David Charles Halloran v Native Vegetation Authority and the State of South Australia No. SCGRG 91/1339 Judgment No. 3712 Number of Pages 60 Administrative Law
[1992] SASC 3712
•24 November 1992
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE J
CWDS
Administrative law - rules of natural justice and breach thereof - judicial review - Application for Judicial Review - plaintiff owned land on Kangaroo Island - Extended negotiations with National Parks and Wildlife Service for possible sale - Clearing of land delayed due to negotiations - Purchase price offered in May 1990 but subsequently rejected by plaintiff - Application in September 1990 to Native Vegetation Authority for an extension of time to complete clearance - plaintiff notified that application refused in February 1991 - plaintiff never notified of meeting nor invited to make submissions - Application reconsidered in March 1991 - Plaintiff and his solicitor made submissions to the Authority - Application again refused - Request by plaintiff's solicitor for reasons of decision - Letter outlining reasons received in April 1991 - Reasons different from the previous advice to the plaintiff after the February and March meetings. Authority concluded that the application was one to undertake clearance as opposed to completing clearance - Authority's discretion in relation to applications for extension unfettered and unconfined - Different matters to be taken into account by Authority on original application as opposed to application for extension - Plaintiff denied opportunity to be heard at February meeting - Denial of natural justice by failure to notify - Error of law on a proper construction of the power to extend consent to clear native vegetation - Plaintiff establishes some of the grounds for Judicial Review of Authority's decision. Denial of natural justice at March meeting by way of procedural unfairness - Declaration that Authority's findings at February and March meetings are void and without effect - Decisions quashed - Order that Authority proceed to determine original application according to law - Declaration that original consent to clear remain valid until Authority rehears the application. Planning Act 1982 (SA); Native Vegetation Management Act 1985 (SA) and Native Vegetation Act1991 (SA). Minister for Aboriginal Affairs and Anor in Peko Wallsend Ltd
(1986) 162 CLR 24 at 39-40; Reg in Australian Broadcasting Tribunal; ex parte 2HD pty Ltd (1979) 144 CLR 45 at 49-50; Daganayasi in Minister of Immigration
(1980) 2 NZLR 130; Kioa and Ors in West and Anor (1985) 159 CLR 550 at 551 and Australian Broadcasting Tribunal in Bond and Ors (1990) 170 CLR 321, applied. Bond and Ors in Australian Broadcasting Tribunal (1990) 89 ALR 185, discussed.
HRNG ADELAIDE, 21-22, 27-29 November, 3-23 December 1991 #DATE 24:11:1992
Counsel for plaintiff: Mr I C Robertson
Solicitors for plaintiff: Piper Alderman
Counsel for defendant: Mr A R F Hall
Solicitors for defendant: Crown
ORDER
Order that Authority proceed to determine original application according to law.
JUDGE1 LEGOE J This application for the Judicial Review of decisions of the first defendant, The Native Vegetation Authority dated the 5th February, 1991 and the 4th March, 1991 invokes the proverb-like saying:- "Justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men." 2. The plaintiff by Summons seeks:-
"3. A declaration that the said refusals of consent are
void and without effect.
4. An order that the first defendant proceed to determine
the application for an extension of time made in October
1990 in respect of the said clearance application according
to law.
5. A declaration that the consent referred to in paragraph
1 hereof remain valid until the first defendant hears the
application according to law as sought in paragraph 4 hereof." 3. The consent to the clearance application of the plaintiff is numbered 83/0504/521. That was an application made in 1983. I shall come back to that in more detail later. Leave was granted to the plaintiff to serve the Summons upon the defendant. Service of the Summons upon the Native Vegetation Authority was to be effected by way of service upon the Crown Solicitor. At a further hearing of the application before the Master, it was ordered that:- 1. The parties be permitted to adduce oral evidence at the trial in addition to the affidavit material filed, and 2. That the costs of and incidental to the application be costs in the cause. THE BACKGROUND AND FACTS AS DISCLOSED IN THE AFFIDAVITS
4. The plaintiff swore and filed two affidavits in support of his application, being application sworn on the 6th June, 1991 together with the exhibits and a further affidavit sworn on the 29th July, 1991. The third affidavit which was filed in support of the plaintiff's application, was that of Alistair Gordon McFarlane, solicitor for the plaintiff whose affidavit, together with exhibits was sworn on the 4th October, 1991. The affidavit of Mr McFarlane was Exhibit P1. The two affidavits of Mr Halloran, the plaintiff, were Exhibits P5 and P6 respectively. 5. On the undisputed material contained in the earlier plaintiff's affidavit, the following facts are established:-
1. On the 11th February 1982 the plaintiff purchased
Section 257 of the Hundred of Haines, on the South Coast of
Kangaroo Island for $35,000.00. At the time, 300 to 400 acres
at the northern end of the property had been logged by the
previous owners. This fact is generally supported by a close
examination of the aerial photograph Exhibit P9 which was taken
on the 13th April, 1983. The area on the northern side shows
some evidence of light clearing, possibly in the form of
logging. This is shown more clearly in Exhibit "DCHH 1" to the
affidavit of Mr Halloran, where the previously logged area is
shown outlined in blue pen.
2. In October and November 1982, negotiations between the
plaintiff and the Head Ranger for National Parks and Wildlife
took place relating to possible purchase of the property. The
plaintiff informed the National Parks and Wildlife authorities
that he would be prepared to sell the property to them, but if
an acceptable price was not agreed, then he wished to commence
clearing in January of 1983.
3. On the 12th May, 1983 Regulations were introduced pursuant
to the Planning Act of 1982 (S.A.) controlling the clearance of
native vegetation throughout the State of South Australia. The
plaintiff had had no response from National Parks and Wildlife, so
he considered it prudent to apply for consent to clear the property
and says he did so on the same day as the Regulations came into
effect. He said at the end of May 1983, he telephoned the Native
Vegetation Management Branch and was given verbal consent to clear
the property by Dr Bob Inns, an Officer of the Native Vegetation
Management Branch. Dr Inns had no recollection of this conversation.
In any event, the plaintiff proceeded in May and June of 1983 to
clear the land by logging the property. The aerial photograph dated
the 1st February 1984, which is exhibited to Mr Halloran's affidavit
as "DCHH 2" and Exhibit P10 at the hearing, clearly shows a
substantial amount of clearing that was done at about that time
on the relevant land. This land also shows a boundary strip that
was cleared around the property, which was intended as a fire break.
This appears on the aerial photograph. This photograph was taken
some 10 months after the previous exhibit. A substantial amount of
clearing, probably logging, was apparently done in that period.
4. On 6th July, 1983 the Administrative Officer of National
Parks and Wildlife Service wrote to the plaintiff referring to a
phone conversation of the 1st July, when the writer advised Mr
Halloran of the Department's wish to negotiate the purchase of
the land. The letter confirmed that the Valuer-General had been
requested to contact the plaintiff to arrange for a suitable
time to meet and inspect the property.
5. Prior to the date of this letter, the plaintiff had been
notified of the consent to clear native vegetation. That
consent signed on 9th February 1983, is dated the 12th May 1983
and was registered on the 31st May, 1983; see Exhibit "DCHH 4"
to Mr Halloran's affidavit. It refers to the location of the
proposed development on the said land and to the nature of the
proposed development as "clearance of native vegetation." The
consent is in the following terms:-
"Consent is granted subject to:
1. No tree, shrub or plant of a species indigenous to South
Australia being cleared from the area shown as 'A' on the
accompanying plan entitled 'Planning Decision 521-0504-83'
numbered Plan 1 of 1 and dated 8th August 1983.
2. A total area of at least 150 ha of land containing plant
species indigenous to South Australia being retained uncleared
from within the area shown as "A+" on the accompanying plan
entitled 'Planning Decision 521-0504-83' numbered Plan 1 of 1
and dated 8th August 1983. This total area shall comprise one
or more discreet areas of vegetation provided that the minimum
size of each component area is 30 ha.
Reasons for Conditions
Conditions have been made to reduce the effect of this
development on the natural features of the area, including flora
and fauna habitat." The accompanying plan noted in the
Notification marked "A" and "A+" is as follows...
6. In August 1983, negotiations between the plaintiff and the
National Parks and Wildlife Service broke down because the plaintiff was
not prepared to accept the price that had been offered. On the 9th
September, 1983 the Authority, who was at that time responsible for native
vegetation, as is the first defendant under the present legislation,
formally granted the consent referred to above. The formal minute reads
to clear native vegetation in an area of 900 acres in the property
subject to the conditions referred to above.
7. In February 1984, the plaintiff bulldozed a boundary fence
line between the National Parks and Wildlife land and his own
property. Mr Hansen of the National Parks and Wildlife
suggested to the plaintiff that he exclude approximately 370
acres on the southern end of the property and fence the
remainder. At the same time Mr Hansen indicated that National
Parks and Wildlife would have an interest in purchasing this 370
acres. On the 17th October 1984, the plaintiff wrote to
National Parks and Wildlife and offered the southern portion of
the land to them for sale. He indicated that prices for similar
land in the area at the time were approximately $100.00 per
acre.
8. In about January of 1985, the plaintiff stickraked, burnt
and ploughed the vegetation. He claimed he worked about 40% of
the property at that time in preparation for sowing for pasture.
The aerial photograph which was taken on the 17th March, 1986
and is Exhibit "DCHH 6" to Mr Halloran's affidavit and Exhibit
P11 at the hearing, tends to support this further work. This
aerial photograph shows the extent of the clearing done compared
to the area left untouched at that time on the southern boundary
as well as on the eastern side.
9. In about February of 1985, the plaintiff purchased another
block of scrub on Kangaroo Island, being part of Section 28 of
the Hundred of Newland, which was an area of some 1,000 acres
and was about 5 miles from his home block on Section 79 of the
Hundred of Newland. At that time, he cleared the land that he
purchased in the Hundred of Newland by burning, ripping and
chaining an area of about 450 acres and had it sowed down to
pasture by May of 1985.
10. In March of 1985, the National Parks and Wildlife Service
advised the plaintiff that they had insufficient funds to purchase
the property, but that it had been placed on their land acquisition
list should funds become available. The letter from the Department
advising the plaintiff of this fact is Exhibit "DCHH 7". The writer
of the letter was the Director of National Parks and Wildlife
Service, and he stated:- "Whilst the National Parks and Wildlife
Service would like to see it retained in its natural state ..." He
went on to say that all funds for land acquisition for the next two
financial years had been fully committed to other urgently required
parcels of land. The plaintiff claims that he postponed further
clearance of the property while waiting to hear further from the
National Parks and Wildlife Service. He expected that sufficient
funds would eventually become available as there appeared to be a
genuine interest in acquiring the property.
