the Fund for the purchase of open space lands
in particular instances. Again taking the example of the
Sutherland Shire, some foreshore lands fronting the Port
Hacking at Bundeena and South West Arm were purchased by the
local council in conjunction with the National Parks and
Wildlife Service and the State Government. In these instances
the costs were split equally amongst the three governmental• • 351authorities.
The point should be made that the acquisition of
open space is seen by many as one of the great successes of
the County of Cumberland Planning Scheme. The criticism
sometimes put however, is that the lion's share of the
Cumberland Development Fund was given over to the acquisition
of open space in the outer suburbs of Sydney, where vacant
lands could be readily acquired. In consequence the inner city
areas did not benefit greatly the Fund.
350
350.
351.
Here the D.E.P. (previously the S.P.A.) purchases the land, with the Council compensating the owner for improvements thereon. The purchase is at the election of the owner. LUND, K., op. cit. note 347.Ibid.
244
To give some idea of the relative importance of
the various uses to which the Development Fund has been put,
set out below is an extract from the 1979 Annual Report of the352New South Wales Department of Environment and Planning.
Land Acquisitions: Cumberland Development Area,
excluding the McArthur Growth Area.
Descript ion.
Open space
County Roads
Historic Buildings
Special Uses
Regional Open Space
Special Uses Corridors
Other Proposals in the Sydney Region
Outline Plan Development
Expenditure - Mt. Druitt
Coastal lands Protection Scheme
Total
1977/78
1.814.895.00
820.362.00
52.025.00
110.523.00
44.280.00
3.569.152.00
Project
456,321.00
1,192,722.00
11,066,689.00
1978/79
3,226,000.00
662.986.00
62,575.00
1,721.00
433.191.00
2,389,713.00
449,884.00
839 ,850.00
10,275,656.00
352. DEPARTMENT OF ENVIRONMENT AND PLANNING, Annual Report, 1979, Government Printer, Sydney, 1980, p. 19.
245
(c) Replacement Scheme for the Cumberland Development
Fund under the 1979 Planning Legislative Package.
The Environmental Planning and Assessment Act,
1979 in Part VII, Division 1, ss. 128-185 provided the
statutary basis for the establishment of the "Sydney Region
Development Area" and the "Sydney Region Development Fund".
The Miscellaneous Acts (Planning) Repeal and Amendment Act,
1979, under Schedule 3, cl. 21, transferred all fixed assets
and liabilities of the Cumberland Development Fund to form
part of the "Development Fund for the Sydney Region". The
legislation also established a Development Fund for the
Illawarra region and transferred the assets and liabilities3 53comprised in the Northumberland Development Fund into the
Development Fund for the Hunter Region.
The Sydney Region is, with minor modifications,
the same as the Cumberland Development Area. The new Fund
operates in basically the same way as the old one, with the
Minister for Planning and Environment as the corporation sole.
Monies are received into the Fund, either as income or
capital, from a number of sources, mainly:
monies borrowed under an annual allocation;
rents from leased properties;
interest on temporary investment;
proceeds from sale of surplus lands;
353. Section 34, State Planning Authority Act, 1963.
246
contributions by the Treasury towards certain types of
land acquisitions;
contributions by councils and other bodies towards
specific land acquisitions - development projects;
assessments on councils to meet loan interest 354repayments. 354
354. DEPARTMENT OF ENVIRONMENT AND PLANNING, Annual Report, 1979, Government Printer, Sydney, 1980. This final source of income has been a source of contention amongst local councils. Here reference can be made to the submissions by the Local Government Association of New South Wales on the "Sydney Region Development Fund Levy" (unpublished) and the State Government's continued "rate pegging" policy. Under this policy assessments are made on all the councils in the development area for amounts required each year to meet loan repayments and interest. In practise, the total requirement is ascertained, and then apportioned between councils on the basis of the relationship between the unimproved capital value of rateable land in the council's area and the total unimproved capital value of rateable land in the whole development area. The Environmental Planning and Assessment Act, 1979, expressed this concept in a formula with the additional provisions that a "prescribed value" may be used instead of the unimproved capital value of land. Interview, JULIE WALTON, previously legal officer, Local Government Association of N.S.W., 25 March, 1983, now special advisor to Minister for Planning and Environment.
247
In the E.P.A. Act's treatment of funds in Part
VII - "Finance", Division 1 - "Funds", s. 130(3) outlines the
purposes for which the Fund may be applied. These include the
acquisition or development of lands, the payment of rates and
charges, and the payment of principal, interest and expenses
in relation to monies borrowed. The Fund has been used to
acquire land for a variety of purposes and to carry out
development on acquired lands.
The funds have also been used to acquire land
for other government bodies as part of a forward planning355 • • . . .process. Originally the Land Acquisition Program looked
mainly to the obligations under various Planning Scheme
Ordinances especially with regard to county open space and
county roads. In the 1970's these acquisitions were extended
to include land required for Special Uses Corridors, Regional
Open Space and Restricted Access Roads in the developing outer
suburban areas. In more recent times the funds have been
directed towards correcting the imbalance in open space
provision previously noted, by acquiring suitable areas in the
inner metropolitan area. As noted, this imbalance arose from
the original county scheme providing only for the acquisition 355
355. LUND, K. op. cit . , note 347.
248
of vacant land, of which there was little in the inner
suburbs. At present, approximately $3,000,000.00 per annum is
allocated to remedy open space deficiencies in the inner
suburbs.
The total amount expended in all council areas
in 1981 was about 117.9 million. Of this, county open space
acquisitions cost about 43.3 million for some 4,554 hectares 357of land. Appendix E shows some of the larger and better
known areas acquired and made available to council and other
bodies for open space purposes.
The Cumberland Development Fund and the Sydney
Region Development Fund have obtained most of their funds for
purchase by way of private loans secured upon the income of
the Fund. Lenders have included public bodies, such as the
New South Wales Superannuation Board and the Government
Insurance Office. There have been some private sector
loans. The total indebtedness of the Development Fund is
about $82,000,000.00 and this is growing at the rate of about
$3-$4 million per annum. Borrowing programs are currently inO C Q
the order of about $8 million per year. Since the
inception of the Sydney Regional Fund for Land Acquisition
and Development, about $85.5 million, has been raised from
councils to meet loan repayments and about $118 million
356. N.S.W. PLANNING AND ENVIRONMENT COMMISSION, Annual Report, 1981, Government Printers Office, * 3571982.
357. Ibid.
358. Ibid.
249
expended on some 15 ,906 hectares of land and associated 3 59development costs.
It is clear that the old Cumberland Development
Fund and the new Sydney Region Development Fund have played a
major role in the acquisition of parks, reserves and
recreation areas within the counties of Cumberland and
Northumberland, for the regions of Sydney, the Hunter and the
Illawarra. They also reflect sharing of responsibilities with
regard to the acquisition of open space between State and
local government and the distinction between regional and
local open space.
359. Ibid.
250
(d) Public Reserves acquired under Deemed Environmental
Planning Instruments and Local Environmental Plans.
Town Planning controls exercised under the
Environmental Planning and Assessment Act, 1979 and associated
legislation (previously exercised through Part XI1A of the
Local Government Act, 1919) exhibit two distinct planning
processes important in the provision of public reserves.
These are zoning and reservation. Zoning is mainly the
recognition of the public recreation usage at the time of
passing the instrument and the consequent control of360development within it. In addition to a development
control function, reservation procedures carry with them a
committment to acquire the reserved lands for public
recreation purposes, as in the County of Cumberland 361Scheme. Reservation procedures are consequently of major
importance in this chapter.
(i) Zoning- Open space zonings are common to Local
Environmental Plans (L.E.P.) and Deemed Environmental Planning
Instruments. By way of example, the open space zonings
contained in the Sutherland Planning Scheme Ordinance (April
1980) are fairly standard. These are: Open Space: 6 (a)
Recreation Existing; Open Space 6 (b) - Recreation Proposed;
Open Space 6(c) - Recreation Private; and Open Space 6(d)
360. It is to be noted here that the zoning "Recreation proposed" represents a departure from this situation. 361
361. It is to be noted that in some recent Local Environmental Plans the reservation process has been merged into the zoning provisions.
251
Recreation Special Purposes (National Park). A further zone
which is appropriate for examination here is the 7(a)
Waterways zone which is a "de facto" open space zoning.
The purpose of classifying public reserves under
these various open space zonings is, as with all zoning, to
control permissible development within the area covered by the
zone, as identified on the environmental planning instrument
map. Generally the zone is merely a recognition of the
existence of a public reserve, park or recreation area. For
example, the 6 (a) zone applies to Crown land reserves for
public recreation. Consequently zoning is fundamentally
concerned with control of development within the zones rather
than the acquisition of open space. It is therefore more
appropriate to examine zoning controls the following chapter
dealing with development in public reserves.
One zone, Open Space 6(b) - Recreation Proposed,
does on its face indicate a relationship with acquisition of
public reserves. Though important in the overall provision of
open space, parks, reserves and recreation areas this zone
does not in practice achieve the public acquisition of these
lands. There is no commitment under the environmental
planning instrument to purchase them. On the whole, they
consist of natural bushland areas, often quite steep and
usually adjoining residential development. Not being suitable
for redevelopment for residential purposes they are zoned to
preserve their open space character under their existing
252
ownership with no plans or proposals under the relevent
environmental planning instrument for public acquisition.
It is of some solace to the owners of such lands that the
local council in practice usually manages and maintains the
areas. This is especially important in forested areas
adjoining residential development where fire hazards are
usually present.
Most of these areas are in fact vacant Crown
land. The small residue in private ownership do not normally
create major problems arising from the lack of any provision
in the scheme to purchase, with owners happy to continue
existing occupation and usage. The holding costs over such
areas are often very great and council activities in
underscrubbing, fire trails and generally in relation to care,
control and management save the owners monies which they would
otherwise have to spend on land which is not able to beO f L o
residentially developed in the future.
By way of a quantative example, figures on the
relative areas contained in each zone in the Sutherland Shire
of Sydney are useful. This Shire is generally well endowed
with recreational lands and it is interesting to note the
comparative extent of these three zonings: Recreation Existing
- 12.06%; Recreation Proposed - 7.73% and Recreation Private -
0.49% of the lands within the Shire boundaries. It is
noteworthy, however, that this particular Shire has large 362
362. Interview with KEITH LUND, Shire Planner,Sutherland Shire Council, 15 April, 1983.
363. Ibid.
253
areas of natural bush unsuitable for residential development
due to accessibility and other topographical characteristics
and this factor explains the relatively large amount of land
zoned for Recreation Proposed. In fact, most of this 7.73% is
vacant Crown land. °
(ii) Reservations - The other town planning control exercised
over”parks, reserves and recreation areas'* under deemed
environmental planning instruments and local environmental
plans is the reservation of certain areas by notification on
the environmental planning instrument's map. As noted, this
places restrictions on development within the specified area
to ensure the continued character of the area as being
suitable for the purpose for which it is reserved.
Reservations involve certain controls on development which
will be examined in the following chapter. More importantly,
reservations are, and have been in the past, fundamental in
the program of acquisition of public recreation areas in New
South Wales.
Again the example of the Sutherland Planning
Scheme Ordinance, reflects the standard approach of most
environmental planning instruments to this form of control.
Part II of Division 2 is headed: "Reservation and Restriction
on Use of Certain Land" and Division 3: "Reservation of Vacant
Land for County Road Purposes". Under Division 2 (the one
important for the purposes of this paper) cl. 9 sets out a
table showing the colour coding on the map identifying the
364. Ibid.
254
land reserved and the purposes of the reservation. There are
four such uses:-
(i) Special use - the particular purposeshown by red lettering on the Scheme map, (for example schools and courts);
(ii) Parks and recreation;(iii) Widening of existing local roads and new
local roads;(iv) County open space.
The process by which the owner can require
acquisition of the land reserved, by either local or State
government, usually relates to a refusal of consent for
development, following which the cwner may, by notice in
writing, require the relevant authority to acquire theo c c
land. The issues surrounding permissible or non-
permissible development and the activation of this clause will
be examined in the following chapter dealing with development
ki • 366m public reserves.
The responsible authority will either be the
local council, where the area is reserved for Parks and
Recreation,or the State government, which is required to
purchase County open space reservations.
