Fletcher & Anor v Min for Environ & Heritage & Ors No. Scgrg-99-507 Judgment No. S223

FLETCHER and ANOR v THE MINISTER FOR ENVIRONMENT AND HERITAGE and ORS
[1999] SASC 223

Magistrates’ Appeal (Ex tempore)
Bleby J

The first defendant, The Minister for Environment and Heritage, is a body corporate under s7 of the Administrative Arrangements Act 1994. The Minister is responsible for the administration of the Botanic Gardens and State Herbarium Act 1978 (“the Act”). The second defendant, the Board of the Botanic Gardens and State Herbarium (“the Board”) is constituted a body corporate under the Act. The plaintiffs are the registered proprietors of the land comprised in Certificate of Title Registered Book Volume 4175 Folio 188 being the land on which a heritage listed house is built. It is referred to in the indenture to which I will later make reference as “the house allotment”. I shall use the same description.
The house allotment was formerly part of the much larger “Beechwood” estate which was sub-divided and sold in December 1980. The house allotment was purchased by Marbury School Incorporated. The balance of the land, referred to in the indenture as “the garden allotment”, on which is laid out an extensive garden was purchased by the Board. The garden, like the house is listed on the State Heritage Register.
It was always intended by the purchasers of both allotments that the integrity of the original unsubdivided property should be maintained without physical division. To that end, the original purchasers entered into an indenture relating to the use of their respective properties. The original indenture was replaced by one dated 7 April 1992, (“the Indenture”). In about 1993, Marbury School Incorporated sold its interest in the house allotment to the plaintiffs and also assigned to them its rights and interest under the Indenture.
The Board has certain statutory functions set out in s13 of the Act. Without going into detail it has ample powers to have entered into the Indenture and to manage the garden allotment for the purposes contained in that section. By virtue of s15 of the Act, the Board in the performance, exercise and discharge of its functions, powers or duties under the Act, except when it makes or is required to make a recommendation to the Minister, is subject to the general control and direction of the Minister.
The Board can only carry out most of its day to day functions by means of the Director, who is a statutory officer under the Act, and other staff engaged or appointed under s20 of the Act. The Director is “a person employed in the Public Service of the State”. Other staff are either persons employed in the Public Service, persons appointed by the Minister to assist in the administration of the Act or persons appointed by the Board with the approval of the Minister on conditions approved by the Commissioner for Public Employment. In the absence of any other information I can only presume that many of the day to day functions of the Board are delegated to the Director and other staff employed for the purposes of the Act. I would certainly be prepared so to infer in respect of the appointment to and exercise of powers of the Management Committee under the Indenture to which I will in due course refer.
The power of general direction or control vested in the Minister is limited to general direction and control of the Board. The Minister does not have day to day control over the Director or the staff. The Indenture contains a number of provisions regulating access of the plaintiffs to and their use of the garden allotment and of the Board to the house allotment. It contains provisions for the maintenance of both, and generally regulates the relationship between the two owners in a manner to be expected in such a cooperative joint venture, where on the one hand the house is a private residence and on the other hand the gardens are to be managed and to have public access regulated by the Board, and where there is deliberately no dividing fence or indication of the boundaries between the two allotments.
Although s27 of the Act confers a regulation-making power on the Governor to make provision in respect of any aspect of the administration of property vested in the Board and to prescribe conditions under which the public may have access to or use such property, my attention has not been drawn to any such regulations. The relationships between the Board and the plaintiffs appear to be governed exclusively by the Indenture.
Clause 14(a) of the indenture provides as follows:
“(a)....... The parties will establish a Management Committee comprising no more than three persons who shall consist of one representative of the House Owner [in this case the plaintiffs], one representative of the Garden Owner [in this case the Board] and one representative of the Minister of Environment and Planning of South Australia (or such other Minister as may from time to time administer the South Australian Government’s relations with the Garden Owner) for the discussion and resolution of all matters which may arise from time to time concerning the respective uses from time to time made of the garden allotment and of the house allotment and the detailed functioning of the arrangements contemplated by this Indenture and all other matters of mutual concern.”
