Holster v Director-General of National Parks and Wildlife Service - [1999] NSWLEC 102

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION: HOLSTER - V - DIRECTOR-GENERAL OF NATIONAL PARKS & WILDLIFE SERVICE [1999] NSWLEC 102

PARTIES:

Applicant:
HENDRIKUS HOLSTER

Respondent:
DIRECTOR-GENERAL OF NATIONAL PARKS & WILDLIFE SERVICE

CASE NUMBER: 40287 of 1997 of 1999

KEY ISSUES:
Construction & interpretation: -alternative sources of power
Judicial review: administrative decision - whether a failure to take into account relevant considerations - whether estoppel available - whether decision manifestly unreasonable

LEGISLATION CITED:
National Parks & Wildlife Act 1974, s8(3)(b), s21, s160A, s160E

CORAM: Lloyd J

DATES OF HEARING:      15/03/99, 16/03/99, 17/03/99
DECISION DATE:              06/05/1999
REVISION DATE:

APPEARANCES

Applicant: T F Robertson
Solicitors: Woolf Associates
Respondent: M J Leeming
Solicitors: V K Ingram

JUDGMENT:

Contents

Para

Background 1

The applicant’s claim 8

The relevant legislation 12

The evidence 19

Mr Holster   20
Ms A L Forrester   37
G C Sorensen   38
J Toghill   42
A N Mills  51
I Treharne  52

The applicant’s submissions 62

The respondent’s submissions 72

Findings and conclusions 81

IN THE LAND AND  Matter No: 40287 of 1997
ENVIRONMENT COURT  Coram: Lloyd J
OF NEW SOUTH WALES  Decision date: 06/05/99

HOLSTER
Applicant

DIRECTOR GENERAL OF NATIONAL PARKS & WILDLIFE
Respondent

JUDGMENT

HIS HONOUR:

Background

This is a case about a boat mooring. The mooring in question is in Cowan Creek, Cottage Point. Cowan Creek is within Ku-ring-gai Chase National Park. In particular, the bed of the creek to which the mooring is attached is reserved as part of the National Park, the care, control and management of which is vested in the respondent (ss 31 and 33 of the National Parks & Wildlife Act 1974, which I shall call “the Act”).

Mr H J Holster (the applicant in this action) is the owner of a relatively large yacht, having a length of about 50 feet and a draught of about 7 feet. (It seems that yachtsmen still speak the language of Imperial measurements.) On 29 August 1994 Mr Holster purchased a house with a water frontage at 5 Notting Lane, Cottage Point. Cottage Point is on a peninsula which projects into Cowan Creek. No 5 Notting Lane is on the eastern side of the peninsula. The vendors of the property, Mr and Mrs N Smith were the licensees of a mooring in the creek opposite the house known as mooring No 90. Mr Smith had told Mr Holster that the mooring was for a big boat. Following his purchase of No 5 Notting Lane, Mr Holster became the licensee of mooring No 90 from the respondent.

The respondent had a policy of restricting private moorings at Cottage Point to residents of the area and that a limit of one mooring per household should apply, provided that the grant of such a mooring is for a boat actually owned by the householder. In 1995 the respondent adopted the practice of delegating the allocation of mooring space to a body established by the Cottage Point Community Association, namely the CP Moorings Corporation Ltd (“the Corporation”). The Corporation assumed the respondent’s responsibilities for the issuing of mooring licence application renewals to its members, the receiving of such licence applications, the collection of licence fees, the remittance of licence fees to the respondent, arranging for insurance and servicing of all moorings and generally handling affairs regarding moorings arising from the sale of properties at Cottage Point. One of the conditions for the issuing or renewal of licences for moorings is that the licensees must be financial members of the Corporation (condition 22(b)). Another is that the superintendent, Ku-ring-gai Chase National Park may by notice require the holder of a licence to remove any mooring from the site in respect of which such licence was issued (condition 16(a)).

Mr I Treharne was contracted by the Corporation to service the private moorings at Cottage Point. On 14 June 1995 he serviced mooring No 90. According to Mr Holster, in servicing the mooring Mr Treharne moved it in a southerly direction closer to a sand bank, so that his boat, if attached to the mooring, would be grounded at low tide. Mr Treharne admits that in servicing the mooring he may have moved it a short distance, which is not unusual. According to Mr Treharne, he only moved the mooring marginally, if at all. Mr Treharne advised the Corporation that there is no room for a swing mooring for Mr Holster’s boat on the eastern side of Cottage Point. According to Mr Treharne, Mr Smith’s boat was only 44 ft long and of significantly less draught than Mr Holster’s, that it was rarely on the swing mooring and most of the time it was moored fore and aft to the pontoon at No 5 Notting Lane or alongside the pontoon.

The respondent did not renew the mooring licence for mooring No 90 which expired on 30 June 1996. On 2 October 1996 the Acting District Manager, North Metropolitan District of the National Parks & Wildlife Service (Mr Rob Sheaffe), wrote to Mr Holster. The letter states (inter alia):

As you may be aware, I have also spoken with the President of the Cottage Point Mooring Corporation regarding this matter. After careful consideration of all the information presented to me, I have determined that the Corporation’s offer to you of a fore and aft mooring in the Nottage Lane area is appropriate.
As you may be aware, in 1985 the Commodore of the Ku-ring-gai Motor Yacht Club (KYMC) wrote to the then President of the Cottage Point Mooring Corporation indicating that in the Club’s view it was inappropriate for vessels of 33 feet to be on a swing mooring in or close to the Nottage Lane area of Cowan Water.
Given the location of the KMYC moorings, the sandbank, the shoreline and the proximity of seven other vessels belonging to the residents of Cottage Point, there is insufficient room to accommodate your vessel on a swing mooring in this area. Additionally, if the Corporation were to offer you a swing mooring, other residents would be required to relocate their moorings. Neither the National Parks and Wildlife Service nor the Corporation regard this as either fair or equitable.

On 5 December 1996 the Operations Manager, North Metropolitan District of the National Parks & Wildlife Service (who is again Mr Rob Sheaffe) wrote on behalf of the respondent to Mr Holster. The letter states (inter alia):

Following your further representations, the National Parks and Wildlife Service has investigated the additional issues raised by you, and has canvassed options that would allow for your 50 ft yacht to occupy a swing mooring within the Notting Lane area. As a result of these investigations, the Service remains convinced that a swing mooring for a 50 ft yacht is inappropriate, as there is insufficient space to accommodate a yacht of this size and the other vessels currently occupying moorings in this area. Therefore, the offer by the Cottage Point Mooring Corporation of a fore and aft mooring within the Notting Lane area provides the only practicable solution.
You were issued with a mooring licence in September 1995 for the 1995/96 period. The licence referred to a 50 ft yacht and to mooring No 90, and made no specific mention of the location and type of mooring to be used (ie. swing or fore and aft). Matters concerning the location and type of mooring to be employed were to be determined by the Cottage Point Mooring Corporation under long standing arrangements between the Corporation and the Service. Therefore, the issuance of a mooring licence for 1995/96 did not carry with it an automatic grant of a swing mooring.
Your licence for mooring No 90 has expired, and consequently the mooring hardware is now uninsured. Therefore, I urge you to accept the Corporations offer of either a fore and aft mooring in the Notting Lane area or a swing mooring at an alternate site that is not within the Notting Lane area.

On 27 October 1997 the Manager, Metropolitan Region of the National Parks & Wildlife Service served a notice to quit the mooring on Mr Holster. After noting that the mooring currently remains unlicensed, the notice states:

Therefore, in accordance with Clause 23 (3) of the National Parks and Wildlife (Land Management) Regulation 1995, notice is hereby given that the mooring hardware at mooring site 90, Cottage Point must be removed within twenty one (21) days of the date of this letter.
Failure to do so will leave the Service with no alternative but to remove the mooring hardware from the site. This is in accordance with Clause 23(6)(a) of the National Parks and Wildlife (Land Management) Regulation 1995.
The applicant’s claim

Mr Holster claims in these proceedings an order setting aside the notice dated 27 October 1997 (described in paragraph 7 above); an order that the respondent be restrained from removing or in any other way interfering with the mooring; a declaration that the respondent erred in law, failed to take into account relevant considerations or took into account irrelevant considerations in refusing and continuing to refuse to issue a licence to Mr Holster for a swing mooring for his 50 ft yacht on mooring No 90; and a declaration that it is not reasonably open to the respondent to refuse to issue Mr Holster with a licence for the mooring.

On 19 November 1997 Sheahan J granted interlocutory relief restraining the respondent from removing or in any other way interfering with mooring No 90 until further order.

Mr M J Leeming, who appears for the respondent, apart from denying the bases of the applicant’s claims, submits that

(a)the respondent has offered Mr Holster a fore and aft mooring at the site of mooring No 90 and
(b)the respondent has also offered Mr Holster as an alternative a swing mooring on the western side of Cottage Point. Mr Leeming submits that if Mr Holster wants a swing mooring he can have one, but not at the site of mooring No 90. His boat is simply too big. There just is not enough room. If Mr Holster wants to stay at mooring No 90, however, it must be a fore and aft mooring.

Mr Holster does not want a fore and aft mooring. His boat has a high windage, the area within which mooring No 90 is located is said to be subject to high wind gusts or “bullets”, a fore and aft mooring imposes greater stresses on the vessel and a swing mooring is the safest and preferred method of securing a boat. Neither does Mr Holster want a swing mooring in the western side of Cottage Point for reasons of security and convenience.

