Kirkman v Minister Administering the Crown Lands Act (No. 2)

[2020] NSWSC 1494

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Kirkman v Minister Administering the Crown Lands Act (No. 2) [2020] NSWSC 1494

Hearing dates:

28 November 2019 and 19 March 2020

Date of orders:

30 October 2020

Decision date:

30 October 2020

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Some issues determined and parties are requested to provide further submissions on two subjects.

Catchwords:

ADMINISTRATIVE LAW – Bias rule – Actual or apprehended – Irrelevant and relevant considerations – the plaintiff holds an enclosure permit for part of a Crown road – second defendant also claims to hold an enclosure permit for that part of the Crown road – previous decisions of delegates of the Minister in 2008 and 2014 cancelling the plaintiff’s enclosure permit are declared void in Supreme Court litigation in 2016 – delegate of Minister makes further decisions under the Roads Act 1993 in 2017 (a) to enclose that part of the Crown road and sell it to the second defendant pursuant to the second defendant’s enclosure permit and (b) not to grant an easement to the plaintiff over other parts of the Crown road (the easement portion) – whether the delegate’s decisions took into account irrelevant considerations, namely the 2008 and 2014 decisions and other physical features of that part of the Crown road – whether the delegate’s decisions failed to take into account relevant considerations, including matters relevant to the grant of the easement portion and incompleteness of the second defendant’s application to close the public road – whether the delegate denied the plaintiff procedural fairness – whether the delegate showed bias against the plaintiff.

Legislation Cited:

Civil Procedure Act2005, s 60

Crown Lands Act 1989, ss 61, 64

Roads Act 1993, Part 2, Division 2, Part 4, ss 32B, 34(1)(a), 34(3), 35, 36, 37, 37(1), 38(1)(a), 38(1)(b)

Uniform Civil Procedure Rules 2005, rr 6.11, 59.10(1), 59.10(2)

Cases Cited:

Kirkman v Minister Administering the Crown Lands Act 1989 [2016] NSWSC 1876

Kirkman v Minister Administering the Crown Lands Act [2019] NSWSC 1683

Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration and Multicultural Affairs v Jia Le Geng 205 CLR 507

Olsen v Olsen & Ors (2019) 101 NSWLR 225

Category:

Consequential orders

Parties:

Plaintiff: Jennifer Kirkman
First Defendant: Minister Administering the Crown Lands Act
Second Defendant: Geoffrey Robert Wood &
Jan Margaret Wood

Representation:

Counsel:
Plaintiff: S. Berveling

Solicitors:
Plaintiff: Gregory Robert Moin, Moin Morris Schaefer Pty Ltd
First and Second Defendants: Submitting Appearance

File Number(s):

2018/344647

Publication restriction:

No

Judgment

1. In August 2017, the Minister for Lands and Forestry (“the Minister”), the first defendant, made a decision (by an authorised delegate) to close a Crown road in the rural district of Uralla and to sell off different parts of the Crown road to its two adjoining owners, respectively the plaintiff, Ms Jennifer Kirkman, and the second defendants, Mr Geoffrey and Mrs Jan Wood (“the Woods”). At the same time, in a second part of the decision the Minister’s delegate declined a request from Ms Kirkman to have an easement created between a nearby public road, Gostwyck Road, and her land, near the point of the road closure. Both parts of the Minister’s decision will be referred to in these reasons as “the 2017 decision”.

2. By her Summons in these proceedings, Ms Kirkman has applied for judicial review of the 2017 decision. Her proceedings were commenced by Summons in November 2018. Both the Minister and the Woods filed submitting appearances under Uniform Civil Procedure Rules 2005 (“UCPR”), r 6.11 and did not appear at the hearing which commenced on 19 November 2019.

3. When the hearing of this matter commenced, the Court found it difficult to identify the precise material that had been before the Minister when making the 2017 decision. And it was difficult to discern from the material supplied to the Court about the 2017 decision, what material was part of the submissions made to the Minister before the decision and what was part of the Minister’s reasoning. So, notwithstanding the Minister’s existing submitting appearance, the Court requested in its first reasons for decision in the matter that the Minister assist the Court to reduce the uncertainty the Court had encountered about the materials provided: Kirkman v Minister Administering the Crown Lands Act [2019] NSWSC 1683.