I note that the provisions of that sub-clause do not merely provide for consultation but include a power to resolve matters which may arise from time to time concerning the respective uses from time to time made of the two allotments, the detailed functioning of the arrangements contemplated between them and other matters of mutual concern. Clause 14(b) provides:
“(b)....... The House Owner acknowledges that from time to time the representative of the Minister and Garden Owner may be the same person.”
Sub-clause (c) provides for the calling of meetings of the Management Committee. Sub-clause (d) provides:
“(d)....... The parties acknowledge that the Garden Owner has control of all parts of the garden allotment (including parts of which the house owner has use) and may as of right regulate and control all activities thereon in a manner consistent with the terms of this Indenture; nevertheless, any proposed regulation or control of the House Owners’ activities on the garden allotment shall be discussed and considered at a Management Committee meeting before being implemented or stipulated by the Garden Owner (but the Management Committee shall have no power to restrict the Garden Owner in the exercise of any of its rights).”
Sub-clause (d), although it constitutes an acknowledgment that the Board may regulate and control activities on the garden allotment, provides that it may only do so in accordance with the Indenture. It does not purport to confer on the Board the exclusive right to regulate and control such activities where they impinge on the quiet enjoyment of the house allotment by the plaintiffs. Such will inevitably be the case when the garden allotment is open for public inspection and the public is unable to discern the separate ownership of the house allotment and where its boundaries are. Furthermore, the exercise of the Board’s right to control is subject to the terms of the indenture itself.
Clause 14(e) provides:
“(e)....... No decision of the Management Committee shall be binding upon the Garden Owner or the House Owner until it has been agreed to by the representatives of each of them, nor shall any decision of the Management Committee restrict or modify any of the rights and obligations expressed in this Indenture (and it is hereby acknowledged and declared that such rights and obligations are intended to be varied only by execution of some appropriate formal instrument duly executed by the parties).”
Paragraph (e) reinforces the view that the Committee of Management has power to resolve and decide matters under the Indenture and that it will make binding decisions on such matters.
Since the plaintiffs have been the owners of the house allotment the Management Committee has only ever comprised the male plaintiff and the Director of the Board. I infer that the Minister has acted under clause 14(b) and has been happy to have her interests on the Committee represented by the Director or his nominee.
Clause 9 of the Indenture reads as follows:
“9.......... The garden allotment will and may be open for general public admission:-
(a)...... during two seasons of public opening of the garden allotment (of not more than six weeks each) in Spring and Autumn each year;
(b)for wedding ceremonies as authorised by the Garden Owner; and
(c)...... upon other special occasions as arranged or authorised by the Garden Owner after consultation with the House Owner.”
The precise days and times at which the garden allotment will be open during its seasonal openings under para (a) is a matter plainly to be dealt with by the Management Committee under clause 14 as part of the co-operative scheme for the management of both properties. I would have little difficulty in reading an implied term into that clause of the Indenture that the period of opening under clause 9(a) will be a reasonable period in the circumstances. Reasonableness of course will need to take into account the interests of both parties, given the intrusion and effect on the house allotment that public admission to the garden allotment will inevitably have.
Not unnaturally the plaintiffs are concerned about security of their property when the garden is open to the public. The Board in the past has apparently supplied one staff member to supervise the opening, but the plaintiffs consider that that is insufficient, especially on busy weekends, and they resolved that for that reason they would stay at home during periods that the garden is open for the Autumn and Spring seasons, especially at weekends, in order to ensure that security of their property is maintained at a high level.
The male plaintiff deposes in his affidavit, and this is not in question, that prior to 9 March 1999 Dr Morley, the Director of the Board, and himself, as members of the Management Committee, determined by agreement between them that the gardens would be open for the current Autumn season between 18 April 1999 and 16 May, a period of four weeks and one day. That agreement was confirmed in writing by the Board by two letters dated 9 March 1999 which were sent to the plaintiffs.