11. In the autumn and winter of 1986, the plaintiff cleared
and prepared a further 350 acres approximately of the Newland
block where, by then, he had sowed altogether some 800 acres to
pasture.
12. In 1987, the plaintiff considered that as the National
Parks and Wildlife Service appeared to still be interested in
retaining the property as scrubland, he decided to look into the
feasibility of subdividing the property into six sections of
what he called "nature estates." He obtained permission of the
Lands Department to freehold the block at a cost of $15,000.00.
He engaged a surveyor, Mr John Gibson, who drew up plans for the
sections and these were submitted to the District Council of
Kingscote, who approved the subdivision.
13. In January 1988, Mr Gibson marked and pegged the
boundaries for subdivision on the property and the plaintiff
bulldozed tracks along these boundaries. These tracks are shown
in the aerial photograph (dated 14th January 1989), Exhibit
"DCHH 8" and Exhibit P12 in the hearing. The clear lines are
shown on the coloured photograph, Exhibit P12.
14. In March of 1988, the plaintiff made formal application
to the South Australian Planning Commission seeking approval to
subdivide the land. This was refused by a Planning Decision
Notification dated 15th July 1988. The reasons given for the
refusal were:-
"1. The application is proposing five additional allotments
in the Conservation Zone which is contrary to Zone policy (refer
Conservation Zone principle of development, control no. 2 in
the Kingscote (D.C.) component of the Development Plan).
2. The subject land is a high fire risk area given the
proximity of Cape Gantheaume National Park.
Note: Any subsequent clearance of the land should be in
strict accordance with the conditions of approval given by the
South Australian Planning Commission on the 9th September, 1983."
15. In May of 1988, the plaintiff received a letter from the
Department of Lands signed by the Valuer-General, which stated:-
"In accordance with Section 29(5) of the Native Vegetation
Management Act, I have made an estimate of the amount of
financial assistance that would be payable if a Heritage
Agreement was entered into in respect of your property
situated at: Sec 257 Hd Haines. 1. If refused on
Biological Conservation Principles - $24,000.00. In
addition to this estimate of financial assistance you may be
entitled to an additional payment in terms of Section 30(3)
at the discretion of the Minister of Environment and
Planning."
16. The plaintiff carried out further clearance by
relogging in June of 1988. This relogging was completed by May
of 1989. The plaintiff intended to burn the area logged in
November of 1989, but was told by an officer of the National
Parks and Wildlife Service, that if the fire escaped from the
property into the adjoining National Park, he would have to pay
any costs which were incurred. Consequently the plaintiff
decided not to burn at the end of 1989 but rather, to wait until
the burning season commenced in the following year.
17. In January or February of 1990, the plaintiff cleared a
large fire break 100 metres wide and ploughed it in preparation
for burning on the 1st April, 1990, the opening of the burning
season on Kangaroo Island. In March of 1990, he logged some
further regrowth on the property prior to burning, as he
intended to apply seed and super to the property by air in April
as a means of sowing it down to pasture. This would mean that
he would then be in a position to graze the land the following
spring.
18. In about March of 1990 Mr David Conlon, the then Chairman
of the Native Vegetation Management Board, spoke to the
plaintiff regarding the purchase of the whole property by the
National Parks and Wildlife Service and the Native Vegetation
Management Branch. Mr Conlon indicated that part of the funds
would be provided by the Native Vegetation Management Branch and
the National Parks and Wildlife Service would pay the balance.
The figure mentioned was $120 per acre. The plaintiff believed
that National Parks and Wildlife Service acquired neighbouring
properties for a rate similar to that referred to by Mr Conlon
some years earlier. Further discussions took place in March and
April of 1990.
19. In early May 1990, the plaintiff telephoned Mr Conlon to
ask what progress had been made, as he had delayed the burning
of his property pending the decision from National Parks and
Wildlife Service and Native Vegetation Management Branch.
20. Mr Conlon wrote to the plaintiff on the 8th May 1990, in
which he indicated that he had spoken to members of the Branch
on the possibility of meeting with the plaintiff and a Mr Fraser
Vickery of the National Parks and Wildlife Service during their
next visit to the Island. "Unfortunately, although officers of
the Native Vegetation Management Branch will be on the Island
next week, prior commitments leave them no time to meet with you
and Fraser Vickery during this visit. The officers have
indicated that their next scheduled trip to Kangaroo Island will
be in late July. We will contact you prior to this to arrange a
suitable time to meet with you."
21. The plaintiff deposed in his affidavit to the fact that in late
May of 1990, he was informed by the National Parks and Wildlife Service
that it would purchase the property at a valuation of $72,500.00. This
price was not acceptable to the plaintiff. It was then too late
to sow the property to pasture for that season. In addition, the
estimated cost of seeding and fertilizing was $30,000.00 including
the cost of applying the seed and fertilizer from the air and
running over the whole area with a chain. It was a time of great
financial stringency because of the catastrophic decline in wool
prices, but the plaintiff said he would have raised the money and
sowed the property to pasture had he believed that an extension of
time would not be granted.
22. In May or June of 1990 the plaintiff successfully burnt
two-thirds of the consent area on the property.
23. In late September 1990, he applied for an extension of
time to complete clearance of the property. At that time, all
that was required to convert the subject land to pasture was
seeding and fertilizing. However, it was not possible to do
this until the following autumn.
24. The plaintiff's application for an extension of time,
which is the subject of these proceedings, is Exhibit "DCHH 12"
and reads as follows:- "I would like to apply for an extension
time of two years on the clearance of Section 257 Hundred of
Haines. I will have the majority of the section ploughed by
November, ready to seed next Autumn, April, May, 1991. I had
intended to have all seeding completed by April, May this year
but ceased work when the National Parks indicated their interest
in purchasing the land. The final price they offered me was not
acceptable."
25. The first indication that the plaintiff had from the
first defendant, advising that his application for an extension
of time had been refused, was on the 6th February 1991, when the
Secretary of the Native Vegetation Authority wrote to the
plaintiff as follows:- "The Native Vegetation Authority, at its
last meeting, considered your application for an extension of
time to clear native vegetation in conjunction with a report/s
from the Native Vegetation Management Branch and, on the basis
of the evidence presented, resolved to refuse consent to your
application. Please find enclosed the relevant Clearance
Decision Notification together with reasons for this decision.
For your information, I have also attached a copy of the
clearance activities, as exempt under the Regulations of the
Native Vegetation Management Act, 1985-1988, which do not
require the approval of the Native Vegetation Authority. Please
contact Fred Steiner on the above number with any queries you
may have in regard to these matters." The Decision
Notification, giving the reasons states that:- "The Native
Vegetation Authority refused consent to an extension of time to
application 83/0504/521 in accordance with Planning Principle
1(a) of the State Development Plan for the area of the District
Council of Kingscote, as shown on the attached sheet."
26. The plaintiff was not notified of the meeting referred to
in that letter, nor was he invited to make submissions to it,
nor were any reasons given for the decision.
27. The plaintiff consulted his solicitors on the 18th
February, 1991 and through them arranged for a reconsideration of
the application. He attended with his solicitor at the subsequent
meeting held by the first defendant on the 4th March, 1991 when his
application was reconsidered. In paragraph 42 of his affidavit, the
plaintiff summarises the submissions that were made in support of
his application at that hearing. In addition, photographs were
provided, namely first, a photograph of the property being burnt in
May or June of 1990, and secondly, photographs of the neighbour's
land, namely land owned by one Lockett as at February 1991, for
which an extension of clearance had been granted at that time, and
thirdly, the area the subject of the application as at February
1991. All of these photographs are contained in Exhibit "DCHH 14"
attached to the plaintiff's affidavit. These photographs illustrate
the fact of a burn which the plaintiff said was in May or June of
1990. The comparison of the aerial photographs of the northern
section of the Lockett property alongside the other aerial
photographs of the northern section of the Halloran property, show
that the condition of clearance was in many ways similar, if not
more advanced on the Halloran property.
28. The plaintiff's application for an extension of time was
refused and no reasons were given. By letter dated the 13th
March, 1991 from the Secretary of the Native Vegetation
Authority, the plaintiff's solicitor was advised as follows:-
"The Chairman has asked me to thank you, and Mr David Halloran,
for taking the time to meet with the Native Vegetation Authority
in support of his request for an extension of time to clear
native vegetation. In considering this request, the Authority
gave due regard to all the circumstances, including the repeated
discussions with the National Park and Wildlife Service
regarding purchase, but resolved that it could not grant an
extension of time to application 83/0504/521." The letter
concluded by saying that if Mr Halloran wished to pursue the
option of selling the property, then a Mr Yelland, Manager of
the Native Vegetation Management Branch, would be pleased to
assist in negotiating.
29. The plaintiff, by his solicitors, requested the Authority
to provide reasons for the decision in a number of letters dated
the 12th, 15th and 22nd March, 1991 and the 8th, 15th, 22nd
April of 1991. By letter dated the 26th April, 1991 the
Secretary to the Native Vegetation Authority wrote again to the
plaintiff's solicitor, referring to a meeting held by the
Authority on the 8th April, when consideration was given to the
letter dated 15th March, requesting reasons for deciding to
refuse consent for an extension of time. The letter continued:-
"In considering your letter, the Authority took the view that
since this was not an application to clear (no application form
lodged or application fee paid) there was no obligation to
provide reasons under Section 21(7) Native Vegetation Management
Act. Notwithstanding this, the following statement of reasons
is supplied: Requests for extension of time are considered by
the Authority with particular regard to the following factors:
(i) the extent to which additional time is necessary to conclude
a clearance program that is substantially completed; (ii) the
extent to which the inability to complete the clearance program
was due to circumstances over which the landholder had no
control; and (iii) the biological value of the area. The
Authority took the view that an extension of time would have
been to undertake, rather than complete, a clearance programme,
and that the delay was not due to circumstances over which Mr
Halloran had no control. It further took the view that the area
has a high biological value as indicated by, among other things,
the National Parks and Wildlife Service interest in its
purchase. In weighing up these factors, the Authority
unanimously resolved that in, Mr Halloran's case, granting an
extension of time was not appropriate."
30. Exhibit "DCHH 18" attached to the plaintiff's affidavit
contains correspondence between Mr and Mrs Lockett, the plaintiff's
neighbours on Kangaroo Island, and the Native Vegetation Management
Branch relating to their application for an extension of time. On
the 15th August, 1989 the Authority wrote to Mr and Mrs Lockett
advising them that the Authority was deferring a decision on their
application pending provision of a Management Plan, setting out the
nature and timing of the further clearance program. On the 6th June
1990, the Authority again wrote to Mr and Mrs Lockett, refusing
their application for an extension of time to complete the
clearance over a period of ten years. Further correspondence
between Mr and Mrs Lockett and the Native Vegetation Management
Branch and a further application for extension of time for two
years only was received later that year, and on the 7th August,
1990 the Authority wrote advising Mr and Mrs Lockett that a
consent to an extension of time had been granted by the
Authority to complete the clearance program over the next two
years, that is, until the 21st November, 1992.