The reservation process represents one of the
few areas of effective long term planning embarked upon by
Local Government authorities. At the formulation of the plan
the possibility that owners of any reserved lands may require
responsible authorities to purchase them is a factor which is
examined in detail. In the planning reports prior to the
365. See for example Sutherland Shire Planning Scheme Ordinance, clauses 18(1) and (2), (April 1980). 366
366. Chapter V, pp.466-471.
255
adoption of the environmental planning instrument, the lands
so reserved must be costed against the plan. In other words,
for a local council to reserve lands for Parks and Recreation
it must exhibit to the central authority (the Department of
Environment and Planning) that it is in fact able to pay for
these areas should it be required or called upon to do so.
The financial feasibility of reserves for County open space is
also examined prior to the acceptance of the plan in relation
to the State government's capacity to purchase the-se lands.
The relatively favourable position of most New
South Wales local government areas regarding open space, is
to a great measure attributable to the initiatives taken by
reservations under various Planning Scheme Ordinances or
Interim Development Orders (ie: Deemed Environmental Planning
Instruments) and local environmental plans (L.E.P.).
256
(e) Dedication of Public Reserve (Land or Money) arising from
Council's powers to attach conditions to Subdivision
Approvals.
Councils have for some time exercised powers
under s.333 of the Local Government Act, 1919 to impose
conditions on subdivision approvals requiring the provision of
part of the land for parks and gardens (public reserves).
This fee simple land was then registered in the council's name
by the Registrar General when issuing titles for the lots in
the Deposited Plan approved by the council.
In 1960 s. 333(2) was added to clarify the
position with regard to acceptance of a cash contribution by
council in lieu of such physical dedication. This provides
that such money is to be placed in a special council trust
fund and used only for:
"..the purposes of public recreation or in the improvement and embellishment of any public reserve under its care,control and management".
Part XII of the Local Government Act, 1919, in
which s.333 is found, was originally headed "Town Planning"
This heading however, had become confusing after the
introduction of Part XIIA "Town and Country Planning
Schemes". The Miscellaneous Acts (Planning) Repeal and
Amendment Act, 1979, consequently renamed Part XII -
"Subdivision Regulation".
257
The Environmental Planning and Assessment Act,
1979 (E.P.A.Act), codified previous judge made law in allowing
for contributions of public reserve to be required as a
condition of development approval (cf: subdivision approval
under the Local Government Act, 1919). The associated
amendments to s. 333 split the subjects for consideration
regarding subdivision consent into two, those where
development consent for subdivision was also required under
the E.P.A. Act (s.333(1)) and those where development consent
was not required (s.333(lA)).
Section 333(lA)(c) specifies as a consideration
in granting consent where development consent is not required:
"(c) the amount of land to be provided as a public reserve out of the land to be subdivided."
There is no such consideration outlined in s.333(1).
Consequently powers under the Local Government Act, 1919, to
require dedication of public reserves from subdivision, only
exist in local government areas where development consent for
subdivision is not required under the relevant deemed
environmental planning instrument or Local Environmental
Plan. If development consent is required, s.94 of the
Environmental Planning and Assessment Act, 1979, is the
relevant statutory power base for the contribution
258
requirement. Conditions for contribution should not be
implemented under s. 90 and s. 9 1.366a Section 333(2) allows
for monetary contribution in lieu of physical dedication. D'
Applicants who are aggrieved by conditions which
council places on a subdivision approval now have the right,
under s.341 of the Local Government Act, 1919, to appeal to
the Land and Environment Court (previously the Local
Government Appeals Tribunal and the Land and Valuation Court).
The terms of this section allow such an appeal where the
applicant is " aggrieved by any decision of council on his
application....” or by ” .... any neglect or delay of the
council to give within a period of forty days....” a
decision. These appeals are dealt with under Class 2 of the
Land and Environment Court's jurisdiction. Reference to them
is contained in s.18(a) of the Land and Environment Court
366a. For the test for validity of a condition in the context of ss. 90 and 91 see St. George Building Society -v- Manly Municipal Council (1981) 3 A.P.A. 370 and Henburry Ltd, -v- Parramatta City Council (1981) 6 A.P.A. 202. 367
367. In determining whether land or money should be taken, council looks to such factors as the amount of land available for dedication from the subdivision and its suitability for public recreation purposes, as well as the existing situation with regard to public reserve availability in the area. From a practical point of view, the physical provision of open space by dedication in fee simple to council is usually sought in the subdivision of larger tracts of land, or in the case of a small subdivision, where there is existing open space to which the dedicated land could be attached or used in conjunction with. In other words, where there is a small subdivision, for example, one block into three, it is, and has been the policy of most councils to accept a cash contribution in lieu of the physical dedication. This figure is determined by working out what would be physically required and then converting this into a monetary figure on the basis of the value of local land. This information has been gleened from work experience with the Sutherland Shire Council where subdivision does not require development consent.
259
Act, 1979. Section 341 allows a period of twelve months from
the date of receiving council's decision (or such longer
period as the Court may allow in special circumstances) to
appeal to the Court in relation to the council's decision.
The extent of council's powers under s.333(1)
has come under judicial scrutinary on many occasions. The
rationale for requiring developers to provide public reserve
was therein examined. The most important of these decisions
are outlined below,
The earliest formulation of these principals
appeared in 1922 in the case of Forsberg -v- Warringah Shire
Council. This was in the following terms:
"If the owners changed the condition of the area, in respect of the subdivision,.... the only obligation upon them is to make reasonable provision for the persons who acquire land there owing to that change, wherever affected." 369
The principle was more succintly stated in Doonside Properties
-v- Holroyd Council .370 Here the Court stated that:
368. Forsberg -v- Warringah Shire Council (1922-24) 6 L.G.R. 80.
369. Ibid, p. 82.
370. Doonside Properties -v- Holroyd Municipal Council (1959) 4 L.G.R.A. 337.
260
"The cardinal principle is that the Council, in exercising its powers under section 331 of the Local Government Act, 1919, is entitled to take into consideration the fact of the subdivision itself and such changes as the subdivision will produce in the character of the locality, and to impose such conditions as may be reasonably appropriate and necessary in consequence thereof".371
Hardie J., in the Supreme Court case of Hornsby Council -v-• • • 372New South Wales Malting Company Limited, held that it was
settled authority that s. 333(1) and (2) of the Local
Government Act, 1919, empowered councils to impose conditions
making a portion of the land the subject of a subdivision
application, available for purposes of public reserve. He
pointed out, however, that there was a lack of clarity in the
statute when he stated:
"Unfortunately the Act does not provide any relevant test or guide, nor does it indicate in what way or on what principle a council is to arrive at its decision on this important matter."* 373
He continued that, under these circumstances:
"....the fact of the requirement and its quantum, must be reasonable under all the circumstances. In deciding what is reasonable a number of matters come into the field of relevancy; one of the most important ones being the extent to which the development likely to follow from the subdivision approval will probably result in additional public facilities of the type mentioned being required or desirable. But that is not the only relevant factor; others are the situation of the subject land in relation to existing public garden and recreation areas, the suitability of some portion of the subject land for such use, the council's policy as to the reasonable requirements of its area in the matter of communal facilities of the type mentioned and its policy and
371. Ibid, p. 338.
372. Hornsby Council -v- New South Wales MaltingCompany Ltd. (1962) 8 L.G.R.A. 386.
373. Ibid, p. 391.
261
practise relative to subdivisions of the type under consideration. The decision in Hanley's case was, as are all the other decisions in this type of matter, a decision on the particular facts of the case."J/^
In examining what was a reasonable contribution Mr. Justice
Hardie made the point that a council could not throw upon the
subdivider, the burden and expense of making a provision which375should fall upon the municipality as a whole. The
principle appears to be that the obligation on the subdivider
relates to the effects which can be established as resulting
from the change which has been effected by his subdivision.
Mr. Justice Hardie was however at pains to point out that the
additional demand upon community facilities which might be
anticipated to result from the development of the land,
following subdivision approval, though an important factor,
was not the only relevant matter to be taken into
consideration in determining contributions. He stressed the
individual nature of the question of contribution in each
particular case when he stated:
"....the Board should address its mind to the problem in light of all relevant facts and not look, for the solution in some previous Court decision given on a different set of facts."374 375 376
374. Ibid, P. 392.
375. Ibid.
376. Ibid, p. 192.
262
This 'test', i.e. what is reasonable in the
circumstances of the case, seems to have been accepted by the
Courts in examining various contribution conditions right up
to present assessments under s.94 of the E.P.A. Act. Its
vagueness reflects the difficulty faced by the judiciary in
determining legal principles for application to what is
essentially a 'politcal' decision.
and Environment Court the last formulation of the principle
of contribution made by the Land and Valuation Court,
appeared in 1972 in the decision of Mr. Justice Else-Mitchell
Judge stated:
"Consequently, it seems to be proper to say that in every case where a change in the condition of the area is made by the subdivider the council must be regarded as entitled to require the provision of land for public reserve, and in all such cases a monetary contribution
the case allow the council to require a contribution the
question then becomes how much land or money can be
required. As previously noted, Hardie J. in the New South
Wales Malting Co. case pointed out that the legislation did
not give any relevant test or guide or indicate what principle
council was to use to arrive at the decision on the quantum of
contribution. This question raises the issue as to whether it
377. Warringah Shire Council -v- Armour (1971-72) 25 378
Prior to the analysis of the issue by the Land
377m Warringah Shire Council v Armour. In this case the
provision of
Once it is established that the circumstances of
L.G.R.A. 354
378. Ibid, p. 357.
263
should be the role of the Court or that of the State
government (through its expert body, the Department of
Environment and Planning) to lay down these general
principles, which would then be enforced by councils, and by
the Court, on appeal.
The standard for public reserve contribution has
been the subject of judicial pronouncement over a long period
of time. The generally accepted standard or formula for
assessing the amount of open space (or cash in lieu) which is
reasonable for a council to demand in is 7 acres (2.83
hectares) per 1,000 increase in population. The increase in
population which would be generated by the 'development* is
calculated by reference to average occupation rates in
existing residential dwellings in the area. Thus, for
example, if a 20 lot subdivision was being carried out and
the existing occupation rate in the area was 3 persons per
household, the population increase generated by the
subdivision would be 60 people. The formula states that if
the increase in population was 1,000 people council could
require 2.83 hectares of land (or the monetary equivalent
based on the values of land in the area) to be dedicated as
open space. Thus in the example, for the increase in
population of 60 people council could require the dedication
of 1698 sq.metres of land as open space or the monetary
equivalent of this, based on values of land in the area. This
does not take into account various discounting factors which
will be discussed later.
264
The "magical figure" of 7 acres per 1,000
appears to have been developed during the immediate post-war
period for the planning of "new towns" in the United Kingdom,
and accepted as being a desirable planning standard for open
space. In fact, when physically provided, this standard was
broken down into 4 acres of active open space (i.e. with
sporting facilities etc.) and 3 acres of passive open space.
This active/passive breakdown was originally used by councils
in New South Wales. In more recent times, however-, its use
appears to have fallen into abeyance. Further, though the
active/passive formula has been examined by the Land and
Environment Court, no decision on its applicability has been
made.379
379. For example see Naylor Pty. Ltd, -v- Bankstown City Council (1979-81) 42 L.G.R.A. Ill - decision of Hansen A. & Fitzhenry A. (with question of law dealt with by McClelland C. J. , pursuant to s. 36(5) of Land and Environment Court Act 1979). Here, council argued that there was a deficiency in small neighbourhood parks to provide passive recreation space for surrounding residential subdivisions. Consequently, it was prepared to accept a financial contribution regarding the provisions of active open space but it wanted a neighbourhood park for passive open space to be physically provided by the development. The Court decided for the applicant and did not require the physical dedication.They did this on the facts, where a previous council decision required only cash. The Court felt Council could not repudiate this decision. See also Cripps J. in B. & F. Developments Pty. Ltd. -v- Parramatta City Council.(unreported.). Here the applicant argued that there was no need for active recreational land in the area and therefore only 3/7's of the 7 acres per 1,000 were required. Justice Cripps made no comment on the active/passive distinction and this argument as he felt there was a need for active recreational land.
265
In some cases where council is seeking the
physical contribution of land rather than a monetary
contribution, the court may be forced to go beyond the mere
application of the formula and examine not only how much land
but what land. The case of I.B.A. Pty. Ltd v Ryde MunicipalO Q A
Council provides some important insights into council's
powers to direct the location as well as quantum of a physical
dedication of land for public reserve usuage.