Following receipt of those letters the plaintiffs determined to arrange an overseas holiday. They say, and this is not disputed, that they deliberately determined not to leave Adelaide until the end of the agreed public inspection period, given their desire, for security reasons, to remain at home during inspection periods. The plaintiffs intend to leave Adelaide to travel overseas for a three week period on 17 May 1999, being the day following the end of the Autumn inspection period agreed by the Management Committee, comprising the male plaintiff and Dr Morley.
On 14 April 1999 the male plaintiff received a telephone call from Mr Schultz, who is described as an associate of Dr Morley, who indicated that the Minister had made a determination without consulting the Management Committee that the gardens would be open for public inspection for a period during Autumn of 1999 from 18 April to 30 May, being a period of six weeks and one day in lieu of the period previously agreed upon by the Management Committee. The plaintiffs objected to that additional opening period, nevertheless the extended period of opening was advertised in “The Advertiser” on Saturday, 17 April 1999.
There followed extensive correspondence between the plaintiffs’ solicitors and the Minister in which the Minister’s power to do what she had done was challenged and proceedings were threatened, and in which the Minister asserted her right to determine when the gardens should be open and remained firm as to her resolve. There could be no doubt that the Minister considered that it was her right to determine when the garden allotment would be open and that it was her decision that it should be open until 30 May. In her letter to the plaintiffs’ solicitors dated 22 April 1999 she said:
“Whilst clause 14(a) [of the Indenture] clearly establishes the Management Committee referred to in your correspondence, it is equally clear that the Management Committee has no power to restrict the Board or indeed the Minister in the exercise of any of its rights [including those rights set out in clause 9(a)] provided that always the exercise of those rights is consistent with the terms of the Indenture. I consider my decision to open the gardens for a six week period during the Autumn season, (sic) to be consistent with my powers under the terms of the Indenture, regardless of the duration of any open periods during previous years.
As my decision falls within the provisions of the Indenture, I do not propose to vary my decision to open the gardens for a period of six weeks. Accordingly, my direction to my staff to advertise the period of extension will remain.”
The Minister subsequently offered to increase the security in respect of the plaintiffs’ house during public openings for that period that the plaintiffs might be away from their house.
On 23 April 1999 the plaintiffs’ solicitors wrote, as part of a much longer letter to the Minister:
“My clients acknowledge and appreciate the offer you have put to increase the security surrounding their property. They accept the offer of increased security as being made in the spirit of compromise in an attempt to resolve this dispute amicably without the parties resorting to the issue of proceedings. Accordingly in the same spirit of compromise and taking all of my above comments into account, my clients propose the following be agreed:
1......... That the inspection period be extended to Friday 28 May 1999 in lieu of Sunday 30 May 1999.
2.That the additional security offered by you be in attendance as proposed during that period.
3......... That the hours of inspection on Sundays be set at 10 a.m. to 4 p.m.”
That was clearly intended, in my opinion, to be a package proposal for settlement and not open to be accepted piecemeal. In her response of 29 April the Minister accepted paragraphs 2 and 3, but rejected paragraph 1, and insisted on her original opening proposal, or an alternative of being open every Saturday during the six week period.
By letter of 3 May 1999 the plaintiffs rejected the Minister’s proposal and offered to meet to endeavour to conciliate a resolution of this and other matters about which they had expressed concern, and indicated that if such a meeting had not taken place before 5 May, proceedings would be issued. The meeting did not take place and these proceedings were issued and served on that day.
By their summons the plaintiffs seek the following orders:
An order in the nature of certiorari quashing the decision of the Honourable Dorothy Kotz MP, Minister for Environment & Heritage (made by letter dated 22 April 1999) whereby the Minister purports pursuant to the terms of an Indenture dated 7 April 1992 between the Board of the Botanic Gardens and the plaintiffs to direct that of (sic) the ‘Beechwood Heritage Gardens’ at Stirling in the State of South Australia shall be open for public inspection between the 18th day of April 1999 and the 30th day of May 1999.

