On 12 January 2022, it was announced that the NSW Minister for Planning and Public Spaces (The Hon R. Stokes) had approved an Aboriginal Land Claim over the 1.5ha Talus Reserve, comprising eight tennis courts, pro shop/café/toilet and changeroom building/s, and most of the Reserve car park.  This news effectively nullifies this petition.  Transfer of the Talus land from Crown land to freehold title land to be owned by the Metropolitan Local Aboriginal Land Council (MLALC) would reportedly take 6 to 12 months. Transfer has not been reported to date.

MLALC, as the new freehold title owner of this land, will have the right to control who and when an individual or group can use the Talus car park and the tennis courts.   To be clear, this land will imminently no longer be publicly owned and managed.  (An easement for access to Council owned tree-covered drainage land located immediately to the south of the current reserve, and some public walking tracks will be created prior to transfer).

The land is currently zoned RE1 (Public Recreation).  MLALC will have the right to seek re-zoning of the land to RE2 (Private Recreation) or to another zoning. It is also possible that MLALC may seek to rezone the land for residential re-development in the future, as would be their prerogative generally under this NSW land rights legislation. They will have the right to sell their land to a private person or private entity.  This transfer poses significant risk to the extensive community of users of the Talus Reserve.

In approving this claim, the Minister found that the land was ‘claimable Crown land’ (as defined in the Aboriginal Land Rights Act 1983) at claim lodgement date on 28 October 2013.  This claim decision essentially hinged on the analysis and determination of ‘Was the land lawfully used or lawfully occupied’.  My view is that the analysis provided to the Minister by the Aboriginal Land Claim Assessment Team (presumably supported by the Crown Solicitor) was inherently erroneous, causing the Minister to incorrectly approve the claim. The redacted analysis and other relevant documents, available under FOI law, contains many errors of fact, including that “primary use rights were given to Club members” and it relied heavily on judicial advice proceedings determination by Justice Brereton.  On this point, the FOI package contains a Willoughby City Council (WCC) email to the Crown Land Aboriginal Land Claim Assessment Team dated 24 February 2021 stating the following: -

(Released by the Department of Planning, Industry and Environment under the Government Information (Public Access) Act 2009) 

Council’s concern is that it may be unsafe for reliance to be placed on the determination of Justice Brereton in The Application of Willoughby City Council (as manager of Talus Reserve Trust) [2016] NSWSC 1717 (Judicial Advice Proceedings) on the issue of whether the land was lawfully used and occupied or required for an essential public purpose. The nature of the proceedings were in the form of private advice, which while binding for certain purposes, is not binding more generally in the same way that the resolution of other adversarial proceedings would be binding on the parties. The function of judicial advice is to give personal protection to the Trustee and is an exception to the Court's ordinary function of deciding disputes between competing litigants. In this sense neither the Council or the Minister are bound by the determination of Judicial Advice Proceedings nor would the decision prevent the issue being re‐argued. For this reason Council would like to caution the Minister and her advisers from placing reliance on the Judicial Advice proceedings in particular given that Justice Brereton did not have broader evidence before him regarding the use of the reserve by the public at the time of the claim being lodged over the land in October 2013. 

Additionally, the analysis relied upon by the Minister made no comment regarding the intensive use of this Reserve by members of the public who were not members of any ‘Club’, and who individually and collectively were legally accessing a Crown land site that was zoned for Public Recreation, was reserved from sale on 16 September 1949 for Public Recreation and was managed reasonably but not perfectly by the WCC (as Trustee) for public recreation.  These members of the public were individually and collectively legally using the site at the claim date, irrespective of any shortfalls or technical errors found subsequently in the Trustee’s management of the site.  With this land claim decision, the reservation of this land from sale by the Crown for the purpose of Public Recreation is essentially revoked.

I have spent some of 2022 attempting to gain pro bono legal support to bring action against the NSW Government for multiple and significant errors in analysis of this claim, that erroneously enabled the land to be found claimable, and therefore caused the site to imminently no longer be a public recreation site.  This decision will have such a high adverse consequence (loss of an intensively used and valued public recreation reserve), that I believe that jurisdictional error is present.

I have made a FOI request to Crown Lands on 12 December 2022 as follows: -

I seek an un-redacted copy of the analysis and approval of the Aboriginal Land Claim 36628 over the Talus Reserve, Naremburn, NSW.  I also seek a copy of the written opinion provided to the Aboriginal Land Claim Assessment Team by the Crown Solicitor in relation to the question whether the Talus Reserve was legally used or legally occupied on the Claim Date.  I seek the Crown Solicitor’s detailed opinion in the public interest, to determine how this intensively used public recreation reserve was, in their analysis, not legally used or not legally occupied.

This request was accepted as valid, and I await a reply.

The NSW Aboriginal land claim process is intended to provide land compensation to NSW First Nations people for historical dispossession of land.  It was not intended that intensively used public recreation reserves would be transferred from public to private ownership, as will be the case with the Talus Reserve.

Talus Reserve provides a highly valued and long standing inner North Shore location for community sport and social connection for thousands of women, children, and men from the local and regional area.  It provides for social interaction, physical exercise and as a result, a healthier mental and physical existence for every user of this land.

Prior to the ALRA claim success, the Talus Reserve was in the process of becoming land managed directly by the WCC under the provisions of the Local Government Act 1993, under the new management transfer provisions of the Crown Land Management Act 2016.  The Talus land was confirmed as ‘community land’ having a Public Recreation purpose and was categorised as a ‘Sportsground’ by Crown Lands on 21 November 2019.  This management transfer, had it occurred, would have caused the Talus Reserve to become land directly managed by WCC for public sport and recreation, with little to no risk of alternative uses.  This management transfer (from Trustee to direct management) also paved the way for the Talus land ownership to be transferred to WCC under provisions of the CLMA 2016.

In summary: -

• The Talus Reserve is currently Crown Land managed by WCC as Trustee for Public Recreation and is intensively used by thousands of members of the public.
• The Reserve was introduced to the MLALC in 2013 by a very small number of community activists with the message that the site had been mismanaged and may be claimable land.
• A NSW Aboriginal Land Claim was lodged in 2013 and the decision by the Minister in December 2021 was that the land was ‘claimable’, which means that the land will transfer from public ownership into MLALC’s freehold ownership.
• My analysis as an independent property professional is that the land claim decision by the NSW Government was incorrect due to reliance on incorrect information, and insufficient and incorrect analysis.  These errors, in my opinion, have caused the land claim to be successful, and consequently for this public land to be imminently transferred into private ownership.
• The risk for current site users is that the site will be owned and managed by a freehold owner (MLALC).   MLALC as the site owner will decide how the site is managed, including leasing decisions, rezoning requests, potential site sale, development with consent, and potentially, tennis facility closure.  Principles of public recreation management are not an obligation for the new site owner.