The relevant legislation

The notice described in paragraph 7 above is stated as being issued in accordance with clause 23(3) of the National Parks & Wildlife (Land Management) Regulation 1995 (“the Regulation”). Clause 23 relevantly provides:

23(1)The Director-General may grant licences for marinas and moorings in Cowan Water.
(2)Except as authorised by a licence, a person must not set up a mooring in Cowan Water.
Maximum penalty: 10 penalty units.

(3)The Director-General may direct a person by whom an unlicensed mooring has been set up to remove the mooring.
(4)Such a direction may be served on the person to whom it is addressed personally or by leaving it on, or attaching it to, the mooring.
(5)A person on whom such a direction is given must not fail to comply with the direction.
(6)The Director-General may remove from Cowan Water:
(a)any mooring to which such a direction relates that is not removed within 21 days after the direction is served; or …….

Clause 24 of the Regulation relevantly provides:

24(1)A person must not moor a vessel on any part of Cowan Water otherwise than:
(a)at a public mooring; or
(b)at a mooring in respect of which the person:
(i)is the licensee; or
(ii)is the hirer from the licensee of the mooring to which the licence relates; or
(iii)has the consent of the licenser or hirer to use the mooring.

Maximum penalty: 10 penalty points

(2)A person must not moor a vessel at a public mooring in Cowan Water for more than 24 hours at any one time.
(3)A person must not moor at any mooring (not being a mooring forming part of a marina) in Cowan Water:
(a)more than one vessel (whether or not secured directly to the mooring or to another vessel secured to the mooring;) or
(b)any vessel in contravention of the terms and conditions applicable to the licence in respect of the mooring.
…

Clause 22 of the Regulation contains the following definitions:

‘licence’ means a licence issued by the Minister or Director-General to permit occupation for the purpose of placing a mooring;

‘public mooring’ means a mooring set up by the Director-General;

‘set up’ a mooring includes erect, construct or lay down a mooring.

In addition to the abovementioned powers enabling the respondent to grant licences for moorings, to direct a person by whom an unlicensed mooring has been set up to remove the mooring, to remove any mooring to which such a direction relates after 21 days and prohibiting a person from mooring a vessel otherwise than at a public mooring or at a mooring in respect of which a person is the licensee, the Act as well as the Regulation also contains powers relating thereto.

Section 160A(1) of the Act defines “prescribed land”. A national park is included within this definition. Under subclause (2) the Minister may cause any structure that is on prescribed land without lawful authority to be removed from the land. Under subsection (3) the Minister may cause any person making use without lawful authority of a structure that is on prescribed land, to be removed from the structure. I accept that a mooring is a structure for the purpose of this section. In this respect I have been referred to the definition of ‘structure’ in the Macquarie Dictionary, in particular:

…3 A thing which is built or constructed; a building, an edifice. More widely, any framework or fabric of assembled material parts.

Section 160E(1) of the Act provides that if the Minister believes on reasonable grounds that a person, without lawful authority, has erected or placed, or is maintaining, a structure that is on prescribed land, the Minister may cause a notice to be served on the person requiring the person to remove the structure. Under subsection (4) the person to whom such a notice is directed must remove the structure within such period as is specified in the notice.

Section 21 enables the Minister to delegate any power (other than the power of delegation), authority, duty or function conferred or imposed on the Minister to the respondent, to any other officer of the Service or to the holder of any office in the Service. The same section enables the respondent, with the approval of the Minister, to delegate any power (other than the power of delegation), authority, duty or function conferred or imposed on the respondent to any officer of the Service or to the holder of any office in the Service.

The evidence

Evidence for the applicant was given by the applicant himself, his wife Ms A L Forrester, Mr G C Sorensen, Mr J Toghill and Mr A N Mills. Evidence for the respondent was given by Mr I Treharne.

Mr H J Holster

Mr Holster had since 1985 been looking for a property from which he could work on his boat. He found the property at Cottage Point in 1993 and believed that it suited his needs.

On 19 May 1993 Mr Holster obtained some documents from Mr Smith, the previous owner of the property, relating to the mooring of which Mr Smith was the licensee and which was in Cowan Creek opposite the property. The documents contained advice from the National Parks & Wildlife Service to the Cottage Point Community Association and state that moorings are permitted at Cottage Point on the basis that they are restricted to residents of the area and a limit of one mooring per household applies. Mr Smith’s mooring was allocated mooring No 90. The licence fees were listed in the material and the criteria for obtaining a mooring licence was outlined. That criteria was stated to be as follows:

(1)You must be the actual owner of a property.
(2)You must be the actual owner of a vessel conforming to the NPWS requirements.
(3)You must become a member of the CP Mooring Corporation Limited and pay their joining fee, and use their licensed contractor for the installation and service of the mooring.
(4)You must complete NPWS licence agreement and pay requisite fee.
(5)Tenants of properties will not be entitled to apply, own or occupy a mooring at Cottage Point.
(6)Any dereliction of the rules of either the NPWS or the CP Mooring Corporation Limited will cause the loss of the mooring to the offending party.

Mr Holster recalls a conversation with Mr Smith in which Mr Smith assured Mr Holster that the licence for the mooring at No 90 was for a 55 ft boat.

On 30 July 1993 Mr Holster telephoned Mr Lynch, the President of the Mooring Corporation. Mr Lynch told him that there would be no problem for Mr Holster to obtain mooring No 90 provided he joined the Corporation and paid the required fees. Mr Lynch also assured Mr Holster that the tackle was laid down to take a very large boat and that Mr Holster’s 50 ft boat could be attached to the mooring.

Mr Holster purchased the property at 5 Notting Lane, Cottage Point on 29 August 1994. In about September 1995 he obtained a licence for mooring No 90, expiring on 30 June 1996.

According to Mr Holster, on 14 June 1995 Mr Treharne serviced the mooring and moved it to a new position. Mr Holster states that in his opinion the mooring was moved at least 20-25 feet.

On 14 October 1995, after numerous conversations with members of the Corporation, Mr Holster spoke to Mr Ellsworth, the Vice President of the Corporation. In this conversation Mr Holster was informed that “It has been decided by Peter Emanuel and Ian Treharne that you are to have a fore and aft”. In a letter dated 12 November 1995 it was confirmed that the Committee had decided that Mr Holster’s boat was to go fore and aft.

On 29 November 1995 Mr Holster, his wife and Mr Treharne rowed out to the mooring. Mr Holster states, “I found that the only position possible for my mooring site was in its former position, but that it was not possible to have my swing mooring located at this spot, now that Ell’s larger boat was on his mooring”.

On 4 September 1996 Mr Holster had a meeting with Mr Sheaffe of the National Parks & Wildlife Service to discuss his mooring. On 8 October 1996 Mr Holster received the letter from Mr Sheaffe described in paragraph 5 above.

Mr Holster states in his evidence that if his mooring was put back in its former position “the only resident moorings to be relocated would have been those of Mr Ell’s larger boat and Vic Hemmings’, whose boat had only recently been moved closer to my mooring”.

On 5 December 1996 Mr Holster spoke to Mr Sheaffe again. Mr Sheaffe told him “Parks have decided that if you want a mooring, it must be fore and aft”. His reason was that “there is no other room”. After a lengthy discussion, Mr Sheaffe finally said to Mr Holster, “If you don’t accept a fore and aft or go out to the west side then there is no solution. A letter will be in the mail”.

In June 1997 Mr Holster received a mooring licence application form. The licence application stipulated the mooring type as being “fore and aft” and not “swing”.

In response to Mr Treharne’s evidence Mr Holster states that his boat cannot be accommodated alongside his pontoon as was Mr Smith’s boat, because of its greater draught.

Mr Holster states that “savage gusts and ferocious bullets do occur in the eastern mooring area”; and

Boats moored in that area spin around in all directions, the wind patterns being so confused that boats on adjacent moorings are often stern to stern. These conditions occur in both strong south and west winds. The area close along the shore of Notting Lane seems little affected and can be said to be generally sheltered, but water further out, in front of the sandbank and in front of the 300 ft bluff, is very badly affected.

Mr Holster also asserts in reply his view that “there is [from his] observation, room for [his] boat to be moved up to 10 metres northward without the need for anyone’s mooring to be moved to the western mooring area”.

It was established in cross-examination that Mr Holster had not seen Mr Smith’s boat swing on mooring No 90. In fact he had not seen Mr Smith’s boat. His assumption that Mr Smith’s boat could swing on mooring No 90 was based on statements to him by members of the Corporation and by Mr Smith. It was also established that Mr Holster has never had his boat moored at mooring No 90. Mr Holster explained that this was due to an illness and also to the fact that the manifold on his boat needed to be repaired before the boat could be brought up from Sydney.

Ms A L Forrester

Ms Forrester is Mr Holster’s de facto wife. She corroborates the evidence of Mr Holster described in paragraph 25 above: when mooring No 90 was serviced by Mr Treharne and apparently moved. Ms Forrester also took photographs of the mooring taken from the pontoon in front of 5 Notting Lane and which purport to show the position of the mooring before it had been serviced and after it had been serviced.

G C Sorensen

Mr Sorensen, a mooring contractor with 25 years experience on Sydney Harbour, is of the following opinion:

I am familiar with the site at Cottage Point of mooring No 90 having inspected the site in August 1998 and in my opinion, there is no site in Sydney Harbour which looks as unpromising for a fore and aft arrangement as that Cottage Point site.