A declaration that the Honourable Minister has no power pursuant to terms of the said Indenture to make such a decision and direction.

2a.A declaration that the Honourable Minister and/or the Board of the Botanic Gardens are estopped from now directing and/or asserting that the period during which the garden allotment will be opened for general public admission is other than for the period 18 April 1999 to 16 May 1999 by reason of a resolution to that effect made by the Management Committee, and/or by reason of the Board's letters dated 9 March 1999 to the plaintiffs, upon which resolution and/or letters the plaintiffs have relied to their detriment.

An injunction until further order restraining the Honourable Minister from directing the Board of the Botanic Gardens to publicly advertise her said decision.

An injunction until further order restraining the Board of the Botanic Gardens from publicly advertising the Honourable Minister’s said decision.

A mandatory injunction requiring the Board of the Botanic Gardens to forthwith insert an advertisement in “The Advertiser” newspaper advising that the “Beechwood Heritage Gardens” will not be open for public inspection between the 18th day of April 1999 and the 30th day of May 1999, but in lieu thereof between the 18th day of April 1999 and the 16 day of May 1999.

An order for costs.

Paragraph 2a was inserted by amendment at the hearing of the action.
On 7 May 1999 the Crown Solicitor, then acting for the Minister, wrote to the plaintiffs’ solicitors as follows:
“I refer to your letter of 23 April 1999 and in particular to your client’s (sic) three proposals for settlement of this matter.
As you are aware, by letter dated 29 April 1999, the Honourable Minister agreed to the second and third settlement proposals.
I am now instructed that the Honourable Minister will agree to your client’s (sic) first proposal namely, that the inspection period be extended to Friday 28 May 1999 in lieu of Sunday, 30 May 1999.
In agreeing to these proposals, the Honourable Minister puts your client’s (sic) on notice of the desire to increase the level of public access being provided to the gardens for the following season. Further it is proposed that issue will be discussed with your clients between the time they return from overseas and the opening of the spring season.”
As a result of that letter the Minister now asserts that there has been agreement and that, accordingly, the plaintiffs cannot claim the relief they seek.
The question of the alleged agreement can be shortly disposed of. By her letter of 29 April the Minister rejected the plaintiffs’ offer and made a series of counter-proposals. The effect of that letter was a final rejection of the plaintiffs’ previous offer which cannot now be revived merely by the offeree, that is the Minister, purporting later to accept the proposal: Hyde v Wrench (1840) 3 Beav. 334; 49 ER 132; Harris v Jenkins [1922] SASR 59. The Crown Solicitor’s letter of 7 May purporting to accept the plaintiffs’ offer was ineffective.
Furthermore, the Minister’s counter-offer was rejected by the plaintiffs on 3 May. By commencing these proceedings for the relief that they then sought the plaintiffs were impliedly, if not expressly, withdrawing any previous offers that they had made and were seeking to have effect given to the arrangements for the opening of the garden that they considered had been made in accordance with the provisions of the Indenture. It was not then open to the Minister to accept the proposal contained in the plaintiffs’ letter of 23 April that she had previously refused to accept, and which has been the principal sticking point from the outset.
I say that on the assumption that the matter was capable of resolution by agreement between the plaintiffs and the Minister in any event. However, in my opinion it was not. The Indenture provided for the mechanism by which agreement would be reached for the opening times of the garden allotment. On the evidence before me, for the Autumn season of 1999 and, indeed it would seem for the Spring season of 1999 also, that was done by means of the Management Committee established under clause 14 of the Indenture. Clause 14 required, and on the evidence before me this occurred, a tripartite agreement. That agreement could not be varied merely by agreement between the plaintiffs and the Minister without the approval of the Board or its delegate pursuant to clause 14. That, as far as I can see, had not been forthcoming.
So for all those reasons I reject the Minister’s submission that the correspondence between herself and the Crown Solicitor on the one hand and the plaintiffs’ solicitors on the other hand constitutes a binding agreement.

