Forrester v Messner
[2003] NFSC 3
•20 JUNE 2003
SUPREME COURT OF NORFOLK ISLAND
Forrester v Messner [2003] NFSC 3
ADMINISTRATIVE LAW – Subdivision application – Application refused by Administrator – Whether Administrator erred in law in applying the Planning (Subdivision) Code – Whether Administrator’s decision was void for unreasonableness – Whether members of Planning Board made a manifestly unreasonable decision in concluding that the circumstances of the application were not “exceptional” within the meaning of relevant moratorium legislation.
Subdivision (Moratorium) Act 2000 (NI) ss 3, 5
Subdivision Act 1996 (NI) s 8
Planning (Subdivision) Code (NI) cll 1, 2
JOHN KENNETH FORRESTER v ANTHONY JOHN MESSNER as ADMINISTRATOR OF NORFOLK ISLAND
SC 8 of 2002
JOHN KENNETH FORRESTER v TRACEY LOUISE YAGER as a MEMBER OF THE PLANNING BOARD, GEORGE RALPH WESLAKE as a MEMBER OF THE PLANNING BOARD, AARON VINCENT GRAHAM as a MEMBER OF THE PLANNING BOARD and TREVOR PAUL GOW as a MEMBER OF THE PLANNING BOARD
SC 9 of 2002
WILCOX J
20 JUNE 2003
SYDNEY (HEARD AT NORFOLK ISLAND)
IN THE SUPREME COURT
OF NORFOLK ISLAND
SC 8 of 2002
BETWEEN:
JOHN KENNETH FORRESTER
PLAINTIFFAND:
ANTHONY JOHN MESSNER as the ADMINISTRATOR OF NORFOLK ISLAND
DEFENDANTJUDGE:
WILCOX J
DATE OF ORDER:
20 JUNE 2003
WHERE MADE:
SYDNEY (HEARD AT NORFOLK ISLAND)
THE COURT ORDERS THAT:
1. The proceeding be dismissed.
2.The plaintiff, John Kenneth Forrester, pay to the defendant, Anthony John Messner, his costs of the proceeding.
IN THE SUPREME COURT
OF NORFOLK ISLAND
SC 9 of 2002
BETWEEN:
JOHN KENNETH FORRESTER
PLAINTIFFAND:
TRACEY LOUISE YAGER as a MEMBER OF THE PLANNING BOARD
FIRST DEFENDANTGEORGE RALPH WESLAKE as a MEMBER OF THE PLANNING BOARD
SECOND DEFENDANTAARON VINCENT GRAHAM as a MEMBER OF THE PLANNING BOARD
THIRD DEFENDANTTREVOR PAUL GOW as a MEMBER OF THE PLANNING BOARD
FOURTH DEFENDANTJUDGE:
WILCOX J
DATE OF ORDER:
20 JUNE 2003
WHERE MADE:
SYDNEY (HEARD AT NORFOLK ISLAND)
THE COURT ORDERS THAT:
1. The proceeding be dismissed.
2.The plaintiff, John Kenneth Forrester, pay the defendants, Tracey Louise Yager, George Ralph Weslake, Aaron Vincent Graham and Trevor Paul Gow, their costs of the proceeding.
IN THE SUPREME COURT
OF NORFOLK ISLAND
SC 8 of 2002
BETWEEN:
JOHN KENNETH FORRESTER
PLAINTIFFAND:
ANTHONY JOHN MESSNER as the ADMINISTRATOR OF NORFOLK ISLAND
DEFENDANT
IN THE SUPREME COURT
OF NORFOLK ISLAND
SC 9 of 2002
BETWEEN:
JOHN KENNETH FORRESTER
PLAINTIFFAND:
TRACEY LOUISE YAGER as a MEMBER OF THE PLANNING BOARD
FIRST DEFENDANTGEORGE RALPH WESLAKE as a MEMBER OF THE PLANNING BOARD
SECOND DEFENDANTAARON VINCENT GRAHAM as a MEMBER OF THE PLANNING BOARD
THIRD DEFENDANTTREVOR PAUL GOW as a MEMBER OF THE PLANNING BOARD
FOURTH DEFENDANTJUDGE:
WILCOX J
DATE:
20 JUNE 2003
PLACE:
SYDNEY (HEARD AT NORFOLK ISLAND)
REASONS FOR JUDGMENT
WILCOX J:
These two matters arise out of a proposal by John Kenneth Forrester, the plaintiff in each of them, to subdivide land (Portion 1d) owned by him in the Cascade area of Norfolk Island. The defendant in the first matter (SC 8 of 2002) is the Administrator of Norfolk Island. In the second matter (SC 9 of 2002) the defendants are four members of the Planning Board (“the Board”).