Mr Sorensen also states that no consideration had been given to “an alternative of a limited swing mooring which would be suitable for the site of mooring No 90”.

Mr Sorensen was shown copies of the photographs taken by Ms Forrester before and after the mooring had been serviced by Mr Treharne. In his opinion the photographs show that there has been a considerable displacement in mooring No 90. In his opinion, “the distance between the mooring blocks, as evidenced by the photos, is 20 feet or more”.

In cross-examination it was admitted by Mr Sorensen that he had visited the subject site on only one afternoon, that his opinion as to the likely weather conditions at Cottage Point were based on experiences in areas of the same topographical nature elsewhere, and that his opinions were predictions from what he saw and not from what he had experienced.

J Toghill

Mr Toghill is a maritime consultant with over 40 years’ experience in maritime affairs. He states that “It is the prospect of a northerly or north-easterly blow which causes Mr Holster concern since with the mooring in its current location, such a blow would cause his vessel to lie back on the mooring with risk of damage”. Mr Toghill further states that “the location of Mr Holster’s mooring at Cottage Point is open to the north and east. But winds from the south have to cross high surrounding hills …. which could cause the unpredictable and squally bullets to form in the mooring area”.

In relation to fore and aft moored vessels, Mr Toghill states that “a vessel that is not free to swing, however, such as a vessel moored fore and aft, will be unable to re-align with the sudden change of wind direction in a gust and will therefore be unable to absorb the impact of the wind. The resulting stresses placed not only on the mooring lines but also on the mooring fittings on the vessel can be enormous”.

Mr Toghill states that Mr Holster’s boat “is a sizeable vessel with considerable windage and [he is] of the opinion that in strong north-easterly winds or in savage gusts from a southerly buster, such a vessel moored fore and aft in this location could be subject to extreme strain on both the mooring tackle and the boat itself”.

Mr Toghill thus concludes that in his opinion, ”the fore and aft system would not be advisable for mooring such a large vessel in this area and a swing mooring would be a much safer and wiser option”.

In response to Mr Treharne’s evidence, Mr Toghill states that Mr Treharne “has failed to consider a limited swing mooring which is a relevant option”.

Mr Toghill further comments that “gusts are never consistent in direction and can switch all around the compass, especially when under the lee of high hills. While a boat moored fore and aft in this position [mooring facing north-east] may ride comfortably to wind from a northerly quarter, gusts will come down the hills and gullies from all directions in a southerly blow and a swing of 30o at the stern will not absorb the stresses from such gusts striking the full broadside”.

Mr Toghill concludes that in his view “a fore and aft mooring would not be prudent for Mr Holster’s vessel for this location and that either a swing mooring or alternative such as a limited swing mooring is a suitable alternative”.

In cross-examination Mr Toghill was referred to a Committee of Inquiry report on Concentrated Mooring Systems in New South Wales dated November 1988. This report recommended that the two point limited swing system of moorings be abandoned. Mr Toghill admitted that he was not aware of this report when he suggested a limited swing mooring.

In re-examination it was established that the Committee of Inquiry report was a consequence of a study done by Patterson Britton & Partners on fore and aft moorings. It was also established that the Committee rejected fore and aft moorings except in limited circumstances. As to the reasons why two point limited swing moorings were not recommended, Mr Toghill explained that the Committee was concerned with the weight of the mooring that had to be picked up and to the propensity for mooring chains to scrape on the bottom. Mr Toghill went on to state that since that report there have been changes to the method of construction of two point limited swing moorings and the problem of picking up a heavy chain and the propensity thereof to scrape on the bottom has been alleviated by the use of floaters and nylon rope.

A N Mills

Mr Mills took measurements of the length of various sections of mooring No 90. The depth of water at the mooring block was established as being 9 metres. I did not find his evidence to be of any assistance.

I Treharne

Mr Treharne is a boat mooring contractor with 40 years’ experience in Sydney Harbour and Broken Bay, including Cowan Water. In the course of his business he advises on moorings, design and placement.

As the mooring contractor and advisor to C P Moorings Corporations Limited, Mr Treharne advised that Mr Holster has two options for mooring his 50ft boat. The first is a fore and aft mooring adjacent to his property in the vicinity of the present mooring and the second option is to have a swing mooring in the larger mooring area on the western side of Cottage Point.

Mr Treharne is of the opinion that there is no room for a swing mooring for a boat the size of Mr Holster’s in the Notting Lane mooring area on the eastern side of Cottage Point whilst the other existing moorings in that area are retained.

Mr Treharne further states:

Late in November, 1995, I attended an on-site discussion with Mr Holster and the president of C P Moorings Corporation Limited regarding the swing area available for Mr Holster’s boat. Soundings were taken and marker buoys placed, and it was apparent to me that to moor the vessel in this location required a fore-and-aft arrangement to limit the swing:-
(a)to keep it away from the adjacent sandbank, and
(b)so as not to clash with the adjacent moored boats.

Bearing in mind my own experience of weather conditions in this location, and the successful fore-and-aft experience of the previous owner of Mr Holster’s property with his 44 foot boat, my advice to Mr Holster on this occasion was to moor his vessel in a similar manner.

Mr Treharne disagrees with Mr Toghill’s opinion that strong north-easterly winds or savage gusts from a southerly buster would be experienced in the area proposed for Mr Holster’s fore and aft mooring. Mr Treharne states, “In my experience the Notting Lane mooring area is extremely well protected, unaffected by ‘ferocious bullets’ or ‘savage gusts’, and safe for both swing and fore-and-aft types of mooring”. He further states, ”There are of course wind gusts in this area, but none in my experience that cannot be coped with by a well designed and well mantained mooring and a soundly fitted boat”.

As to a suggestion that Mr Holster’s boat could be accommodated on a swing mooring adjacent to his property, provided the mooring was moved up to 10 metres northward from its current location, Mr Treharne states that this is only possible “if two long standing moorings belonging to fellow Notting Lane residents are shifted to the western mooring area”. I understand this to be a reference to the western side of Cottage Point.

Mr Treharne recalls that Mr Smith’s boat was “44 ft long [and] its draught was significantly less than that of Mr Holster’s boat”. Mr Smith’s boat was given a swing mooring at a time when there were “only six boats in the Notting Lane residents’ area”. Mr Treharne also recalls that, “Mr Smith’s boat was rarely on his swing mooring. Most of the time it was moored with stern attached to his pontoon and bow held by an anchor placed to the north-east of the pontoon, in effect a fore-and-aft mooring, facing north-east”.

Mr Treharne admits that “during servicing, the hardware [of mooring No 90] may have been replaced in a marginally different position. However, at no time did I replace it 20 ft from the place from which it had raised”.

Mr Treharne identified a number of criticisms with limited swing moorings. Firstly, two long stretches of rope are required with this type of mooring. When one of the ropes becomes slack abrasion can occur as a result of being pulled along the bottom. Mr Treharne states that abrasion is detrimental because the rope is easily cut and any sharp object on the sea bed can easily cut that part of the mooring. Another criticism is that the swivel at the join of the two ropes is under water and therefore attracts marine growth which ultimately stops the swivel from functioning. This may be overcome, however, by fixing the swivel to the mooring buoy. Mr Treharne also states that limited swing moorings are expensive and occupy more of the sea bed than is reasonable in a crowded anchorage.

In cross-examination it was established that there are no fore and aft moorings in Cowan Creek apart from Mr Ell’s boat nearby and only a very small number of fore and aft moorings in Pittwater, the reason being that it is not the preferable way to moor a boat. Mr Treharne admits that in exposed areas fore and aft moorings sustain up to four times as much stress if the vessel is caught beam on compared with a swing mooring.

The applicant’s submissions

The points of claim filed on behalf of the applicant disclose causes of action which I have reformulated as follows:

(a)The respondent lacked the power to issue the notice of 27 October 1997 because by clause 23 of the Regulation such a notice may only be given to a person by whom an unlicensed mooring has been erected, constructed or laid down.
(b)In refusing to issue a licence to the applicant for the mooring unless the applicant took a fore and aft mooring the respondent erred in law
(i)by failing to consider the application for the licence on its merits;
(ii)by deferring to the decision of the Corporation in lieu of exercising an independent discretion;
(iii)by breaching the rules of natural justice in failing to apply the policy that a resident of Cottage Point would be entitled to one mooring per household and in departing from that policy without notice to the applicant; and
(iv)by discriminating against the applicant on arbitrary grounds.

(c)The respondent failed to take into account relevant considerations.
(d)The respondent took into account an irrelevant consideration.
(e)The respondent is estopped from denying that the applicant is entitled to the issue of a licence for a swing mooring for his vessel at mooring No 90 because of
(i)the advice of the respondent that all applications for moorings must be made through the Corporation and the practice of the respondent to defer to the Corporation in relation to the location and type of mooring to be employed;
(ii)the applicant had been promised the mooring by the Corporation before his purchase of the property; and
(iii)the Minister’s policy on which the Corporation’s promise was based and upon which the applicant relied in purchasing the property.

(f)It is not reasonably open to the respondent to refuse to issue the applicant with a licence for the mooring.

The cause of action that I have described as Ground (d) above was abandoned at the hearing.

As to the first cause of action, Mr T F Robertson, who appears for the applicant, submits that a notice under clause 23(3) of the Regulation may only be given to a person who set up the mooring, that is, a person who has erected, constructed or laid down an unlicensed mooring. In Mr Robertson’s submission the applicant did not set up the mooring.