This appeal was under s. 341 of the Local
Government Act on the basis of council's failure to provide a
decision in forty days. The matter was transferred from the
Local Government Appeals Tribunal to the Land and Environment
Court when it came into operation. It concerned two lots
covering some 4,484 sq.metres with a 53 metre waterfrontage to
the Parramatta River. The subdivision of this into 5 lots was
proposed. Council's refusal was based on the lack of
provision for the physical dedication of land for public
reserve purposes in accordance with s. 333 (l)(g)(now
s.333(1A)(c)) of the Local Government Act, 1919. Development
consent under the Planning Scheme Ordinance was not required
for subdivision in this case. 380
380. Unreported Land and Environment Court (L.E.C.), No. 10053 of 1981, Senior Assessor Bignold.
266
Applying the 2.833 hectares per 1,000 population
formula,based on an estimated increase in population resulting
from the proposal of 4 persons per dwelling, some 340 square
metres would be required. Council however, on the basis of
its long term foreshore open space plans, concluded that the
optimum location for the public reserve was the level area of
land stretching along the waterfront to some 15 metres in
depth. This represented some 554 sq.metres, nearly twice the
standard contribution. The site also had a tidal .area between
a sea wall and the water-frontage boundary of the block.
Council thought the 15 metres, should be measured from the sea
wall back into the block, as the tidal land beyond the sea
wall was M ....of very limited use for recreational
purposes".
Much evidence was presented the concerning
council's foreshore public reserve policies and programmes.
Approximately 46% (4.4kilometres) of the length of the
Parramatta River foreshores was then currently held as public
reserve. A principle was put forward for making foreshore
lands available to the public by a linked open space system
which acknowledged the river itself as a leisure facility, to
which council sought to improve public access. Some
discussion of a jogging track and cycleway was also put
forward. The applicant's evidence however, showed three major
areas of land within the length of the relevant foreshore
which would prevent the immediate realisation of the
continuous foreshore open space system as suggested by
council.
267
The relevent deemed environmental planning
instrument contained no provision reserving any of the
foreshore of the subject land for public reserve purposes and
a variation scheme then under preparation also contained no
such provision. This fact, apparently weighed heavily on the
Court's mind. Further, council's concession that its decision
to acquire foreshore lands in the vicinity of the present
subject land arose out of its consideration of the subdivision
application, considerably weakened its arguments for seeking
contribution above the formula rate. It appears that the
Court would have given greater weight to such a demand and the
planning considerations behind it, if these had arisen
independently of the particular application in question (i.e.
opportunism) and if they were dealt with by way of reservationO O 1
in the Planning Scheme Ordinance.
With regard to the location of the lands to be
dedicated, the Court looked at Hunter District Industries -v- 38 2Newcastle Council , which held that the land contributed * 381 382
must be fit for the purposes of a reserve. The Court did not
agree with the council's submission , that the land between
the sea wall and the mean high water mark, which was the
land's waterfront boundary, should be excluded from the area
to be physically dedicated. The Court felt that apart from
the anomaly which would result (private land to the sea wall,
council reserve, then private land beyond the M.H.W.M.) the
381. But note if the area was reserved there would be a commitment on the Scheme to purchase it.
382. (1957) 2 L.G.R.A. 240, 244.
268
area was part of the foreshores which were generally
considered to be highly significant for public access,
recreation and enjoyment (including visual appreciation as
asserted by the applicant) and access over this land was only
impeded at high tide. Further, it seems some play off or
compromise may have been present as the appellant sought to
make a cash contribution under s.333(2) and it was Council
who insisted on the physical dedication. Thus the 340 acres
required under the 2.83 hectares per 1,000 formula was
physically dedicated, with 180 square metres being above the
sea wall which provided a strip of some 3.14 metres wide.
This was sufficient for the proposed pathway system.
The decision represents a balancing between the
public and private interest where choice (waterfront) land of
the subdivision parcel is required by council to be physically
dedicated.
The Land and Environment Court has through its
early decisions in relation to subdivision appeals clarified
certain principles applicable in assessing public reserve
contribution under a subdivision approval:
(i) It is clear from the decision in Naylor Pty. Limited -v-
Bankstown City Council that councils can require both the
dedication of land and a cash contribution with respect to theO Q O
provision of open space. In deciding this question of law
Chief Justice McClelland stressed that the total of the
physical and monetary contribution must not be more than was
383. Op. cit., note 379.
269
required if land alone was dedicated.
(ii) The generally accepted approach is that assessment of
contributions is to be made by the council at the time of its
decision and by the Court at the time of the court hearing.
This factor is obviously important as it affects the current
market value of land in the area as well as the current3 8 4occupation rate of houses in the area.
(iii) Additional public reserve demands can arise, not only
in relation to residential subdivisions, but also in the case
of an industrial subdivision requiring approval under s.331
of the Local Government Act. It would appear however, that
the distinction between residential and industrial purposes
for subdivision, would be an important fact to be examined in
assessing the reasonableness of the council's required
contribution.
(iv) The test of "what is reasonable in the circumstances of
the case" has been overtly referred to by various Judges and
Assessors in determining open space contributions (in both
subdivision and development applications) and applied38 3generally on occasions rather than the use of the formula.
An example of this is seen in the case B.& F. Developments388Pty. Limited -v- Parramatta City Council. In this case the * 384 385 386
council sought to impose a requirement for a flat 7% of the
384. Ibid.
385. It is to be noted that s.94 of the Environmental Planning & Assessment Act specifically adopts the reasonable test as will be discussed later in this Chapter, pp.299-309.
386. Op. cit.,note 379.
270
current market value of the 20 lots proposed. The town planner
had in fact suggested a 5% figure as a preferable approach to
the "...accepted standard of 7 acres per 1,000 persons....",
as the usual formula (7 acres) in his opinion, yielded an
unnecessarily high contribution for the Parramatta area.
Council adopted his recommendation but changed the 5% to 7%.
Mr. Justice Cripps decided that:
"....on the material placed before the Court in this case it is not appropriate in my opinion, to adopt the ,7 acres per 1,000 persons. This would yield a figure greatly in excess of council's formula. Council itself abandoned this approach". (Emphasis Added).
He then went on to impose a condition of approval in
accordance with s. 333(2) of the Local Government Act, 1919,
that a sum of $45,000.00 was reasonable in the circumstances
of the case. This figure in fact related to the 5% flat rate
suggested by the planner.
(iv) In working out the increased population under the 7
acres per 1,000 formula, a discount is given for the existing
number of individual lots and the population attributable to
them at the standard rate. Thus in I.B.A. Pty. Limited -v-
Ryde Municipal Council the estimated increase in population
resulting from the proposed subdivision of 2 existing
residential lots into 5 was only 12 persons, on the basis of 4
persons per dwelling. As 2 lots already existed the increased
population brought about the subdivision would be a total of 4T O O
persons for each of the 3 additional lots only. 387 388
387. Ibid.388. Op. cit., note 380.
271
The question of the number of additional lots
was more closely examined by Senior Assessor Bignold (now
Judge) in Wallace and Moore Pty. Limited -v- Hunters Hill 389Municipal Council. This case concerned the re-subdivision
of 3 existing allotments into 3 lots. No additional number of
allotments were to be created. The 3 existing allotments
contained a large dwelling house and a number of associated
buildings. The house straddled the common boundary between
lots 1 & 2 as did a tennis court. The proposed new
subdivision was to create 3 allotments, one wholly containing
a dwelling house and tennis court, the second containing a
swimming pool and associated garden structures and the third
unoccupied by structures. The applicant argued that it was not
reasonable to impose a public reserve contribution as the
subject land already comprised 3 allotments which possessed
the physical characteristics and dimensions which would enable
them to be developed by building a dwelling house conforming
to the relevant "living area" zone (in fact development
consent was not even required).
Council submitted that the subdivision would
cause a change in the condition of the land and this change
would generate an increased demand for public reserve
facilities. Mr. Bignold examined in detail the early
decisions in Forsberg, Doonside, New South Wales Malting and
Armour1s cases as well as three other decisions of the Local 389
Government Appeals Tribunal which apparently supported the
389. Unreported L.E.C., No. 20200 of 1981, Senior Assessor Bignold.
272
applicant. He felt that a common feature of the cases was
the question of:
"...whether the re-subdivision in each case involved the creation of any lots additional to those lots which could, as a matter of law and practicability be developed by separate dwelling houses". (Emphasis added).
Consequently, in exercising his discretion under s.333(2) he
felt it appropriate to enquire factually into the present
condition of the land and determine whether, as a result of
the proposed subdivision, that condition would be changed in a
manner likely to generate an increased demand for public
reserve facilities. This approach was based on the
formulation of the scope of council's power to require
contribution as set out in Armour's case.
Senior Assessor Bignold felt that the physical
use of the subject land did not relate to the existing
internal boundaries of the 3 lots. The factual conclusion was
that the land could properly be regarded as a single parcel
despite the existing titles or division because of its use as
a single allotment. The proposed subdivision created the
likely result that the land would be developed by two
additional dwellings. This would in turn be likely to create
a demand for additional public reserve facilities.
In his discussion of many of the earlier cases,
Bignold S.A. stressed the need to examine each case on its 390
390
390. Brown -v- Ryde Municipal Council 2. L.G.A.T.R. 180; Wallis & Moore Pty. Ltd, -v- Hunter Hill Council 2 L.G.A.T.R. 230; Proust and Gardner -v- Parramatta City Council 3 L.G.A.T.R. 100.
391. Op. cit., note 389.
273
merits and the elusiveness of broad principles. It is also
interesting to note that the possibility of demolition of the
existing house such as to render the 3 existing blocks capable
of re-development was not considered by the Court to be a
relevant circumstance for the purpose of exercising the
s. 333(2) discretion. The Court was to be concerned with
comparing:
"the likely consequences (in terms of ensuing development) of that subdivision with the factual position concerning the subject land at the time that the discretion under the section is exercised".
Thus, once again the "reasonableness" approach prevailed in
the assessment of the contribution.
(v) Various conditions may be attached by council or the
Court in relation to physical dedication or monetary
contributions in lieu thereof. By way of example the case of
Letola Pty. Limited -v- Leichhardt Council gives an
indication of the types of conditions which may be imposed.
This case dealt with council's refusal to grant
approval with regard to subdividing an existing lot and
constructing two terraced houses on it. The council sought a
monetary contribution, for the landscaping of open space lands
already acquired in the immediate vicinity. The appellant
argued that $1,500 was reasonable. The Court indicated that
its decision was on the particular facts of the case and
favoured the $1,500 noting that the existing open space lands
on a nearby site were already acquired by council by way of
392. Ibid.
393. Unreported L.E.C. No. 10077 of 1980, March 1981,Assessor Chivers.
274
contribution. Thus the existing provision of open space in
the immediate vicinity was a very relevant circumstance in
assessing monetary contribution. The Court's final order
imposed the condition:
"The subdivider shall, before the signature of the linen plan, pay to the council the sum of $1,500 for the purpose of embellishment of open space located on the foreshore of the adjoining Dickson Primer site. Such an amount is to be expended by the Council within five years from the date on which the sum is paid and if not so expended to be refunded to the registered proprietors of the allotment".
Thus in relation to the scope of conditions, a particular use
of monies can be directed, the time span for this use set down
and a right to reclaim the monies should the council fail to
use them in accordance with the conditions of the approval was
established.
It is seen here that the Court (and council) has
extensive power in relation to the conditions it can impose on
cash contributions under s. 333(2).
394. Ibid.
275
(f) Lands Given Over for Public Reserve as a Condition of
Building Approval.
Part XI of the Local Government Act, 1919 deals
with "Building Regulation". Under this, s. 313(1) lists the
factors for consideration in relation to granting building
approvals. Where development consent under the Environmental
Planning and Assessment Act is not required under the relevant
environmental planning instrument, s.313(2) lists additional
matters which council should take into consideration as well
as those outlined in s.313(1). Neither of these sections
specifically refers to public reserve contributions. However
as the case law has developed it has been accepted that the
matters specifically enumerated in s. 313 are not an
exhaustive list of factors which Council may look at when395granting building approvals.
Until fairly recently the legality of imposing a
condition for open space contribution on a building approval
was unclear. This changed with two separate decisions by
Judges of the Land and Environment Court in March, 19dl. In
fact, both Judges noted in their decisions that the question
had not arisen in any case of which they were aware in either
the Local Government Appeals Tribunal, the Land and
Valuation Court or the Land and Environment Court.
395 . For example see Cripps J. in Quota Corporation v Leichhardt Municipal Council where he was at * 45pains not to limit the scope of s.313. (1980-81)45 L.G.R.A. 319.
