Johnson v Moyne Shire Council
[2012] VSC 393
•7 SEPTEMBER 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5733 of 2007
| PIERRE JOHNSON | Plaintiff |
| v | |
| MOYNE SHIRE COUNCIL AND OTHERS | Defendants |
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27, 28 AUGUST 2012 | |
DATE OF JUDGMENT: | 7 SEPTEMBER 2012 | |
CASE MAY BE CITED AS: | JOHNSON v MOYNE SHIRE COUNCIL | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 393 | |
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Administrative Law – Judicial Review - Unused road – Agricultural licence to use unused road – Revocation by Minister under s 407(1) of the Land Act 1958, (Vic) – Role of municipal council in informing Minister of its considered opinion about the desirability of cancellation of the licence in the public interest – Meaning of public interest – Whether notification by the council to the Minister has legal effect – Whether conduct of council amenable to judicial review – Whether jurisdictional error - Land Act 1958 (Vic), Part I Division 8, Part XIII, ss 130, 130AB(c), 130AC(e), 401, 402, 404, 406, 407, 409 and 411.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Jones | HWL Ebsworth Lawyers |
| For the First Defendant | Mr R Attiwill | Maddocks |
| For the Second Defendant | Mr N de Young | Victorian Government Solicitors |
| For the Third and Fourth Defendants | Ms D Mortimer SC with Mr E Nekvapil | Bleyer Lawyers |
HIS HONOUR:
Introduction
This proceeding concerns the role of a municipal council in the procedure, under the Land Act1958 (Vic), by which the Minister revokes a licence to farm an unused road.
Mr Johnson farms beef cattle on 736 acres near Koroit in western Victoria. His land is within the Moyne Shire. He has farmed this land since 1991. Title to this farm is in two parcels conveniently referred to as the eastern land and the western land. These parcels are divided by a small strip of land that is an unused, and unmade, road, running north/south for about 270 metres over a basic wooden bridge that crosses a drain, known as Blackwood drain, running along the northern boundary of Mr Johnson’s western land. Mr Johnson holds an agricultural licence issued under s 130 of the Land Act that permits him to incorporate the unused road into his farm. Thus, since 1991, Mr Johnson’s farm has effectively been comprised of contiguous paddocks. The agricultural licence permits the use of other parts of this unused road that are not relevant in this dispute.
Temple Industrial Pty Ltd, a company controlled by Dr Vincent Lee, has farmed land immediately to the south of Mr Johnson’s farm, mostly contiguous with his western land since 2001. Temple Industrial acquired further land in 2003 that is immediately to the north of Mr Johnson’s western land, bordering on Blackwood drain, and immediately to the west of Mr Johnson’s eastern land. The most direct method for access from Temple Industrial’s southern land to its northern land would be by the unused road across a distance of about 270 metres.
It is the rights to use the unused road where it traverses Mr Johnson’s farm and for a short distance to the north beyond the drain that are in issue. I refer to this part of the licensed unused road as ‘the disputed strip’.
Part XIII of the Land Act provides that a municipal council may give notice that a road, or part of a road, which is within the municipal district and is not required for public traffic is an unused road. Such notices are in a prescribed form and, once given, constitute that road or part thereof as an unused road. An occupier may obtain a licence from the Minister under Division 8 of Part 1 of the Act, when the unused land becomes private land that may be occupied by the licensee. In this case, the Minister granted Mr Johnson a licence for agricultural purposes over unused road that included the disputed strip.
On 14 March 2004, Temple Industrial initiated steps to cancel Mr Johnson’s agricultural licence, seeking to reopen the unused road to facilitate convenient access between its properties. Following an investigation and report by a council officer, Moyne Shire Council resolved to recommend to the Minister administering the Land Act that Mr Johnson’s agricultural licence be cancelled to permit the use of the road. In due course, Moyne Shire notified its resolution to Ms Julie Jones, the second defendant and a delegate of the Minister for relevant purposes. The Minister varied Mr Johnson’s licence in February 2005 by removing from it that part of the unused road commencing at the northern boundary of Temple Industrial’s southern land and running north for 430 metres to a point a short distance past the southeastern corner of Temple Industrial’s northern land, the disputed strip.
In 2007, well after the Minister notified Mr Johnson of the partial cancellation of his licence, he issued proceedings in this court. Later that year, the Minister reinstated Mr Johnson’s licence and Mr Johnson retains it free of re-consideration of its possible variation or cancellation, by virtue of an interlocutory undertaking.
Central to this dispute is s 407 of the Land Act, which permits reopening of a licensed closed road. Section 407(1) relevantly[1] is in these terms:
407 Reopening of licensed closed road or water frontage
(1)If a municipal council considers that it is desirable in the public interest that a licence under Division 8 of Part I or section 138 of this Act in respect of any unused road in the municipal district of that municipal council should be cancelled it shall so inform the Minister or any person authorized to grant licences and the Minister or that person, may, after three months' notice has been given to the licensee cancel the licence.
[1]The section has since been amended.
As a preliminary observation, I note that the pertinent steps in a licence cancellation by the Minister are that a municipal council consider the use of the unused road and form the required opinion. On receiving that opinion, the minister may give notice to the licensee. On the expiry of a period of three months, the licence may be cancelled. I will say more about the statutory scheme for licensed use of unused roads in due course.