As to the respondent’s suggestion that there are alternative sources of power for service of the notice, (namely a statutory power under ss 8 and 160E and the contractual power under condition 16(a) of the licence), Mr Robertson submits that there are limits to the general principle that an act purporting to have been done under one statutory power may be supported by another statutory power. He relies for this submission on Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409.

Finally on this issue, Mr Robertson submits that s 160E(1) does not support the exercise of the power in any event. The subsection provides that the Minister must form a reasonable belief that a person, without lawful authority, has erected or placed or is maintaining a structure on prescribed land. For the reasons explained in the Mercantile Mutual case, the formation of the belief and the necessity for it to be on reasonable grounds and the requirement that the structure existed without lawful authority makes the two provisions quite distinct. And even if the Minister can delegate the formation of the belief there is no evidence that anyone formed a belief, on reasonable grounds, as to the matters set out in the subsection.

Mr Robertson’s principal submission is directed to the second cause of action and in particular to the respondent’s practice of delegation to the Corporation, which I have described in paragraph 2 above. In his submission, the Act carefully constrains the power to grant interests in land or licences in relation to land. Mr Robertson refers, in particular, to s 151(1), which enables the Minister to grant leases of and licences over land within a national park. It would be foreign and alien to the public purpose and the statutory scheme if the repository of the power to license the occupation of land within a national park by way of a mooring disabled itself from its exercise except with the consent or concurrence of a private body. Mr Robertson submits that as a matter of construction the Act excludes the system the respondent has put in place in relation to mooring licences. He referred in this context to Packham v Minister for the Environment (1993) 31 NSWLR 65 CA.

Mr Robertson also submits that quite apart from statutory construction, general principles of administrative law reject the notion that discretionary power vested in a decision-maker is validly exercised when the decision to do so is simply the reflection of another person’s decision. In support of this submission Mr Robertson relies upon R v Anderson; ex parte IPEC Air Pty Ltd (1965) 113 CLR 177, Taylor v Tweed Shire Council (1975) 34 LGRA 154, Conroy v Shire of Springvale and Noble Park [1959] VR 737, H Lavender & Son Limited v Minister of Housing & Local Government [1970] 3 All ER 871, [1970] 1 WLR 1231, and Bromley London Borough Council v Greater London Council [1983] 1 AC 768 (inter alia).

Mr Robertson further submits that the power of delegation under the Act is contained in s 21 and neither the Minister nor the Director-General may delegate their powers to a person not being an officer of or the holder of an office in the Service. There is no statutory authority for effectively alienating a portion of the National Park and giving the Corporation the right to determine what happens in a described area of the National Park. Mr Robertson submits that what is being done is to delegate a power conferred exclusively on the Service to a private body having its own motivations and interests, namely the interests of the residents, which fundamentally conflict with the interests of a national park.

As to the allegation that the respondent failed to take into account relevant considerations, the matters relied upon as having not been taken into account are: that the previous owner of the subject property and licence holder had a boat of similar dimensions to that of the applicant on swing mooring No 90; that licences being issued to residents except that proposed for issue to the applicant were for swing moorings at Cottage Point; that the swing mooring could be easily accommodated by restoring the circumstances of the surrounding moorings to those that existed at the time of acquisition of the subject property by the applicant; that the applicant had been promised the mooring before his purchase of the property by the Corporation; a fore and aft mooring at the location of mooring No 90 would be unsafe and render the applicant’s boat liable to damage; that the Corporation had allowed changes to a mooring in close proximity to mooring No 90 without consultation with the applicant and which prevents the applicant from safely mooring his vessel on mooring No 90; that in the course of maintenance mooring No 90 had been moved by an agent of the Corporation without the applicant’s consent, thereby constricting the size of vessel which could be moored on the mooring; and that no consideration had been given to the alternative of a limited swing mooring.

I did not understand Mr Robertson to seriously press the allegation that the respondent is estopped from denying that the applicant is entitled to a swing mooring for his vessel at mooring No 90. I find this understandable. Mr Robertson would have great difficulty in sustaining this argument in view of the authorities which show that estoppel cannot operate to prevent the performance of a statutory duty or a statutory discretion intended to be exercised for the public benefit (see Southend-on-sea Corporation v Hodgson(Wickford) Limited [1962] 1 QB 416, Western Fish Products v Penwith District Council [1981] 2 All ER 204, Rootkin v Kent County Council [1981] 2 All ER 227, Coffs Harbour Shire Council v Ben Hall Industries Pty Ltd (1983) 48 LGRA 391, Baulkham Hills Shire Council v Cosmopolitan Homes No 2 Pty Ltd (1986) 61 LGRA 200, and Holidays A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127).

As to the final cause of action relied upon by the applicant, namely that it is not reasonably open to the respondent to refuse to issue the applicant with a licence for the mooring, Mr Robertson relies upon the facts to which I have referred and have summarised in paragraphs 2, 11 and 20-61 above.

The respondent’s submissions

Mr M J Leeming, who appears for the respondent, made the following submissions as to the first cause of action. Clause 23 of the Regulation, properly construed, gives the respondent power to issue the notice. Mr Robertson’s construction of the clause would lead to absurdities. Alternatively, when Mr Treharne serviced the mooring in Mr Holster’s presence he did so as Mr Holster’s agent with at least an implied authorisation from him to do so. In servicing the mooring Mr Treharne lifted it, serviced it and then laid it back down. For the purpose of the Regulation the mooring was thus “set up” by Mr Holster.

Further alternatively, Mr Leeming submits that the notice is valid by reason of other sources of power, namely: s 8 of the Act; s 160E of the Act; and the conditions to which the licence which was issued to Mr Holster in 1995 and which was stated to expire on 30 June 1996, were subject. It is immaterial that an incorrect source of power was invoked. What is critical is that there was an alternative source of power to support the respondent’s actions. In support of this submission Mr Leeming relies upon R v Beven; ex parte Elias and Gordon (1942) 66 CLR 452; Lockwood v The Commonwealth (1954) 90 CLR 177; Brown v West (1990) 169 CLR 195; Johns v Australian Securities Commission (1993) 178 CLR 408; Darling Casino Ltd v Minister for Planning (1995) 86 LGERA 186; Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1; and Auston v Orrego (Rolfe J, 13 February 1997, unreported).

Mr Leeming submits that in the present case the Minister had delegated his powers under s 160A and 160E to the Regional Manager pursuant to s 21 of the Act. The respondent had also delegated the Director-General’s powers under cl 23 of the Regulations to the Regional Manager, amongst others. The Regional Manager is the person who signed and issued the notice of 27 October 1997. Mooring No 90 is on prescribed land because the bed of Cowan Creek is part of Ku-ring-gai Chase National Park. It is there without lawful authority because it is unlicensed. The notice to remove the mooring is therefore supported by s 160E(1) of the Act. Moreover, the consequence of failure to comply with the notice, namely the power of either the Minister (or the Minister’s delegate) or the Director-General to remove the mooring, is the same under s 160A as it is under clause 23(6)(a) of the Regulation. Mr Leeming submits that the respondent also has the power to remove the mooring under s 8(3)(b) of the Act, which enables the respondent to arrange for the carrying out of such works as the respondent considers necessary for or in connection with the maintenance of a national park; and a further power under clause 23(6)(c) of the Regulation, which enables the respondent to remove any mooring which is a danger or a hazard (especially if it continues to be uninsured).

Mr Leeming further submits that the respondent has a contractual power under condition 16 of the licence conditions to issue the notice. Condition 17 of the licence conditions is an express power to remove the mooring if it is not removed by the applicant as directed.

As to the second cause of action relied upon by the applicant, Mr Leeming submits that the decision not to grant a licence for a swing mooring at mooring No 90 was made for the reason that Mr Holster’s 50 ft boat cannot be accommodated on a swing mooring at that location. He refers to the expert evidence on this question which is undisputed. Although there was a suggestion in the evidence about the alternative of a limited swing mooring, there is no evidence that such a mooring, despite the criticisms of the merits of such a system, would fit into the area. The decision not to grant a licence for a swing mooring was plainly a decision on the merits.

Mr Leeming submits that since no decision-maker acting reasonably could have granted a licence for the swing mooring sought by Mr Holster, the decision thus made cannot relevantly have been affected by the existence of flaws, if any, in the arrangement between the Corporation and the Service. In any event, the final decision on the question was made by the Service and the Corporation was merely a conduit between the applicants for licences and the service.

Mr Leeming also submits that this action is a highly inappropriate vehicle to decide the lawfulness of the arrangement between the Corporation and the Service. Any such decision would have an impact upon the Corporation and on the other licensees of moorings at Cottage Point, none of whom have been joined in this action. No finding which is not necessary and which may be detrimental to unrepresented third parties should be made.

Mr Leeming submits that there was no denial of natural justice to Mr Holster. There has been no departure from the policy of one mooring per household at Cottage Point. Mr Holster approached the Director-General’s delegate, Mr Sheaffe directly. Mr Sheaffe took Mr Holster’s submissions into account, as appears from Mr Sheaffe’s letter to Mr Holster of 5 December 1996 (noted in paragraph 6 above). Neither was there any improper fettering or deferral of an independent discretion. The relevant decisions were those of officers of the Service acting as the respondent’s delegates.

For the abovementioned reasons, Mr Leeming submits that there was no failure by the respondent to take into account relevant considerations, neither could it be said that the refusal of the respondent to issue the applicant with a licence for a swing mooring at mooring No 90 was not reasonably open to the respondent. To the contrary, the respondent has been most reasonable in offering the applicant either a fore and aft mooring at mooring No 90 or a swing mooring on the western side of Cottage Point.