31. In his further affidavit sworn on the 29th July, 1991 the
plaintiff exhibits the Crown Lease Perpetual No. 20132
contained in the Certificate of Title, Register Book Volume
1376, Folio 33 in respect of the said land at Section 257 in the
Hundred of Haines, which contains 1,644 acres or thereabouts.
He also refers to his previous affidavit and the application for
consent to clear the property which was originally made on the
12th May, 1983 and exhibits a copy of that application. He
further says that the Native Vegetation Management Board
prepared a report for the meeting on the 4th March, 1991 which
report recommended refusing an extension of time to complete the
clearance of the property. A copy of this report is exhibited
as "DCHH 22". I shall come back to this report which is dated
the 27th February 1991 and signed by Dr Bob Inns, the Senior
Scientific Officer - Assessments, of the Native Vegetation
Management Branch. Finally, Mr Halloran exhibits a copy of a
Memorandum prepared by Dr Inns which was referred to in his
earlier affidavit. That is Exhibit "DCHH 23". That Memorandum
contains a summary of events relating to discussions on the
purchase of the said land, and provides a convenient chronology
as follows:-
May 1983 - Clearance Application lodged by Mr
Halloran over Section 257, Hundred of Haines.
- Inspected by Scientific Officer. July 1983 - NPWS advised
Mr Halloran of wish to negotiate purchase of Section 257,
Hundred of Haines (telephone conversation confirmed by letter).
- Valuation requested by NPWS August 1983 - Valuer-General
provided figure of $40,000.
- Mr Halloran's figure $55,000. September 1983 - Clearance
decision issued granting partial consent.
October 1984 - Letter from Mr Halloran to Director, NPWS
indicating offer to sell southern portion of property -
approximately 150ha.
November 1984 - Minute from NPWS District Ranger, Kingscote,
to Regional Manager advising of offer and recommending
valuation.
March 1985 - Letter from Director, NPWS, to Mr Halloran
advising that funds were fully committed for the 1984/85 and
1985/86 financial years, but that the area was placed on land
acquisition list.
March 1988 - Valuation for Heritage Agreement over (1) areas
refused clearance, and (2) whole Section sought from
Valuer-General at Mr Halloran's request.
May 1988 - Mr Halloran advised by Valuer-General that
financial assistance estimate was $24,000.
March 1990 - Mr Halloran advised the Branch that he wishes to
place a 400m wide strip along southern edge of property under a
Heritage Agreement.
May 1990 - Area inspected with landholder and also District
Ranger, (Presumably there was further discussion regarding NPWS
purchase of whole property as valuation was requested).
- Valuation obtained and Branch notified Mr Halloran that
purchase figure was $72,500.
- Mr Halloran advised that figure was unacceptable and that he
would proceed with clearance program.
October 1990 - Letter from Mr Halloran applying for extension
of time to finish clearance program. 6. This summary is largely consistent with an confirmatory of what the plaintiff says in greater detail in his affidavits. THE DEFENDANT'S AFFIDAVITS
7. Mr B.E. Bishton, the Secretary of the Native Vegetation Authority said he attended the meetings of the Authority in late November 1990 and early 1991, except for the meeting on the 8th April when he was on annual leave. He prepared the Draft Minutes for those meetings. At the meeting on the 5th November, 1990, Dr Inns, the Senior Scientific Officer of the Native Vegetation Branch of the Department of Environment and Planning, drew the attention of members of the Authority to the plaintiff's application under clause 2 of the Transitional Provisions in the First Schedule to the Native Vegetation Management Act of 1985 (SA) for an extension of time for the consent to clear which had been issued subject to conditions in 1983. That application was not formally on the agenda for that meeting. Dr Inns also submitted a report in relation to the application. The report was dated the same day as the meeting. A copy of that report exhibited to Mr Bishton's affidavit refers to the original application to clear native vegetation on the subject land and the consent of the then planning Authority. Dr Inns said in that report:-
"As such, clearance has been substantially commenced, and
under the First Schedule (Transitional Provisions) NVM Act, the
SAPC decision remains valid until the 21st November 1990.
However, due to lack of financial resources, and due to
unsuccessful negotiations with the Branch and NPWS regarding
placing the area under a Heritage Agreement, or incorporating
the area into Cape Gantheaume Conservation Park, the applicants
have been unable to complete development of the area before 21
November. In a letter recently received by the Branch, Mr
Halloran has applied for an extension of time, indicating he
should have substantially ploughed the area by 21 November. As
the SAPC consent areas, through repeated clearance over the last
five years, have become highly degraded and have lost some plant
species diversity, it is considered they now have limited
biological value. Recommendation That the Native Vegetation
Authority consent to a two year extension of time (to 21/11/92)
over that portion of the consent relating to Section 257,
Hundred of Haines, granted to application 83/0504/521 by the
South Australian Planning Commission on 9/9/83." 8. The Minutes for the November meeting of the Authority relevant to the plaintiff's application state that:-
"8.3 Extension of Time for Application 83/0504/521
- D.C.H. Halloran. Dr Inns tabled a report on an application
for an extension of time for D.C.H. Halloran (83/0504/521). As
the application expires on 21/11/90, before the next Authority
meeting, Dr Inns requested the Authority to consider the
application at this meeting. Dr Inns also advised that the
Native Vegetation Management Branch had received a number of
other applications for an extension of time to complete
clearance granted by the South Australian Planning Commission
beyond the cut-off date of 21/11/90. As the Branch would be
unable to respond to these applications until at least the next
Authority meeting on 3/12/90, Dr Inns requested that the
Authority consider delegating its authority to him. In
discussion, it was agreed to defer a decision on application
83/0504/521 and that applications for an extension of time
received up to 21/11/90 be granted, by authority delegated to Dr
Inns, an automatic extension until 3/12/90. It was also agreed
that the Native Vegetation Management Branch would provide to
the Authority at its meeting on 3/12/90 details of all
outstanding applications at that date to enable the Authority
for formulate policy on how these are to be processed." 9. None of these matters were dealt with at the Authority's meeting on the 3rd December, 1990. The next occasion upon which the plaintiff's application came up for discussion was at the meeting on the 5th February 1991. This meeting was held at Millicent in the South East. At that meeting the Authority again considered the plaintiff's application. Present at that meeting was the Chairman, Mr John Bradsen, and members Dr Andrew Black, Mr David Boundy, Dr Robert Sharrad and Mr Neil Smith. 10. Mr Bishton said that the usual practice, where the Authority has to consider an application under the Act, is that the officers of the Branch of the Department of Environment and Planning notify the applicant or the solicitor, where the applicant is represented by a solicitor, of the date, time and place of the meeting. At the same time a copy of any report to the Authority by an officer of the Branch concerning the application is supplied to the applicant. In this case neither the plaintiff nor his solicitor Mr McFarlane attended that meeting or made any written submissions concerning the application. The Authority resolved to refuse the application. Copies of the documents supplied to each member of the Authority with the agenda for the meeting in relation to the item of the plaintiff's application are exhibited to Mr Bishton's affidavit. Finally, a copy of the extract of the Authority's Minutes recording its decision is also exhibited. One document in the form of a Minute signed by Dr Inns to the Native Vegetation Authority was in effect a report relating to the original application and the fact that in October 1990 the plaintiff had applied for an extension of time. Dr Inns then states:-
"...as the Branch considered it unlikely that the area
would be able to be cleared in the time available, this letter
was tabled at the Authority meeting of 5/11/90. A decision was
deferred by the Authority (until its 3/12/90 meeting) pending a
report from the Branch on all outstanding applications for
extensions of time to complete clearance. Initially, the Branch
had recommended approval to Mr Halloran's application for an
extension of time in the belief that clearance was taking place,
or about to take place. The item was, however, inadvertently
omitted from the 3/12/90 Agenda. Field inspections in early
December 1990 and again on 23/1/91, showed none of the regrowth
had been worked for some time (the regrowth is approx. 12 to 18
months old). In consequence, the entire area now exhibits
substantial regrowth, and, as such, the landholders request to
complete clearance has been reactivated. Biological
Significance: The application area comprises low regrowth of
Eucalyptus rugosa/E. leptophylla. On the deeper sands of the
swales, with E. diversifolia on the slopes and crests of the
limestone ridges of the application area. Understorey species,
including Melaleuca lanceolata, Pomaderris obcordata and
Templetonia retusa, are also prominent. The application area
is therefore considered to provide important habitat for
wildlife, including the Painted Button-quail, (a species rated
vulnerable for both South Australia and Kangaroo Island) and the
uncommon Tawny-crowned Honeyeater. In addition, the application
area provides an important wildlife refuge in the event of fire
in the nearby Cape Gantheaume Conservation Park. The property
is bounded on its southern, eastern and western sides by Cape
Gantheaume Conservation Park. Since 1983, discussions have been
taking place between the landholder and the National Parks and
Wildlife Service regarding purchase of the property as an
addition to the park. Unfortunately, to date no agreement has
been reached in this matter. Recommendation: That the Native
Vegetation Authority refuse consent to an extension of time for
application 83/0504/5211 granted by the South Australian
Planning Commission in accordance with Planning Principle 1(a)
of the State Development Plan for the area of the District
Council of Kingscote, as shown on the attached sheet." 11. The attached sheet shows a plan of Kangaroo Island, including the Cape Gantheaume Conservation Park in a hatched area to the south of the subject land. Another attachment to this report includes an aerial photograph which is "Plan: 2. Applicant's Proposal Redrafted By The Department For Information Only." The wider hatched area on the plan shows the area which the applicant applied to clear and in brackets underneath that "(for extension of time)". There is also a reference to recent clearance but no indication on this plan, as redrafted, that there has ever been any. 12. After the meeting in February at Millicent, the secretary of the Authority by letter dated 6th February 1991, notified the plaintiff of the Authority's decision to refuse the application. The next meeting of the Authority was on the 4th March, 1991 at Adelaide. At that meeting the Authority reconsidered its decision of the 5th February 1991 in respect of the plaintiff's application. This was done in response to a request from the plaintiff's solicitor, Mr McFarlane. The plaintiff had not been notified, neither of the fact that his application would be considered at the meeting on the 5th February, nor that the Branch (Dr Inns report) had recommended that the application be refused. The same members constituting the Authority were present at the meeting on the 4th March in Adelaide, as had been present at Millicent on 5th February. On 4th March, both the plaintiff and Mr McFarlane made submissions in support of the application. Mr Bishton deposed to the fact that neither Mr Halloran nor Mr McFarlane objected to the application being reconsidered by the same members as had previously considered the same application in February, nor did either raise any other question or issue as to the constitution of the Authority at either meeting. The Authority resolved to confirm its earlier decision to refuse consent. The documents supplied to each member of the Authority in relation to this item on the Agenda are contained in the Exhibit to Mr Bishton's affidavit "BEB 7". 13. The substantial document before the Authority on this occasion was a further Minute from Dr Inns, the Senior Scientific Officer - Assessments, relating to the reconsideration of the plaintiff's application for an extension of time. This document is dated the 27th February 1991. This report must have arisen out of the matters that were discussed at the February meeting, as appears from the Minutes taken at that meeting by Mr Bishton, which include the following:-
"4.6 D.C.H. Halloran - 83/0504/521 Dr Inns was requested
to re-check with the inspecting officer that no clearance work
had been undertaken on the property before the refusal decision
was implemented and to examine photographs from the field
inspection to determine the extent of the regrowth. Subsequent
to the meeting, Dr Inns confirmed that no work had been carried
out and the regrowth was at least 1 metre in height. Resolved:
The Native Vegetation Authority refused consent to an extension
of time to application 83/0504/521 in accordance with Planning
Principle 1(a) of the State Development Plan for the area of the
District Council of Kingscote." 14. It further appears that the letter of the 6th February 1991 advising the plaintiff that his application had been refused, had attached to it a copy of the clearance activities, as exempt under the Regulations of the 1985 Act "which do not require the approval of the Native Vegetation Authority." The so-called "Development Plan Principles Relevant To The Control Of Clearance Of Native Vegetation For The State Of South Australia" are attached to Exhibit "BEB 6." 15. The memorandum from Dr Inns to the Authority dated the 27th February, 1991 sets out again the background to the application and the fact that the Authority had refused consent on the 5th February. It also refers to the fact that Mr Halloran was not notified of the discussion which took place at Millicent on the 5th February, nor of the recommendation that had been received by the Authority from the Branch to refuse consent. Dr Inns refers in that Memorandum to certain matters relating to the clearance that had taken place by the plaintiff over the years, in which it was suggested that the plaintiff may not have strictly complied with the conditions of the original consent in 1983. He also refers to the discussions on purchase of the block by the National Parks and Wildlife Service and that these had continued. It then referred to the fact that on the 22nd May 1990, Mr Halloran was advised that the final valuation figure for the purchase was $72,500.00. This offer was rejected by Mr Halloran. He refers to Mr Halloran's attempt to burn the consent area about July 1990, but says this was unsuccessful. He then adds:-
"Apart from the smaller area towards the back of the block
which had been rechained at some earlier time, field
inspections in early December 1990 and again on 23/1/91, showed
that little of the regrowth had been worked on for some time
(the regrowth appeared to be approx. 12-18 months old). In
consequence the entire area now exhibits substantial regrowth." 16. The summary of the events relating to discussions on the purchase of the relevant land is also attached to the agenda item before the Authority on 4th March. Further, the same plan of Kangaroo Island referred to above is attached, together with a sketch of the proposed area to be cleared which was attached to the plaintiff's original application. An aerial photograph dated the 8th August, 1983 is attached with the lines superimposed on the photograph relating to the areas which the plaintiff was allowed by the original consent of 1983 to clear and that area which he was not to clear. Finally, there is a copy of the plaintiff's application for an extension of time. 17. As stated above, the Authority resolved to confirm its decision of 5th February to refuse consent to the plaintiff's application. By letter dated 13th March, 1991 Mr Bishton informed the plaintiff's solicitor of the Authority's decision of the 4th March, namely, to refuse consent. That letter is Exhibit "BEB 9." The Minutes of that meeting as recorded by Mr Bishton read so far as relevant:- "Resolved: The Native Vegetation Authority, having regard to all the circumstances, including the repeated discussions the applicant had with the National Parks and Wildlife Service regarding purchase, resolved that it could not grant an extension of time to application 83/0504/521." 18. Mr Bishton who was not present at the meeting on 8th April, 1991 states that by reference to the Minutes and other records of the Authority, he believes that the members constituting the Authority meetings of the 5th February and 4th March, considered a request by the plaintiff's solicitor that it provide reasons for its decision refusing the plaintiff's application. That meeting was the first scheduled meeting of the Authority after the initial request of the plaintiff's solicitors for reasons to be given for the decision. The Authority resolved to supply a statement of its reasons. At the April meeting there was a further Minute or Memorandum from Dr Inns to the Authority dated 2nd April, 1991. Dr Inns referred to the fact that Mr McFarlane had made submissions in support of granting an extension of time at the meeting on 4th March. He added:-
"In discussion on this matter, Mr McFarlane queried the
circumstances under which the request would be considered and,
in particular, asked whether applications for an extension of
time were considered solely on the basis of the Planning
Principles. The Authority subsequently refused consent to Mr
Halloran's request on the grounds that
(i) delays caused through negotiations with the National Parks and
Wildlife Service on purchase of the property were
insufficient to warrant granting an extension of time; and
(ii) clearance would be contrary to Planning Principle 1(a)." 19. Dr Inns also refers to a further telephone conversation following the meeting when Mr McFarlane wanted to know what decision had been made and when he was informed, he requested the decision in writing and stated that the Authority "should be very careful in giving the reasons for the decision". Mr McFarlane's letter relating to that was attached to the Memorandum and a draft letter in reply to Mr McFarlane's request was checked by the Chairman before being sent. Mr McFarlane wrote again requesting notification of the reasons for refusing consent. The letter from the Authority to Mr McFarlane dated the 13th March 1991, notified him that the Authority, in considering the request for an extension of time, gave due regard:- "...to all the circumstances, including the repeated discussions with the National Parks and Wildlife Service regarding purchase, but resolved that it could not grant an extension of time to the application." The Secretary of the Authority wrote again to Mr McFarlane on the 28th March notifying him that the request for notification of reasons for refusing the extension of time for clearance would be referred to the next meeting on 8th April, 1991. 20. The Minutes of the meeting on the 8th April as recorded by the Authority read as follows:-
"Resolved: The Native Vegetation Authority resolved to
advise Mr McFarlane that its decision to refuse consent to an
extension of time to clear native vegetation on Section 257, Hd
of Haines was unanimous and had regard to the following factors:
(i) the extent to which additional time is necessary to conclude a
clearance programme that is substantially completed;
(ii) the extent to which the inability to complete the
clearance programme was due to circumstances over which the
landholder had no control;
(iii) the biological value of the area. The Authority took
the view that an extension of time would have been to undertake,
rather than complete, a clearance program, and that the delay
was not due to circumstances over which Mr Halloran had no
control. The Authority further took the view that the area has
a high biological value as indicated by, among other things, the
National Parks and Wildlife Service interest in its purchase." 21. On the 26th April, 1991 the Authority wrote to Mr McFarlane again in which the reasons for the decision were repeated in substantially the same terms as the Minute, Exhibit "DCHH 17". 22. The other affidavits filed on behalf of the defendant were that of Mr D.J. Conlon who until 14th September, 1990 was the Manager of the Native Vegetation Management Branch in the Department of Environment and Planning, which position he had held for three years. In May of 1990 Mr Halloran telephoned him and asked whether the Government was interested in purchasing the land as an addition to the Cape Gantheaume Conservation Park. He indicated that he wanted a quick answer to his inquiry. Mr Conlon undertook to have Scientific Officers of the Branch inspect the land as soon as possible in company with a National Parks and Wildlife representative to ascertain whether the land and the vegetation on it were suitable as an addition to the Park. Mr Conlon understood that some vegetation clearance had already taken place. He was concerned that work so far undertaken may have reduced the conservation value of the natural habitat to the extent that would have been unsuitable as an addition to the Park. Knowing that the Officers of the Branch were to visit Kangaroo Island within a few days he contacted them, but found out that their program was already fully booked, and they would be unable to inspect the land during that visit. Mr Conlon asked the Officers to contact Mr Halloran and arrange to meet him at the earliest opportunity and involve National Parks and Wildlife Service in the meeting. Accordingly, he sent a letter to Mr Halloran dated the 8th May 1990 in response to his phone call, and informed Mr Halloran that he had spoken to members of the Branch about the possibility of a meeting between himself and Mr Fraser Vickery of the National Parks and Wildlife Service. However, he went on to say that the Officers of the Native Vegetation Management Branch, who would be on the Island the following week, had no time to meet with Mr Halloran and Mr Fraser Vickery. He indicated that their next scheduled trip to the Island would be late in July. However, the Scientific Officers of the Branch had to make another visit to the Island later in the month of May, and Mr Conlon instructed them to include an inspection of Mr Halloran's land in their itinerary. 23. A Ms S.J. Ronson was at all material times, a Scientific Officer employed in the Assessments and Law Enforcement Section of the Native Vegetation Management Branch in the Department of Environment and Planning. On the 15th May, 1990 on instructions from Mr Conlon, she went to Kangaroo Island with Mr Michael Hodder, another Scientific Officer, for the purpose of inspecting Mr Halloran's land with a view to assessing its suitability for purchase as an addition to the adjoining Cape Gantheaume Conservation Park. Arrangements were made to carry out the inspection with Mr Fraser Vickery, the District Ranger of National Parks. On the 16th May, Mr Hodder and Ms Ronson met with Mr David Halloran at Parndana from where they travelled in the plaintiff's light aircraft to the land and inspected it from the air. They landed near the land and met Mr Vickery there, and discussed the possible purchase of the land with the plaintiff. During the discussion, Mr Halloran stated that he wanted $275,000.00 for the land. Ms Ronson recorded this in her field notebook. On returning to Adelaide on 18th May 1990 she reported to Mr Conlon that the land was suitable for purchase as an addition to the adjoining conservation park and that it had a good cover of vegetation. She was instructed by Mr Conlon to seek advice about the value of the land from the Valuer at the Southern Regional Office of the Valuer-General who was responsible for valuations on Kangaroo Island. She sent a facsimile message to the Valuer for this purpose. She received a facsimile message back from the Valuer, who drew attention to a Heritage Agreement wherein the estimated assistance would be $52,500.00 based on values adopted for recent agreements on Kangaroo Island. The Valuer indicated that if Mr Halloran were to sell the land, a further $20,000.00 could be expected. Therefore, a fair and reasonable purchase price for the Department of Environment and Planning to pay, would not be expected to exceed $72,500.00. That calculation was based on 1. the selling price of part Section 53 Hundred of MacGillivary on the 2nd January 1990 for $20,000.00, which adjoined the plaintiff's land and 2. the fact that the land is in the conservation zone and any subdivision would be contrary to zone objectives. Ms Ronson discussed the matter with Mr Conlon after receiving the Valuer's desktop opinion and Mr Conlon indicated to her that it did not seem that the Department could come to an agreement with the plaintiff in view of the difference between his asking price and the indication of its market value from the Valuer-General's office. Ms Ronson spoke to the plaintiff later in May by telephone and informed him of the indication given by the Valuer- General. The plaintiff indicated to her that he would go ahead and clear the land. Ms Ronson also stated in her affidavit, that when she inspected the land on the 16th May 1990, she did not see any indication that the vegetation had been burnt before that date. This final comment related to Mr Halloran's statement in his affidavit that in May or June of 1990, he successfully burnt two thirds of the consent area. Mr Halloran produced photographs of that burn as shown in the Exhibit "DCHH 14". 24. In his second affidavit, Mr D.J. Conlon referred again to the negotiations between Mr Halloran and himself relating to the land values of his property on Kangaroo Island. Mr Conlon said that to his recollection, Mr Halloran mentioned an amount of $160 per acre, but that he understood that this amount included some reimbursement of the costs incurred by him in clearance operations. He added that he had informed Mr Halloran that the maximum amount assessed by the Valuer-General for some scrubland on Kangaroo Island in assessments of payments under the Native Vegetation and Management was $120.00 per acre. This was the figure which Mr Halloran had deposed to in paragraph 30 of his affidavit. Mr Conlon went on to say in his second affidavit, that from his experience, the Department of Environment and Planning and its Minister, act on the advice of the Valuer-General in agreeing a price to be paid for land which is the subject of acquisitions under the two Acts. Furthermore, he referred to his understanding of the practice, which was similar to that which Mr Halloran had indicated in his affidavit, namely, that when land was acquired for the purposes of the National Parks and Wildlife Service and there was an additional amount which would have been payable to the land owner under Part V of the Native Vegetation Management Act of 1985, that was contributed from funds appropriated for payments under that Part, with the balance payable from funds appropriated for National Parks and Wildlife acquisitions. Finally, Mr Conlon confirmed that the practice adopted by Ms Ronson in obtaining the value from the Valuer-General was in accordance with Departmental procedures. 