Issues to be considered
The issues in which this application resolves are:
(a)Is the conduct of Moyne Shire in informing the minister under s 407(1) of council’s resolution amenable to judicial review?
(b)If it is, was that conduct affected by jurisdictional error? Mr Johnson raises specific issues in this regard.
(i)Was Moyne Shire’s resolution to cancel part only of the licence ultra vires (beyond s 407(1) of the Act)?
(ii)Did Moyne Shire conclude that cancellation was in the public interest without evidence that cancellation was ‘desirable in the public interest’?
(iii)Did Council act with an improper purpose – to provide a private access route between two parcels of land owned by Temple Industries and for its benefit?
(iv)Did the council reach a decision so unreasonable that no reasonable council would have made it?
(c)If the second issue resolves in Mr Johnsons’ favour, to what relief is he entitled?
What happened?
The facts are, mostly, undisputed. On 20 August 1993, unused road licence no. 37154 was transferred to Mr Johnson. It appears that in October 1994 unused road licence no. 305963, which is the licence in dispute, replaced this licence.
Temple Industrial acquired its northern land on 19 March 2004. Dr Lee, the director of Temple Industrial, was aware of the unused road connecting the two parcels of land and of Mr Johnson’s license to use this unused road for grazing and other agricultural purposes. On 14 March 2004, Dr Lee wrote to both Moyne Shire and the Department of Sustainability and Environment requesting that the unused road be opened up, affecting Mr Johnson’s licence. It is plain that from the outset Temple Industrial based this request on its convenience in travelling between its southern land and its northern land. The alternative to transporting stock, plant, or equipment several hundred metres on the unused road from one part of his farm to the other is an 11 kilometre trip by public roads.
Following Dr Lee’s request, Moyne Shire’s Director, Environment and Planning, Mr Anders, wrote to Mr Johnson informing him of the request and inviting his written response ‘so that any concerns which you may have can be reported to the council’. He also informed Mr Johnson that he had received a response from Mr Beaton, an officer of the Department of Sustainability and Environment to Dr Lee’s initial request explaining what options were open to council. Mr Beaton described Dr Lee’s request as ‘an application to open a government road’ that needs to be considered by the council in the first instance.
For his part, Mr Johnson instructed solicitors in response to Mr Anders’ letter. Those solicitors prepared and forwarded to Moyne Shire, on 15 April 2004, a 6-page submission in relation to Dr Lee’s request. The solicitors also sought an opportunity for Mr Johnson to be heard by council in response to any submission made by Dr Lee. Moyne Shire scheduled the request for its meeting on 27 April 2004 and Mr Anders prepared a report for council. On 22 April 2004, he sent a memorandum to all councillors that included the correspondence and the submission from Mr Johnson’s solicitors that I have noted, correspondence with a veterinarian, Dr Martin Roche, some site photographs, and his report. I am satisfied that this material was provided to councillors at or prior to their vote on the resolution.
A thorough submission from Mr Johnson’s solicitors identified the nature of Dr Lee’s request and the statutory process under s 407 of the Land Act; referring in several places to the requirement of the statute, that council consider whether it was desirable in the public interest to cancel the unused road licence. The solicitors advocated six distinct reasons why Moyne Shire should conclude that it was not desirable in the public interest to agree to Dr Lee’s request and should inform the Minister accordingly.
(a)There was suitable alternative access by fully constructed government roads that would take approximately 10 minutes in travelling time;
(b)Temple Industrial’s southern land was previously the subject of an agreement concerning a Bovine Johne’s disease control program for dairy cattle and there was a significant risk that, if Temple Industrial moved its cattle across the unmade road through Mr Johnson’s properties, Johne’s disease could spread into his herd and that of his neighbours with disastrous financial consequences;
(c)The area of the disputed strip is particularly low lying, evident from the presence of the Blackwood drain. A fenced road separating Mr Johnson’s western land from his eastern land would severely restrict the opportunity for cattle to reach higher ground in floods;
(d)The request was excessive as it was unnecessary to re-open the whole of the unmade road, particularly for 270 metres to the north of Blackwood drain;
(e)Cancellation of the licence might require a contribution from Mr Johnson towards road construction and fencing costs, which costs might be significant due to the susceptibility of the land to flooding;
(f)Mr Johnson had enjoyed unrestricted use of the licensed unused road since 1991 and his use of his farm would be unreasonably restricted if the unused road was opened up.
Mr Johnson invited councillors to inspect the relevant features of the site for themselves prior to considering Dr Lee’s request.
For the council meeting, Mr Anders prepared a report and recommendation. His recommendation was, initially:
That the council accede in part to the request by Mr V Lee for council to request the Department of Sustainability and Environment to terminate all of the unused road licence no. 0305963, by requesting the department to terminate only the southernmost portion of the licence area up to a location approximately 15 lineal metres north of the south eastern corner of Mr Lee’s property, as shown on the attached plans.
Mr Anders’ report set out the background of the request, which I need not repeat. Mr Anders commented that Dr Lee told him he wished to move stock between his two properties on a regular basis and that, if council refused his request, he would have to travel approximately 11 kilometres by existing roads. Mr Anders drew the attention of councillors to the written submission from Russell Kennedy, solicitors, summarising from the submission the reasons why Mr Johnson submits to council that it was not desirable in the public interest to agree to Dr Lee’s request. Mr Anders provided a response to each of the issues that Mr Johnson’s submission raised.