Findings and conclusions

The first question is whether the respondent lacked the power to issue the notice of 27 October 1997 directing Mr Holster to remove the mooring. The direction to remove the mooring may be given by the respondent to “a person by whom an unlicensed mooring has been set up” (clause 23 (3) of the Regulation). The words “set up” a mooring includes “erect, construct or lay down a mooring” (clause 22). It is to be noted that the words “set up” are not restricted to “erect, construct or lay down”.

In construing an act or a regulation, the Court is required to prefer a construction that would promote the purpose or object underlying the Act or Regulation to a construction that would not promote that purpose or object (Interpretation Act 1987, s 33). The purpose or object of clause 23 of the Regulation is not expressly stated. It is apparent, however, that by reading clauses 23 and 24 together, a purpose or object becomes clear. It seems to me that the basic purpose or object underlying both clauses is to allow within the National Park occupation of the sea bed for the purpose of a mooring, but only moorings which are licensed by the respondent; to enable the respondent to direct that unlicensed moorings be removed, failing which they may be removed by the respondent; to limit the mooring of vessels to either public moorings (for not more than 24 hours at any one time) or to licensed private moorings; and to enable the respondent to impose terms and conditions upon any licence in respect of a mooring.

In particular, a person may not “set up” a mooring unless authorised by a licence (clause 23(2)). A person must not moor a vessel otherwise than at a public mooring or at a mooring in respect of which the person is the licensee, or is the hirer from the licensee of the mooring to which the licence relates, or has the consent of the licensee or hirer to use the mooring (clause 24(1)). That is to say, a mooring cannot be used to moor a vessel unless there is a person who is the licensee of the mooring. The licensee is described as the person who “set up” the mooring (clause 23(2)). It seems to me that it would be contrary to the purpose or object of these provisions if the words “set up” were to be read literally. On Mr Robertson’s construction, the notice should have been addressed to the previous licensee, Mr Smith. Mr Smith sold his property at Cottage Point about five years ago. Mr Holster does not know where Mr Smith is. In giving effect to the purpose or object of these provisions the “person by whom an unlicensed mooring has been set up” must be read so as to include the current licensee who, by becoming the licensee, has adopted its setting up. That is why clause 23(4) permits service of the notice by attaching it to the mooring.

The alternative construction urged by Mr Robertson would lead to an absurdity in the operation of the Regulation. In such a case it is appropriate to apply the well-known principle explained in a large number of cases, but conveniently described in Australian Boot Trade Employees Federation v Whybrow & Co (1910) 11 CLR 311 at 341 (per Higgins J):

Lord Wensleydale put it in Grey v Pearson, (6 HLC, 61, at p 106) that “the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but no farther”.

Alternatively, I adopt Mr Leeming’s alternative submission that when Mr Treharne, in the presence of Mr Holster, lifted the mooring, serviced it and then laid it back down, he did so with at least an implied authorisation from Mr Holster to do so. In doing so Mr Treharne was acting as Mr Holster’s agent, so that for the purpose of clause 23(3) of the Regulation the mooring was “set up” by Mr Holster.

The above conclusions lead to a finding that the notice is valid. That is sufficient to dispose of the first cause of action upon which the applicant relies. I should nevertheless consider Mr Leeming’s submission that the notice is valid by reason of other sources of power. I should do so in case the abovementioned conclusion is wrong and because the further submission was fully argued.

The alternative sources of power to issue the notice relied upon by Mr Leeming are s 160E(1) of the Act and condition 16 of the licence which had been issued to Mr Holster. The alternative sources of power to remove the mooring relied upon by Mr Leeming are s 160A of the Act, s 8(3)(b) of the Act and condition 17 of the licence.

I have referred (in paragraph 64 above) to Mr Robertson’s submission that there are limits to the general principle that an act purporting to be done under one statutory power may be supported by another statutory power. In the case upon which Mr Robertson relies, Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission, Black CJ stated (at 412):

There must of course be limits to the general principle that an act purporting to be done under one statutory power may be supported under another statutory power. The suggested other source of power may, for example, be seen to be unavailable because its exercise depends upon the fulfilment of some condition precedent peculiar to it and that event has not yet occurred: see Saatchi (supra) at 23 per Wilcox J and R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 at 587 per Williams J. There may also be cases in which the matters to which a decision-maker would be bound to have regard in exercising the other source of power differ materially from the matters relevant to the exercise of the assumed source of power with the result that the other source of power cannot be relied upon to support the decision. Similarly, matters may be taken into account in the purported exercise of a power that would invalidate the attempted exercise of a power derived from another source because, in the context of the other source, they were irrelevant matters. Moreover, for reasons of this nature, where the effect of the exercise of the power upon third parties may differ according to the source of the power, the exercise of the power may not be supportable as a valid exercise of power derived from another source.

As I have noted (at paragraph 17 above), s 160 E relevantly provides:

(1)If the Minister believes on reasonable grounds that a person, without lawful authority, has erected or placed, or is maintaining, a structure that is on prescribed land, the Minister may cause a notice:
(a)to be served on the person, or
(b)to be displayed on or adjacent to the structure,

requiring the person to remove the structure and its contents (if any) and to rehabilitate within a specified period the land on which the structure is situated.

Subsection (4) requires the person on whom such a notice has been served to remove the structure within the period specified in the notice. For the reasons described in paragraphs 16 above, a mooring is a structure for the purpose of s 160E as well as for the purpose of s 160A.

I do not think that the differences between this provision and clause 23 of the Regulation, referred to by Mr Robertson (and which I have noted in paragraph 65 above), are so materially different that the power under s 160E cannot be relied upon to support the decision to issue the notice. Neither do I think that the matters to be taken into account under s 160E are irrelevant when exercising the same or similar power under clause 23 of the Regulation. In other words, an exercise of the power pursuant to s 160E does not infringe the words of caution expressed by Black CJ in the Mercantile Mutual case, quoted above.
In particular, I have previously noted the fact that the Minister has, pursuant to s 21(1)(a) of the Act, delegated his functions under ss 160A - 160F to the Regional Manager. The Regional Manager issued the notice of 27 October 1997. Although s 160E(1) requires the formation of an opinion, on reasonable grounds, that a person is without lawful authority maintaining a structure of prescribed land, such opinion may be that of the delegate. I do not agree with Mr Robertson’s submission that there is no evidence that anyone formed a belief, on reasonable grounds, as to the matters set out in the subsection. The notice signed by the Minister’s delegate (the Regional Manager) states clearly that mooring No 90 is within the Ku-ring-gai Chase National Park (and is thus on prescribed land: s 160A(1)(a)) and that it remains unlicensed (and is thus without lawful authority). That is to say, the preconditions which must exist for the service of a notice under s 160E are stated on the notice which was issued.

The other source of power for the issue of the notice, relied upon by Mr Leeming, is condition 16 of the licence which had been issued to Mr Holster. Condition 16 relevantly states:

The superintendent by notice may require the holder of a Class “A” Licence to:
(a)remove any mooring from the site in respect of which such licence was issued.
…… .”

Condition 1 of the licence states that a class “A” licence authorises the occupation of a mooring site in a specified locality by a vessel.

Mr Leeming describes condition 16 as a contractual power to issue the notice. Mr Robertson submits that the issuing of a licence on the payment of a fee does not amount to a contract and does not give rise to contractual rights or liabilities. He relies for this submission on Lismore City Council v Stewart (1989) 68 LGRA 443 and R v Richmond London Borough Council; Ex parte McCarthy and Stone [1992] 2 AC 48 at 75. In the former case, Hope A-JA (with whom Kirby P and Samuels JA agreed) held that the issuing of a certificate by a local council under s 149 of the Environmental Planning & Assessment Act 1979 on the payment of a fee did not give rise to a contract. Hope A-JA adopted the judgment of Wood J in Coshott v Woollahra Municipal Council (1988) 14 NSWLR 675, 66 LGRA 256, in which it was held that the payment of a fee when making a development application did not give rise to any contract. In that case Wood J said (at 684):

In my view, the mere payment of a fee in a case such as the present would not give rise to any contract. Rather it would be treated as a permitted charge to defray the costs of the Council, as a consent authority, in carrying into effect the planning and development powers and duties assigned to it.
In Lismore City Council v Stewart, Hope A-JA said (at 450-451):

In my opinion no contract arose in the present case. When a person has applied and paid the prescribed fee, councils are required to give a certificate under subsection (2). There is no question of negotiation. The council has no option in the matter and no right to negotiate about the fee or about what information it shall provide. No question of contractual intent in either party would arise.

In R v Richmond London Borough Council; Ex parte McCarthy & Stone, the House of Lords held (at 75) that the charging of a fee by a local authority for the provision of information relating to development proposals was not only unlawful under the Local Government Act 1972 but neither could it be sustained as if entering into a contract.

I agree with Mr Robertson’s submission. The respondent charges a fee for issuing a licence. There is no question of negotiation. The applicant has no option in the matter. No question of contractual intent in either party arises. It seems to me that condition 16 of the licence is merely advisory of the powers otherwise contained within clause 23(3) of the Regulation and s 160E(1) of the Act. That is to say, condition 16(a) of the licence is not a separate head of power arising by way of contract.