The facts
(i) Background
By application 76/2000 dated 22 May 2000, Mr Forrester applied under the Planning Act 1996 (NI) for approval to subdivide Portion 1d (which contains 5.007 ha) into six allotments. One week later, before this application was determined, Mr Forrester submitted three additional applications: application 18/2000 for extensions of an existing gazebo and for a change of use of the gazebo to include one tourist accommodation unit; application 71/2000 for additions to an existing equipment building; and application 78/2000 for change of use from residential to tourist accommodation in respect of two other buildings.
On 5 June 2000, Cheryl LeCren, Secretary to the Board, wrote to the surveyor who had prepared the subdivision plan, Donald Taylor, questioning the number of allotments proposed to be created. She suggested only five allotments were permissible under the Planning (Subdivision) Code (“the Code”). Ms LeCren set out calculations supporting her conclusion. A critical element in her calculations was the perceived need to reduce the available subdivision area by 5,973 square metres, being the part of Portion 1d that was contained within an Environmental Protection Area (“EPA”) strip of land, 50 metres wide, that ran along the coastal (northern) boundary of Portion 1d.
On the same day, Mr Taylor responded, disputing that the width of the EPA within Portion 1d was 50 metres. He pressed the application.
On 3 July 2000, the Minister for Health and Environment decided to refer all Mr Forrester’s applications to the Board “to be processed as Category 3 applications”. There is an issue, which it is not necessary to determine in the present proceedings, as to whether the Minister acted correctly in making that decision. Whether or not he was correct, the practical effect of the decision was that all the applications, including the subdivision application, were processed in accordance with s 26 of the Planning Act. That section required the Board “to hold a public meeting to consider the application on a date (no earlier than 28 days after the date of the notice) and at a place specified in the notice”.
Mr Forrester’s applications came before the Board at a meeting held on 13 July 2000. Arrangements were made for them to be considered at a public meeting to be held on 24 August 2000.
In the meantime, on 18 July 2000, the Subdivision (Moratorium) Act 2000 (NI) (“the Moratorium Act”) came into force. Section 3 of that Act sets out its objects, as follows:
“(a)to prohibit the acceptance of, or consideration of, new subdivision applications or subdivision proposals as defined in section 5 of the Subdivision Act 1996; and
(b)to enable a review of the provisions of the Subdivision Act 1996 in conjunction with an overall review of the Planning Act 1996.”
Section 5 of the Moratorium Act provided:
“(1)Subject to the provisions of subsections (2), (3) and (4) of this section, the Administration and the Planning Board must not, after the commencement of this Act, accept or consider a new subdivision application.
(2)A subdivision application made and lodged with the Administration prior to the commencement of this Act shall be accepted and considered as if this Act had not come into operation.
(3)An application for final planning approval of a subdivision proposal under subsection 11(2) of the Subdivision Act 1996 shall be treated as if it were an application to which subsection 5(2) of this Act applies if at the date of commencement of this Act –
(a)the proposal had been given in-principle planning approval; or
(b)the proposal was the subject of an application for in-principle planning approval made and lodged with the Administration or the Planning Board.
(4)On application made in writing, the Planning Board may accept and consider a subdivision application if it considers the circumstances relating to the application are exceptional and, in that event, the application shall be treated as if it were an application to which subsection (2) applied.”
Section 7 stated that the Moratorium Act “shall continue to have effect until 12 months after its commencement”.