(a)Council does not have legislative authority to exercise any powers under the Livestock Disease Control Act 1994 and issues associated with the risk of spread of bovine Johne’s disease are generally not matters with which council becomes involved. However, council will recall making recent amendments to its droving guidelines;
(b)The fact that the southern portion of the unused road is subject to flooding is not a plausible ground for refusing access as the road is not permanently under water and will mostly be accessible;
(c)Fencing along the road boundary would not prohibit Mr Johnson from strategically placing gates that would allow for the movement of cattle from the western land to the eastern land. Serious flooding that might threaten livestock is not a frequently occurring event;
(d)Mr Anders accepted that Dr Lee does not need to have the whole of Mr Johnson’s licence cancelled and the area in question should be limited to approximately 15 metres north of the southern boundary of his northern land. Further, Mr Anders suggested Dr Lee is entitled to operate his two property holdings as a single farming operation and a travelling distance of 230 lineal metres without interference from other vehicles is much safer and more convenient. That is a matter that council might consider in conformity with s 7.2(1)(d) of council’s General Local Law No 1 of 1996;
(e)It is not suggested that Mr Johnson needed to contribute towards new roadworks;
(f)Finally, Mr Anders provided locality plans and photographs, suggesting that a site inspection may not be necessary but that it was council’s prerogative to determine whether that be so.
Mr Anders reminded councillors of the terms of s 407(1) of the Land Act by setting out the section in his report and directing councillors’ attention to four matters:
(a)The proposal to provide Dr Lee with convenient and safe access between the two parts of his farming property is reasonable;
(b)It is inappropriate for council to make judgments concerning Bovine Johne’s disease. Farmers should assume that there are risks that should be managed accordingly;
(c)There are no financial implications for council associated with the recommendation;
(d)The community members most affected by the request to have the unused road opened have been consulted and their concerns have been taken into consideration;
Finally, Mr Anders’ report concluded with a ‘value matrix’ that revealed to councillors that the ‘value’ that was a key influence for Mr Anders in drafting his report was ‘fairness and balance’. The recommendation before council provided for a reasonable outcome, notwithstanding that Mr Johnson will have to meet the costs of providing boundary fencing if council agrees that the road should be opened.
When the matter came before council at its meeting on 27 April 2004, Mr Johnson attended, with his brother. He was present when Mr Anders presented his report. During the course of that presentation, Mr Anders proposed an amendment to the recommendation he was making in handwritten form, which he circulated. Mr Anders said that after recent discussions with council’s solicitor, he proposed to add the following words to the end of the recommendation:
on the grounds that the council considers that it is desirable in the public interest that the above portion of the licence be terminated.
Mr Anders explained to councillors that this addition was directly relevant to the requirements of s 407(1) of the Land Act. Mr Johnson said he heard no debate during the council meeting of the question whether cancellation of his licence was desirable in the public interest and two of the counsellors who opposed the resolution confirmed that fact. Plainly enough the concept of desirability in the public interest was raised at the meeting. I am satisfied that councillors were appropriately informed, from site diagrams, photographs and personal knowledge, of the layout and existing conditions of the disputed strip.
When Mr Anders suggested to councillors that in his opinion Mr Johnson had not identified sufficient grounds on which Mr Lee’s request for access could be denied, Mr Johnson sought, and was refused, leave to address the meeting before a vote was taken. It appears that Mr Johnson exchanged strong words with counsellors at this point and was asked to leave the meeting, which he did, before the deliberations on the resolution were concluded. Neither Mr Johnson, who was not in a position to do so, nor Counsellors Stewart and Doukas, who were, gave a complete or a detailed account of all that transpired at the council meeting on this resolution. In particular, Mr Johnson did not invite either of Counsellors Stewart and Doukas to inform the court about the deliberations and decision-making process of council on the resolution or its reasons for passing the resolution, and they did not do so.
The minutes of that meeting record that the following resolution was carried by 6 votes to 3 after a division was requested:
Cr Madden moved, Cr Clancy seconded, that the council accede ‘in part’ to the request by Mr V Lee for council to request the Department of Sustainability and Environment to terminate all of unused road licence no. 0305963, by requesting the department to terminate only the southernmost portion of the licence area up to a location approximately 15 lineal metres north of the south eastern corner of Mr Lee’s property, as shown on the attached plans, on the grounds that council considers that it is desirable in the public interest that the above portion of the licence be terminated.
The minutes do not reveal the reasons why council passed the resolution or the manner and extent of consideration by counsellors of Mr Anders’ memorandum of 22 April and the accompanying materials. Mr Johnson called no evidence about the deliberations of council beyond what I have stated. No counsellor from the majority who voted to pass the resolution gave evidence and Mr Johnson did not explain the absence of those counsellors. Subsequently, Mr Johnson did not take any steps to obtain from council a statement of its reasons for passing the resolution.[2]
[2]see s 8 Administrative Law Act 1978 (Vic).
At a meeting of the Moyne Shire Council on 25 May 2004, a councillor moved unsuccessfully to rescind the resolution recommending termination of Mr Johnson’s licence. Council also received a request from Mr Johnson’s solicitors, Russell Kennedy, that it reconsider the resolution.