Section 160A of the Act exists as an alternative source of power to remove “any structure that is on prescribed land without lawful authority” (subsection (2)). For the reasons described in paragraph 16 above, I accept that a mooring attached to the bed of Cowan Creek is a structure on prescribed land. The power under s 160A may be exercised by the Minister. I have previously referred to the delegation by the Minister of his functions under s 160A-160F of the Act to the Regional Manager. In applying the principles which limit the performance of an Act under one statutory power by reference to another statutory power, referred to by Black CJ in Mercantile Mutual, it again appears that the matters relevant to the exercise of the power and to be taken into account in its exercise are the same under s 160A(1) as under clause 23 of the Regulation. Those matters are that there must be a structure (a mooring) that is on prescribed land (a national park) without lawful authority (being unlicensed).

Section 8(3)(b) of the Act, also relied upon by Mr Leeming as an alternative source of power to remove the mooring, provides that the Director-General shall in the case of every national park:

(b)arrange for the carrying out of such works as the Director-General considers necessary for or in connection with the management and maintenance thereof, ….

This is a general power which does not specify the matters to be taken into account in its exercise. Nevertheless the power does not exist at large. It can only be exercised for the purposes and within the scope of the Act. It must yield to any specific powers and in particular to any relevant matters which are specified as to be taken into account in exercising any specific power. In the present case those matters are specified in ss 160A and 160E. In other words, the wide general power under s 8(3)(b) must be accepted as being limited by s 160A and 160E and by the matters specified in those sections before such powers can be exercised.

Condition 17 of the licence provides:

17.If any vessel or mooring is not moved, or any mooring is not lifted, as directed by the Superintendent, the operation may be carried out by the Service at the expense of the holder of the licence.

As with condition 16, Mr Leeming relies upon this condition as a contractual power. For the reasons which I have described in paragraphs 93-95 above in relation to condition 16, I do not agree with Mr Leeming’s submission. It seems to me that condition 17 is not a contractual term but is merely advisory of provisions which exist elsewhere to remove the mooring (namely, clause 23(6) of the Regulation and s 160A of the Act).

Clause 23(6)(c) of the Regulation gives to the Director-General an express power to remove any mooring which is not removed within 21 days after the service of the direction referred to in clause 23(3). This power is, however, dependent upon the validity of the notice served pursuant to clause 23(3) and is not really an alternative source of power if it be the case that clause 23(3) is not available in the circumstances of this case. Since I have found that the notice in this case was a valid exercise of the powers of the respondent under clause 23(3), then it follows that the respondent may also validly exercise the power under clause 23(6) to remove the mooring.

I do not regard cl 23(6)(c) of the Regulation as an alternative source of power to remove the mooring in the present case. That is a provision which refers to the mooring constituting a danger, hazard, impediment or menace in a physical sense. That is to say, the mooring must be a physical hazard to other vessels using the waterway. I do not think that the mere fact that a mooring is unlicensed and hence uninsured brings it within this provision. It may be that an unattended mooring is a danger, hazard, impediment or menace to the use of the waterway, but no evidence was presented on this question.

If the notice of 27 October 1997 is not a valid exercise of the respondent’s power under clause 23(3) of the Regulation, the question remains as to whether, if an incorrect source of power was mistakenly invoked, the respondent can nevertheless rely upon the alternative sources of power which I have found to exist.

The authorities relied upon by Mr Leeming support the general proposition that so long as there is power to issue the notice to remove the mooring, it does not matter that an incorrect source of power may have been mistakenly invoked. In the first of these authorities, R v Bevan; ex parte Elias and Gordon (1942) 66 CLR 452, Williams J said (at 487):
Even if he did err as to the source of an authority which he undoubtedly possessed his mistake in no way affected the personnel of the Court or its proceedings, so that all the conditions on which the right of the court-martial to exercise jurisdiction depended were in fact fulfilled. His mistake under such circumstances would be in a non-essential matter which would not amount to want of jurisdiction (Moore v Attorney-General for the Irish Free State [1935] AC 484 at 498). … As the applicants were lawfully sentenced to death each order nisi should be discharged.
In Lockwood v The Commonwealth (1954) 90 CLR 177, Fullagar said (at 184):
It is, I think, a settled principle that an act purporting to be done under one statutory power may be supported under another statutory power …
In Brown v West (1990) 169 CLR 195 the Court (Mason CJ, Brennan, Deane, Dawson and Toohey JJ) said (at 203):

However, the validity of the Tribunal’s determinations is unaffected by mistaking the source of the power to make them: Moore v Attorney-General (Irish Free State); R v Bevan; ex parte Elias and Gordon.

In Johns v Australian Securities Commission (1993) 178 CLR 408, Brennan J, after stating that he regarded an error as to the source of authority for the doing of an act as immaterial, said (at 426):

When a power is exercised, a mistake in the source of the power works no invalidity (Moore v Attorney-General (Irish Free State) at 498; R v Bevan; ex parte Elias and Gordon at 486; Brown v West at 203). Validity depends simply on whether a relevant power existed.

In Darling Casino Ltd v Minister for Planning (1995) 86 LGERA 186, one of the issues was whether, if State Environmental Planning Policy No 41 were invalid, the Minister was empowered to grant development consent for a casino under Sydney Regional Environmental Plan No 26. After referring to Johns v Australian Securities Commission, Lockwood v The Commonwealth, Brown v West, Moore v Attorney-General (Irish Free State) and R v Bevan; ex parte Elias and Gordon, Pearlman J said (at 209-210):

In all those authorities (Lockwood, Brown v West, Johns and Moore) the administrator purported to act pursuant to a power which was unavailable, and hence the acts would have been ultra vires except for the fact that an alternative source of power was available which could justify the administrator’s act. What is crucial in all these cases is that there was an alternative source of power. It does not matter that the alternative source of power was not specifically adverted to by the administrator.

Pearlman J concluded that Sydney Regional Environmental Plan No 26 was available as a source of power to justify the grant of development consent in that case.

In Australian Broadcasting Tribunal v Saatchi and Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 Bowen CJ adopted a qualification to the general principle discussed above. Bowen CJ (with whom Fox J agreed) held (at 10) that where an administrative body which states it is exercising a particular power in laying down a general rule lacks power on the stated grounds, but could have laid down the rule validly under another head of power, it would generally be wrong for a court to uphold the rule as if it had been made under the unstated head of power, particularly where the consequences for the citizens of each exercise head of power are different.

I do not think that the qualifications to the general principle stated by Bowen CJ, and by Black CJ in Mercantile Mutual, noted in paragraph 88 above, have been infringed in this case. The respondent was in the present case exercising a particular power rather than a general one, namely a direction that the unlicensed mooring be removed. Moreover, the consequences for the citizen in the present case are the same whichever power is relied upon, namely the removal of the mooring by the respondent if it is not removed by the applicant. Notwithstanding the qualifications to the principle (stated in paragraph 108 above) Bowen CJ also acknowledged the correctness of the general principle, which his Honour expressed as follows (at 9):

Furthermore, it seems the executive can rely upon a power other than one expressly specified when its decision was made, provided a proper head of power is available to support its action: see Lockwood v The Commonwealth at 184.

The qualification to the general principle explained by Bowen CJ was followed by Rolfe J in Auston v Orrego (13 February 1997, unreported). That was a case which concerned the validity of a notice (addressed to members of the public generally) prohibiting entry into a State forest. It was a case which was about the making of a general rule to which the qualification expressed by Bowen CJ applied.

I have referred to the general principle that an act purporting to be done under one statutory power may be supported under another statutory power, as explained by Black CJ in Mercantile Mutual (paragraph 88 above). There is nothing in the facts and circumstances of the present case to take the present case outside the limits described by Black CJ. The result is that if the power under clause 23 of the Regulations is not available to the respondent, then the alternative sources of power to which I have referred are sufficient to support both the notice directing the applicant to remove the mooring and, if necessary, the removal of the mooring by the respondent.

It is convenient that I summarise my conclusions on the first cause of action relied upon by the applicant:

(a)the direction contained in the notice to the applicant of 27 October 1997, pursuant to clause 23(3) of the Regulation, is valid;
(b)it follows that if the mooring is not removed by the applicant as directed, the respondent may remove the mooring pursuant to clause 23(6)(a) of the regulation;
(c)alternatively to (a) above, the respondent may rely upon s 160E of the Act to support the direction contained in the notice;
(d)condition 16 of the licence is not a separate contractual power to serve a notice requiring the applicant to remove the mooring, but as merely advisory of the existence of powers contained elsewhere to do so;
(e)alternatively to (b) above, s 160A of the Act authorises the removal of the mooring by the respondent;
(f)the respondent cannot rely upon the general powers under s 8(3)(b) of the Act to remove the mooring where such powers are constrained by ss 160A and 160E;
(g)condition 17 of the licence is not a separate contractual power to remove the mooring, but is merely advisory of the existence of powers contained elsewhere to do so;
(h)it does not matter if the respondent had relied upon an incorrect statutory power so long as there is an alternative statutory power to the same effect;
(i)the general principle that an act purporting to be done under one statutory power may be supported under another statutory power is subject to limits, but those limits have not been infringed in this case.

I turn now to the applicant’s second cause of action. I have referred briefly to Mr Robertson’s submissions in paragraph 66-68 above. In Packham v Minister for the Environment, on which Mr Robertson relies, the Court of Appeal applied its earlier decision in Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 in holding that the licensing powers under the Act are not at large and can only be exercised to advance the objects and purposes for which the legislation has been enacted. The objects and purposes of clauses 23 and 24 of the Regulation have been noted in paragraph 82 above. Mr Robertson submits that what the respondent has done in this case is to defer to the Corporation the decision which lies at the heart of the licensing power and is beyond the power of delegation contained in s 21 of the Act.