Apparently the view was taken (no doubt correctly) that Mr Forrester’s subdivision application (76/2000) was covered by the saving provision in s 5(2) of the Moratorium Act. It continued to be processed.
All four of Mr Forrester’s applications were discussed at the meeting of 24 August, which he attended and addressed. Subsequently, the Minister conditionally approved applications 18/2000 and 78/2000. Mr Forrester was unhappy about the conditions and he applied for review of them by the Administrative Review Tribunal. A decision of that Tribunal was the subject of an appeal by the Minister to this Court, but the appeal was settled by consent orders made on 4 February 2001.
(ii) The Administrator’s decision
No immediate decision was made about the subdivision application (76/2000). Accordingly, on 15 February 2001, Mr Forrester applied to the Administrative Review Tribunal for review of the Board’s deemed refusal of this application. Shortly thereafter, he became aware of a Minute of a Board meeting of 12 February 2001 in which his subdivision application had been discussed. The Board had raised an additional issue, the need to create public roads within Portion 1d to provide access to some of the new allotments. The Board thought the area of these new roads would need to be deducted from the area of land available for subdivision. On 23 February 2001, the Chairman of the Board referred the subdivision application to the Administrator, with a recommendation for refusal. He expressed these reasons:
“It is the Board’s understanding that whilst a registered easement can be included in the calculation of a portion the same is not the case for a public road. Therefore the calculation of the portions proposed in the subdivision of 1d must exclude
1.the EPA zone of 50 metres from break in slope along the coastal boundary, AND
2. the area of the public road required to access the five (5) portions without direct access to the existing easement from Mill Road.” (Original emphasis)
The Administrator accepted this recommendation and, on 8 March 2001, he wrote to Mr Forrester advising him of his decision.
Thereafter, in the period to 28 April, there were several meetings and discussions about the six-lot plan, including a meeting between Mr Forrester and the Administrator on about 19 April 2001. Mr Taylor continued to argue the six-lot plan was permissible and Mr Forrester pressed this application until 28 April 2001, when Mr Taylor intimated Mr Forrester would accept a five-lot subdivision. Apparently, however, it was not until 22 May 2001 that Mr Forrester submitted to the Administrator a five-lot plan. He did this pursuant to an invitation by the Administrator to submit an amended application that would comply with the Subdivision Act 1996 (NI) and the Code.
The Administrator referred the amended subdivision application to the Board. The Board considered it at its meeting of 1 June 2001 but determined it failed to comply with s 8(2)(c) of the Subdivision Act. That paragraph says an application for an “in-principle planning approval of a subdivision proposal shall only be processed” under s 25 of the Planning Act if “it is made in accordance with the Planning (Subdivision) Code”. The Board thought it did not do so, for the following reasons:
“1.Under the Subdivision Code, Section 3(a), which states that where four or more portions to be created by a subdivision do not have direct access to a public road or an existing easement then the access created to those portions shall be declared a public road, it is the case that the access way on the proposed subdivision of portion 1d must be declared a public road (reference previous legal advice obtained for the original application).
2.As the area of a public road must be excluded from the calculation of those portions to be created within any new subdivision then portions 1d2, 1d3, & 1d4 do not comply with the Subdivision Code, Section 2, ss 1(d) in that they will become less than the minimum requirement of 8090m².”
The Board referred the amended subdivision application back to the Administrator with the recommendation that it be refused on the grounds of non-compliance with section 2(1)(d) of the Code.
Mr Wayne Richards, solicitor for Mr Forrester, sent a submission to the Administrator about the Board’s reasoning. However, on 28 June 2000, the Administrator notified Mr Richards of his decision to accept the Board’s recommendation. This decision is called into question by Mr Forrester in proceeding SC 8 of 2002.
Mr Richards requested a statement of the Administrator’s reasons. It was supplied on 5 July 2001. Under the heading “Background”, the statement referred to the early history of the subdivision application and the public meeting. It went on:
“Subsequent to the public meeting, the Planning Board recommended to the Administrator that the application for subdivision be refused on the grounds that the proposed six (6) portions failed to meet the minimum portion sizes for Rural B property as established by cl. 2(3) [sic] the Norfolk Island Subdivision Code. This minimum size is 8090m². This recommendation was reached on the basis that the Environmental Protection Area and any area that must be declared as public road in such a subdivision must necessarily be excluded from the calculation of each portion size. The Administrator received the Board’s recommendation but did not inform the applicant of any decision formally reached in relation to the Application and in fact never proceeded to arrive at any such decision.