276
The first decision was that in Quota Corporation
-v- Leichhardt Municipal Council heard by Mr. Justice
Cripps in the Land and Environment Court (now Chief Justice)
on the 10th March, 1981. The case dealt with a refusal to
grant a building approval to a proposal to build 41 two
bedroom townhouses. Some history of the application is
necesssary to understand how the issue of open space
contribution on a building consent arose.
In 1976 Quota Corporation sought interim
development consent to demolish a building and erect town
houses. The proposal was dealt with under Part XIIA,
advertised under s. 342ZA of the Local Government Act, 1919
and objections received duly treated. In October, 1976
interim development consent was granted under I.D.O. No. 13
(which in fact adopted the model provisions). The I.D.O.
deemed consents void if the development had not substantially
commenced within 12 months. Council could however grant annual
extensions and renewals for up to 3 years. The applicant here
had extended the consent to October, 1980. Through June, July
and August, 1980, the existing buildings were demolished
and at the end of September bulk excavations began. By the
date the consent had lapsed, half the footings for the
external walls had been put in and a considerable quantity of
steel had been brought onto the site and formed into cages.
The applicant submitted that the cost of these works was some
$158,604.00.
396. Ibid.
277
In July, 1980, the applicant sought building
approval for plans which contained only minor variations from
the original approval. Council treated this building
application as amounting to a "deemed development
application" and re-advertised it under s. 342ZA. In
December, 1980, it refused building consent on four
grounds. Council also sought to impose a condition requiring
some $41,000 for open space contribution, prior to the release
of building plans.
Council's case was argued on two alternative
bases. Firstly, the interim development consent was void
because the development had not been substantially commenced
before the 26th October, 1980. On this the Court held that
there had been substantial commencement, noting that the
original development approval was to demolish and build.
Secondly, the council submitted that it was required, as a
matter of law, to"deem" the building application to be an
application for interim development consent. This was based
on the principles referred to in Drummoyne Municipal Council 397-v- Lehman and Holroyd Municipal Council -v
398Mangans. The Court held that there was no provision m * 397
the interim development order deeming a building application
to be a development application, and that this was necessary
for the argument to succeed. Therefore the applicant only
needed building consent.
397. (1974-75) 131 C.L.R. 351.
398. (1972) 2 N.S.W.L.R. 439.
278
The Court referred to Allen Commercial
Constructions Pty. Limited -v- North Sydney Municipal 399Council. In that case Mr. Justice Walsh examined a
provision of the North Sydney Planning Scheme Ordinance and
held that it did not give:
".... an unlimited discretion as to the conditions which may be imposed, but as conferring power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from consideration of the Scheme and the Act under which it is made.-.399 400 401
Applying such a principle to council powers
concerning building applications, Mr. Justice Cripps held that
in his opinion "....such a condition cannot be imposed when
granting approval under Part XI of the Local Government
Act".^^ Part XI is headed "Building Regulation" and is the
relevant legislation under which a building consent is
granted. He felt that though some overlap in development
control and building control existed:
".... the controls imposed by Part XI are properly directed towards building matters simpliciter and the controls imposed by the E.P.A. Act are directed to the impact of the development (including buildings) on the environment. .. the question of what provisions should be made for open space is not in my opinion a building matter it is a planning matter".
399. (1969-70) 20 L.G.R.A. 208.
400. Ibid, p. 216.
401. Op. cit., note 395.
402. Ibid.
279
Thus Mr. Justice Cripps categorised the purpose for which the
authority of the function was exercised under building
regulations and planning controls as being separate. It
followed that the imposition of an open space contribution was
solely a planning matter. Consequently,the Court granted
building approval without an open space contribution
condition, holding such planning matters beyond the scope of
s. 313 of the Local Government Act, 1919.
The other decision by a Judge of the Land and
Environment Court on this point was that of Chief Justice
McClelland in Machon Pauli Partners Pty. Limited v Leichhardt/ AQ
Municpal. Council. This proposal was for 9 town houses to
which Council granted development consent subject to 22
conditions. None of these dealt with open space
contribution. A building application under Part XI with
identical plans received building approval subject to 21
conditions. The applicant objected to 2 of these, one being a
monetary contribution toward the provision of public open
space on the basis of 3.5 hectares per 1,000 of population.
The applicant appealed against this condition, submitting
that Council had no power under s.313 to impose it.
In reaching a similar decision to Mr. Justice
Cripps, Chief Justice McClelland was swayed by the
applicant's submission that after the introduction of Part
XIIA into the Local Government Act in 1945, the intention of
the legislature was that environmental planning issues
403. (1979-81) 44 L.G.R.A. 1.
280
should be considered first in development applications.
Building issues would then subsequently be dealt with
in building applications. Thus the building considerations to
be taken into account were precisely stated in s.313 (Part XI)
and these did not include any environmental planning
considerations. In his view a close reading of Part XI,
especially s.313, supported the proposition that it was:
"....the intention of the legislature that an environmental planning condition, such as the provision of public open space or the payment of a sum of money in lieu thereof, is one that could be attached only to a development application and not to a building application"^
The Court examined earlier judgements imposing open space
contribution conditions and stressed that all of them dealt
with development consent. It recognised that there was a
presumption in the old cases that "environmental planning"
or "amenity" conditions would naturally be considered by the
council at the stage when a development application was before
it.
After concluding that no such condition had ever
been imposed in any other way than on a development consent
under the old Part XIIA of the L.G. Act, Chief Justice
McClelland examined the question of whether the "new law" (the
1979 Planning Package) had changed the situaiton. There had
only been one amendment to s.313 in the new legislation and
this was not relevant. The Judge recognised that conditions
for open space contribution had received legislative
recognition in s. 94 of the Environmental Planning and
404. Ibid, p. 8.
2 8 1
Assessment Act. After outlining this section in full he
expressed that its inclusion in the Act:
" . . . puts beyond doubt the environmental planning nature of such a condition and obliges the Council if it wishes to impose it,to do so at the time when it is dealing with a development application".^®"*
In consequence of the above decisions it is
clear that if no development consent or subdivision approval
is required no public reserve contribution can be levied by•, 406councils.
405. Ibid, p . 11.
406. A third case decided by Senior Assessor Bignold in 1981 also supports the above proposition. In Condux Pty, Limited -v- Leichhardt Municipal Council, he decided, firstly, that the building and planning approval processes generally operated, in the ultimate sense independently of each other. Secondly, he pointed out that under the new legislation there was no legal device which deemed a building application to be a development application and consequently Council's actions in seeking to achieve this end were ultra vires and could not be used as a justification for imposing a public reserve contribution condition at the building application stage. Unreported L.E.C., No. 20716 of 1980.
282
(g) Lands Dedicated as Public Reserves (or money in
lieu thereof) and Given Over to Council in Fee Simple
as a Condition of Development Approval
(i) Pre Environmental Planning and Assessment Act, 1979.
Until the commencement of the Environmental
Planning and Assessment Act on the 1st September,1980 there
was no expressed statutory basis for the imposition, by
consent authorities, of conditions of development approval for
the dedication of land for public reserves or monetary
contribution in lieu thereof. Such conditions were however,
imposed by local councils who relied on clauses in controlling
instruments - Local Planning Scheme Ordinances or Interim
Development Orders as the legal basis for their authority to
impose them.
From an historical point of view the County of
Cumberland Planning Scheme Ordinance, as amended by the Local
Government (Amendment) Act, 1951 is of importance This
applied to all local government areas within the defined
County Region, until such time as a Local Planning Scheme
was enacted (usually an I.D.O.). Clause 27 of the
County of Cumberland Planning Scheme Ordinance stated:
"where application is made to the responsible authority for its consent for the erection or use of a building in a zone in which a building of the type proposed maybe erected or used only with its consent, the responsible authority shall decide whether to give or withhold consent and in the former event what conditions, if any, shall be imposed". (Emphasis added).
283
A proviso further required the responsible authority before
determining the application, to take into consideration six
tabulated matters, two of which are of particular relevance
(clause 21):
"(e) the existing and likely future amenity of theneighbourhood including the question of whether the proposed development is likely to cause injury to such amenity, including injury due to the emission, vibration, smell, fumes, smoke, vapour, steam, soot, dust, grit, oil, waste, water, waste products or otherwise; and
(f) circumstances of the case and the public interest." (Emphasis added).
It is these clauses which councils previously relied on to
impose conditions requiring the dedication of lands for open
space or a cash contribution in lieu thereof.
When a Planning Scheme Ordinance was enacted to
replace the County of Cumberland Scheme it contained a clause,
similar to the above, which Council used as a justification
for its contribution conditions. Council's initiatives in
applying such conditions to a development approvals, for
residential building projects, apparently arose from their use
as an accepted planning technique in relation to subdivision
approvals, where a specific statutory power base existed
(s.333).
The rationale for levying the developer was the
same in the case of subdivision of land and the erection of
residential flat buildings, i.e. the increase in population
which the development would bring and its resultant effects on
depreciating existing environmental amenity regarding public
reserves.
284
In practice the lack of a specific statutory
base under which to require contributions for public reserves,
did not usually provide a serious impediment to councils when
minded to impose such a condition. It is a business reality
that the amount of money or land usually involved
in open space contribution, represents only a small proportion
of the total cost of a development. Given interest rates and
holding costs involved with large development projects (flats)
it was usually cheaper for the developer to accept the
condition imposed by council than to delay getting development
approval or the date upon which he could commence the
development. In practice, the councils often brought pressure
to bear on the developers, by including in the wording of the
contribution clause that building plans (or building
approvals) would be withheld until the contribution for open
space had been paid, or the land dedicated. Councils were
in an effective "bargaining position" as the developers only
course of action was to pay the contribution or appeal the 407
407. In light of previous comments concerning thedistinction between building and planning law it is interesting to note the issue of the legality of a clause of development approval which refers to witholding approved building plans. It would seem that a good argument could be put that in refusing to issue approved building plans due to an open space contribution condition, councils actions would be an invalid exercise of power on the basis of the distinction between planning and building law drawn by both McClelland C.J. and Cripps J., outlined under the previous heading - (f), pp. 275-281.
285
Council's decision. This usually involved substantial delay,
cost and uncertainty and as a result was not usually the
favoured option.
The general nature of council's powers to seek
dedication of land or money for public reserves (and other
purposes) prior to s. 94 of the E.P.A. Act were defined by
Walsh J. in Allen Commercial Constructions Pty. Ltd -v- North
Sydney Municipal Council. T h e power to impose conditions
was not an unlimited discretion as they must be for "the
implementation of planning p o l i c y " . T h e scope of planning
policy was to be ascertained from the Act (Local Government
Act Pt.XIIA) and the provisions of the relevant ordinance
(Planning Scheme or I.D.O.) not from some "....preconceived
general notion of what constitutes planning".
This requirement was recently noted as still
being applicable in testing s. 94 conditions levied by the
Sydney City Council, for low income housing i.e. "It must be
for a planning purpose or relate to a planning purpose".^^
Over a long period the Courts examined the reasonableness of
408. (1969-70) 20 L.G.R.A. 208 at p. 216. Barwick C.J., Menzies and Windeyer J.J. in agreement.
409. Fawcett Properties Ltd, -v- Buckingham County Council (1961) A.C. 638, at p. 684, per Jenkins, L .J.
410. Ibid.
411. Building Owners and Managers Association of Australia Limited -v- The Council of the City of Sydney. Unreported. Land and Environment Court No. 40084 of 83 Cripps J. 2 April, 1984.
286
development conditions in relation to public reserve - open
space and car parking contributions and clearly accepted/ T Othese as legitimate planning purposes.
Mr. Justice Else-Mitchell, then of the N.S.W.
Land and Valuation Court, examined council's powers to require
contribution of money to acquire and embellish recreation
areas in Mercantile Holdings Pty. Ltd, -v- Fairfieldy i q
Municipal14 . This 1972 decision held that it was within
Council's powers under cl. 27 of the County of Cumberland
Planning Scheme Ordinance to impose such a condition on a
development consent for a residential flat building. This
question was the first part of the two part test developed by
the common law to determine the validity of contribution
conditions imposed on a development consent.