On 26 May 2004, Mr Anders informed Mr Beaton of council’s resolution requesting, inappropriately, that Mr Beaton now inform Mr Johnson of the council’s decision that the southern portion of unused road licence no. 0305963 should be cancelled. Mr Anders provided Mr Beaton with a copy of his report to council together with appropriate extracts from the minutes of the meeting. Mr Anders asked to be informed of the effective date of termination of the licence to enable the issue of the necessary boundary fencing to be dealt with.
On 30 August 2004, Ms Julie Jones, Manager, Customer Services, Department of Sustainability and Environment informed Mr Johnson that the department had received advice from the Moyne Shire that it was desirable in the public interest to cancel his unused road licence in part, enclosing a formal notice to that effect. The notice was that, at the expiry of three months, the licence would be cancelled as to part, providing details.
On 30 November 2004, Russell Kennedy, on Mr Johnson’s behalf, made further submissions to the Minister, which were rejected and, in February 2005, an amended licence was issued that excluded from the licence the southern 270 metres west of allotment 1 section A, the disputed strip. Negotiations between the parties followed and it was not until 18 April 2007 that this proceeding commenced against Moyne Shire, Ms Jones, Temple Industrial, and Dr Lee. It will be appreciated that the time for seeking relief in the nature of certiorari had long passed. Mr Johnson sought a declaration that the council resolution was invalid and injunctions against both Moyne Shire and Temple Industrial and Dr Lee and other relief against Ms Jones, as second defendant.
During the course of interlocutory proceedings, the second defendant accepted that Mr Johnson was denied procedural fairness and offered to consent to the judgment Mr Johnson sought against her. Before the judgment was entered, Mr Johnson sought and obtained an undertaking from the Department of Sustainability and Environment that until the determination of this proceeding, no action would be taken by it under s 407(1) of the Land Act in reliance on the notice of 30 August 2004 or on council’s resolution of 27 April 2004. The proceeding has continued in order that Mr Johnson might seek declaratory and injunctive relief in relation to the Shire’s resolution.
Finally, I should record that I am satisfied about the following matters. First, Temple Industrial has respected Mr Johnson’s licence rights and has not sought to use the unmade road. Second, the delegate of the Minister, having given that undertaking, has not further considered or reconsidered Dr Lee’s request or council’s resolution. While there is no reason to assume that the Minister’s delegate will not reconsider the resolution and the application under s 407(1) if the court does not grant the plaintiff the relief he seeks, I would expect, from the delegate’s conduct in not defending the original decision that a different procedure might, in future, be adopted. However, that is not a matter about which I need make any finding.
Susceptibility to judicial review
Mr Johnson submitted that the s 407(1) procedure is in two stages and the council and the Minister have separate tasks. The council has the distinct task of considering the issue raised by the section and informing the Minister. This consideration, of the desirability in the public interest of cancelling the licence, is the central task, that Mr Johnson submitted results in a decision that affects rights.
I do not accept the construction for which Mr Johnson contends. In my view, council’s notification to the Minister once it has considered the question raised by the section, merely provides the statutory trigger for the Minister’s exercise of power. It is the conduct of the Minister, not the conduct of council, which affects legal rights and interests. Under s 407, the council requests, or applies for, an exercise of the power and the Minister, as the repository of the power, must then exercise it for the purposes set out in s 407 and in accordance with the rules of natural justice. My reasoning for this view commences with an analysis of the statutory scheme.
The statutory scheme for licensing the use of unused roads
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute.[3] The meaning of the statutory provision being construed must be determined by reference to the language of the statute viewed as a whole and the process of construction must always begin by examining the context of the provision that is being construed. It is well established that the structure of the Act and the legislative history and purpose of the relevant provisions are important parts of the context for the purposes of interpretation. Thus, in H v Minister for Immigration and Citizenship,[4] the Full Court of the Federal Court of Australia observed:
… the Court is obliged to consider the object of the legislation and the text of [the relevant section] in its proper context, having regard, where appropriate, to legislative structure, legislative history (here considered in the context of the common law and Australian constitutional history), parliamentary speeches and explanatory memoranda.
[3]Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 381 [69].
[4][2010] FCAFC 119; (2010) 188 FCR 393, 406 [51].
While the identification of roads that are not required for public traffic is a task for municipal councils, licensing the use of such roads is a matter for the Minister. Thus, s 400 of the Land Act provides that a council may give notice to the Secretary that any road or part of a road within the relevant municipal district is not required for public traffic. Section 402 of the Act requires the occupier of unfenced private land to obtain a licence to enter and use that land. The Act imposes obligations upon licensees to pay fees and to fence areas licensed for agricultural purposes. The Minister or his delegate grants such licences under Part I Division 8[5] and they may be granted over unused roads.[6] Such licences may contain general conditions including conditions regarding cancellation or termination.[7] The Minister’s actions in cancelling licences reopens closed roads for public use under s 407 of the Act. The licence originally granted to Mr Johnson on 20 August 1993 was granted by the Minister under the now repealed s 401, replaced by a licence issued under the amended provisions.
[5]Section 130(1).
[6]Section 130AB(c).
[7]Section 130AC(e).
Agricultural licences can be cancelled according to their terms irrespective of any opinion held by the municipal council about the desirability of cancellation in the public interest. Section 130AC of the Land Act provides that a licence may contain conditions regarding cancellation or termination, and Mr Johnson’s licence provided that the Minister or any person authorised by the Minister after 3 months’ written notice to the licensee may cancel it as to either the whole or part at any time. That clause of the licence is not conditioned on any opinion being formed by the municipal council about what use of the land licensed was desirable in the public interest. A licensee is not entitled to retain a licence until the municipal council informs the Minister that the licence should be cancelled. The Minister may act of his or her own motion. The Minister is not bound to first discover, or receive, the view of the council.