The Applicant, aware of the Planning Board’s recommendation, then sought to amend the original application taking into account the Planning Board’s concerns. The Administrator agreed to accept the Applicant’s amended application on the basis that the original application remained on foot, no formal decision ever having been made. The amended application proposed five (5) portions instead of the original six (6).
The Administrator referred the amended application to the Planning Board seeking its recommendation. The Planning Board again refused the application on the basis that any area that must be declared as public road in such subdivision must necessarily be excluded from the calculation of each portion size.
Three of the proposed portions in the amended application were exactly 8090m² inclusive of any area to be dedicated or declared a public road.
Based on the Planning Board’s recommendation the Administrator refused the amended application.” (Original emphasis)
Under the heading “Reasons for Decision”, the Administrator said:
“It was a matter of unfortunate procedure that the subdivision application was processed with the Applicant’s other outstanding applications which the Minister had upgraded to be processed as Category 3. Finding as such, I therefore, do not take into account any matters that where raised in the process whereby the original application was upgraded by the Norfolk Island Minister for Health and Environment to be processed as a Category 3 application.
I have decided Application 76/2000 on the basis that at all times it was and remained a Category 2 Application. I reach this conclusion on the basis that it remains solely within my discretion under the provisions of the Subdivision Act to upgrade an application to be processed as a Category 3 and I have not at any time taken that course.
I accepted the Applicant’s amended application. I also received written submissions from the Applicant’s solicitor to which further submissions from the Applicant himself were appended. Those written submissions were made by the solicitor subsequent to the Planning Board’s recommendation on the amended application and prior to myself reaching any conclusion on that amended application.
I also considered numerous items of correspondence received from the surveyor who drafted the plans for the application (original and as amended). I, therefore, have given the Applicant throughout the entire process the fullest opportunity to make submissions prior to any final decision being made.
I find that the amended application fails to address the Planning Board’s original concern in relation to minimum portion sizes in the Subdivision Code with respect to the exclusion of dedicated public roads from the calculation of minimum portion sizes. Whilst two of the proposed portions in the amended application address the Planning Board’s concerns with respect to the EPA, three of the proposed portions are exactly 8090m² inclusive of a road easement which I find must be dedicated as being for public use.
Clause 2(3) of the Code is quite specific. It requires that, where four or more portions are to be created by subdivision and they do not have direct access to a public road or easement, then a public road shall be created to obtain access for those portions. In the Applicant’s amended application only one portion, namely proposed portion 1d2, has direct access to an existing road or easement. The remaining portions do not. Therefore, the subdivision proposal must comply with cl.2(3) of the Code. I am mindful that the Code is not a document to which strict adherence is absolutely necessary, it being a planning policy document. The Code does, however, have a greater status and weight than mere policy in that it is provided for by the Subdivision Act and is the result of public consultation. It is more than mere internal policy to which inflexible adherence would be unreasonable.
I do not consider this approach as being against the purpose of the relevant planning regime. Indeed, I find that it supports the regime when one has regard to the terms of the Code itself. Minimum portion sizes are established by the Code by reference to the location and zoning of the land in question. There is also a requirement to ensure that portions created by subdivision proposals have adequate and unrestricted access to public rights of way. This addresses a situation in Norfolk Island where in the past portions have been ‘locked away’ from such access and, therefore, giving rise to often lengthy and otherwise avoidable litigation to enable landholders to access their own property. This approach to the purpose of the Code represents sound land management practice.
I now turn to the issue of the inclusion or exclusion of the area to be dedicated as a public road from the total area calculation of the proposed portion size. In particular, proposed portions 1d2, 1d3 and 1d4 are exactly 8090m² inclusive of the proposed roadway easements. Whilst the Code and relevant Acts are silent on this direct issue, the objects and the scheme of the overall planning regime leads to a conclusion that such easements must be excluded from the minimum portion size. To do otherwise would, in my view, defeat the purpose of the regime in establishing minimum portion sizes.
