Trust land under the Land Act 1994 (Qld) and inconsistent actions by trustees: issues of function and power

Crown lands Acts throughout Australia generally provide for the dedication, setting apart, reservation or granting in trust of Crown land for a public or community purpose. Once created, the land often is managed by a trustee or other management body for that purpose.

Under Queensland's Land Act 1994, unallocated State land may be dedicated as a reserve or granted in trust (each trust land) for a community purpose. While trust land generally can also be created for a purpose that is the provision of services beneficial to Aboriginal people or Torres Strait Islanders particularly concerned with the land, unallocated State land can also be dedicated as a reserve for a purpose that is for the community having regard to community need and the public interest. Trust land includes land created under earlier Acts for a public purpose that may not be a purpose for which trust land could today be created.

Trust land always remains subject to the legislative powers of Parliament. Amendments to the Land Act in April 2024 by the Land and Other Legislation Amendment Act 2024 changed what was meant by a "community purpose" for which trust land could be created. The types of community purposes decreased in number but those which now are community purposes are broader in nature (Aboriginal purposes; cemetery purposes; community facility purposes; conservation, scenic and land management purposes; parks and recreational purposes; and Torres Strait Islander purposes). They, therefore, contemplate more uses or applications of the trust land for the relevant community purpose. Existing community purposes were transitioned to these altered purposes (for example, a reserve for gardens is now taken to be a reserve for parks and recreational purposes). Complementing this change, trustees were seemingly given greater scope to undertake or authorise actions on or for trust land – including inconsistent actions – and, where the trustee is the State or a statutory body (such as a local government), to grant trustee leases and issue trustee permits that are inconsistent with the purpose of the trust land.

However, the amendments may not go as far as they might otherwise suggest.

A trustee's function and the power to undertake consistent and inconsistent actions: distinguishing a purpose of management from an action when managing

Trust land must be managed as required by chapter 3, part 1 of the Land Act. Trustees are usually appointed to manage such land. Local governments are the most common trustees.

Any trust that exists in respect of trust land is broadly a statutory or non-technical trust. And while a trustee of land granted in trust (as a trustee which, unlike a trustee of a reserve, is a registered owner of land) might sometimes also be a trustee of a charitable trust, the trustee must, above anything else, manage trust land only as provided for under chapter 3, part 1. This is the case even if the trustee is, for instance, a local government which, although having its own statutory powers, must not exercise any of those powers that are inconsistent with the Land Act.

A trustee's primary function is to manage the trust land in a way that is consistent with achieving the purpose for which the land is dedicated as a reserve or granted in trust (section 46(1)(a)). This is hardly surprising and the concept of trust land and the scheme under chapter 3, part 1 would lack substance if a trustee were not required to fulfil such a function. In short, there is no trust land, nor is there a need for a trustee, unless the land is to be managed to achieve that purpose. Properly, a trustee's statutory function of management is in the nature of a responsibility or liability. A trustee's powers support that function (and other functions in section 46) because they are exercisable when managing the trust land.

A trustee may, as a general power, take all action necessary for the maintenance and management of the trust land (section 52(1)). That action must, among other things, be consistent with the purpose for which the trust land was created (section 52(2)(a)). However, that particular requirement is subject to sections 52AA and 52AB of the Land Act, two provisions introduced under the 2024 amending Act.

While inconsistent actions were permitted to be undertaken prior to the 2024 amending Act, on its face, section 52AB (in particular) may appear to give a trustee greater opportunity to undertake or authorise such actions. Inconsistent actions are those actions which are, or would be, inharmonious or incompatible with the purpose for which the trust land was created. Having regard to their nature or scale, some inconsistent actions may have little effect on a trustee's ability to manage the trust land for its purpose. Others may be completely at odds with the purpose. And there will be those that lie in between.

Unlike section 52AA, section 52AB applies to a trustee that is the State or a statutory body and does not require the Minister's approval to the trustee's undertaking or authorising an inconsistent action. Instead, such a trustee may, despite section 52(2)(a), undertake an inconsistent action if the trustee has prepared a management plan for the land that states how the action would not diminish the purpose or adversely affect the public interest and the action complies with that plan (section 52AB(2)). That is, the action must, being consistent with the plan, not have either such effect when undertaken. An action may, for instance, diminish a purpose if it makes the purpose less in the sense that the action, when undertaken, would mean the end or objective of the trust land (its purpose) is unable or less able to be achieved or be identified in how the (whole of the) land is being managed. At the same time, the action may harm the public interest in having the land managed for its purpose (having regard, for example, to the public's social or recreational needs).

Similarly, under section 57, a trustee that is the State or a statutory body may grant (and without the Minister's approval) a trustee lease for a purpose that is inconsistent with the purpose of the trust land if there is a management plan in place and, consistent with that plan, the lease would not diminish the purpose of the reserve or adversely affect the public interest (section 57(3), (4), (6)). A trustee permit that is inconsistent with the purpose of the trust land can also be issued under similar, but not identical, circumstances (section 60(3)).

When lodging a trustee lease for registration in the land registry, the Minister or a delegate (when the State is the trustee) or an authorised officer of a statutory body trustee must also deposit a letter stating that the lease is consistent with the trust land's purpose or, if it is inconsistent with that purpose, that the trustee has prepared a management plan that satisfies the requirements of section 57(6). The letter must also state that, in granting the trustee lease, the trustee has complied with the requirements of section 28 of the Land Act (such that the granting of the lease is not inconsistent with native title legislation) (Land Title Practice Manual, [7-2175]).