25. Dr R.W. Inns holds a degree of Doctor of Philosophy and Honours Bachelor of Science. He is the Senior Scientific Officer of the Assessments and Land Management Section of the Native Vegetation Management Branch of the Department of Environment and Planning. He has held that position since 1987. Before 1987 he was a Scientific Officer in the Branch which was formed in 1985 and before that, he was with the Vegetation Retention Unit of the same Department commencing in May 1983. His duties include the supervision of other Scientific Officers of the Section, responsibility for the assessment of applications to the Native Vegetation Authority (since 18th April 1991, the Native Vegetation Council) for clearance of native vegetation and the preparation of reports and recommendations in relation to those applications. In his affidavit he refers to Mr Halloran's application for clearing the land in 1983. His recollection was that when the plaintiff was granted consent to clear the land in 1983, there was no inspection by a Scientific Officer for the purpose of advising the then South Australian Planning Commission. Dr Inns exhibited to his affidavit, a copy of the report made by the Officer who inspected the land and assessed Mr Halloran's application to clear. That letter and report is not dated but refers to an inspection by one C. Whisson on the 29th May 1990. In section A the writer of the report describes the land, including the proposed use for "sheep grazing on the sandy interdunal swails", the topography, vegetation, proximity and status of the adjoining vegetation referring to the boundaries on the southern and eastern side of the Cape Gantheaume Conservation Park and on the western side by native vegetation in private ownership. The land to the north is used for grazing purposes. The writer of the report made the following assessment:-
"B. ASSESSMENT CRITERIA The area being retained
substantially covers the non arable crests and slopes of the
limestone ridges interconnected by corridors of native
vegetation along three of the property boundaries to act as a
buffer zone against weed invasion, and the effects of
superphospate (sic) on the adjoining Conservation Park. The
proposed reservations should also ensure that a representative sample
of the native vegetation on the block is retained. It is
not anticipated that any of the areas will be subject to either
erosion or salting." 26. In the discussion section of the report, the writer notes that the land constitutes a large block of native vegetation not substantially different from the Conservation Park. The section had been recommended for purchase, but it was thought unlikely that approval would be given for the funds involved. It was thought that funds could be better spent in other areas. The writer continues:- "With these points in mind, the boundaries of the Conservation Park should still be protected from the effects of weed invasion and the use of agricultural chemicals by preventing the clearance of a strip of native vegetation along the section boundaries, to act as a buffer against these effects." 27. Comments from the other agencies indicated no objections from the District Council and a mention of an exclusion of a single sand dune in the north-west corner pursuant to section 12a of the Soils Conservation Act by the Department of Agriculture. There were no comments from other Authorities. In relation to Mr Halloran's application to clear the land in 1990, Dr Inns refers to the plaintiff's original application received by the Department on the 1st October, 1990 being Exhibit "BEB 1" to Mr Bishton's affidavit, and the report prepared over the name of Dr Inns dated 5th November, 1990. Dr Inns says in relation to this report, that it was:-
"...prepared over my name, it was drafted by Mr Tim Croft,
a scientific officer of my section. To my knowledge, no
inspection of the subject land had been conducted by Mr Croft or
any other officer of my section before the report was drafted,
and it was drafted on the assumption that the facts related in
the plaintiff's application letter were correct. The report was
handed to me during the meeting on the 5th November, 1990 for
submission to the meeting of the Native Vegetation Authority on
that day, although the plaintiff's application was not on the
formal agenda for that meeting. I do not recall signing the
report before it was submitted to the Authority. I brought the
application and the report before the Authority on the 5th
November, 1990 as a matter of urgency, because all consents to
clear native vegetation given under the Planning Act, 1982, were
to expire on the 21 November, 1990 unless extended by the
Authority, and I was aware that the Authority's next meeting was
not scheduled until 3 December, 1990." After the meeting on the
5th November 1990, Dr Inns states in his affidavit, that no
report was submitted to the Authority, either in relation to the
plaintiff's application or in relation to all outstanding
applications for extensions of periods of consent due to expire
on the 21st November 1990 to be brought up again at the
Authority's meeting on the 3rd December, 1990. However, Dr Inns
instructed a Mr Manfred Steiner, a Scientific Officer in his
section, to inspect the plaintiff's land while he was on
Kangaroo Island in January 1991. When Mr Steiner returned from
the Island in January 1991, he prepared for Dr Inns signature an
assessment report which is dated 29th January 1991, for
submission to the Authority in relation to the plaintiff's
application. I referred earlier in these reasons to this
report, which is Exhibit "BEB 4" to the affidavit of Mr Bishton.
Dr Inns saw the draft report and the photographs which were
taken by Mr Steiner during the inspection of the land, and
exhibited copies to his affidavit which are Exhibit "RWI 4". Dr
Inns said he agreed with the assessment and recommendation made
in the report and signed it. That report was considered by the
Authority at its meeting at Millicent on the 5th February, 1991
and the photographs above referred to were on the Native
Vegetation Management Branch file and available to members of
the Authority to inspect. Dr Inns further says that before the
application was considered again by the Authority on the 4th
March, 1991 he prepared a document which is entitled "Summary of
Events in Relation to Discussions on Purchase of Section 257,
Hundred of Haines" from material which appeared on the Branch
file in relation to the plaintiff's land. A copy of that
document is Exhibit "BEB 7" to Mr Bishton's affidavit. Mr
Steiner prepared a board containing an aerial photograph of the
land surrounded by photographs taken by him in January 1991,
photographs taken from a light aircraft by other Scientific
Officers of his section on 16th May, 1990, and other photographs
taken by Officers of the Native Vegetation Management Branch or
Native Vegetation Retention Unit at various times from 1984. Dr
Inns added:- "I referred to these photographs at the Authority's
meeting on the 4th March, 1991 to illustrate the condition of
the native vegetation on the land at various times from 1984." 28. The photographs referred to by Dr Inns which were stuck onto a board and were the subject of his reference at the hearing on the 4th March, 1991 were tendered at the hearing before me, namely, Exhibit P13. This board contains photographs taken at various periods, first, a line of 4 overlapping photographs which were taken in 1984, secondly, a line of photographs along the top of the board in two different sections, taken on the 29th January 1988, which according to the note show "clearance of 50m strip within should have been left" and on the other section along the top on the right hand side of the board, being a series of 6 photographs stuck together, alongside these is a handwritten note - "illegal." I shall come back to this comment later. Next, in chronological order is the aerial photograph showing the subject land with a number of dots and blue lines to indicate various points in the land which is the aerial photograph taken on the 14th January 1989 and is part of Exhibit P12. The two photographs which were obviously taken from a small aircraft, noted as having been taken in November 1989, are on the second to bottom left of the board. There are then two photographs on the left-hand side of the board, Exhibit P13, showing a section of land, which has obviously been cleared and the date indicated on those photographs is the 4th April, 1990. There are two further photographs stuck together on the right hand side of the board, second to the bottom, which are also dated the 4th April, 1990 and show another section of the land and the clearing thereon. This photograph shows some wind rowing of the dead timber, presumably in preparation for burning. There is a single photograph dated 16 May 1990 taken from a small aircraft. I assume this was taken at the time of Miss Ronson's visit. The remaining photographs on Exhibit P13 which have a date, first a line of 6 photographs showing a section of the land where clearing had taken place and dated 23rd January 1991, and another series of 6 photographs with a red coloured vehicle on one of those photographs which were also taken on the 23rd January 1991, presumably at the time of Mr Steiner's visit. These series of photographs, particularly the lighter exposed ones near the bottom, show a clearer indication of some regrowth of the mallee and undergrowth. Dr Inns says in relation to these photographs, and the information given to him by Mr Steiner, who took some of the photographs that:- "I reached the conclusions that the regrowth of native vegetation on the areas in the northern third of Section 257, Hundred of Haines were at least 12 months old, that the rootstock of the mallee species of eucalypts, which were the dominant tree species on the land, remained in the ground, and that the variety of species of native plants present demonstrated that the vegetation had biological value." 29. Dr Inns also commented in his affidavit on certain sections of the plaintiff's affidavit, namely, paragraph 49.3 where the plaintiff stated that the first reason provided by the Authority for refusing an extension of time was that:- "An extension of time would have been to undertake, rather than complete, a clearance program." 30. The plaintiff had commented in that paragraph that all that was required to complete the clearance of his property and convert the land to pasture was "the application of seed and super, a follow up chaining and grazing with strategic removal of any regrowth." Dr Inns considered that the regrowth over a substantial portion of land which could have been cleared of native vegetation under the terms of the original consent of 1983, could have been done at some time prior to November of 1990. Secondly, Dr Inns commented on the statement in the plaintiff's affidavit that there was no indication in the Act as to what matters should be considered when determining an application for an extension of time, and that the application that the plaintiff had filed was identical to that made by Mr and Mrs Lockett who also applied for an extension of time to clear a larger area of scrub land of about 1,600 acres. The plaintiff had exhibited certain photographs which were "DCHH 18" to the plaintiff's affidavit. Dr Inns stated in paragraph 13 of his affidavit, that the application by Mr and Mrs Lockett forming part of the land in the photographs was dated 20th June 1989 and received by the Native Vegetation Management Branch on the 26th June 1989, some 17 months before the consent of the Planning Commission ceased to operate. The plaintiff's application was not received by the Branch until the 1st October 1990. The period of consent in relation to his land was due to expire on the 21st November, 1990. Dr Inns added:-
"The early receipt of the Locketts' application enabled
the Authority to seek and obtain from the applicants, before
their consent ceased to operate, particulars of their clearance
programme setting out the nature and timing of the future
clearance proposed by them. Also, if their application had been
considered by the Authority and refused within a reasonable time
of the making of the application, there would have been enough
time before the consent ceased to operate for the applicants to
complete the clearance authorised by the consent before the 21st
November, 1990. The early receipt of the application enabled
the Authority to negotiate with the landholders for a Heritage
Agreement over substantial areas of remaining native vegetation in
return for the applicants being able to complete development
of the property in an orderly fashion." 31. I shall come back to these aspects of Dr Inns affidavit later when dealing with the plaintiff's grounds for seeking a Judicial Review of the Authority's decision to refuse the extension of time. 32. The affidavit of Manfred Steiner, a Scientific Officer in the Department and under the direction of Dr Inns, was also filed by the defendant. He said that he first visited the subject land on the 4th April, 1990. On that date he took some photographs which he said were in the north western portion of the land and these are the photographs referred to above on the board, Exhibit P13. Mr Steiner said in paragraph 2 of his affidavit:-