I do not apply this consideration inflexibly and have taken note of the Applicant’s solicitor’s submissions in this regard. However, in addition to the points considered above, it is also noted that the following results occur in relation to each relevant portion: -
Proposed portion Size inclusive of road easement Road easement area m² Size exclusive of road easement 1d2 8090m² 1057.41 7032.59 1d3 8090m² 325.68 7764.32 1d4 8090m² 446.28 7643.72 For all these reasons, I find that the resultant diminution of portion size is of such significance that it cannot be ignored or considered as a mere technical variation to the intent of the Code.” (Original emphasis)
(iii) The Board’s decision
Following the Administrator’s decision, Mr Forrester decided to submit a fresh plan that would overcome the problems identified by the Administrator. On 15 September 2001, he sent to Ms LeCren a new plan, providing for five allotments but differing from the previous five-lot plan in that it transferred area from larger lots to smaller lots and reduced the total area required for the proposed public roads. In a covering letter, Mr Forrester claimed each of the five allotments had an area of not less than 8090 square metres, excluding the EPA land and the proposed new public roads.
On 2 October 2001, Ms LeCren wrote to Mr Forrester intimating she had received legal advice that no further amendment could be considered for “refused application 76/2000”. She went on:
“However there is provision under section 5(4) of the Subdivision Moratorium Act 2000 for a new application to be forwarded to the Norfolk Island Planning Board for their determination as to whether a new application warrants acceptance and consideration under exceptional circumstances only. An application that is forwarded to the Norfolk Island Planning Board for consideration under section 5(4) of the Act in no way represents a formal acceptance of an application.
In light of the above paragraph, if you wish to lodge a new application, please sign the enclosed form accompanied by a plan drawn to scale showing exact measurements of proposed portion boundaries and portion sizes which comply with the Subdivision Code excluding the EPZ [sic] and any public roads/easement.”
The 12 month moratorium period stipulated in s 7 of the Moratorium Act had been extended to 24 months by the Subdivision (Moratorium) Amendment Act 2001 (NI), which commenced on 18 July 2001.
On 16 October 2001, Mr Forrester responded to Ms LeCren with a long letter in which he referred to the history of the matter and argued his application should be approved on the basis of the conditions in place at the time of his original subdivision application. Mr Forrester made it clear he was not then submitting a fresh subdivision application. However, he expressed willingness to consider doing this if Ms LeCren were to “outline the advantage of making a fresh application as compared to approving this application of 22nd May 2000, as amended”.
Ms LeCren submitted Mr Forrester’s letter to a meeting of the Board held on 19 October 2001. The Board’s minute of this item of business reads:
“The Board, prior to the meeting, was issued with all correspondence and a hand drawn site plan from the applicant. The applicant outlined his reasons why the previous application for subdivision of portion 1d should be further considered, despite being refused by the Administrator. Legal advice was sought and relayed to all Board members prior to the meeting that a new application was required. The applicant, having been made aware of the legal advice, did not choose to submit a new application. The Board considered all reasons outlined by the applicant and recognised that the information provided was not a ‘new’ application. In view of the fact that the legal advice received stated that this required a new application, the Board considered that no exceptional circumstances exists to warrant consideration of the information submitted.”
On 12 November 2001, Ms LeCren wrote to Mr Forrester advising him of this decision. This decision is challenged by proceeding SC 9 of 2002.
Affidavits were made by each of the members of the Board who considered Mr Forrester’s subdivision application. The affidavits simply set out the history of the application. But each deponent was cross-examined about the decision of 19 October 2001. In particular, there were questions about the Board’s approach to “exceptional circumstances”.