The decision making process on licence cancellation
As the High Court observed in Hot Holdings Pty Ltd v Creasey[8] it is important to analyse the structure of the decision making process prescribed by the Act. For certiorari to issue, it must be possible to identify a decision that has discernible or apparent legal effect upon rights, as it is that legal effect which may be removed for quashing. The principle identified in Hot Holdings is relevant; having regard to the relief sought by Mr Johnson in this proceeding and the submission of Temple Industrial and Dr Lee that council’s notice to the Minister does not have a sufficiently immediate impact on the rights of Mr Johnson to satisfy the requirements for judicial review.
[8](1996) 185 CLR 149.
In Hot Holdings, a mining warden was required by the relevant statute to prepare a recommendation to the Minister about whether applications for exploration licences and mining leases had satisfied particular requirements of the statute. The Minister had power to grant or refuse applications for exploration licences or mining leases whether or not the warden recommended approval. The statutory scheme specifically required ‘receipt’ of the warden’s findings to allow for the Minister’s consideration of those matters and provided no other means for the Minister to be informed of relevant considerations.
Of the need to identify whether a decision relevantly affects rights, the High Court observed:
This formulation encompasses two broadly typical situations where the requirement of legal effect is in issue: (1) where the decision under challenge is the ultimate decision in the decision-making process and the question is whether that ultimate decision sufficiently "affects rights" in a legal sense; (2) where the ultimate decision to be made undoubtedly affects legal rights but the question is whether a decision made at a preliminary or recommendatory stage of the decision-making process sufficiently "determines" or is connected with that decision.
The form in which a decision-making structure is established may be likely to indicate the nature of the function exercised at each stage within that structure. Nevertheless, the difference between the two situations outlined above is one of substance as well as form. In the second situation, the question becomes whether the stage of the process under challenge has the necessary effect on the final or ultimate decision.[9]
The statutory scheme under the Mining Act 1978 (WA) when analysed by the High Court revealed that the mining warden’s recommendation did have the necessary effect on the final or ultimate decision, characterised as a discernible or apparent legal effect upon rights.
[9]Ibid, 168.
In my opinion, the same conclusion is not open here because of the material differences in the statutory scheme under the WA Mining Act and that which I have described under the Land Act. The notification of an opinion held by a municipal council is merely procedural. The legislature plainly considered it convenient for the cancellation of a licence to be so commenced. The notification is not sufficiently determinative of, or connected with, the Minister’s decision to cancel the licence to be capable of being characterised as affecting legal rights. The concept of being ‘connected with’ the Minister’s decision is to be read with the preceding words ‘sufficiently determines’. It cannot be said that a procedural initiating step is relevantly connected with the Minister’s decision in the sense explained by the High Court in Hot Holdings, particularly having regard to the statutory decision making structure and the purpose of the statutory scheme.
A conclusion that a decision or recommendation was a procedural step and not a substantive determination of rights was reached in Byrne v Marles,[10] and the comparison is illuminating. Those proceedings concerned the decision of the Legal Services Commission to treat a complaint against a legal practitioner as a disciplinary complaint. Upholding the trial judge’s conclusion that the Commissioner’s decision was procedural not substantive, and not susceptible to certiorari, the Court of Appeal rejected the contention that it could properly be said that the Commissioner’s determination to treat the complaint as a disciplinary complaint for the purposes of the Act sufficiently determined or was sufficiently connected with a decision that affected rights and that came within the second class of case identified in Hot Holdings. The Commissioner’s decision, to investigate a complaint as a disciplinary complaint, does not have any discernible effect upon the tribunal’s decision on a later application made under the Act.
[10][2008] VSCA 78; (2008) 19 VR 612.
In this case it does not follow, from the information provided to the Minister by the municipal council of its opinion that a licence in respect of an unused road be cancelled, that any rights of the licence holder are necessarily affected. It is open for the licensee, for example, in the period of three months between notification of intention and cancellation to persuade the Minister to a different view of what is desirable in the public interest concerning use of the land that is licensed. As I have noted, it is conceivable that a determination could be made by the Minister that the licence be cancelled without reference to any information from the local council just as it is conceivable that the licence might not be cancelled notwithstanding information being provided to the Minister about council’s opinion in respect of the unused road.[11]
[11]See also Winky Pop Pty Ltd v Hobsons Bay City Council [2007] VSC 468; (2007) 19 VR 312, 331 [59]-[62].
For these reasons, I consider that the conduct of Moyne Shire in informing the Minister of its opinion is not conduct that constitutes a condition precedent to an exercise of power that will affect legal rights and is not sufficiently connected with that decision to be susceptible to review by this court. Mr Johnson may have been entitled to feel aggrieved by the circumstances in which the Minister’s delegate cancelled, in part, his agricultural licence. He has relief from those consequences and the opportunity for a proper consideration, according to law, by the Minister’s delegate as to whether his agricultural licence should be cancelled. That is sufficient to dispose of this proceeding.
Jurisdictional error
Further, Mr Johnson failed to establish jurisdictional error.