The Court went on to disallow the condition on
the second requirement of the test i.e. that the condition be
justifiable. This relates back to the previously noted
rationale accepted by the Courts in the evaluation of these
principles, i.e., the increase in population resulting from
the development would depreciate the existing amenity
regarding public reserves. The need for the contribution was
412. See for example Woolworths Properties Pty. Ltd, -v- Ku-ring-gai Municipal Council (1965) 10 L.G.R.A. 177; Jumal Developments Pty. Ltd, -v- Parramatta City Council (1968-69) 17 L.G.R.A. Ill; Gillott -v- Hornsby Shire Council (1965) 10 L.G.R.A. 285; Granville Developments Pty. Ltd, -v- Holroyd Municipal Council (1968-70) 18 L.G.R.A. 34. 413
413. (1971-72) 25 L.G.R.A. 362.
287
established by showing the depreciation. Consequently the
money had to be for areas which were so situated or defined
that it was proper to conclude that they could be identified
in some fashion with the proposed development (i.e. they
satisfied the established need).^^- This question could be
termed the '’proximity" issue.
The proximity issue was easily resolved when a
physical dedication of open space was made. More often than
not, however development (residential flats, commercial and
industrial) site areas are at a premium and developers prefer
to make monetary contributions. The New South Wales Court of
Appeal examined this situation in 1975, when dealing with a
residential flat development in Rockdale Municipal Council -v-
Tandell Corporation Pty. Ltd.̂ 1-̂ Here, Mr. Justice Glass
outlined the relevant legal principles in his final comments:
"But I consider that Council may arguably claim that it has imposed a valid condition in circumstances where residential development in a given area will create a need for additional open space if the amenities of the neighbourhood are to be preserved, the provision of open space on a development site is not commercially feasible, money collected from each developer is to be expended on the provision of such open space, the money is impressed in a trust which would prevent its expenditure for any other purpose and the open space provided is proximate enough to the site to present a reasonable connection with the needs generated by the development on it. It goes without saying that the relationship between the proposed development and the proposed facility raises questions of degree and therefore of fact which the trial judge will determine.... " . 414 415 416
414. Ibid.
415. (1974-77) 34 L.G.R.A. 196.
416. Ibid, p. 206.
288
The Land and Environment Court had to deal with
such questions of degree in the application of the old case
law which had evolved prior to the introduction of the
Environmental Planning and Assessment Act. Though the Court
commenced operation in September, 1980, at the same time as
s.94 came into force, there were some transitional
applications which had been lodged under Part XIIA of the
Local Government Act and the appeal commenced before the Local
Government Appeals Tribunal. Such appeals pending before the
Tribunal when the Court came into operation, were treated
under cl.28(1) of Schedule 3 of the Miscellaneous Acts
(Planning) Repeal and Amendment Act, 1979. Two of these
decisions Bartello -v- Botany Municipal Council^^ and
Harrison -v- Leichhardt Municipal Council^^ are of interest
in their application of Tandell's case to deny an open space
contribution condition.
In Bartello1s case, Senior Assessor Bignold (now
judge) had to deal with an application for five flats which
had been refused by council on a number of grounds. The
applicant objected to a proposed condition requiring the
payment of $16,980.00 as a contribution toward the acquisition
or improvement of parkland within the vicinity of the proposed
building to offset the deficiency in the same resulting from
increased population . Council's figures were based on the 7
acres per 1 ,000 . 417 418
417. Unreported, Land and Environment Court No. 2045 of 1980.
418. (1980-82) 46 L.G.R.A. 387.
289
The Applicant argued on a number of grounds.
Firstly, the Respondent had not established that it was
entitled to require the contribution, secondly, it had not
particularised the expenditure of the cash contribution, and
thirdly, the amount demanded was excessive and unreasonable.
Council argued the legality of the condition on
the basis of Tandel 1s case. It suggested that the
development necessarily produced an increase in residential
population which in turn created a need for additional open
space facilities. As the development site was not physically
capable of providing open space, the contribution should be
imposed. Council would then put this money into a trust to be
spent on landscaping and children's facilities in a large
existing public reserve some 300 metres away.
Senior Assessor Bignold clearly recognised that
the onus was on council to justify the condition. He felt
that council had made no attempt to substantiate the
conclusion that the development would interfere with the
existing or likely future amenity of the neighbourhood, and
did not refer to any adverse effects of increased demands for
limited open space facilities. In short he was not satisfied,
to adopt the language of Glass J.A., that the increase in
residential population in the locality with the expected
resultant demand for increased facilities, for open space,
would necessarily result in a decline in the amenity of the
neighbourhood. In his final decision he did, however, adopt
the applicant's concession that it contribute $1,500 to be
expended on the embellishment of the local park.
290
The second decision was that of Senior Assessor
Bignold and Assessor Fitzhenry sitting together in Harrisonh 1 Q-v- Leichhardt Municipal Council. The appellant again
argued that Council had failed to satisfy: (i) the onus in
relation to establishing the need for additional public open
space or embellishment of existing; (ii) the nexus between
the needs generated by the proposed development and their
satisfaction in terms of the provision or embellishment of
public open space; and (iii) the reasonableness .of the
quantum of required cash contribution. The Court for similar
reasons to those given in the decision of the Court in
Bart ello -v- Botany Municipal Council concluded that it should
not impose the required condition. The Court criticised
Leichhardt Council for assuming that all that was necessary to
justify the condition was the demonstration of the likely
increased population resulting from the development. In the
Court’s opinion this was a false assumption. The Court
apparently went further in relation to what was required for
justification than in Bartello1s case. It stated:
"It must also be demonstrated that the condition relates to or is directed to the implementation of some planning policy discoverable from the relevant enactments which confer the power to import the conditions on the grant of the interim development permission."
419. (1980-82) 46 L.G.R.A. 387.
420. Ibid, p. 394.
291
The Court went on to stress that different conditions might
apply in the operation of s. 94 of the Environmental Planning
and Assessment Act, 1979, but that this was irrelevant to the
determination of the appeal.
After satisfying itself as to the validity of
the condition (power and justifiably) the Court finally
examined the quantum of the contribution. This was a question
of reasonableness, the determination of which was a question
of degree based on the individual facts of each case.
(ii) Post E.P.A. Act - Section 94.
The Court's acceptance of council's powers to
attach a condition requiring public reserve contribution to a
development consent, achieved the dedication or purchase of
much land for public reserves or open space.
Section 94 of the E.P.A. Act was the legislative
recognition of the above outlined common law position. It is
important to realise that s.94 delineates far broader powers
regarding contribution than simply those for public open
space. It extends to contributions for various planning
purposes for example, roads, water and sewerage and numerous
community facilities. The full scope of councils power to
levy s.94 contributions and the legitimate planning purposes
for which this can be done have not yet been fully explored by
the courts or councils.
The section clearly derives from the previous
practice and legislative precedent concerning the obligations
of developers to contribute towards the public costs which
292
their developments create. So far as subdivision is concerned
these contributions traditionally related to such items as
water and sewerage reticulation, construction of roads andl r\ I
the provision of parking and public recreation reserves.
With regard to higher density residential or industrial
development, the contributions at common law have
predominantly related to parking and public recreation
reserves.
Section 94 states that where the Council, as the
consent authority, is satisfied that a development will or is
likely to require the provision of or increase the demand for
public amenities and public services within the area, it may
grant consent subject to a condition requiring:
"(a) the dedication of land free of cost; or
(b) the payment of a monetary contribution, or
both" .
This power is however limited by s.94(2) which allows a
s.94(l) condition only where :
(a) an environmental planning instrument identifies a likely
increased demand for public amenities and public services
as a consequence of the carrying out of the development
and
(b) a requirement that the condition is reasonable. 421
421. See Local Government Act, s. 327(b) - roads;s.331 (6) - general power regarding conditions on subdivision; s. 331(1) - drainage reserves and easements and s. 333(2) - public reserves.
293
Section 94(7) however deals with councils
operating under a deemed environmental planning instrument. In
this situation an environmental planning instrument
identifying the demand is not required. (It is also
understood that proposed amendments to the Environmental
Planning and Assessment Act will also adopt this approach).
From the previous comments of the Department, however,
justification by the council is still a necessity. The
Department has also indicated that the "reasonable"
requirement relates to both the location of the amenities and
services and the timing of their provision. In other words it
would be "unreasonable" in the Department's opinion if the
service or amenity was not provided in a location that was
related to the development or if its provision was unduly
delayed. These questions, as previously treated by the
courts, depend on the facts of the case. Section 94 in the
words of the Department of Environment and Planning Circular
23:
422. DEPARTMENT OF ENVIRONMENT AND PLANNING, Circular No. 23 Section 94 of the Environmental Planning and Assessment Act 1979, 14 October 1981 *(circular to all city Municipal and Shire Councils), p. 2., para 6. See also s. 94(4) regarding requirement for reasonable time.
294
".... does not limit the matters for which land and/orcash contributions can be sought, but requires that contributions be identified and justified in environmental planning instruments, particularly in terms of the nexus between the development and the services and amenities demanded by it. The fact that an enabling provision is not required in a deemed instrument does not in any way detract from the need for this just if ication."^'*
Section 94 covers three distinct development
situations:
1. Urban release areas, particularly the new estate
developments in fringe areas. These are usually created
by a process of re-zoning and the local environmental
planning instrument must identify, under s. 94(2), the
increased demand in order to levy contributions on this
basis.
2. Development supporting large scale resource and/ or
industrial development. There is still some question of
the method for dealing with the demands for services and
facilities generated by these resource-based
developments. The Department has indicated that for the
time being these areas will need to be "individually / 0 /negotiated".
3. Re-development in inner and middle city areas. These
areas are usually covered by deemed environmental
planning instruments and accordingly s.94(7) exempts the
Council from the s.94(2)(a) requirement for a local
environmental plan identifying the need. 423
423. Ibid.
424. Ibid, para 9.
295
To date s.94 has been predominantly used by
local councils exercising their powers of consent in relation
to the third area outlined above ie.acting under deemed
L.E.P.s (either Planning Scheme Ordinances or Interim
Development Orders). A significant body of case law has been
produced by the Land and Environment Court in relation to the
use and operation of the section to achieve acquisition of
land or money for public reserve or open space in these 425circumstances. The paper now proceeds to analyse this
newer case law.
(iii) Section 333 Local Government Act and Section 94
-Subdivision Contribution
The case of Ligora Pty. Limited -v- Leichhardt 426Municipal Council examined the inter-relationship between
s. 94 and Part XII of the Local Government Act regarding the
dedication of land or the payment of monetary contribution for
public reserve purposes. The case dealt with an application
to subdivide the existing property, developed with six old
buildings and two vacant lots, into eight new allotments.
This was permissible within the zone but the application 425 426
425. The new case law and Department of Environmentand Planning communications use "open space" as the most common description for public reserve contributions. cf: old Local Government Act s.333(l)(g) "public garden and recreation space" later amended to "public reserve".
426. Unreported, Land and Environment Court No. 10033 of 1980.
296
required both the development consent under the E.P.A. Act
and subdivision approval under Part XII of the Local
Government Act.
Part of the Applicant's argument included the
submission that since the commencement of the E.P.A. Act,
1979, the power to require dedication of land or monetary
contribution as a condition of consent to a development/ O 7application, was to be found solely in s.94 of the Act.
The Court determined that dedication is a consideration to be
taken into account under s.333 only when consent under the
E.P.A. Act is not required. Notwithstanding, this does not
have the effect of forbidding the council from requiring,
pursuant to s.94, dedication where development consent is
required. The effect of the Act is simply to empower the
consent authority under s.94 to require, in appropriate
circumstances, a contribution for the provision of public
amenities and this makes superfluous the inclusion of such a
consideration in s.333 of the Local Government Act where the
development consent is required. Thus where both consents are
required the assessment is made only under s. 94.
The Court went on, after noting several older
authorities, to state that the case was one where it is
necessary to construe for the first time a section of a new
statute which had no counterpart in past or existing
legislation and that consequently the authorities provided 427
427. See pages 256-275 for discussion of s.333 of the Local Government Act, 1919.
297
A O Q
little guidance. The indication was that the precendential
value of the older cases is of little assistance to the Court,
in viewing a s.94 question. Mr. Justice McClelland stated
that the only qualification on the exercise of the s.94 power
was that the Council or the Court must be satisfied that the
development for which the consent was sought "will or is
likely to require the provision of or increase the demand for
public amenities and public services within the area and that429the dedication or contribution is reasonable". A review of
the cases however shows that the principles previously
developed at common law have been important in the court's
assessment of what is "reasonable" in an individual case.
Another issue relating to contribution at the
subdivision stage, where development consent under the E.P.A.