The first Board member who gave evidence, Tracey Louise Yager, was asked whether the Board had any policy or criteria regarding the interpretation of “exceptional circumstances”. She said she could not recall and added: “There’s a lot of documentation that we referred to all the time. They all differed depending on whether it’s subdivision or whether it’s various other planning activities”. Ms Yager’s evidence went on:
“Q. Would you disagree if I put it to you that the Planning Board adopted an informal policy of refusing any application for exemption from the moratorium other than boundary adjustments?
A. My recollection is that, yes, the only ones that we looked at that made an exception of, yeah, were boundary adjustments where no new portions were actually being created, where the amounts of the portions remained the same and generally it was a convenience where it has been discovered, say, for example, that a building was actually crossing over a boundary, so therefore we would make an exception and allow a boundary to be moved for practical purposes. That’s my recollection.”
In re-examination Ms Yager gave this evidence:
“Q. Why did you as a member of the Planning Board accept that approach that you have just discussed with Mr Richards, i.e. that you would only allow the exception to be in relation to boundary adjustments and where the portion sizes were not increased? What was the philosophy behind that?
A. Generally when it came to anything exceptional out of what, you know, we could access from the plan, we usually would consult with the Executive Member, the Minister for Planning. We would usually ask his or her advice, depending on what it was, you know, and get a direction from the Minister. That’s how we would usually approach anything that’s exceptional and from what I can recall the brief was that the moratorium was there for a purpose, you know, to control things until such time as the plan has been agreed on and passed as an Act, and therefore the prudent thing to do is to not create any new portions whilst a moratorium was on. We felt that that was the aim of the moratorium I guess and got that direction from the Minister.”
It was put to Trevor Paul Gow, the next witness, that the Board had a “more or less fixed policy of refusing all but boundary adjustments”. He was asked if he agreed. He replied:
“More or less, but I do remember that we looked at, like, every application was looked at but it wasn’t automatically scrapped. It was looked at. I don’t believe that there was a policy to not accept anything.”
Mr Gow’s evidence went on:
“Q. Can you recall the nature of the deliberation that you went through when you were a member of the board in dealing with Mr Forester’s application to be exempted from the moratorium?
A. Nothing special stands out. I can’t remember specifically. I do remember that every application was looked at and discussed maybe and, yeah, a decision was made, yeah.
Q. So it would have to be, really, a pretty exceptional application to get exemption if it didn’t involve a mere boundary adjustment.
A. Yes. I can’t remember one that we passed as exceptional.”
George Ralph Weslake, the next witness, had a poor recollection of the decision about Mr Forrester’s subdivision application. He said:
“… the only recollection I’ve got is that there was a moratorium on and therefore the application, as I understand, was refused because of that moratorium.”
The final Board member, Aaron Vincent Graham, said he remembered Mr Forrester’s subdivision application only vaguely. His evidence went on:
“Q. Can you tell me what matters were considered?
A. Well it was dealt with a whole pile of other issues, but as was already said, there was a moratorium in place and basically I can’t go into the full details of the special circumstances we were looking for. All I can remember is there was a moratorium. It was discussed at several meetings, yeah.
Q. Do you agree that there was a basic policy that in the absence of boundary adjustments, no subdivisions were going to be approved while the moratorium was on?
A. To my recollection, yes, pretty much.”
Validity of the Administrator’s decision
Mr Richards put two substantial arguments in support of Mr Forrester’s claim that the Administrator’s decision of 28 June 2001 was invalid. First, he said, the Administrator erred in law in accepting the view of the Board that cl 2(3) of the Code required Mr Forrester to create public roads to provide access to each of the proposed new allotments, and that the area of these roads must be deducted in calculating lot sizes. Second, he argued that, even if this first submission was incorrect, the decision of the Administrator was manifestly unreasonable.
In support of his first argument, Mr Richards noted that the substantive provisions of the Roads Act 1996 (NI) were not in force when the Administrator made his decision; indeed they are still not in force. Norfolk Island law contains no statutory provision for opening a public road. The common law applies. A new road may be opened by the landowner dedicating the road to the public and either the public accepting that dedication by use or a public authority expending funds on the road’s formation or maintenance. However, Mr Richards contended that, in the case of a common law road opening, it was not essential that the landowner surrender the fee simple of the dedicated land; the landowner could merely grant a public carriageway.
