Opinion Number. 1794

Subject

LAND ACQUISITION DARWINWHETHER LAND ACQUIRED UNDER DARWIN LANDS ACQUISITION ACT 1945 MAY BE GRANTED AS FREEHOLD FOR CHURCH PURPOSES: MEANING OF ‘CROWN LANDS’

Key Legislation

DARWIN LANDS ACQUISITION ACT 1945 ss 3, 6, Schedule: LANDS ACQUISITION ACT 1906: CROWN LANDS ORDINANCE 1931 s 112A(5): CROWN LANDS ORDINANCE 1938: DARWIN LEASES (SPECIAL PURPOSES) ORDINANCE 1946: LANDS ACQUISITION ORDINANCE 1911 s 8

Date
Client
The Secretary, Department of the Interior

I refer to your request for advice regarding the above matter.

The Assistant Crown Solicitor has advised on the matter as follows:

1.  The question upon which advice is asked is whether freeholds, for church purposes, of parts of the land acquired pursuant to the Darwin Lands Acquisition Act 1945 may be granted. The land was compulsorily acquired by notification of acquisition in the Commonwealth Gazette dated 17/1/1946, for the following purposes—

(a)  the re-planning and development of the Town of Darwin and its environs; and

(b)  the institution of a system of leasehold tenure from the Crown in respect of any such land.

2.  Sections 3 and 6 of the Act are as follows:

‘3. Subject to this Act, the land in the Territory described in the Schedule to this Act, being land comprised in the Town of Darwin and its environs, may be acquired, whether by agreement or by compulsory process, in accordance with the provisions of the Act, for either or both of the following purposes, which shall be deemed to be public purposes of the Territory, namely:

(a)  The re-planning and the development of the Town of Darwin and its environs; and

(b)  The institution of a system of leasehold tenure from the Crown in respect of any such land.’

‘6. Land acquired in pursuance of this Act shall become Crown land of the Territory.’

3.  The words ‘the Act’ are defined as meaning the Lands Acquisition Act 1906–1936, as applied by the Lands Acquisition Ordinance 1911–1926 of the Territory, subject to any modifications of that Act in its application to the Territory made by that Ordinance or by any other Ordinance of the Territory, whether made before or after the commencement of this Act.

4.  Section 8 of the Lands Acquisition Ordinance 1911–1926 is as follows:

‘Any land acquired in pursuance of this Ordinance and the Act shall on acquisition become Crown Land, and, until the Governor-General otherwise directs, shall be deemed to be reserved for the public purpose for which it was acquired.’

5.  Land acquired under the Darwin Lands Acquisition Act is not acquired in pursuance of the Lands Acquisition Ordinance and the Land Acquisition Act. It is acquired directly under the Darwin Lands Acquisition Act. Therefore, in my opinion, section 8 of the Lands Acquisition Ordinance does not apply to lands acquired under the Darwin Lands Acquisition Act.

6.  Section 6 of the Darwin Lands Acquisition Act provides that land acquired in pursuance of that Act shall become Crown land of the Territory. ‘Crown Lands’ are defined in the Crown Lands Ordinance 1931–1946 as meaning all lands of the Crown in the Northern Territory, other than reserved or dedicated lands. Lands acquired under the Darwin Lands Acquisition Act are not reserved or dedicated lands and therefore on the foregoing reasoning I think that they are Crown lands within the meaning of the Crown Lands Ordinance.

7.  Provision was made by sub-section (5) of section 112A of the Crown Lands Ordinance 1931–1935 of the Territory for grants in fee simple of Crown lands for church purposes, but sub-section (5) was repealed by the Crown Lands Ordinance 1938 and the Crown Lands Ordinance does not now authorise the granting of an estate in fee simple of Crown Land.

8.  The Darwin Leases (Special Purposes) Ordinance 1946 provides for the granting of leases of land within the Town of Darwin being the land described in the Schedule to the Darwin Lands Acquisition Act, but not for the granting of an estate of freehold in land or any portion thereof. There appears, therefore, to be no Ordinance in force in the Territory which authorises the granting of an estate of freehold in land acquired under the Darwin Land Acquisition Act.

9.  In my opinion, therefore, the answer to the question upon which advice is asked is that it is not competent for freehold to be granted for church purposes in respect of land acquired under the Darwin Lands Acquisition Act. Power to grant freehold estates in such land would, I think, need to be conferred by legislation.

I agree with the views expressed by the Assistant Crown Solicitor in the last paragraph of his advising.

[Vol. 37, p. 357]