I turn then to the merits of the plaintiffs’ claims. As I have already said, the method of determining the seasonal opening of the gardens is contained in the Indenture. It requires consultation by way of the Management Committee and a three-way agreement. It is not within the province of the Minister to determine unilaterally as she purports to have done, as described in her letter of 22 April 1999, the relevant part of which I have already quoted. That part indicates a grave misconception on the Ministers part as to her powers.
In the first place she only has power to give “general control and direction”, and then only to the Board. She does not have power to direct the staff of the Board. There is no suggestion in any of the materials that she has even consulted with the Board, let alone given any directions to how and in what manner the Board should control the opening hours of the properties for which it is responsible.
Counsel for the Minister, Mr Walter, conceded in argument that the Minister had no power to determine when the gardens should be open. In my opinion that was a concession properly made. It does not, however, reflect the view taken by the Minister at the time. Rather, Mr Walter argued that the sole power of determining when the garden allotment should be open for public inspection was vested in the Board. He argued that that power was conferred by clause 14(d) of the Indenture. I disagree. I have already explained the relevant terms of the Indenture and what I consider is required to occur in relation to the seasonal opening times of the garden allotment.
The Board has agreed on the material before me to restrict the exercise of its powers in accordance with the terms of the Indenture which it has lawfully entered into, and by which it and the Minister are bound. It is not for the Board or the Minister to take upon themselves to exercise such powers without regard to the terms of the Indenture.
In my opinion the Minister acted beyond her power in purporting to direct the period during which the gardens should be open. Furthermore, to the extent that the Board now asserts, as it does, that it has the power to determine unilaterally the seasonal opening and closing times of the garden allotment, it has no power to do so either.
The defendants concede that there has been no meeting or consultation through the Management Committee since the plaintiffs were informed of the Minister’s purported decision. The defendants nevertheless rely on what they regard as consultation in the correspondence which has followed between the Minister’s office and the Crown solicitor on the one hand, and the plaintiffs’ solicitors on the other.
In my opinion to suggest that what has passed amounts to consultation is to close one’s eyes to reality. On the one hand the Minister was seeking to justify a decision she had already made, and on the other hand the plaintiffs were seeking to negotiate alternative arrangements in the light of that decision. In any event, in my opinion it is a matter for the Management Committee, not only to consult about but to decide upon reasonable opening times. That has not occurred to vary the arrangement which is presently in place.
If I am wrong in what I have said, I would nevertheless hold that the Minister, and in particular the Board, is estopped from asserting any right to determine that the gardens should be open beyond 16 May 1999.
Following the apparent agreement reached by the Management Committee, the Board wrote to the plaintiffs on 9 March 1999 recording the times at which the gardens would be open to the public for the Autumn and Spring seasons of 1999. The plaintiffs relied on the fact that the Minister had never appointed an additional person to the committee of management and was entitled to and did rely on the fact that the Director was reaching the agreement that was made on behalf of the Board and the Minister. That was accurately recorded by the letters which came on 9 March from the Board.
The plaintiffs also relied on both those letters by making arrangements to go overseas at a time when they considered, in accordance with the recorded arrangements, that security risks in relation to the house and garden would be minimal. Whatever may be the validity of the Minister’s decision which subsequently followed, it was plainly within the power of the Board or its delegate to make and record the agreement.
The plaintiffs, in relying on the authority of the Director to record the agreement on behalf of the Minister and the Board, and in relying on the subsequent letters, did so to their detriment by so arranging their business affairs and by making commitments to travel overseas on holiday in the belief that security for the property during that time would be adequate, so long as it was not open to the public.
In my opinion that was an identifiable detriment to the plaintiffs. It was not merely speculative, and in that regard I would distinguish this case from the facts in Mortgage Acceptance Nominees Ltd v Australian Thoroughbred Finance Pty Ltd (1996) 69 SASR 302.
It is a detriment of the kind required to find that departure from the representations by the Board would be unconscionable. It does not disappear merely because, and it is nothing to the point that, during the course of negotiations the Minister or the Board offered to put in place additional security arrangements by way of compromise of the dispute, which compromise was not effected. Neither is it anything to the point that the Board may now still be willing to put such arrangements in place.
The Minister and the Board are now estopped, in my opinion, from asserting any rights that they might otherwise have had to require the gardens to be open beyond 16 May: The Commonwealth v Verwayen (1990) 170 CLR 394.
The question then arises whether the plaintiffs are entitled to an order by way of certiorari to quash the purported decision of the Minister. I do not wish to become embroiled in the controversial and, in the circumstances, somewhat barren argument as the availability of certiorari against an exercise of Ministerial power, and whether it only goes where an authority has power to and does act judicially: R v Wright ex parte Waterside Workers Federation of Australia (1955) 93 CLR 528 at 541-42; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.
In my opinion an effective remedy lies in declaratory relief and for an order by way of injunction which is permitted against the Crown and its instrumentalities by virtue of the Crown Proceedings Act 1992. However, the plaintiffs cannot obtain mandatory injunctive relief.
I therefore propose and do order in the following terms:
A declaration that the purported decision of the Minister for Environment & Heritage referred to in her letter to the plaintiffs’ solicitors dated 22 May 1999 whereby she purported to direct that the Beechwood Heritage Gardens at Stirling in the State of South Australia shall be open for public inspection between 18 April 1999 and 30 May 1999 inclusive is invalid and of no effect.
A further declaration that the Board has no power unilaterally to determine the period during which the said gardens shall be open for public inspection pursuant to clause 9(a) of the Indenture dated 7 April 1992 between the Board and Marbury School Incorporated.
An order that the defendants be restrained and an injunction is hereby granted restraining the defendants from opening the said gardens for public inspection after 16 May 1999 pursuant to clause 9(a) of the said Indenture in respect of the Autumn season of 1999.
That the defendants be restrained and an injunction is hereby granted restraining the defendants or either of them from advertising to the public that the said gardens will be open for public inspection other than for the period ending 16 May 1999 and for such other period or periods as they may lawfully be so opened in accordance with the provisions of the said Indenture.
That the defendants do pay the plaintiffs’ costs of and incidental to this application to be taxed.

[1999] SASC 223

12 May 1999