In relation to unreasonableness, Mr Richards emphasised that Mr Forrester’s original subdivision application had been made in May 2000, before commencement of the moratorium. He said that, even if it was correct to deduct both the EPA land and the land required for public roads, the Administrator, under the circumstances, ought not to have finally resolved the application; the Administrator ought to have referred it back to Mr Forrester for the making of further amendments. It would have been possible for Mr Forrester to produce a different plan that yielded five allotments all containing at least 8090 square metres.
I do not think the Administrator erred in law in accepting the Board’s view that the subdivision application needed to make provision for the opening of new public roads providing access to all the allotments, and in deducting this area (as well as the EPA land) from the lot areas. The Code did not depend for its efficacy upon the operation of the substantive provisions of the Roads Act. The Code was apparently prepared under Part III of the Planning Act. It is linked to that Act and the Norfolk Island Plan, as is evident from cl 1 of the Code specifying its objects. That clause says:
“The objectives of the Planning (Subdivision) Code are:
(a)to ensure that all subdivision approvals comply with the standards specified in this Code as well as with the objects of both the Planning Act 1996 and Norfolk Island Plan;
(b)to establish standards for the subdivision of land;
(c)to identify those matters to be considered in the assessment of subdivision applications;
(d)to encourage the amalgamation of old and inappropriate portions.”
Clause 2(1) of the Code specifies minimum lot sizes. Clause 2(2) deals with minimum road frontages and widths. Clause 2(3) is headed “Creation of Public Roads”. It reads:
“(a)A public road shall be created where four or more portions to be created by a subdivision do not have direct access to an existing road or easement.
(b)Where the conditions of consent to the subdivision include the opening of a new public road, that road shall be formed and constructed at the applicant’s expense to the standards set out in the Code of Practice.
(c)In the design of the design of the subdivision the location of roads should be sympathetic to the natural character of the landscape.”
In Prentice v Mercantile House Pty Ltd (1991) 99 ALR 107, Morling CJ, sitting in this Court, referred at 117-118 to “old authority that the owner of land who dedicates it as a public highway parts with no other right than a right of passage to the public, and retains all other rights of ownership not inconsistent with the dedication”. However, his Honour thought this view to be inconsistent with contemporary notions and held, in the case before him, that the plaintiff’s dedication extended to the fee simple usuque ad coelum et ad inferos.
The present question is not whether it would have been possible at common law to create a public road that constituted a mere right of passageway. The question is the meaning of the reference, in cl 2(3)(a) of the Code, to a “public road”. I have no doubt these words were intended to require a dedication of the fee simple ad coelum; that is, a surrender of title to the relevant land, as had occurred in Prentice. Any lesser public right would have serious implications for the Administrator’s capacity to maintain the road. The Administrator was correct in accepting the Board’s view that the land to be dedicated by Mr Forrester for public roads must be disregarded in calculating the lot sizes.
Mr Richards does not suggest the Board, or the Administrator, erred in concluding that a 50 metre strip of EPA land must be left out of account in the calculation of lot sizes.
I turn to the suggestion that the decision of the Administrator was manifestly unreasonable. This ground of invalidity is often invoked by challengers of statutory decisions; it is rarely successful. It is necessary for a challenger to satisfy a court, carrying out judicial review of a decision, that the decision was so unreasonable that no reasonable person could have made that decision. Usually, it will be necessary to demonstrate irrationality. It is not sufficient that the court thinks a different decision (or course of action) might have been preferable.