Act is required, was raised by the applicant in Ligora1s
case. It was asserted that the proposal was a "paper
subdivision" only. No works were proposed and the subdivision
approval would not change the physical appearance, character
or use of the land. The purpose of the subdivision was to
create separate titles facilitating the sale of the land in
separate lots. A further consent would be required to erect
buildings or change the use of existing buildings.
Consequently, the applicant argued that the council could not
be satisfied that the subdivision simpliciter "will or is
likely to require the provision of or the increase in demand 428
428. Op. cit., note 426.
429. Ibid.
298
for public amentities and public services within the area" as
required under the Act. u Since this was a precondition to
s.94 levies, the question of contribution belonged, according
to the Applicant's argument, to the future when some physical
change of the site or part thereof was contemplated.
In answer to this the Court found persuasive the
argument of the Respondent that in drafting s.94 the
appropriate stage to require dedication was to be that when
granting development consent to the subdivision and not at the
stage of granting development consent to applications to erect
or use buildings by owners of the subdivided lots which would
inevitably follow. As all subdivisions could in fact be
termed mere paper subdivisions, to deny the power to levy at
this stage would result in various administrative and/ q 1
practical difficulties. The power to levy for public
reserve contribution under s.94, in relation to a proposed
subdivision which requires both development and subdivision
consent was thus clearly established. 430
430. Ibid.
431. Ibid.
299
(iv) "Reasonableness"
Section 94(2)(b) requires that a contribution
condition can only be imposed by councils if it requires a
"reasonable dedication or contribution". The assessment of
this in any case involves a number of factors. In practice
the testing of this has been approached by the Land and
Environment Court on two different levels, one or both being
examined in the individual case. Firstly a general approach
based on the facts of the case and the evidence available can
produce a figure or area which the particular Assessor or
Judge thinks in his or her opinion is reasonable. Secondly, a
formula has been determined by the Court which can produce a
figure which is considered reasonable in many instances. (see
heading (v) following). Discounting is also fundamental in
both approaches to determining the amount of land ultimately
to be contributed. The formula and discounting will be
examined separately in the following headings. The use of
"reasonable contribution" as a general approach is analysed
below.
The Court in assessing what is a reasonable
contribution under s.94 has firstly required justification by
Council. A similar onus fell on councils previously at common
law. Mr. Justice Cripps Daniel Callaghan Pty. Ltd, -v-
Leichhardt Municipal Council made this point clear. The
Council, prior to this case, had adopted a policy under which
it sought to exercise its powers under s.94 on the basis of 432
432. Unreported. Cripps, J., Land and Environment Court No. 20142 of 1980.
300
requiring 3.5 hectares of land per 1,000 head of population
increase, calculated on the current market price of the
subject land per hectare. This formula was to be applied to
development across the board to produce a monetary
contribution. In fact it appeared this approach was seeking
to bolster the deficiency of this inner city suburb in
relation to its provision of public reserves and open/ o O
space. The residential development was for thirty home
units. The increase in population,obvious. Nevertheless the
Court required more than the proof of this population increase
to justify the figure council sought.
Council, at the hearing, adjuced evidence
concerning the need for the large amount of money sought, to
develop certain land as open space (i.e. embellishment of an
existing area). On this attempted justification Mr. Justice
Cripps stated:
" I have no doubt the Council could always use moremoney. But to justify such a contribution more is required than this. The details given were no more than an unsophisticated attempt to justify a figure arrived at by arbitrary application of the formula."433 434
433. It is interesting to note that in fact the site in question had been one which the council was anxious to acquire for open space. However, their efforts had not met with any success. The Planning and Environment Commission had taken the view that the size and characteristics of the site would not permit it to regard the site as one of regional significance and therefore it did not qualify for the allocation of Commission funds for acquisition and the Commission did not support Council in its application to the Local Government Grants Commission for funds for acquiring land for open space purposes. During the appeal it was not suggested that the site would be acquired for open space.
434. Op. cit., note 432.
301
He stressed that council had made no attempt to justify its
approach and that he had no material before him upon which he
would make an assessment. Consequently, he made none. He did
however accept that the development would increase the demand
for public amenities and services within the area and
referred to an original agreement between the parties, in
requiring a contribution of $30,000.00 (in fact this figure
could be traced back to the 2.8 hectares per 1,000 formula
subject to certain discounts).
In assessing council's justification Mr. Justice
Cripps made some important comments concerning Council
policies when he stated:
" .... these resolutions do not have any independent legalforce and are only relevant to the extent that they are based on sound town planning principles. In any case the Court as a whole, now attaches little weight to resolutions or policies of Councils where no attempt is made to justify its applicability to the subject site."2*3*
From this case it is clear that to be a valid
s.94 condition, the contribution must be based on sound town
planning principles (as was the position under the old case
law) and must be an individual assessment in each case and
not simply a blanket application of council policy. As was
the case previous to s.94, the acquisition of public open
space is an accepted town planning purpose and the council's
onus of proving justification relates only to the amount of
contribution sought in a particular case.
435. Ibid.
302
In making its individual assessment the council
must show the increased demand resulting from the development
and indicate how it intends to satisfy this. In Novati Design
and Construction Pty. Ltd, -v- Leichhardt MunicipalAO A
Council, the Court examined a proposed Council condition
requiring a contribution of $19,050:
"....which shall be entered into a fund for the purpose of the purchase of additional open space and for the embellishment of existing open space, within an area of no more than 500 metres distance from the site..... "
The Court set out the steps in applying s.94 and, after
reviewing them, held that the development was likely to
require an increased demand for public reserve land within the
Municipality and therefore it was reasonable to impose a
s.94(l) condition. Since the development of the subject land
did not allow for the physical dedication, a monetary
contribution was appropriate. Such contribution was to be
used for:
"the provision, extension or augmentation of the amenity and public services in demand, in this case being additional land for use as public open space, and cannot therefore be sought for the embellishment or modification of existing open space the demand for which was not adequately established in the proceedings"
Thus again it is clear that council has the onus of
establishing whether the increased demand is for the provision
of open space or the embellishment of existing open space and
436. Unreported. Land and Environment Court No. 10291 of 1981, Assessor Domicelj.
437. Ibid.
438. Ibid.
303
cannot simply assume that the Court is prepared to grant a sum
of money at large to be used for both, unless the council can
establish a dual demand resulting from the proposed
development. It is interesting to compare this approach with
that of s. 333(2) of the Local Government Act, where if
council can establish the increased demand for public reserve
it can simply take a monetary contribution in lieu, which can
be expended either for purchase or maintenance or
embellishment of any public reserve under its care, control
and management i.e. physical proximity is not necessary.
In the decisions of the Land and Environment to
date the importance of this requirement for using s. 94 money
to satisfy the demands of the proposed development is
unclear. In Thomaszewski Associates Pty. Ltd -v-Leichhardt
Municipal Council for example, the Court required that the
sum be expended within three years from the date of the
decision on the purchase and/or embellishment of open space
within "....that part of the Municipality of Leichhardt
bounded by Parramatta Road on the South, the goods railway
line to the west and north, and Norton Street to thel±bf 0east . If this was not done the money was to be retunded.
It is also quite common for conditions from the Land and 439
439. Unreported Land and Environment Court No. 10605 of 1981. Assessor Fitzhenry.
440. Ibid.
304
Environment Court to require that the money be expended within
a certain distance, e.g. 500 metres of the site.^^ Such
conditions however, may in fact be given to the Court by the
Council for inclusion in its judgment if the court allows the
appeal. As such they may represent an approach by council
trying to justify the condition rather than a binding
requirement established by the courts sole initiative.
Since the inclusion in 1960 of s.333(2) of the
Local Government Act, 1919, it seems councils can spend these
monetary contirubtions on the purchase of any land for public
reserve and clearly on the improvement or embellishment of any
reserve under council's care and control. With this is mind
it would seem anomalous if a monetary contribution s.94 was
limited to the purchase or embellishment of resources in close
proximity to the subject site. It is clear from the case law
that in justifying a contribution it must be shown that the
particualr development creates an increased demand for public
open space. It is not as clear however in the use of the
dedication what is the particular nexus with the proposed
development that is required, i.e. the extent to which
satisfying demands generated by the site is a part of the
reasonableness requirement.
Such a principle has its origins in the old
rationale justifying the contribution. In the opinion of the
441. See also Marura Pty. Ltd, -v- Leichhardt Municipal Council. Unreported, Land and Environment Court No. 10108 of 1981; and Clarke -v- Leichhardt Municipal Council. Unreported, Land and Environment Court No. 10438 of 1981.
305
author if such a requirement is strict, this is not
desirable. It would result in councils acquisition and
embellishment of open space being ad hoc, on the basis of
where money has been provided, where development is taking
place, rather than on where it is most needed within the local
government boundary. Council would have no opportunity to
accumulate money from various developments to allow for lump
sum expenditure on needed open space. The more lenient s.333
approach is far more desirable and practical, though its
rationale may be seen more in the sense of an indirect tax
than a compensation for adverse impact of the development.
The Court has determined that it is reasonable
to assess the contribution at the time of the council
decision. In turn if the matter is taken on appeal the court
assesses it at the time of the hearing. Assessor Hanson (now
Senior Assessor) in Bolden Enterprises Pty. Ltd. -v~
Leichhardt Municipal Council stated that he was:
"...obliged to determine the matter de novo and in addition I am obliged to determine it according to the law and to all of the circumstances applying at the time of my determination ." ^
In relation to the assessment of the amount of contribution in
this case the Assessor made an overt reference to the
"reasonableness test" when he outlined:
442. Unreported, Land and Environment Court No. 10102of 1980.
306
"So far as the amount is concerned my approach is that in the absence of any definitive judicial authority as to the method of calculation I would propose a figure that in the circumstances of the case and in light of my own experience, I consider to be reasonable. In ray opinion a contribution of $12,000.00 would be appropriate."^1-̂
It is the role of council, and later the Court
on appeal, to determine whether a monetary contribution or
physical dedication is required. The determination of whether
land or money should be dedicated and if land which land, has
been examined by the court in its assessment of the
reasonableness of council's requirements.
In Frank Koulos and Partners Pty. Ltd, -v- Wyong
Shire Council, f o r example, the appellant proposed to put
in a basement carpark, resurface the top of it and dedicate
that area to council as a public reserve. Council on the
other hand, identified a demand for additional land to be used
for active sport such as netball. They proposed to extend by
purchase, a park in close proximity to the subject site and
expand its ability to provide for active sports in accordance
with its planning for the area. Consequently the council did
not regard the Appellant's proposal as satisfactory. The size
of the proposed lot was inadequate for active sport. The
Court agreed with the council's calculation of the amount of
land for dedication, at half of the standard 2.83 hectares per
1,000 population, but accepted the developer's proposal for
443. Ibid. See also Morris -v- Leichhardt Municipal Council where Assessor Hansen also adopted a "reasonableness" approach. Unreported Land and Environment Court No. 20012 of 1980. 444
444. Unreported, Land and Environment Court No. 10160 of 1981. Assessor F. O'Neil.
307
its provision. The stratum of land over the car park met part
of the contribution. The remainder comprised $30,000.00 worth
of landscaping on the 'dedicated' area and a further monetary
contribution. Such a compromise is often negotiated by the
parties without resort to lengthy and expensive court
procedures.
Two final aspects of the assessment of the
reasonableness of s.94 contributions must be made. Firstly,
the Court cannot embark on the assessment of a reasonable
condition unless there is a specific development proposal
before it. In Civil Land and Real Estate Pty. Ltd, -v- The
Great Lakes Shire Council, M r . Justice Cripps had to deal
with a proposal to construct a $100,000,000 resort complex on
the Central Coast of New South Wales. The project was a
staged development to be completed within a 15-25 year
period. Eventually some 3,500-5,500 people would have been
housed permanently or in transit in some 1600 units. The
Court refused the application, not supporting the flexible-
staged approach of the developers, as it required detail upon
which to approve the application. In its refusal the Court
specifically relied on the impossibility of formulating a
condition for reasonable contribution under s.94. It felt it
was impossible to quantify or even identify the particular
case of need.
445. Unreported, Land and Environment Court No. 10116of 1981, Cripps J., 4 December 1981.
308
The indication is that if the Court cannot
identify who and how many (theoretically at least) will occupy
the development, it is not in a position to assess a
reasonable s.94 contribution.
