A problematic lease agreement drawn up over 20 years ago lies at the heart of a North Shore dispute that has seen a well-established tennis centre booted out in favour of a new tenant.
Northern Suburbs Tennis Association (NSTA), based in Naremburn, has eight tennis courts and two buildings, which include a clubhouse, cafe, office space and changing rooms.
The association has operated out of the prime, 15,000 square metre, Talus Reserve site for 48 years. The land was leased to the group by Willoughby Council, which collected a relatively modest rent in return.
Last week, it was announced that a new operator, Racquet Club, would be taking over as the site’s operator. Racquet Club co-founder Darren McMullen said the decision came down to making a better offer on rent.
What happened: On August 7, NSTA received an eviction notice, stating the group would have to vacate the site by the end of September.
The letter came from the Metropolitan Local Aboriginal Land Council (MLALC), which in 2022 had made a successful claim on the land and part of the adjacent reserve.
How do land claims work?
There are two legal frameworks under which Aboriginal land rights can be recognised in NSW.
The first comes from the federal Native Title Act in 1993, which came about as a result of the Mabo case. Under this system, Traditional Owners must prove an ongoing cultural and spiritual connection to the land. The decision making body is the Federal Court of Australia.
The second, older system exists under the 1983 Aboriginal Land Rights Act, legislated in NSW law. Under this system, a Local Aboriginal Land Council can claim land if it is Crown land (owned by the government), has never been sold and is not currently used. The decision making body is the NSW Government.
Under the NSW system, ongoing connection does not need to be proved, and a successful claim grants the council freehold title.
Ownership of Talus Reserve was transferred to the Metropolitan Local Aboriginal Land Council via this second system, after a claim was approved in 2022 by then Planning Minister Rob Stokes.
Why?: At the nub of the matter was the requirement for the site to not currently be in use. Clearly, the Naremburn site was long-established as a tennis centre, and so was in use.
However, bubbling away in the background was a 2016 NSW Supreme Court ruling, which found the lease arrangement in 2000 between Willoughby City Council and NSTA was invalid due to the public land being used for private business purposes.
While that lease was between the NSTA and council, the association has allowed Love’n Deuce, a private tennis company, to operate on their premises since 1992.
In his 2016 ruling Justice Brereton said: “The demise of the whole of the Reserve to a private association, whose members have priority rights to use of the Reserve, is plainly not a use for public recreation.”
And so, even though the land was in use, it was not legitimately in use. Six years after this ruling, the Liberal minister Stokes approved the Metropolitan Local Aboriginal Land Council’s claim.
NSTA president Wayne Pascoe told the Lorikeet he contests this judgement, saying the courts are open to members of the club and the public. As for Justice Brereton’s ruling that “members have priority rights”, Pascoe said “anyone can book a court any time”.
Land councils: The purpose of land councils is to “improve, protect and foster the best interests” of Aboriginal people within its area. One of the key services the MLALC provides is the provision of housing for Aboriginal people in Sydney.
The councils are self-funded and manage their own revenue streams.
The previous rent arrangement for the tennis facility was inherited when the MLALC took ownership of the site in 2022.
NTSA pays about $950 a week in rent for the site. McMullen called this a “red hot deal”. He wouldn’t reveal how much rent Racquet Club was paying the land council, but said it was “slightly above market rate” and “much more” than the previous rental paid to council.
Precedent: Peter Butt, a professor of law specialising in land and native title, told the Lorikeet disused sports and recreational facilities are typically the site of land claims, due to the fact that they are often on leased Crown land.
He pointed to the examples of Paddington and Waverton bowling clubs: “The club folds, the land is left unused.”
The new tenant, Racquet Club, intends to keep tennis running at the location, but has plans to repurpose two of the tennis courts for pickleball.
It intends to allow the NSTA to remain on the premises, provided financial terms can be agreed on. Pascoe told the Lorikeet the association was still negotiating with the new tenants, and that meetings had been productive.
The land council has previously put forward plans to redevelop the site into an 18-storey housing development. These plans were rejected by the Housing Delivery Authority in March.
McMullen wouldn’t comment on the length of the lease, but said it was long enough to justify tipping $500,000 into upgrades, including a new cafe, restaurant and bar, ice baths and a sauna.
The Metropolitan Local Aboriginal Land Council and Willoughby City Council were contacted for comment.