Ultra vires
Mr Johnson contended that for a literal construction of s 407 that would preclude a variation of the licence in the form of a partial cancellation by reducing the area of the road reserve that was licensed for agricultural purposes. Mr Johnson contended a partial cancellation was ultra vires, when it must be all or nothing. In the first place, this submission is misconceived because the role of the municipal council is to do no more than inform the Minister of the opinion reached upon its considerations of the public interest. As I will shortly explain, that statutory pre-condition ‘desirable in the public interest’ is a broad and flexible concept. It can hardly be thought that parliament intended to advance the statutory purpose that I have described by a narrow and restricted power of cancellation. In any event, as I have also stated, that power lies with the Minister. No part of the statutory scheme excludes a municipal council from informing the Minister that only part of an unused road licence should be surrendered for land to be returned to use in the public interest.
As both the power to grant and the power to cancel agricultural licences lie with the Minister, there is no impediment to variation by amending a licence or cancelling a whole licence and re-issuing a new licence for part of the road reserve originally licensed for agricultural use.[12]
[12]Another relevant provision of the Act beyond those discussed above is s 411. See also s 41A Interpretation of Legislation Act 1984.
Relevant considerations and proper purpose
Mr Johnson submitted that council did not consider whether it was desirable in the public interest to close the road, that it failed to take into account a relevant consideration that it was bound to consider. This contention was based in the evidence of what occurred at the meeting and what was contained in Mr Anders’ report. The addition of words to the resolution was, he submitted, intended to give the appearance of compliance with the Act when in fact no such consideration had been given. This submission is misconceived for two reasons, one relating to the absence of evidence of reasons for the council’s resolution and notification and the other concerned with the notion of ‘public interest’ in s 407(1).
Reasons for the decision
An evidentiary difficulty that arose for Mr Johnson in this case was that the reasoning of the councillors on the resolution was not identified. Rather than adopt the available mechanisms to tease out and present that reasoning to the court, Mr Johnson effectively relied upon the materials provided by Mr Anders, including his report to council by the memorandum of 22 April 2004. However, there was no evidence that those councillors who voted in favour of the resolution that Mr Anders proposed and might be thought to have adopted the whole of the reasoning in his report did so.
As Spigelman CJ explained in Austral Monsoon Industries Pty Ltd v Pittwater Council,[13] it is not permissible to infer a decision maker’s purpose from a document of this character. In that case, a contention, that the opinion of the Minister concerning planning issues was formed for an improper collateral purpose, was based on a briefing note that recommended to the Minister a particular opinion for the purposes of the planning policy under consideration. Spigelman CJ supported the trial judge’s rejection of the construction of the briefing note as demonstrating the improper purpose contended for, as the analysis contained in the briefing note was that of the author of the note. Unlike this case, the Minister had signed the briefing note, but on the face of the document, that signature merely suggested that the Minister had noted its contents. The contents of a departmental memorandum of that character are not usually evidence of what was in the Minister’s mind and do not establish the Minister’s purpose.
[13][2009] NSWCA 154; (2009) 75 NSWLR 169.
In any event, the materials that Mr Anders placed before council correctly directed council’s attention to its task under s 407(1). The section was correctly reproduced in Mr Anders’ report as the relevant statutory provision. Mr Anders’ report directed his reasoning to the grounds on which Mr Johnson contended that it was not desirable in the public interest that his licence be cancelled. Mr Johnson’s own submissions, prepared by his solicitors, also correctly directed attention to the appropriate considerations. Finally, during the meeting and shortly prior to voting on the resolution, Mr Anders’ amendment to his recommendation and the comments that he made explaining his amendment, directed the attention of councillors to the statutory task.
Mr Johnson directed my attention to the evidence of the councillors who opposed the resolution, that the question of whether cancellation was desirable in the public interest was not debated in the meeting and, further, that Mr Anders did not provide to councillors a supplementary report justifying the proposed amendment to his recommendation. Neither Councillors Stewart nor Doukas stated that they did not consider whether the cancellation of Mr Johnson’s licence was in the public interest. There was no evidence about what was considered by the councillors who voted in favour of the resolution.
When proceeding without the reasons of the decision maker, the obligation upon Mr Johnson was to establish that on a full consideration of the material that the council had before it, its resolution could not be explained on any ground that would be consistent with a valid exercise of the functions that were committed to it. In Denver Chemical Manufacturing Co v Commissioner of Taxation (NSW)[14] Dixon J (as he then was) said:
Again, although it is not this case, the fact that the precise reasons on which the Board acted are not stated and are not known will not prevent the judicial review of their decision. But in such a case it is probably necessary that, on a full consideration of the material which the Board had before it, the Court should be able to say that the decision of the Board could not be explained on any ground which would be consistent with the valid exercise of functions committed to it.
[14](1949) 79 CLR 296, 313.
In seeking to discharge this onus, Mr Johnson contended for a particular definition of ‘public interest’ that I reject. Developing the submission that an improper purpose could be discerned from Mr Anders’ report to councillors, Mr Johnson submitted that the purpose of Mr Anders’ recommendation was to facilitate a private access route for Temple Industrial and Dr Lee from one section of its farm to another. This demonstrated that the council was concerned with accommodating Dr Lee’s request and not with satisfying its statutory duty.
The notion of ‘public interest’
As the High Court stated in O’Sullivan v Farrer:[15]
Indeed, the expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the legislature could have had in view’.