Lastly, and very importantly, it is not
reasonable to impose a condition requiring contribution for
public open space for single dwelling residential
development. Often this cannot be done anyway as such
development does not require development consent. . State
Environmental Planning Policy No. 4 achieved this for most
residential zones (n.b. exceptions in clause 6A.). However,
even under instruments where this consent is required, s.94
contributions for open space are not levied. In Dickson -v-
Leichhardt Municipal Council the Court dealt with the
construction of two houses on two separate lots in
Leichhardt. An open space contribution was refused as by the
Court on the basis that:
".... in the circumstances here, where the land has existed in separate parcels for many years, I am not prepared to impose such a condition".
The rationale for this approach would seem to relate back to
the previous public reserve contribution which was, or could
have been required from the original subdivision into the two
446. Unreported, Land and Environment Court No. 20309of 1981, Assessor Riding.
447. Ibid.
309
individual allotments. Whether this contribution in fact took
place or not at the subdivision stage is irrelevent, as this
was the correct time to require contribution, not when the
single block so created was to be developed by a dwelling
house.
It appears that the principle of no contribution
on single dwelling development has been extended to cover the
more recent development of dual occupancies on single
residential lots. This however does not acccord with the
general rationale put forward as justifying contribution.
There is an increase in population and arguably a resultant
depreciation of existing residential amenity. The political
decision has however been taken at State level to encourage
dual occupancies in New South Wales. This probably explains
the lack of s.94 requirements in practice. Here again is
bought into view the real nature of contribution conditions as
political. And this is so despite the many attempts by the
Court, the D.E.P. and local councils to justify them on the
basis of the developments' individual impact on existing
residential amenity.
(v) The Formula.
The development of a formula approach to the
calculation of a reasonable figure for physical or monetary
contribution from a developer was previously outlined
regarding subdivision control. The application of such an
approach to development applications under the Environmental
310
Planning and Assessment Act (and s.94) was most noteably
examined by Assessor Domicelj and Senior Assessor Bignold of
the Land and Environment Court in Revay and Scott -v-
Leichhardt Municipal Council. T h e formula discussed has
three main variables - the rate (i.e. the area per 1000 of
population increase which can be required), the population
increase and the value of land (where a monetary figure is
attached to the area of land which has been determined as
being reasonable).
The decision covered two appeals under s. 97 of
the E.P.A. Act, concerning the erection of twelve residential
dwelling units and associated car parking facilities in
Balmain. The council attempted to apply its 3.45 hectares
per 1,000 as the rate for assessment. It sought to apply this
on the market value of the subject site. There was no dispute
that a public reserve or open space fell within the expression
"public amenities and public services" as appears in s. 94 and
was a justifiable subject matter for a condition.
The court departed from the previous approach to
the development of a formula. The previously accepted,
standard of 2.83 hectares per 1,000 was not accepted let alone
the 3.45 hectares per 1,000 as requested by the council.
The evidence was that Leichhardt Municipality as
a whole, and the immediate vicinity of the subject site in
448. Unreported, Land and Environment Court No. 20057of 1980, decided 20th March, 1981. (Actually two appeals).
311
particular, was lacking the adequate provision of public
reserves per head of population (based on 2.83 hectares per
1,000). The existing rate for the Municipality was
approximately 1 hectare per 1,000 of population. In
comparison with the Sydney region this average was very
unfavourable. Despite this the Court decided that a
'reasonable' contribution should not exceed the current rate
of public reserve per head of resident population which
prevailed at the time of the assessment. The Court expressed
it could not levy the developer to make up for the existing
poor situation with regard to the provision of public reserves
in a m u n i c i p a l i t y T h u s the applicable rate for Leichhardt
was 1 hectare per 1 ,000 of population.
Relating this back to the original case law
rationale for contribution, this approach is consistent i.e.
the developer has to pay for the depreciating effect his
development has on the amenity of the locality by increasing
population pressures on existing open space. The contribution
then only has to compensate to bring the supply per 1,000 of
population back to its level prior to the development. Thus,
for Leichhardt, 1 hectare per 1,1)00 was reasonable.
The strict adherence to this rationale was not
however to be taken to its logical conclusion in areas where a
higher rate existed. The Court emphasised that the prevailing
ratio was a maximum figure only and need not be the figure
applicable to the formula in a particular case. Thus, for
example, it would not be reasonable for Woolongong Council to
449. Ibid., p . 10.
312
levy at a rate of 11 acres per 1,000, which is its existing
position with regard to the provision of open space, despite
the rationale's theoretical justification for such a rate. In
other words it seems that when the prevailing rate is less
than the general standard i.e. 2.83 hectares per 1,000 this
lesser figure will be applied, but when it is greater than the
standard rate, the formula is considered inappropriate in
producing a reasonable figure.
An indication of the approach suggested by the
Wollongong example is seen in Frank Koulos and Partners Pty.
Ltd. -v- Wyong Shire Council. H e r e the council applied a
rate of 1.5 hectares per 1,000, just over half the general
rate of 2.83 hectares per 1,000 and substantially less than
the prevailing rate. The Court failed to apply the Revay
formula strictly, stating:
" ... the matter presently before the Court differs from other cases such as Revay -v- Leichhardt Municipal Council wherein the court has adjudicated in that Wyong Shire comprises a mixture of rural and suburban areas compared with a fully urbanised local government area such as Leichhardt."
Thus it may be that where rural areas are concerned the demand
for public open space is not deemed to be so acute and
therefore the Court will also look to requiring a rate below
that prevailing.
From a planning point of view the above
approaches are frustrating. In areas where demand is high and
supply low councils cannot try to improve the situation by 450
450. Op. cit., note 444.
451. Ibid.
313
applying the previously accepted 2.83 hectares per 1,1)00
rate. In areas where supply is high, a high rate can be
justified. The author sees this as an important anomaly in
the calculation of contribution. The stringent adherence to
common law rationale to limit contributions in areas where
they are most needed is tragic, given the ease with which the
rationale and approach is abandoned where too large a figure
would be produced. This is even more disheartening as the
introduction of s.94 gave a clear statutory or political base
for levying contributions without recourse to the legal
gymnastics which the common law was previously forced through
to legitimise such contributions. In the author's opinion the
'increased demand-compensate to preserve amenity' rationale
should be abandoned in favour of a standard rate (2.83hectares
per 1,000) reflecting a taxation orientated approach. This
could also help overcome previously mentioned problems
surrounding required nexus between provision of open space
and the site. A far more worxable and desirable system could
thus be operated by councils in the public interest.
Discounting this standard rate (as outlined below) could still
be used.
Regarding the second variable in the formula,
the increase in population, the cases and the authors
experience indicate that councils average occupation rates for
particular types of dwellings are usually accepted.
Alternative figures could be suggested by the applicant based
on the Australian Bureau of Census and Statistics information
or an actual survey. The area on which these figures are
314
based must be related to the actual site though it is unclear
as to how large it is to be, i.e. the whole of the relevant
local government area or the area immediately surrounding the/ C O
subject site.
The third variable is the monetary value of land
per square metre which is to be applied to the amount of land
which would physically have to be provided, in order to
produce a monetary figure for contribution. In Revay's case,
Leichhardt Council sought to use the market value of the
subject site as the price per square metre to be included in
the formula. The Court held that the market value was of land
within the council's jurisdiction. This figure was vastly
different from councils dollar value per square metre as the
subject site was a waterfront allotment.
The issue was also examined in Novati Design and• • • 453Construction Pty.Ltd. -v- Leichhardt Municipal Council.
Here the applicant argued that the figure should be based on
the value of vacant, unimproved single residential blocks in
the locality. The Court rejected this and examined the
452. The Draft Circular from the Department ofEnvironment and Planning, not yet released to the public, describes this component as the most simple of the formula. It suggests that use of " . . . occupancy rates recorded at the last census for the type of development to be constructed, discounted by the population (if any) existing on the site prior to the development, again using prevailing occupancy rates".DEPARTMENT OF ENVIRONMENT AND PLANNING (N.S.W.). Draft Circular. Guidelines on Section 94 Contributions for Open Space.Unpublished document. 21/12/84.
453. Op. cit., note 436.
315
reality of the situation. There was no such land zoned in the
municipality and none was available for acquisition. The
Court looked at what land was available within the
municipality for purchase and addition to public reserves and
assessed market value on the basis of that land. The most
commonly used approach is to look at recent property sales
(recent or otherwise) in the area and work out the average
price per square metre.
(vi) Discounting.
Traditionally at common law the population
increase was discounted by reference to the existing
population occupying the site, i.e. from the population
increase figure, the number of people presently occupying the
site was subtracted. The resultant figure was used in the
formula. A number of s.94 decisions have since reaffirmed
this discount in applying a formula to produce open space
contributions.
The question as to whether the discount figure
for existing occupants related to how many were in fact
occupying the site or how many could notionally occupy the
site without contribution, was examined in Brentnal -v-
Leichhardt Municipal Council. T h e proposal was for flats * 454
on a single block. The council adopted 1.7 persons per flat
(the average occupancy rate in the area) and multiplied this
by the number of flats. The Court allowed a discount of 3.5
454. Unreported, Land and Environment Court No. 10087 of 1981, Assessor Riding, 12/5/81.
316
persons against this population increase figure, as it was the
average occupancy rate of a single dwelling which could be
erected on the site without payment of a contribution.
Assessor Riding justified this by saying:
"I consider that any contribution should be assessed on the additional population that would be bought onto the site over which more traditional development may have envisaged". ^
His reasoning seems to again relate back to the requirement
for contribution at the subdivision stage. The fact that it
could not be established whether such a contribution had in
fact been levied at the subdivision stage when the lot was
created did not deny this discount.
This rationale is supported in Revay* s case
where the applicant argued that the industrial site to be
developed for flats was capable of development by eight
dwellings on separate allotments. He thus sought a discount
for the number of persons who could notionally inhabit those
dwellings. The court rejected this because it incorrectly
presupposed that no contribution woiuld be required if the
existing industrial site was subdivided and ultimately single
dwelling development took place.
455. Ibid.
317
The refusal by the Courts to adopt a discounting
population figure based on the actual development position of
the site rather than its notional characteristics is againA C A
seen in Armstrong v The City of Sydney Council. JO Here the
appellant argued that two houses could notionally be erected
on the site and this should be basis of the discount. The
Court however rejected this and discounted for the one
dwelling (at average occupancy rates not actual occupancy)
which existed on the site. This points to an approach
regarding population discounts stressing substance rather than
form i.e. the actual impact rather than theoretical .^7
A more general approach to discounting can also
be identified in the judgements of the Land and Environment
Court. This does not relate to any of the three variables in
the formula but rather to the overall figures it produces.
The one clear example of this developed so far relates to "the
environmental planning advantage to the community of theA C Q ‘
development". In Revay1s case the Court allowed sucn a
discount for the removal of an existing non-conforming
456. Unreported, Land and Environment Court No. 10031 of 1982. 457 *
457. This is in keeping with the determination of such an issue in relation to subdivision contributions as determined in Wallis and Moore -v- HuntersHill Council previously noted at p. 271, see note 389.
458. Op. cit., note 448.
318
industrial use from the residential area. Similarly in Alan
C. Smith Constructions Pty. Ltd.-v- Leichhardt Municipal 459Council some discount was allowed for the environmental
advantage of removing a non conforming use. The scope of such
a discount however, in relation to amount and type of effect
is unclear, with the case law so far merely dealing with
removal of a non conforming use and discounting for this by a
reasonable amount decided upon the facts of the case.^^
Three other general areas of discount have been
hinted at by the courts. These are not clearly established
but appear to be relevant considerations in the assessment of
what is a reasonable contribution. Firstly in Revay1s case
the appellant sought to base a discount of the final figure on
the amount which the development would contribute to private
common open space by its provision on the site. The Court
decided this issue in favour of the council stressing that
private common open space was not an appropriate discount in
relation to the contribution for public open space, as it is
not directly relevant in s.94(l) i.e. "public amenities and
public services". It may be however, that this issue is still
somewhat open as the judgement stated:
459. Unreported, Land and Environment Court No. 10361/81 Assessor Riding. See also Commercial Freeholds Pty. Ltd, -v- Leichhardt Municipal * 460Council. Unreported, Land and Environment Court 1981 .
460. In Revay1s case the total figure was reduced by $20,000 for this discount.
319
". . .although the provision for private open space of sufficient size may indirectly affect or influence the likelihood of the new development requiring such provision or increase in provision. In this case, the Court is not satisfied that the relatively small area of common open space to be provided on the subject site will have any discernible or material impact or influence on the likely demand for increased public reserve as a result of the carrying out of the proposed development."^*^ (Emphasis added).