The only basis upon which Mr Richards contended that the Administrator’s decision was unreasonable was that, realising he would have to uphold the Board’s opinion about lot sizes and therefore refuse the subdivision application, the Administrator failed to invite Mr Forrester to submit a further amended plan. Perhaps the Administrator might have taken that course, with the result that the new plan might have been treated as exempt from the moratorium. However, it was not unreasonable for him to fail to do so. The Administrator had already allowed Mr Forrester to amend his plan, on 22 May 2001, by substituting a five-lot plan for the original six lots. Mr Forrester was pressing for approval of the 22 May plan, notwithstanding his knowledge, before the Administrator’s decision, of the Board’s adverse recommendation and its reasons. He did not seek to lodge a new plan designed to overcome the Board’s objections but, through Mr Richards, and despite the Board’s view, urged the Administrator to approve the existing five-lot plan. At all relevant times, Mr Forrester had the benefit of the services of Mr Taylor, a surveyor with extensive experience on the island and an intimate knowledge of the Code; and, when the matter was before the Minister, of a local solicitor, Mr Richards. Apparently neither of these gentlemen saw the desirability of submitting a new five-lot plan; on the contrary, they were pressing the 22 May plan. It was the duty of the Administrator to consider whether that plan ought to be approved; he was under no duty to offer advice about other possibilities.
I do not think the Administrator’s decision was legally invalid.
The Board’s decision
Mr Richards advanced only one ground of invalidity against the Board’s decision of 19 October 2001. He said the Board was inflexible; it applied a policy as to what constituted “exceptional” circumstances, within the meaning of s 5(4) of the Moratorium Act, without proper consideration of the merits of the individual case.
This ground of invalidity of an administrative decision is available at common law. But, in the present case, it is not sustained by the evidence. On the contrary, as is demonstrated by the extracts of oral evidence set out above, the members of the Board considered Mr Forrester’s subdivision application on its merits. No doubt they did so against the background, as Ms Yager put it, “that the moratorium was there for a purpose”; but they did ask themselves whether this case ought to be regarded as exceptional. It is true they were influenced by advice supplied by the Secretary of Planning and Crown Counsel; but they were entitled to obtain advice. It is also true that they seem to have been disposed to take a narrow view of what constituted “exceptional” circumstances; in practice confining it to cases of boundary adjustments. It may have been open to them to decide that, because of its protracted history, Mr Forrester’s subdivision application should be regarded as exceptional. But the question whether the circumstances were exceptional was a judgment for the Board to make. Having regard to the purpose of the moratorium, it was not unreasonable for the Board to make the decision it did. There is no reason to believe – and indeed this is not suggested – that the Board misdirected itself as to the meaning of the word “exceptional” or applied an incorrect test.
I do not think the Board’s decision was invalid.
In any event there is a problem about the attack on the Board’s decision of 19 October 2001. In his letter of 16 October, Mr Forrester made clear that he was not then submitting a new subdivision application, although he would be prepared to consider doing so if Ms LeCren persuaded him this was desirable. Mr Forrester was pressing for further consideration of his original subdivision application (76/2000). But that application had been finally disposed of by the Administrator’s decision of 28 June 2001, if not earlier. I agree with the legal advice quoted in the Board’s minute of 19 October (see para 24 above) that Mr Forrester needed to lodge a new application. He never did so.
Disposition
It follows from the above reasons that both proceedings must be dismissed. I reach this conclusion with regret. It is now over three years since Mr Forrester embarked upon his scheme to subdivide his land. Belatedly, he has shown some flexibility in his proposal. His latest plan would appear to comply with the Code. However, it cannot be considered until the end of the moratorium period, which has now been extended until the commencement of the Subdivision Act 2002 (NI), whenever that will be: see s 7 of the Subdivision (Moratorium) Act 2003 (NI). Unfortunately, the latest plan did not come early enough, when Mr Forrester still had on foot an application that attracted the saving provision contained in s 5(2) of the 2000 Moratorium Act.
Whatever my sympathy with Mr Forrester, I am entitled to deal with the case only within the confines of the law and the issues raised by the parties. Each of the proceedings must be dismissed. There being no relevant special circumstance, I should take the usual course in relation to costs.
The order of the Court in each matter will be that it is dismissed with costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate:
Dated: 20 June 2003
Solicitor for John Kenneth Forrester: Mr Wayne Richards Counsel for Anthony John Messner: Ms Lynette Beban (Deputy Crown Counsel) Counsel for Tracey Louise Yager,
George Ralph Weslake, Aaron Vincent Graham, Trevor Paul Gow:Ms Lynette Beban (Deputy Crown Counsel
Date of Hearing: 5 June 2003
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