Consideration of the legislative history of the statutory scheme informs the concept of public interest to which s 407(1) refers.
[15](1989) 168 CLR 210, 216.
From colonial times, the reservation of land that might be required for roads was considered by the legislature. Section 5 of the Land Act 1862 provided that the Governor in Council could reserve from sale, either temporarily or permanently, any Crown lands required for, among other things, roads. The Court of Appeal in Fenelon v Dove[16] considered the current provisions of the Land Act concerning unused roads and licences for use of such land for agricultural purposes, found in Part I, Division 8 and Part XIII of the Act. The historical context of the current provisions is set out in the judgment of Beach AJA.
[16][2010] VSCA 187; (2010) 28 VR 619.
It is convenient to set out the origins of these provisions from his Honour’s judgment.
The origins of the current provisions are to be found in the Unused Roads and Water Frontages Act 1903 (‘the 1903 Act’). By s 2 of the 1903 Act, ‘unused road’ was defined to mean ‘so much of any road or part of a road as is specified as unused in any return made by any council as hereinafter provided or which whether included in any such return or not is declared by the Governor in Council to be unused road.’
Section 5 of the 1903 Act permitted the Minister to grant licences for the occupation and use of any unused road. Section 10(1) of the 1903 Act required the licence to contain certain conditions, including:
(d)a condition that on payment of [an] increased rate of licence fees … the licensee may cultivate or break the soil of the licensed land with the written consent of the Minister and the council of the municipality within which such road … is situated;
…
(f)such other conditions and provisions as may be necessary for carrying out the objects and intention of this Act including a condition requiring the erection and maintenance of suitable unlocked swing gates when in the opinion of the Minister such a condition is reasonable.
Section 12 of the 1903 Act provided that all unused roads licensed under the 1903 Act ‘shall for the purpose of the local government Acts be deemed to be rateable property, and the licensee … shall be deemed to be the occupier thereof’.
Section 14 of the 1903 Act relevantly provided:
Where any council of a municipal district in which there is an unused road … proves to the satisfaction of the Minister that it is desirable that such road … be made available for traffic, the Minister may require and compel any licensee thereof to open such road … to be used for traffic or by the public and may cancel his licence thereof. …
Subject to various amendments, the relevant provisions were subsequently to be found in s 732 and following of the Local Government Act 1915, s 858 of the Local Government Act 1928 and s 904 of the Local Government Act 1958 – before finding their way into the Land Act.[17]
[17]See the Land Act1958 as originally enacted and as amended by the Land (Unused Roads and Waterfrontages) Act 1961.
Until its repeal on 26 January 1995, by s 28 of the Crown Lands Acts (Amendment) Act 1994, s 401 of the Land Act provided:
(1)Notwithstanding anything in any Act or in any proclamation or order of the Governor in Council or in any map or plan, the Minister or any person duly authorized by him in that behalf may grant to a person –
(a)a licence to enter an unused road or part of an unused road and to use the road for a purpose specified in the licence; or
(b)a licence to enter a water frontage and to use it to departure cattle or sheep.
(2)No such licence shall be granted unless the Director-General has consulted in relation thereto with the municipal council within whose municipal district the unused road or the water frontage or any part thereof is situated.
(3)In this section ‘cattle’ means bulls, cows, oxen, heifers, steers, calves, horses, mares, geldings, colts and fillies.
On that day (26 January 1995), s 401 was repealed. However, the power to grant a licence over an unused road was not abolished because when s 401 was repealed, s 130AB was enacted – paragraph (c) of which permitted licences to be granted over unused roads.
Similarly, until 26 January 1995, s 405(2) of the Land Act provided that a licence to enter and use and unused road must contain a condition that the licensee would not, except with relevant written permission and upon payment of an additional fee, ‘cultivate or break the soil of the licensed land’. Further, s 405(2) provided that a licence may contain ‘a condition requiring the erection and maintenance of suitable unlocked swing gates, cattle pits, ramps or other suitable means of passage’. Upon the repeal of s 405(2), the statutory provision dealing with licence conditions was enacted in s 130AC.
An analysis of the statutory provisions concerning licences over unused roads shows that from the commencement of the 1903 Act to the present, the Minister or authorised person has been permitted to grant a licence over an unused road, which licence might have the effect of allowing members of the public to pass over the unused road or which might have the effect of closing the unused road to members of the public.[18]
[18]Footnotes not reproduced.
The legislative history clearly shows, when land reserved for roads was used for other purposes, the legislature’s purpose was to collect revenue from such use of unused roads. The issue and cancellation of occupation licences has always been a matter for the Minister. The legislature has sought to ensure that a proper occupation fee is obtained when the land is so used. Further, it is clear that the legislative scheme has always preserved the essential character of the relevant land as available for use as a road should it be needed for that purpose, but to be licensed for any private use when not so needed.
From both the plain language of s 407 and its historical context, the task reposed in the municipal council is to consider the public interest as distinct from the interest of the licensee in order to inform the exercise by the Minister of the power to cancel the licence and is so limited to forming an opinion and informing the Minister of it. That is the sense in which the concept of public interest has consistently been used. The statutory scheme does not bind the Minister to the council’s opinion. It stands as a gateway provision. By their nature, competing interests in the use of land reserved for road use will be local interests. It has always been the function of the municipal council to identify the local needs for the land in question, for self-evidently, if needed at all, such roads would be needed for local traffic. The expression ‘desirable in the public interest’ has historically developed from ‘be made available for traffic’. The relevant concept of public interest is firmly rooted in the desirability of the land being used for movement from one place to another as opposed to agriculture.[19] The agricultural use is distinct from a traffic use. It is entirely private, exclusive to the licensee and the statutory scheme of the Land Act, in that context, focuses on fencing for private use and collection by the State of fees for that private use. These distinct considerations are evident in the structure of the statutory licensing scheme.