This appears to leave open the question of discounting where a
large area of private common open space is proposed, as this
could be proven to have an indirect affect on the increased
demand for public open space for which the council seeks to
justify contribution. On the basis of the "increased demand
rationale" this would appear to be a justifiable discount.
A second possible discount on the overall figure
has yet to be specifically explored. It relates to the
overall s.94 contribution which a developer may have placed
upon him for various community facilities. In Daniel
Callaghan1s case Mr. Justice Cripps noted that the Court must
be aware of the overall impact of s.94 contributions on the
price of subdivided land, home units, villas etc. Thus it may
be necessary "....to reduce the amount of open space
requirements to enable the provision of community
facilities"
If the developer has paid over large amounts for
other community facilities, for example, parking, he may be
461. Op. cit., note 448.
426. Op. cit., note 432.
320
able to argue a discount of his open space requirements on
this basis. The scope of such an approach has yet to be
tested by the Courts.
The third potential discount applicable to the
overall figure relates to the existence of abundant open space
in the local neighbourhood. This issue has not been directly
addressed by the Land and Environment Court but it appears to
the author to be a distinct possibility. If the general
rationale is applied it seems logical that an increase in
population in an area where there is an oversupply or
abundance of open space (i.e. in excess of the 2.83 hectares
per 1,000) does not adversely effect the existing provision.
If this is the case, a contribution could not be justified at
all. Questions of nexus to the site and embellishment may
also be relevant here. Until such time as this issue is
specifically treated by the Courts, further attempts at
analysis are fruitless. The planning effects of such a
discount would be undesirable and this again points to the
problems of applying the old law rationale to s.94
contributions.
321
(vii) Reservation under a Deemed Environmental Planning
Instrument.
From Henbury Pty. Ltd -v- Parramatta CityZlA ̂Council it appears that the reservation of adjoining or
proximate land under the L.E.P. or deemed planning instrument
does not allow the council to require contribution or levy
contribution for its purchase. In this case the reservation
owned by the applicant was for road widening and the council
wished its dedication. The Court refused this, stating that
it was opportunism on the part of council as there was a
committment in the Planning Scheme to purchase this area. The
burden of proof on councils in proving that the increased
demand generated by the development required the purchase of a
reserved area may well be very difficult to satisfy, as the
area is already required by planning for existing residents.
Lemina -v- Woollahra Municipal Council ^ <+ and Weir -v-ZlA sLiverpool City Council also indicate that s.94 dedication
is incompatible with a requirement that council acquire
reserved lands.
463. Unreported, Land of 1981, Assessor 1981.
andBi
Environment Court No. 13337 gnold, decided 24th July,
464. (1980-82) 46 L.G.R.A. 402.
465. Unreported, L.E.C., No. 40098 of 1981.
322
(viii) Severability
The final issue to be noted in relation to open
space contribution conditions in development approvals
concerns the issue raised in the comments of Assessor Hanson
in Morris -v- Leichhardt Municipal Council 00 on severability
i.e. whether in striking down a particular condition the whole
consent is void because this condition is considered
fundamental. In examining whether an open space contribution
condition could, in isolation, be declared invalid, Assessor
Hansen stated that he was of the view that those who would
have such a condition struck down would have the rather
dubious success of the Plaintiff in the Greek Australian„ 467Finance Case.
In that case the Court found the condition
requiring the dedication of monies for parking, to be
fundamental and when it struck down that condition it struck
down the whole of the approval. It may be argued that these
comments are only dictum and that the facts of the Greek
Australian Finance Case only provide clear support for a
decision in relation to a s.94 parking contribution. However,
it is clearly a parallel condition to an open space
contribution condition and there appears no apparent reason
why the case sould be distinguished other than the comparative
importance of the provisions of parking in the city and the
increased provision of public reserve in any particular case.
466. Op. cit., note 443.
467. Greek Australian Finance Corp. Pty. Ltd, -v- Sydney City Council (1972-74) 29 L.G.R.A. 130.
323
(ix) Summary - Section 94 Public Open Space Contributions.
Assessor Hanson in Morris' case concluded that
in all the circumstances he could arrive at a figure which
" .... to me seems fair, and I will put my decision forward onA £ Q
no other basis than that". D The requirement that councils
justify their s.94 contributions as fair and reasonable would
seem to the author to underlie the various approaches by the
Court in testing conditions.
The existence of this specialist Court in which
conditions can be tested in any particular case would seem to
go much further to achieving the planning aims of the
Environmental Planning and Assessment Act, than compliance to
a long developed formula which may or may not be
applicable in a given case. The political - taxation nature
of s.94 should be specifically addressed and identified rather
than requiring its supposed compliance with the old law
rationale relating to the impact of the development on its
immediate environment.
468. Op. cit., note 443.
469. Note, previously under the old case law a reasonable contribution could not amount to a tax. See Commonwealth -v- Colonial Combing and Spinning & Weaving Co. Ltd. (1922-23) 31 C.L.R. * 9421; A.G.V. Wills (1922) 9 W.K.B. 897; Ex parte Australian Property Units Management (No. 2)Ltd; re The Baulkham Hills Shire Council (1964)9 L.G.R.A. 115.
324
There are distinct problems with the formula
approach to s.94 open space contributions. It revives the
rationale relating to increased population and decreased
residential amenity regarding open space. This results in
problems regarding proof of nexus in the physical and temporal
senses. Such nexus 'prohibits' councils from using the money
in a general fund for purchases and embellishment of any
public reserve under its care, control and management. In
fact this is against the statutory initiatives in s.333(2) of
the Local Government Act. This nexus could also severely
restrict council's ability to purchase large areas from
borrowings and funding the debt with open space
contributions.
The author prefers the more general approach
which involves negotiating what is reasonable on the facts of
the case qualified by the right of appeal to ensure fairness
on the part of the council. This is especially so as the
formula only produces a reasonable figure where the existing
provision of open space is less than the generally accepted
desirable standard of 2.83 hectares per 1,000. Even if the
formula is to be retained, the nexus question must be laid to
rest in the public interest of seeking optimum provision and
development of public reserves in an area under initiatives by
trained planning staff. (N.B. s. 333(2)).
325
The indication from the Department of
Environment and Planning is that the formula is to be
maintained and refined in relation to the rate. This process
would involve population demand analysis based on rising
static and falling populations .^0 not proposed to
analyse such initiatives here as they are at the time of
writing only in draft form and not available to the general
public. They may well be substantially modified before being
adopted by the Department.
(h) Local Government - Other Statutory Powers and
Limitations on Acquisition and Disposal of Fee Simple
Public Reserves. * 470
Besides the powers outlined above, councils have
broad statutory powers for acquisition and disposal of
lands. As with all statutory bodies their powers emanate from
and are limited by the statute under which they are
established.
For councils the most significant limitation on
general acquisition powers with regard to lands is that they
be acquired only for purposes authorised by the Local
Government Act. "Part XXV - Aquisition of Lands" outlines the
powers of council in this regard. Section 532(1) states that
councils may acquire land within or outside their areas for
470. It is also important to note that the 2.83hectares per 1,000 standard is specified as the maximum contribution rate nothwithstanding any demands identified by councils in L.E.P.s.Op. cit., note 452.
326
any purposes of the Act. This can be achieved by lease,
purchase, appropriation or resumption in accordance with the
Act. Where a monetary contribution is obtained under s.94 of
the Environmental Planning and Assessment Act or s.333(2) of
the Local Government Act this can be used for purchase of
suitable land under fee simple title. Where developers
physically 'dedicate', in the sense of give council fee simple
title, the power by which council takes the 'reserve' does not
appear in s.532(1) or (2). Section 333(2) provides power for
councils to impose a condition requiring that an applicant
"provide" land as a public reserve. Section 94 allows for a
condition to require "dedication of land free of cost". These
sections authorise council itself to use money given over to
acquire public reserves.
In relation to such acquisitions it is
interesting to speculate on the operation of s.526. Under
this council may:
"(a) Accept and hold any real estate or personalproperty conveyed,assigned, devised or bequeathed to it for any charitable or public purpose;
(b) Act in the administration of such property forthe purposes and according to the trusts for which the same may have been conveyed, devised, assigned or bequeathed."
As public reserves acquired under s.94 or s.333 are conveyed
to council for a public purpose it may be that an implied
trust arises which controls councils actions under s.526(b).
Section 526 however, is not mandatory i.e. it states council
"may" not that it "shall" administer according to the trusts.
327
This section provides the basis on which
councils can accept dedications or gifts of land from
individuals or corporations. Where a trust is specified, for
example, in a will or trust deed, councils are bound by its
terms in the management of the reserve. A notable example of
this situation was the case of Storey -v- North Sydney
Municipal Council, where the Commissioner for Railways
gave land to the council subject to the covenant in the trust
that the land be used as a public reserve as defined under the
Local Government Act. This case will be examined in more
detail in the following chapter concerning the control,
management and development of public reserves.
Section 532(2) specifies purposes within
councils acquisition power. Included in these are:
"(c) any lands which council considers in the publicinterest should be made available for the purpose for which such land is reserved or zoned by any environmental planning instrument of this Act which are otherwise required to give effect to any provision included in any such instrument".
Here lands reserved or zoned under planning instruments for
open space acquisition are identified as within the
acquisition power. This paragraph was included in the Local
Government Act following the 1979 amendments to the N.S.W.A’ 7 2Planning Legislation. Though unclear, its last phrase 471
471. (1969-70) 20 L.G.R.A. 178.
472. Act No. 205 of 1979, Schedule 2 (44) (a) (b).
328
seems to refer also to lands acquired under conditions of
development consent, whether reserved or zoned under the
scheme.
Section 532(3) allows councils to exercise their
acquisition powers notwithstanding that the land may or may
not be required for a purpose of this Act. Land can also be
bought and resold for the purpose of defraying expenses for
works on such lands or adjoining lands. This power however,
does not extend to s.532(2)(c) lands. In fact it could be
implied from s.532(3) that there is no power to re-sell
reserves acquired under Part XXV powers.
Though s. 532 envisages acquisition by councils
of land by either lease,purchase, appropriation or resumption,
it seems that the Department of Local Government has, in
practice, a policy of insisting that councils should pursue
all avenues of negotiation before seeking approval for a
proposed resumption. The Council itself, being an elected
body, usually prefers to avoid heavy-handed resumption tactics
wherever possible. Thus, although there is no statutory
requirement that a council must negotiate prior to or as a
prerequisite of, the compulsory process of acquisition, this
is the situation in p r a c t i c e I t also appears that in
relation to parks, reserves and recreation areas, councils
are only rarely involved in leasing private land. It may be,
however, with the current price of land, that this approach
may increasingly prove to be an effective way of increasing 473
473. Interview with KEITH LUND, Shire Planner Sutherland Shire Council, 5/6/83.
329
public land for reserve purposes, at minimum expense to the
public purse. Initiatives in this regard have been taken by
the National Parks and Wildlife Service.^^
One section under which councils could justify
the acquisition of lands for parks, reserves and recreation
purposes is s.365. This allows councils to "....protect,
acquire, preserve and maintain places of historical or
scientific interest and natural scenery".
Finally councils can acquire lands to be used
for any purpose under the Act and if such land is not required
for that purpose it may be used under s.347 for the purpose of
Part XIII of the Act - Public Recreation. Councils could
foreseeably use any of their powers in relation to a number of
activities to justify the acquisition of lands which may later
be converted to public reserves. Alternatively they may be
simply used and managed for dual roles where this is
appropriate, as for example drainage reserves can be used for475public recreation purposes as well. 474 475
474. Previously noted Chapter III "National Parks."
475. See, for example, DEPARTMENT OF ENVIRONMENT AND PLANNING, Circular No. 37, Guidelines for Dual Use of Drainage/Open Space Reserves directed to all City Municipal and Shire Councils, dated 30th August, 1983.
330
On the issue of disposal of fee simple public
reserve s.518 is paramount. Part XXIV - "Ancillary Powers"
deals in Division 3 with "Sale and Lease". Section 518(1)
provides the general powers of sale or exchange which can be
exercised, subject to the provisions of the Act, over " . . .
any land or building or other real or personal property vested
in or belonging to the council or under its care, control and
management." Section 518 (2) however continues:
"Unless otherwise expressly provided, nothing in this Division shall be deemed to authorise the sale or exchange of any public reserve, public place or any land subject to a trust
It is here that the permanence of local government fee simple
public reserves is secured.