"...it was apparent to me that some areas of native
vegetation have been levelled by chaining during the previous
year. There were no indications that any of the native
vegetation I saw on that occasion had been burnt or that the
land had been ploughed. I was unable to proceed further south
into the property by a four-wheel drive vehicle because of the
amount of regrowth of native vegetation on formed tracks over
the land." 33. He then refers to his visit to the Island and the land in January 1991, when he was instructed by Dr Inns to inspect the land and take photographs of the areas of that land which had been cleared of native vegetation under the terms of the consent given in 1983. He was also instructed to prepare a draft report for the Authority in respect of the application for an extension of time to clear the land. Mr Steiner said that he inspected the land on the 23rd January 1991 and took the photographs which are the photographs above referred to on the board Exhibit P13. He said these photographs were taken of a similar area to that photographed on 4th April 1990. He said that once again, he was unable to travel by vehicle to the more southerly parts of the land which could have been cleared under the terms of the consent:- "...because of the extent of the regrowth of native vegetation on the formed tracks." He confirms that on his return to Adelaide he drafted the report previously referred to by Dr Inns and signed by Dr Inns which is dated 29th January 1991 and is Exhibit "BEB 4" to affidavit of Mr Bishton. Mr Steiner states in paragraph 5 of his affidavit:-
"From my observations on 23 January 1991, I did not
consider that any further clearance operations had been
undertaken over the areas of the land inspected by me on that
date since I had inspected the land on 4 April, 1990. In my
view, having regard to the height of the mallee species in the
regrown areas and the diversity of the plant species in those
areas the regrowth would have been 12 to 18 months old by
January 1991." 34. Further, Mr Steiner says, that apart from the actual inspections in April of 1990 and January of 1991, he drove past the said land along the adjoining northern boundary road on several occasions between those dates. On one such occasion, in December 1990 as mentioned in the report which he prepared and is dated 29th January 1991, he observed the northern side of the property and was unable to see any indication of vegetation clearance activities on the land over the period between 4th April 1990 and the 23rd January 1991. Finally, he deposed to the fact that he prepared the photographs, Exhibit P13, on instructions from Dr Inns. 35. Mr J.R. Bradsen's affidavit was sworn on 18th November 1991. He is a Senior Lecturer in Law at the University of Adelaide, and was the Presiding Officer of the Native Vegetation Authority until the 1991 Act reformed that body and created the Native Vegetation Council in June of 1991 from which date Mr Bradsen has been the Presiding Officer of the Council. The Council was set up pursuant to the Native Vegetation Act of 1991. He says in his affidavit that both bodies maintain a separate existence. As the Presiding Officer, he attends each of the meetings referred to in his affidavit. The agendas for the Authority were prepared by the Native Vegetation Management Branch. They are delivered to the Authority members in the week proceeding the meeting. Mr Bradsen has a practice to study the agenda in preparation for giving full attention to the persons appearing. Persons who wish to appear before the Authority are allotted a time to do so. The procedure when an applicant appears is, that following a brief introduction by him, the applicant or their counsel are invited to explain all matters which they see as being important. He refers to a different practice which he adopted to that which had previously been in existence, namely, he insists that persons appearing before the Authority should feel that they are given the opportunity to say what they regard as significant, as this helps the Authority to get a better appreciation of the landholders circumstances for the purpose of assisting in making a decision. Following the landholders submission, Mr Bradsen then explains the matters which the Authority regards as of particular relevance and the applicant is asked questions and invited to comment. At the conclusion, his practice is to ask whether the applicant has any further questions or comments for the Authority. He also says that applicants are usually arranged to appear before the Authority at regular intervals during the morning session of the meeting. Decisions are not taken until the afternoon. This avoids keeping applicants waiting and allows the Authority sufficient time for discussion and reflection. It also enables the members of the Authority to explore more fully any differences of opinion they may have. Decisions are usually made on a consensus basis with dissents being recorded occasionally if requested. 36. Mr Bradsen said that he clearly recalled Mr Halloran's appearance. He recognized that there had been some frustration in relation to the February meeting when his application was rejected without Mr Halloran having had the opportunity to be heard. Although he was expecting Mr Halloran to be upset or angry, he was in fact "particularly calm and gentlemanly." Most of the submissions were presented by Mr McFarlane but on several occasions Mr Halloran responded to Authority member questions or elaborated on Mr McFarlane's submissions. Mr Bradsen paid careful attention to the discussion and noticed that Mr Halloran did as well. 37. The fact that Mr Halloran was not notified of the February meeting was an "oversight and undoubtedly an error as acknowledged by the Branch and the Authority". 38. Accordingly, at the March meeting Mr Bradsen emphasized to members of the Authority that the Authority must not feel constrained by having made the previous decision, but should give the matter full and fresh consideration in the light of the submissions put. Mr Bradsen also commented on the fact that there was some indication at the March meeting that Mr Halloran may have undertaken some illegal clearance as noted on Exhibit P13. There were some comments in Dr Inns report dated the 27th February 1991, to this effect which were before the Authority. In a brief discussion amongst the members of the Authority before Mr Halloran and Mr McFarlane entered to make their submissions, Mr Bradsen emphasized strongly that this was an entirely irrelevant consideration to a request for an extension of time. Mr Bradsen repeated that statement in the discussion during the afternoon prior to making the decision. 39. Mr Bradsen noted like Mr Halloran and Dr Inns, that the Act does not indicate expressly the considerations relevant to an extension of time for a clearance as distinct from an initial application for clearance where section 21 of the Act says that the Authority must have regard to relevant provisions of the Development Plan. Mr Bradsen said this matter was of essential concern when Mr Halloran appeared. 40. As to the submissions put by Mr McFarlane that biological considerations were dealt with at the time of the original application, and were therefore entirely irrelevant to an application for an extension of time, Mr Bradsen stated that Mr McFarlane submitted that the only relevant considerations were those personal to the landowner, involving in particular the extent of the clearance and factors affecting his ability to clear within time. Mr Bradsen said he recalled saying to Mr McFarlane that where an Act has as its central object and purpose, a concern for native vegetation:-
"...the biological value of the particular vegetation in question
could not be regarded as irrelevant. I recall using the phrase
'it strains one's credulity to accept that' in relation to Mr
McFarlane's submission that biological considerations were
irrelevant." 41. In his affidavit, Mr Bradsen also deals with the alternative argument that was put by Mr McFarlane to the Authority that, where the vegetation had been knocked down, it was no longer important habitat for wildlife. Mr Bradsen says in his affidavit that he put to Mr McFarlane that the importance of habitat must be considered in the longer term and that if his submission was correct, following a fire which had devastated an area, it would in the short run have no habitat importance and therefore would be able to be cleared. In relation to biological significance, the Authority had before it the report of Dr Inns. Members of the Authority also considered the fact that the National Parks and Wildlife Service had expressed a continuing interest in purchasing Mr Halloran's property, strongly indicating its biological significance. 42. In relation to the personal circumstances of the landholders, Mr Bradsen said that two members of the Authority, Messrs. Boundy and Smith as farmers themselves, treated these matters as important. They questioned Mr Halloran carefully as to the circumstances surrounding his clearance program and the delays. Following these discussions, members of the Authority unanimously concluded that the delays in clearing were not beyond Mr Halloran's control. Although members all expressed sympathy with Mr Halloran's dilemma, they all expressed the view that he had been free to break off negotiations for the sale of his property and continue clearing. The fact that he had not done so was seen as evidence that Mr Halloran may have seen commercial advantages in continuing those negotiations. Mr Bradsen said that in discussion with Mr Halloran and Mr McFarlane, he had indicated that the Authority would consider carefully the applicant's personal circumstances in addition to the biological matters regarded as relevant. 43. Mr Bradsen confirmed the statements in Mr Bishton and Dr Inns affidavits that, after hearing the submissions and after discussion in the afternoon, the members of the Authority including the two farmer members, were unanimous in the views that delays in clearance were not beyond the control of Mr Halloran, and were in a significant measure the result of his attempts to obtain the best commercial outcome for himself. The Authority was also unanimously of the view that the clearance had not proceeded far enough so that the request was to complete the clearance. The Authority took the view that the concept of completion should be measured particularly by reference to the extent of disturbance to the biological qualities of the area. Chaining, while dramatic in appearance, of itself does not affect a degree of disturbance such as is caused by cultivation, seeding and supering. In relation to the application by Mr and Mrs Lockett, Mr Bradsen indicated to the other members of the Authority that they must focus their attention on the particular property about which the application is being made. Mr Bradsen also expressed the view in his affidavit, that the photographs which he recalled seeing at the hearing, in particular the photograph with the bright red car on it, did not prompt any particular discussion at the meeting in the afternoon. He does recall the discussion regarding the photographs submitted by Mr Halloran while Mr Halloran was present. However, it was common practice for displays of photographs to be present during meetings of the Authority. Mr Bradsen said that as far as he personally was concerned, he would not allow a display of photographs to be presented in a closed discussion of the Authority which had not been present while the applicants were presenting their case. Generally, he found photographs were of limited assistance, either in assessing the extent to which clearance had been undertaken or in assessing the biological qualities of vegetation. He personally put far greater weight on the documented information based on field trips and that obtained by the applicant's submissions than on photographs. Quite often photographs gave a different impression to that which is gained by a field trip. He said that in the case of Mr Halloran's application, the hearing lasted in excess of an hour compared to the normal time of hearing for the Authority of about half an hour. Also, the time taken by members of the Authority during the afternoon to discuss the matter further, and reach a decision was in excess of an hour. 44. As to the letter of the 26th April, 1991 addressed to Mr McFarlane where the reasons for the decision were given, Mr Bradsen said that he was consulted before the letter was sent. Mr McFarlane was pressing for a statement of reasons before the Minutes of the April meeting had been confirmed as an accurate record, which normally would have taken place at the May meeting. As the letter was in effect in anticipation of the confirmed Minutes, Mr Bradsen was asked to check the contents of the letter and the reasons outlined. He agreed that the letter reflected the discussion of the Authority. Subsequently, at the May meeting the Authority adopted those minutes which I have referred to above, being Exhibit "BEB 11" to Mr Bishton's affidavit. THE RELEVANT LEGISLATION AND REGULATIONS THEREUNDER
extension of time ..." This resolution was followed up a letter
to Mr McFarlane dated 13th March, in which Mr Bishton stated:-
"In considering this request, the Authority gave due regard to
all the circumstances, including the repeated discussions with
the National Parks and Wildlife Service regarding purchase, but
resolved that it could not grant an extension of time ..."