The authorities relied upon by Mr Robertson lend support to his submission that the arrangement the respondent had with the Corporation may be unlawful according to general principles of administrative law. In R v Anderson; ex parte IPEC Air Pty Ltd Kitto J (at 192) and Menzies J (at 202) held that a decision entrusted by a regulation to the repository of the power (in that case the Director-General of Civil Aviation) was not in truth a decision of that person if it was simply a reflection of the views of the relevant government minister without regard to the merits of the particular case.

In Taylor v Tweed Shire Council the Council had resolved that as a condition of licensing taxis to operate in Murwillumbah all taxis had to be fitted with two-way radios having a common frequency and operating through one base station. The plaintiff could not have complied with the resolution without joining the Murwillumbah Radio Taxi Co-operative Limited. Needham J said (at 161):

The discretion given by section 507 is given to the Council. It is for it to determine whether a public vehicle shall be licensed to operate. It is not within the Council’s powers, in my opinion, to delegate to some outside body the power to determine whether an applicant for a licence shall be entitled to obtain it. The defendant has determined that no vehicle will be licensed unless the Murwillumbah Radio Taxi Co-operative Limited agreed to admit its owner to membership of that company. …. For the defendant to tell an applicant for a licence to operate a taxi that it will be granted such a licence only if a third party admits the applicant to membership of a body unrelated to the defendant and not based on any statutory justification, is, in my opinion, to exercise its discretion upon grounds “definitely extraneous to any objects the legislature could have had in view”.

So also in the present case the condition of the mooring licence that the licensee must be a financial member of the Corporation suggests that the discretion of the respondent miscarried.

In Conroy v Shire of Springvale and Noble Park the Council was empowered to regulate the keeping of animals. The Council made a by-law, which prohibited the keeping of not more than a specified number of dogs except with its written permission. The by-law further provided that in respect of greyhounds, whippets or other types of racing dogs any application for permission must be accompanied by the approval in writing of the Dog Racing Control Board of Victoria. Herring CJ said (at 748):

All I need to say, I think, is that there was clearly no warrant for making it a condition precedent in some cases that the approval of the Dog Racing Control Board of Victoria should be obtained before a permit could be obtained.

Gavan Duffy J held that this provision invalidated the by-law, and further said (at 753):

The Dog Racing Control Board of Victoria had not any duty to the Shire or necessarily any interest in its wellbeing. In fact its interests might possibly be adverse, and to surrender to it part of the determination of the Council whether a person should be allowed to keep more than two or three dogs, as the case may be, appears to be not only unreasonable but contrary to the requirements of the by-law making authority.

Scholl J held that the requirement that an applicant who seeks a permit to keep an excess number of dogs of certain types to obtain the approval in writing of the Dog Racing Control Board is not capable of being supported by the Council’s statutory powers. Scholl J also said (at 758):

If for no other reason, it is ultra vires because it purports to make absolutely essential, as a pre-requisite even to the consideration of the application, an approval by a body (a) which is under no obligation even to consider or deal with a request for such approval, and, (b) which, if it does consider it, is not bound to have regard to any matter in the least degree relevant to the good rule and government of the municipality in general, or to the regulation of the keeping of dogs within it, in particular. It imposes a condition which an applicant may, for reasons completely irrelevant to his application, be forever unable to fulfil. No legal proceeding would lie against the Board if it declined to have anything to do with all applications, or any particular application, for its approval.

In H Lavender & Son Ltd v Minister of Housing & Local Government, the Minister of Housing & Local Government had refused planning permission to extract certain minerals from an agricultural holding in accordance with his policy not to permit minerals to be worked unless the Minister of Agriculture, Fisheries & Food was not opposed to it. Willis J held that the Minister failed to exercise a proper or indeed any discretion by reason of the fetter which he imposed on its exercise in acting solely in accordance with his stated policy. Willis J said (at 880):

Everything else might point to the desirability of granting permission, but by applying and acting on his stated policy I think that the Minister has fettered himself in such a way that in this case it was not he who made the decision for which Parliament made him responsible. It was the decision of the Minister of Agriculture not to waive his objection which was decisive in this case …. That means, as I think, that the Minister has by his stated policy delegated to the Minister of Agriculture the effective decision …

In Bromley London Borough Council v Greater London Council, the Greater London Council, in its implementation of an election manifesto, issued a precept to all London boroughs to levy a supplementary rate on their ratepayers to finance a grant to the London Transport Executive to reduce the cost of bus and tube fares. The House of Lords, affirming the decision of the Court of Appeal, held that the precept was null and void. One of the reasons for so holding was that Greater London Council had fettered its discretion in blindly implementing the election manifesto. Lord Brandon of Oakbrook said (at 853):

In my view it is plain for two reasons that the GLC did not exercise their discretion lawfully. The first reason is that, if and in so far as they exercise their discretion at all, they considered themselves bound to exercise it in the way they did because they had promised to do so in their election manifesto. It is, of course, entirely appropriate for a council, the majority of whose members have been elected after setting out a particular policy in their election manifesto, to take into account, and give considerable weight to, that circumstance when exercising their discretion in relation to that policy after they have been elected and come to power. It is, however, entirely wrong for such a majority to regard themselves as bound to exercise their discretion in relation to that policy in accordance with the election promises, whatever the cost and other counterriding considerations may turn out to be.

I accept these cases as authorities for the proposition that a discretionary power vested in a decision-maker is not validly exercised when the decision to do so is simply the reflection of another person’s decision, or when the decision is not exercised in a particular way without the consent of a private body or person external to the statutory scheme, or when the decision is governed by policy considerations without regard to other countervailing or merit considerations. But that is not the case here. The decision not to grant the applicant a licence for a swing mooring at mooring No 90 was that of the respondent’s delegate and not simply a reflection of the views of the Corporation. The respondent did not surrender or delegate to an outside body, in this case the Corporation, the power to determine the application for the licence. Neither is this a case where the respondent has fettered a statutory discretion by blindly following a policy of deferring to the views of the Corporation.

I am satisfied by the evidence that Mr Holster’s boat simply cannot be accommodated on a swing mooring on the eastern side of Cottage Point. His boat is simply too big. Moreover, it was reasonably open to the respondent (or more correctly to the respondent’s delegate) to have come to that view. That is the sole reason for the refusal by the respondent to issue the applicant with a licence for a swing mooring at mooring No 90. Although it was the Corporation’s view that there is insufficient room for Mr Holster’s boat on the eastern side of Cottage Point, it was also the considered view of the respondent’s delegate who made the final assessment and determination.

In his letter to Mr Holster of 2 October 1996 (noted in paragraph 5 above) Mr Scheaffe states: (i) he had spoken to the President of the Corporation, (ii) that after careful consideration of all the information presented to him he had determined that the Corporation’s offer of a fore and aft mooring in the Nottage [sic] Lane area is appropriate, (iii) that given the location of other moorings, the sandbank and the shoreline there is insufficient room to accommodate the applicant’s vessel on a swing mooring in this area, (iv) if the applicant were to be offered a swing mooring, other residents would be required to relocate their moorings; and (v) neither the National Parks & Wildlife Service nor the Corporation regard this as either fair or equitable. This letter was written after the meeting that Mr Holster had with Mr Scheaffe on 4 September 1996. There is nothing to suggest that in writing the letter Mr Scheaffe did not take into consideration Mr Holster’s views. The letter expressly states that it was written “after careful consideration of all the information presented to me”.

On 5 December 1996 there was a further meeting between Mr Holster and Mr Scheaffe. Mr Scheaffe then wrote a further letter to Mr Holster on 5 December 1996 (noted in paragraph 6 above) in which he states (inter alia) (i) that following Mr Holster’s further representations the National Parks & Wildlife Service has investigated the additional issues raised by him, (ii) as a result of their investigations the Service remains convinced that a swing mooring for a 50 ft yacht is inappropriate as there is insufficient space to accommodate a yacht of this size and the other vessels occupying moorings in this area.

It is clear from the above facts that not only was the Corporation of the view that Mr Holster’s boat is simply too big to fit into the area on a swing mooring, it was also the independent view of Mr Scheaffe, with whom Mr Holster had at least two conversations and who gave consideration to all the information with which he had been presented.

These facts show that the respondent’s decision not to issue a licence to the applicant for a swing mooring on the eastern side of Cottage Point was not simply a reflection of another person’s decision, nor was it dependent upon the consent of a private body external to the statutory scheme, nor was it governed by policy considerations without regard to the merits. The decision not to issue the licence was that of the respondent, or more correctly, the respondent’s delegate, and was made because the respondent’s delegate was of the opinion that Mr Holster’s boat is just too big to be accommodated on a swing mooring in the area in question.

Neither is this a case where there has been an unlawful delegation of power contrary to s 21 of the Act. There was no delegation to the Corporation of the power to grant or withhold licences. The evidence satisfies me that the Corporation served no more than an advisory role and an administrative role. The determination as to whether to grant or withhold licences for moorings remained with the respondent.

In view of these facts I do not have to determine the validity of the arrangement between the respondent and the Corporation. It would appear, however, that the requirement that a licensee of a mooring must be a financial member of the Corporation is at least arguably unlawful (Taylor v Tweed Shire Council, Conroy v Shire of Springvale and Noble Park). The reason for the decision not to issue the licence in this case, however, is not because Mr Holster is not a member of the Corporation. It is for the reason that the respondent is of the opinion that his boat is too big. That is a valid determination on its merits.