[19]Other land uses may be relevant, but not in this case.
The public interest, by reference to which a municipal council considers the desirability of cancellation of a licence for private use of a road reserve, does not involve the public at large being able to use the road reserve, at will and without limitation, as Mr Johnson effectively contended. It is not a necessary condition of ‘public interest’ under s 407(1) that any person might travel over the road reserve from one public road to another, once opened up. Implicit in the construction for which Mr Johnson contended is a notion that any member of the public might be able to avail him or herself of access to the reopened road for movement or travel from one place to another. Mr Johnson contended that public traffic on the re-opened road was a nonsensical concept as the road began and ended on Temple Industrial private property crossing nothing more than his property.
The notion of public interest is derived from the concept of ‘public traffic’. The relevant distinction is between the private use for agricultural purposes by the licensee and an alternative use for movement or traffic from one place to another. As soon as any person other than the licensee, even a single landholder, seeks access to the unused road for a legitimate purpose of movement from where the road begins to where the road ends, there is ‘public traffic’. Mr Johnson’s contention - that as the road reserve ran from private land to private land and no member of the public could use it - there could not be a public interest that Moyne Shire might properly have considered, is misconceived. One purpose of land reserved for roads in sub-divisions is to allow flexibility for changing ownership patterns in the lots into which a district is sub-divided. Considerations of the appropriate routes for traffic or movement around the district are not in the public interest merely because such considerations are at a micro-level and only involve a very small number of users. The key consideration is whether the land is opened up from the limited exclusive private use that a licence grants. Further, members of the public may use this road, if permitted. Use is not limited to Dr Lee. It could extend to members of his family, employees of Temple Industrial, and its contractors. Dr Lee might invite or permit other occupiers in the vicinity to enter upon his lands to take advantage of that particular route.
Other aspects of the scheme support this interpretation. The concept of the public interest in s 407(1) must be informed by the mirror concept of ‘public traffic’ in s 400 because they are both about unused roads, particularly bearing in mind the origins and history of the legislative scheme. The provisions that deal with fencing and the maintenance of fencing[20] reflect a reality that unused roads are frequently in rural areas on farms. In the context of the subdivision of land into lots that are capable of being owned by different proprietors, the needs of the occupiers of land in a district to move or traverse from one point to another along unused roads are neither alien nor irrelevant to the public interest. The statutory scheme in terms of both the power to impose conditions in licences and the power to cancel licences recognises that the needs of a community for unused roads can, and will, change over time.
[20]Sections 402, 404, 406, 407(2) and 409.
Public interest considerations were plainly before the councillors. These were matters relevant to the merits of their deliberation but, not being extraneous to the concept of the public interest, create insurmountable difficulty for Mr Johnson in contending for jurisdictional error. Issues of movement or traffic across the reserved land, public road safety, concerns about bovine Johne’s disease and the implications of the susceptibility of the area to flooding were matters before the councillors that were reasonably open for consideration by them in a manner consistent with the valid exercise of the function committed to the council by the statute.
Further support was found, according to Mr Johnson’s contentions, in the ‘value matrix’ at the end of the report that referred to ‘fairness and balance’. That is a reference to the process by which the council monitors the standards and quality of the work of its officers and it says nothing of the reasoning of the ‘decision maker’ that Mr Johnson seeks to challenge.
Wednesbury unreasonableness
For like reasons, I do not accept Mr Johnson’s submission that council’s resolution was so unreasonable that no reasonable council could have come to it. This proposition, always a difficult ground to establish,[21] was advanced on the same grounds as improper purpose. The evidence before me falls well short of the requirements for Wednesbury unreasonableness. To the contrary, council’s conduct in informing the Minister as it did was neither perverse nor irrational and for the reasons I have given was open to it on the material that was before it.
[21]Mastwyk v DPP [2010] VSCA 111; (2010) 27 VR 92, 96 [17], 108 [67].
The relief sought
It will be apparent from the reasons that I have given, the relevant conduct that might be the subject of declaratory or injunctive relief, were I persuaded to accept Mr Johnson’s contentions, was the informing of the Minister by the letter of 26 May 2004. The relief sought by Mr Johnson was not properly directed to this conduct. Having regard to those features of the statutory scheme that I have identified I would, in any event, have refused declaratory relief directed to quashing the legal effect of that notification principally because it would have been futile to do so. In addition, the delay in seeking relief was unexplained.
In addition, I would not grant injunctive relief because I am not satisfied there is any evidence that Moyne Shire, Temple Industrial or Dr Lee had tried to or intended to or intends in the future to, act in a manner that was, or is, inconsistent with the rights that Mr Johnson enjoys under his licence. Whatever be the reasons for the delay of more than seven years since Mr Johnson’s agricultural licence was cancelled, Mr Johnson has during that time enjoyed the benefits of his licence without restriction or interference.
The proceeding will be dismissed. I will hear counsel on costs.
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