(g) At the meeting on 8th April, 1981 the Minutes of the
Authority record that it resolved to advise Mr McFarlane that
the decision to refuse consent to an extension to clear native
vegetation on the plaintiff's land was unanimous and had regard
to the following factors:-
"(i) the extent to which additional time is necessary to
conclude a clearance programme that is substantially completed;
(ii) the extent to which the inability to complete the
clearance programme was due to circumstances over which the
landlord had no control; and
(iii) the biological value of the area. The Authority took
the view that an extension of time would have been to undertake,
rather than complete, a clearance programme, and that the delay
was not due to circumstances over which Mr Halloran had no
control. The Authority further took the view that the area has
a high biological value as indicated by, among other things, the
National Parks and Wildlife Service interest in its purchase."
8. It appears from the above resolutions in regard to the
various decisions made by the Authority relating to this
application, that somewhat different reasons were expressed by
the Authority after each decision. Be that as it may, it is
clear from the evidence as whole that neither Mr Halloran nor Mr
McFarlane were ever told:-
(a) That the refusal to grant an extension of time at the
February meeting was conditional upon the further enquiries to
be made by Dr Inns relating to any further clearance by Mr
Halloran on the property; nor
(b) That Mr Nicholas Newland, an Officer of NPWS was present
at Millicent at the February meeting of the Authority when
neither Mr Halloran nor Mr McFarlane were present and that there
was some communication between the Chairman and Mr Newland
relating to the interest of NPWS in land on which native
vegetation was growing; and
(c) That the application was in effect an application to
undertake clearance rather than to complete clearance.
Only Mr Bradsen would not agree with this last fact. However,
it appears from the whole of the evidence, that no submissions
were made in that regard, which, if attention had been directed
to such an approach being adopted by the Authority, one would
have expected Mr McFarlane to have referred to the words of
Section 21(5) of the Native Vegetation Management Act in which
it is stated that consent to undertake clearance shall operate
for a certain period or for such longer period as may be fixed
or subsequently on application by the person who has the benefit
of the consent. Clearly, the undertaking of clearance is a
progressive act on the wording subsection (5). No such
attention appears to have been directed to this point, which
ultimately played a significant part in the Authority's decision
as indicated by the reasons that were given at the Authority's
meeting on the 8th April, 1991. In his letter of application,
Mr Halloran stated that he would have the majority of the
section ploughed by November, and ready to seed in the following
Autumn, that is April-May 1991. There is no reference in the
evidence anywhere to Mr Halloran being questioned on this
aspect, although Mr Bradsen maintained that Messrs. Boundy and
Smith had asked Mr Halloran a number of questions about his
clearance program and the delays. As I understood the evidence,
the questions and discussion at the meeting on the 4th March,
centred around the issue as to whether those delays were or were
not beyond Mr Halloran's control. Clearly, the Authority came
to the conclusion that they were not beyond his control.
Implicit in this is the suggestion that Mr Halloran had in some
way stopped and started his clearing program over the years, in
that he had undertaken certain clearance programs and then
stopped while negotiations were taking place, and that when the
negotiations broke down, as clearly they did, he should have
immediately returned to his clearing program. The suggestion in
Mr Bradsen's affidavit that Mr Halloran had not broken off
negotiations for the sale of his property and continued
clearing, was seen as evidence of the fact that Mr Halloran may
have seen commercial advantages in continuing those negotiations
(see paragraphs 12 and 14 of Mr Bradsen's affidavit). It is far
from clear that the question of possible commercial advantages
in continuing the negotiations was ever put to Mr Halloran nor
to Mr McFarlane at the meeting in March. It was never suggested
as a relevant matter in any of the Authority's reasons including
the April Minutes.
9. Finally, it emerges from the evidence that there was a
clear inconsistency between the views of Mr Croft on the one
hand, in relation to the repeated clearance over five years
which had highly degraded the land and resulted in some of the
plant species diversity, leading to the conclusion that the
property had limited biological value, to that expressed by Mr
Steiner whose inspection of the property was obviously limited.
Indeed, Mr Steiner saw no evidence of the burn which clearly had
been lit and spread over some two-thirds of the property in June
of 1990, some six or seven months before Mr Steiner's visit.
The fact that the plaintiff carried out this burn, and there was
no evidence to the contrary that such a burn was successful, was
a clear indication that Mr Halloran had broken off the
negotiations. There does not seem to be any evidence to support
the Authority's view, if it held such a view, that the
negotiations were continuing and that the National Parks and
Wildlife Service were still interested in purchasing the
property after the price of $72,500.00 had been refused in May
of 1990. 141. What then are the legal implications of these factors and considerations which were debated before the Authority on the 4th March, 1991? I accept that there was a denial of natural justice by the failure to notify the plaintiff of the meeting on the 5th February 1991 at Millicent. 142. The Authority made no findings of fact as such. The proceedings were taped. Those tapes were destroyed when the Minutes of the particular meeting had been confirmed at the next meeting of the Authority. Accordingly, the evidence on this Judicial Review centred around, and was dispersed over a number of factual and legal issues, which were discussed at the Authority's meetings in November and December of 1990 and February, March and April of 1991. Ultimately, the refusal to extend the period to the applicant was supported by the reasons which were contained in the April minutes of the Authority and repeated in the letter to Mr McFarlane shortly after that meeting. In Australian Broadcasting Tribunal v. Bond and Others (1990) 170 CLR 321 the High Court was concerned with the provisions of the Administrative Decisions (Judicial Review) Act of 1977 (Cwlth). In that case Mr Bond and the Chief Executive of Bond Media and Bond Companies applied under the Administrative Decisions (Judicial Review) Act to the Federal Court to review various decisions, findings and rulings of the Australian Broadcasting Tribunal. The Full Court of the Federal Court allowed the applications in part and set aside the findings in relation to Mr Bond and the licencees -
(1990) 89 ALR 185. The Tribunal appealed, by special leave to the High Court. The High Court allowed the appeal and reversed the decision of the Full Court of the Federal Court. At page 341, Mason CJ said:-
"The expression 'judicial review', when applied to the
traditional review functions of the superior courts in our
system of justice, exercisable by means of prerogative writs and
the grant of declaratory relief and injunction, ordinarily does
not extend to findings of fact as such. To expose all findings
of fact, or the generality of them, to judicial review would
expose the steps in administrative decision-making to
comprehensive reviews by the courts and thus bring about a
radical change in the relationship between the executive and
judicial branches of government. Amongst other things, such a
change would bring in its train difficult questions concerning
the extent to which the courts should take account of policy
considerations when reviewing the making of findings of fact and
the drawing of inferences of fact." 143. Earlier, the learned Chief Justice had considered whether there was a reviewable decision in the Bond matter. His Honour emphasised the interpretation of the word "decision" in the Judicial Review Act. In my opinion what His Honour said at page 339 is of relevance here, particularly in relation to the reason expressed by the Authority that the plaintiff's application was in effect an application to "undertake" clearance, rather than to complete it. Mason CJ said at page 339:-
"...the Federal Court had jurisdiction under s.3(1) of the
AD(JR) Act to review the Tribunal's finding that the licensees
were no longer fit and proper persons to hold their broadcasting
licences under the Act. Although that decision was an
intermediate determination made on the way to deciding whether
to revoke or suspend the licences or to impose conditions on
them, it was a decision on a matter of substance for which the
statute provided as an essential preliminary to the making of
the ultimate decision.". 144. His Honour went on to point out that the particular matter upon which the Full Court of the Federal Court based its decision was in relation to a finding that "was not relevantly a 'decision'". 145. In the light of this dicta, I have isolated the following points as relevant to the decision of the Authority to refuse the plaintiff's application for the purpose of finding to what extent that 'decision' is reviewable by this court. PRINCIPLE 1(a) OF THE DEVELOPMENT PLAN AND SUPPLEMENTARY DEVELOPMENT PLAN
146. In my opinion this matter was relevant to the Authority's decision. The original consent in 1983 was granted in accordance with the Development Plan. However, it was not the only matter to which the Authority should have had regard in relation to the application for extension of the period. The evidence as I have pointed out above was conflicting as to the biological value of the native vegetation as at the time of Mr Halloran's application. The reviewable aspect of this approach and reason adopted by the Authority for at least the February decision, and to some extent for the March decision, is that the plaintiff was unaware of the favourable statements in the report of Mr Croft of November 1990. I shall come back to this under the heading of "Natural Justice and a Fair Hearing". UNDERTAKE CLEARANCE
147. Clearly, pursuant to section 21(5) of the Act, the plaintiff was at all stages undertaking clearance. It was never disputed that clearance had taken place during those five years. Indeed, the report of November 1990 stated that the plaintiff had carried out "repeated clearance" on the consent area. 148. When the Authority gave as one of its reasons, the characterization of the plaintiff's application as one of undertaking clearance rather than completing it, the Authority was clearly giving that as a reason for refusing the application. In my judgment this was an error of law in that the Authority was misconstruing the term "undertake" in relation to clearance by stating that the application was one to be classified in effect as an original application to clear land of native vegetation, where the land was in an uncleared state. Clearly in any view of the facts, this was a misconception. As I pointed out earlier, the plaintiff and his solicitor were never advised that this was an important issue for the purpose of the Authority's decision on the application to extend time. Under Section 21(5) of the Act, an original application to clear land is an application to undertake clearing, as is an application subsequently made by a person who has the benefit of the consent. The consent in that section is a consent "to undertake clearance". To contrast such a concept to completing clearance is in my judgment a misinterpretation of the subsection in the context of Part III of the Management Act relating to the control of clearance of native vegetation and not justified on a proper interpetation of Section 21(5). This is clearly supported by the provisions of Section 21(2) where consents under that Part of the Management Act may be granted subject to conditions and such conditions shall be binding on and enforceable against "the person by whom the clearance is undertaken, and any person who acquires the benefit of the consent." Any other interpretation of undertaking clearance in relation to Part III of the Act would in my opinion be untenable. FAIR HEARING AND NATURAL JUSTICE