It follows that the second cause of action upon which the applicant relies has not been made out.

I turn now to the applicant’s third cause of action, namely, that the respondent failed to take into account relevant considerations. I have set out (in paragraph 69 above) the relevant considerations which the applicant says were not taken into account.

The applicant alleges that the respondent failed to take into account the fact that the previous owner of the subject property and licensee of the mooring had a boat of similar dimensions to that of the applicant. The evidence shows, however, that Mr Smith’s boat was smaller (about 44 ft) and had a lesser draught than Mr Holster’s boat. Moreover, Mr Holster never saw Mr Smith’s boat moored at the mooring. Mr Treharne usually only saw it moored fore and aft to Mr Smith’s pontoon.

The applicant alleges that the respondent failed to take into account the fact that licences being issued to residents of Cottage Point, except that proposed for the applicant, were for swing moorings. If by this assertion it is said that the respondent had bound itself to continue to license only swing moorings, then that is a proposition which I reject. It would allow the respondent no discretion at all. The fact which the respondent clearly took into account was that until Mr Holster arrived, all moorings which were licensed to residents of Cottage Point were swing moorings, but when Mr Holster arrived his boat was simply too big to be accommodated at a swing mooring in the area.

It is alleged that the respondent failed to take into account the fact that a swing mooring could be easily accommodated by restoring the circumstances of the surrounding moorings to those that existed at the time of Mr Holster’s acquisition of 5 Notting Lane. The evidence does not, however, support this assertion. Although Mr Holster asserts that there is room for his mooring to be moored up to 10 metres northwards without the need for anyone else’s mooring to be moved to the western side of Cottage Point, this assertion is not supported by the expert evidence. In this respect Mr Treharne, an experienced boat mooring contractor and whose evidence I accept, is of the opinion that there is no room for a swing mooring for a boat the size of Mr Holster’s in the mooring area on the eastern side of Cottage Point whilst the other existing moorings in that area are retained. In particular, Mr Treharne states that relocating Mr Holster’s mooring 10 metres northwards is only possible if two long-standing moorings belonging to fellow Notting Lane residents are shifted to the western side of Cottage Point. There was no evidence to the contrary, other than an assertion by Mr Holster. Mr Holster’s own evidence was that his boat requires a radius of 150 ft on a swing mooring; and at low tide a 300 ft diameter circle cannot fit into the area allocated for residents’ moorings on the eastern side of Cottage Point. That is to say, on Mr Holster’s own evidence his boat is too big to be accommodated on a swing mooring in the area. It thus seems to me that the problem is principally caused by the fact that Mr Holster came to Cottage Point with a boat which is significantly larger than any other. It seems perfectly reasonable in these circumstances, therefore, for the respondent to offer Mr Holster the choice of either a fore and aft mooring on the eastern side of Cottage Point or a swing mooring on the western side of Cottage Point.

It is asserted that the respondent failed to take into consideration the fact that the applicant had been promised the mooring by the Corporation before his purchase of 5 Notting Lane. This assertion ignores the fact that it is the respondent which, by clause 23 of the Regulation, is charged with the responsibility of granting licences for moorings. The respondent is entitled to take into account the views of the Corporation as representing the views of the local community at Cottage Point, but is not bound by the Corporation’s conduct. The respondent is bound to exercise an independent discretion and did so.

It is asserted that the respondent failed to take into consideration the fact that a fore and aft mooring as offered to the applicant would be unsafe and render the applicant’s boat liable to damage. It seems to me that there are three answers to this assertion. Firstly, although there is some evidence in support of the fact that a fore and aft mooring would impose greater stresses on a vessel, the evidence is equivocal. According to Mr Toghill, Mr Holster’s boat is a “deep sea boat” and is thus made to withstand all the stresses of the kind which would be imposed on it by a fore and aft mooring. Secondly, Mr Holster had two conversations with Mr Scheaffe in which he appears to have let Mr Scheaffe know his concerns. I can infer that Mr Holster expressed a concern about the perceived disadvantages of a fore and aft mooring. If he did not do so, then at least he had the opportunity of doing so. Mr Scheaffe states in his letter of 2 October 1996 that he gave careful consideration to all the information presented to him. Mr Scheaffe further states in his letter of 5 December 1996 that following Mr Holster’s further representations, the National Parks & Wildlife Service had investigated the additional issues raised by Mr Holster. Thirdly, a fore and aft mooring is not the only mooring which has been offered to the applicant. There is also the alternative offer of a swing mooring on the western side of Cottage Point if Mr Holster remains concerned about the stresses imposed by a fore and aft mooring. I am thus not satisfied that the respondent failed to take this aspect of the matter into consideration.

The applicant asserts that the respondent failed to take into consideration the fact that the Corporation allowed changes to a mooring in close proximity to mooring No 90 without consultation with the applicant and which prevents the applicant from safely mooring his vessel on mooring No 90. Mr Robertson did not expand on this assertion in the course of his submissions. Nevertheless I take this assertion to be a reference to the mooring which is licensed to Mr Ell following Mr Ell’s purchase of a larger boat. The evidence adduced before me shows that Mr Ell’s larger boat is, however, moored fore and aft and thus occupies less space than a swing mooring. Accordingly, if it be the fact that the respondent failed to take this into consideration, it cannot be a material factor. However, having regard to the fact that Mr Holster made verbal representations to Mr Scheaffe regarding the matter and Mr Scheaffe’s statement that he and the National Parks & Wildlife Service gave consideration to Mr Holster’s representations, I am not satisfied that the applicant has demonstrated that this factor was not taken into consideration.

The applicant asserts that the respondent failed to take into consideration the fact that in the course of maintaining mooring No 90, Mr Treharne moved it without the applicant’s consent, thereby constricting the size of vessel which could be moored thereto. There are two answers to this assertion. Firstly, there is conflicting evidence as to whether the mooring was moved as alleged. Mr Holster and Ms Forrester assert that it was moved a distance of some 20-25 ft. Mr Sorensen, relying on photographs taken by Ms Forrester, estimates that it was moved by 20ft or more. Mr Treharne denies this but admits that during servicing he may have replaced the mooring in a marginally different position. Secondly, if it be the case that the respondent failed to take this fact into consideration, I am not satisfied that it is a material fact, in view of the evidence that Mr Holster’s boat cannot in any event be accommodated on a swing mooring in the area set aside for residents on the eastern side of Cottage Point. Moreover, I can infer that Mr Holster drew this fact to the attention of Mr Scheaffe on either or both of the occasions on which he spoke to him. As previously noted, Mr Scheaffe “gave careful consideration to all the information” presented to him as stated in his letter of 2 October 1996 and investigated Mr Holster’s “further representations” as stated in his letter of 5 December 1996. Again, I am not satisfied that the applicant has demonstrated a failure by the respondent to take this factor into consideration.

The final matter which the applicant asserts was not taken into consideration is the alternative of a limited swing mooring. Some evidence was given by Mr Sorensen and by Mr Toghill about limited swing moorings. In cross-examination, however, Mr Toghill admitted that he was unaware of a report by a Committee of Inquiry on Concentrated Mooring Systems in New South Wales which recommended the abandonment of such mooring systems. Mr Toghill nevertheless thought that the Committee’s criticisms of limited swing moorings could be overcome. Mr Treharne was critical of such a mooring system. One of Mr Treharne’s criticisms is that it occupied more of the seabed than is reasonable in a crowded anchorage. There is no evidence, however, that such a mooring would fit into the area. In the absence of such evidence I am not satisfied that it is an alternative which could be considered.

The third cause of action upon which the applicant relies has thus not been made out. The applicant abandoned the fourth cause of action at the hearing. As to the fifth cause of action, I have referred (in paragraph 70 above) to the difficulties which the applicant faces in sustaining an argument based on estoppel. The authorities to which I have referred require me to dismiss the fifth cause of action.

I now turn to the applicant’s sixth cause of action, namely that it is not reasonably open to the respondent to refuse to issue the applicant for a licence for the mooring. It is important to bear in mind the limited basis upon which a court can interfere with an administrative decision, as explained by Mason J in Minister for Aboriginal Affairs v Peco-Wallsend Ltd (1986) 162 CLR 24 at 40:

It is not the function of the Court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.

In this context Mason J’s further statement (at 42) is also relevant:

So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

The basis of the applicant’s sixth cause of action is that the decision of the respondent is “manifestly unreasonable”. This ground, often referred to as Wednesbury unreasonableness, is only made out if it were shown that the respondent came to “a conclusion so unreasonable that no reasonable authority could ever have come to it” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 230 at 234, per Lord Greene MR). This is the accepted test which has been adopted in Australia (Peko-Wallsend, at 41).

In my view the applicant has not demonstrated that the respondent’s decision is so unreasonable that no reasonable authority could ever have come to it. I need only refer to my conclusions based on the evidence and set out in paragraphs 120-123 and paragraph 131 above. The decision of the respondent to offer the applicant the choice of either a fore and aft mooring on the eastern side of Cottage Point, or a swing mooring on the western side of Cottage Point, was a decision which was reasonably open to the respondent. This cause of action also fails.

It follows that the applicant is unsuccessful in any of his claims and that the proceedings should be dismissed. I therefore make the following orders:

1.Application dismissed.
2.Costs reserved.
3.The exhibits may be returned.