Interpreting the entire scheme

It is apparent from the scheme provided for under chapter 3, part 1 of the Land Act (and more broadly, the Act as dealing with non-freehold land and land granted in trust) that, when Parliament authorises a trustee to undertake inconsistent actions, the trustee's function under section 46(1)(a) – and which applies to the management of the trust land for its purpose as a whole – is not affected. The scheme has not been converted into one which gives the trustee the option to manage the land according to consistent and inconsistent actions; that is, as if undertaking inconsistent actions were alternatives to undertaking consistent actions in managing the trust land. That would be to ignore an object of the scheme which is to ensure the trust land is "properly and effectively managed in a way that is consistent with the purpose for which the land is dedicated as a reserve or granted in trust" (section 30(b)(ii)). It may also be to overlook the fact that a trustee of a reserve has no proprietary interest in the land and that even a trustee of land granted in trust is not an owner in the usual sense.

As mentioned, a trustee only derives its functions and powers from the Land Act (or, as relevant, other Acts as subject to the Land Act). Not unlike a trustee under the general law, a trustee of trust land does not have an open-ended relationship with the land.

At all times – including when undertaking actions – a trustee must fulfil its function of managing the trust land in a way that is consistent with achieving the purpose for which the trust land was created. Of course, the trustee may decide how best to achieve that purpose and what is necessary for the land's management and maintenance. However, it must act lawfully. The purpose of the trust land as an end or objective for the management of the land would unlikely be achieved or maintained if the trustee were, as a bare proposition, simply able to choose, and did choose, to undertake inconsistent actions on the land at will or in lieu of taking consistent actions. There would be an internal contradiction within the scheme if a trustee had that sort of autonomy.

The inconsistent action (and trustee leasing and trustee permit) provisions are intended to allow a trustee that continues to fulfil its function under section 46(1)(a) to undertake inconsistent actions (as the exercise of an authorised power) when necessary, but essentially only as actions when they otherwise would not be permitted. In other words, without provisions such as sections 52AA and 52AB, a trustee, when fulfilling its function, could not decide to undertake an inconsistent action that, although considered necessary for it to manage or maintain the trust land, would be inconsistent with the purpose of the trust land. But, within the scheme under chapter 3, part 1 (including under section 35(1)(a) which applies to land granted in trust), there is no authority to cause the trust land, when considered in its entirety as land for a purpose, to be used otherwise than for that purpose.

Where issues may arise

In practical effect – and so as not to diminish the purpose of the trust land or to adversely affect the public interest – an inconsistent action will generally be limited to being an occasional action or one which may have an effect of facilitating or enhancing the purpose. It must be clear, by reference to what may (now) lawfully be done on the land, that the purpose as an end or objective of the land continues undiminished. For example, a café may be able to be operated on trust land that is for a community purpose of "parks and recreational purposes" even though, on its own, the operation of a café is not generally consistent with that purpose. It is not consistent merely because cafés sometimes are located in public parks. However, although being inconsistent with that purpose, it may be found in a particular case not to diminish the purpose or adversely affect the public interest. However, because an inconsistent action (still determined by the trustee to be necessary) must not diminish a purpose or harm the public interest, it need only have a neutral effect on such purpose or interest.

Many actions could be thought to be potentially inconsistent because, on their own, they can be undertaken on all types of land. However, that is not, of itself, a test of inconsistency. A drain may be constructed on trust land that is for a purpose of a park. Construction and maintenance of the drain may be able to be characterised as consistent with that purpose or, even if it is not, it will still likely facilitate the purpose (if it is not, in fact, drainage for neighbouring land). If it is inconsistent, it may, on a proper analysis, be found not to diminish the park purpose or adversely affect the public interest.

But this is not where issues are most likely to arise. They may arise where trustees actively try to introduce new uses to the trust land generally (including as commercial opportunities), whether as trustee actions or under a trustee lease (or trustee permit). Any such use is for, or will, in itself, serve, a purpose. A concern is how a new use serving a particular purpose affects the notion that the trust land (in its entirety) is, and continues to be, for its purpose. For example, can a park still be said to be a park if an entertainment arena is established on the park, and even if only in a relatively small area of the park? Can it still be a park if it is now managed and maintained to receive and capture stormwater from neighbouring land? These involve factual considerations, but as always directed at satisfying requirements of the Land Act.

A trustee that is the State or a statutory body cannot prepare a management plan in a way that explains away an inconsistent action (or, as relevant, a trustee lease or trustee permit) as not having a diminishing effect on the purpose of trust land or as not having an adverse effect on the public interest simply with the primary aim of undertaking the action. That is, a management plan is not a plan to manage an inconsistent action (including as a use) that will diminish the purpose or harm the public interest; it is a plan to manage the action that does not, and will not when undertaken, have either such effect.

It follows that a trustee cannot, in a de facto sense, change the purpose of the trust land – including where a new or additional purpose is introduced – by undertaking inconsistent actions (or uses) under the mentioned provisions. The purpose of trust land can be only changed under express provisions in chapter 3, part 1. (A limited exception likely exists in respect of a trustee lease (construction).)

Trust land under the Land Act has not, by the 2024 amending Act, become land to be managed all that differently to how it was to be managed before the amending Act. The transitioned changes applying to community purposes certainly give trustees greater scope for undertaking consistent (and perhaps some inconsistent) actions on or for relevant trust land because those purposes are now broader. But whether an action is consistent or inconsistent with a purpose – whether a community or other purpose – is not an issue to be dealt with by a trustee simply in a way that suits the trustee's own interests (and even if the trustee may think its proposed action is for the benefit of the public). Whether an action (or the grant of a trustee lease or the issuance of a trustee permit) meets the requirements of the Land Act, as amended, remains, as always, an issue of lawfulness for that Act. What has changed the most since the commencement of the 2024 amending Act is that (and particularly where the trustee is the State or a statutory body) it mostly is up to the trustee and not the administering department for the Land Act to work out whether a proposed action is lawful.