149. The plaintiff was given no hearing on the 5th February 1991. In relation to the hearing on the 4th March 1991, there are at least two aspects which in my view are reviewable by this Court. (a) It was necessary for the Authority to ensure that the applicant was supplied with all relevant information. I have detailed above the documents, reports, letters etc. which were not supplied to the applicant at any time prior to or at the hearing on the 4th March, 1991. This requirement in order to achieve a fair hearing and natural justice is perhaps most clearly illustrated by the decision of the Court of Appeal in New Zealand of Daganayasi v. Minister of Immigration (1980) 2 NZLR 130, where the whole Court held in that case the Minister's decision was invalid on the ground of procedural unfairness, because the report and memoranda of the medical referee, or at least the substance of any prejudicial contents, should have been disclosed to the appellant or her advisers before a decision was made, to allow her a reasonable opportunity of answering them. The facts in that particular case are of no relevance or assistance in this Judicial Review. However, the President, Richmond P. at page 132 when agreeing with Cooke J said:-
"I agree with his conclusion that in the circumstances of this
case the dictates of fairness required that the memoranda and
reports to the medical referee, or at least their substance,
should have been disclosed to the appellant or her solicitor
before a decision was made, to allow her a reasonable
opportunity of answering them. On that ground I would allow the
appeal." 150. At page 145, Cooke J said:-
"The present appellant had bona fide and substantial
grounds for claiming that the statutory test was fulfilled; to
that extent she had a legitimate expectation of a favourable
decision. The Minister delegated the function of making
inquiries into the case to an outside medical referee. To
enable the appeal machinery to work effectively and fairly he
had implied authority to do this. The medical referee's report
and probably his previous memoranda also were taken into account
by the Minister in reaching a decision. They contained material
prejudicial to the appellant's case and the report was likely to
have given a wrong impression of the views of the specialist
clinic. In all these circumstances I would hold that they or
their substance should have been disclosed to the appellant or
her advisers before a decision was made, to allow her a
reasonable opportunity of answering them." 151. Richardson J at page 149 agreed with the Judgment of Cooke J in saying that:-
"...the administrative law principles of fairness required the
Minister to disclose to the appellant the prejudicial features
of the medical referee's memorandum and reports to the Minister
referred to by Cooke J and to give her a reasonable
opportunity of answering them before making a decision of her
application ...." 152. The present case is the other way round. The report of November 1990, in particular, was favourable to the plaintiff and this document, along with the reports of January and February, should have been disclosed to the plaintiff to give the plaintiff an opportunity to present submissions on that important issue, namely of the extent of the clearance which had taken place over 5 years, and the effect that it had had on the native vegetation in the consent area, and the extent of regrowth, particularly at the time of the application in relation to the extent of the further clearing. On this point, the plaintiff was proposing to bring the consent area, less those areas which were subject to the conditions of the original consent, up to a condition suitable for grazing stock. On the principles referred to in the New Zealand decision, and others which were referred to me in argument, I am of the opinion that the plaintiff was not given a fair hearing on the 4th March, 1991 and that in this regard the plaintiff was denied natural justice by way of procedural unfairness. (b) The substantive issue, if it was a substantive issue, namely, of undertaking clearance on and from the 21st November, 1990 rather than completing it during the ensuing two years, was an issue which should have been put clearly to the appellant. To a large extent this issue was tied up with the question of what clearance had in fact taken place over the previous five years, and to what extent the property had an amount of regrowth of native vegetation. In Daganayasi v. Minister of Immigration, supra, only Cooke J touched on this point where he expressed the opinion that the Minister's decision was also invalid on the ground of mistake of fact. In that case where the Minister had instructed a referee to ascertain the facts and report, the Minister should bear the responsibility for a misleading or inadequate report. The allegation of mistake of fact by the Minister in his statement that he had obtained the best and most up-to-date medical advice available had been established. In this regard the extent of Mr Steiner's inspection and the conflict between Mr Steiner's statement as to regrowth and Mr Croft's report of November, 1990 was of relevance. 153. However, in my opinion I consider that the emphasis placed by the Authority on the nature of the application as one to undertake clearance, rather than to complete it, was an issue which was not only based on a misconception of the proper interpretation of Section 21(5) but was also tainted with procedural unfairness, in that the importance of this issue was not drawn to the attention of the plaintiff and his solicitor at the hearing on the 4th March, 1991. As Mason J (as he then was) said in Kioa and Ors v. West and Anor (1985) 159 CLR 550 at 587:- "In this respect recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it." 154. The issue as to whether the plaintiff had some control over the negotiations and whether he should have broken off the negotiations and carried on with his clearing is left in a rather confused and inconclusive state on the evidence. It must have been discussed at the March meeting. There was some hint of this issue prior to the March meeting in that Mr McFarlane requested copies of any documents and letters etc. on this matter. There was no mention of this issue in Mr Bishton's letter of 6th February 1991 notifying the plaintiff that his application had been refused at the Millicent meeting the day before. The 'natural justice' aspect of this issue arises from the fact that Mr Newland was present at the February meeting, and the Presiding Officer admits that he had a conversation at some stage relating to the NPWS interest in land that still had native vegetation on it. As the Authority drew an inference about this "interest" in the plaintiff's land it is difficult to see on the evidence how this could be other than somewhat unfair as there was no evidence before me, other than Ms Ronson's affidavit which confirmed the plaintiff's evidence that the negotiations broke down in May 1990, and the fact that the plaintiff proceeded with his clearance by burning off some two thirds of the property in May/June 1990. I recognise that this issue was largely a question of fact and a matter for the Tribunal to determine. But in so far as it was a:- "...decision on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision" this would be reviewable; per Mason CJ in AB.T. v. Bond and Others supra, at page 341. I regard this issue as an additional reason to send the application back to the Authority to determine these facts after hearing the plaintiff's submissions as to this issue. 155. The grounds upon which the plaintiff seeks the judicial relief in this matter in relation to the March meeting of the Authority are set out in paragraph 54 of the plaintiff's affidavit. Those grounds are:- 54.1 The Authority took into account irrelevant considerations. I am not satisfied that the plaintiff has established this ground. 54.2 The Authority ignored relevant information put before it. For the reasons that I have expressed above, I am satisfied that the plaintiff has established this ground on the basis that although Principle 1(a) was relevant, I am satisfied that the Authority ignored relevant information relating to "clearance undertaken". The plaintiff held the benefit of the consent in relation to the area. The report of 5th November 1990 stated that substantial clearance had devastated the plant species, and that there was limited value of the biological significance in the consent area at the time of the application. 54.3 The Authority acted in bad faith. I am not satisfied that the plaintiff has established any bad faith in this matter. In fairness to the plaintiff, this ground was not pressed during the course of the hearing. 54.4 The Authority did not act according to law. I am satisfied that the plaintiff has established this ground on the footing of procedural unfairness in relation to at least the two matters referred to above, and probably a third matter discussed above. The authorities support the plaintiff's application for Judicial Review on this ground. Also, I am satisfied that the plaintiff has established that the Authority appears to have made an error of law in its interpretation of the plaintiff's application being in effect, an application to undertake clearance rather than complete it. Accordingly, in my opinion the Authority did not act according to law in expressing as one of the reasons for refusing the application, the statement which was not drawn to the attention of the plaintiff or his solicitor at the time of the hearing, that the application was in effect an application to undertake rather than complete clearing. 54.5 The Authority made findings of fact which were incorrect (the finding that clearance was being undertaken not completed). I have already indicated that this was not in my opinion a finding of fact, but an incorrect approach to the scope and purpose of the legislation in relation to an application to extend time as opposed to an original application for consent to undertake clearance. Thus the plaintiff is entitled to an order for Judicial Review not on this ground but under 54.4. 54.6 The Authority exhibited bias following on from its earlier decision on the 5th February 1991. This ground was argued basically as a form of bias arising from the constitution of the Authority being identical both at the February and March meetings. I am not satisfied that there is any such evidence of bias, nor in any other material which has been presented in this case. I would reject this ground. 54.7 The Authority reached a decision which in all the circumstances was unfair to the plaintiff, in that the plaintiff had a legitimate expectation that he would be granted an extension of time to complete the clearance. In the sense that the plaintiff was not fully advised of the relevant material, particularly that arising out of the report of November 1990, I am satisfied that there was a procedural unfairness which I have dealt above under 54.4. Other than that aspect of unfairness, I am not satisfied that the plaintiff has established this ground. 156. On these grounds I make the following orders as sought in paragraph 52 of the plaintiff's affidavit.
1. A declaration that the refusals of the plaintiff's
application determined by the Authority on the 5th February,
1991 and on the 4th March, 1991 are void and without effect.
Such decisions to refuse the application should be quashed.
2. I order that the defendant proceed to determine the
application for an extension of time received by the Authority
on the 1st October 1990 in respect of the clearance of the
consent area according to law.
3. A declaration that the consent granted in 1983 remain
valid until the first defendant hears the application according
to law as ordered in paragraph 2 hereof.
4. I shall hear the parties as to any further orders
consequential upon these reasons and the orders herein including
any questions as to costs of the proceedings.
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