4. In response to the Court’s November 2019 decision, the Minister supplied written submissions, which have been of considerable assistance to the Court in analysing the materials in evidence. The Minister’s assistance to the Court was not adversarial and did not displace the Minister’s submitting appearance.

5. Only part of the Crown road, which is the subject of the 2017 decision of closure and sale, is the subject of any dispute. Each of the adjoining owners has in fact been able to partially benefit from the 2017 decision, by acquiring different parts of the old Crown road. Ms Kirkman does not dispute that aspect of the decision that gave her the part of the Crown road that she has acquired. Nor does she dispute most of the decision that allowed Mr and Mrs Wood to acquire other parts of the Crown road. But the area now remaining in dispute is a single portion of the former Crown road, to which both parties lay claim. It is a relatively small area of less than one hectare of pastoral land, which the Court was told would probably be worth no more than $3,000.

6. A related dispute about the 2017 decision, concerns the plaintiff’s claim to be granted an easement, which, if granted, would appear to cover a distance of a few hundred metres over adjacent and similar pastoral land owned by the Woods. The easement probably has even less monetary value than the disputed parcel.

7. The Minister has made two prior decisions in respect of this same contested area of land: one in 2008 (“the 2008 decision”) and another in 2014 (“the 2014 decision”). Both of these decisions were declared void by Stevenson J in a 2016 judgment: Kirkman v Minister Administering the Crown Lands Act 1989 [2016] NSWSC 1876 (“Stevenson J’s decision”). The Court is indebted to Stevenson J’s decision for its comprehensive exposition of relevant uncontested facts prior to the 2014 decision (at [4] to [28]), which, together with the evidence adduced in these proceedings, has been drawn upon in formulating the background facts in these reasons.

8. Having heard Ms Kirkman’s submissions, the Court decided to adjourn the matter part-heard to 19 March 2020. This was in part to give the Minister the opportunity to assist the Court in the manner requested. It also allowed an opportunity for aspects of Ms Kirkman’s submissions to be set out more clearly in order for them to be presented to their best advantage.

9. Mr Beverling of counsel appeared for Ms Kirkman both on 28 November 2019 and on 19 March 2020.

10. The background to the 2017 decision is set out in the narrative below. The documentation associated with the 2017 decision labels the decision-making process as being within the Department of Industry – Lands, which together with its variously named predecessor departments is simply referred to in these reasons, as “the Department”.

A Crown Road, Pastoral Land in Uralla and the Minister’s 2017 Decision

The Disputed Area of the Crown Road

11. Ms Kirkman is the registered proprietor of a property known as “The Glen”, (being Lots 558 and 500 in DP 755846), which lies to the west of Gostwyck Road in the rural district of Uralla on the Northern Tablelands of New South Wales. Near where The Glen is located, Gostwyck Road runs generally in a north-south direction. The Woods own parcels of land situated both to the east and to the south of Ms Kirkman’s land (being Lot 1 in DP 817891), which abuts Gostwyck Road on its eastern side.

12. The Crown road in dispute abuts the southern boundary of The Glen and the northern boundary of Mr and Mrs Wood’s property to the south. And, to the east of The Glen, the Crown road passes between properties owned by Mr and Mrs Wood.

13. The general configuration of the Crown road, The Glen, and Mr and Mrs Wood’s two properties are usefully depicted in the plan below which was also attached to Stevenson J’s judgment:

14. The Glen consists of the blocks marked “DP 755846 Lots 558 and 500” on the plan. The Wood’s property is hatched on the plan and consists of the triangular property marked as “DP 817891” and the other hatched property to the south of the Crown road. As can be seen from the plan, the Crown road lies in a roughly east-west direction.

15. Ms Kirkman held an enclosure permit (EP16493) over the Crown road, which had been created in 1954 and was transferred to her under the Crown Lands Act 1989, s 64 when she purchased The Glen in 1999. On the plan above, the shaded portion of the Crown road is the subject of Ms Kirkman’s enclosure permit (EP16493).

16. Mr and Mrs Wood also have an enclosure permit issued to them over parts of the Crown road that abuts or goes through their properties (EP16608). Although as will be seen, in one aspect of these proceedings Ms Kirkman contests that EP16608 does not actually gives the Woods any rights of enclosure over the Crown road.

17. The area of the Crown road contested between Ms Kirkman and the Woods in the 2014 decision corresponds closely with the area that is in issue in relation to the 2017 decision. For convenience this area is marked in hand writing with a “{” on the above plan. It is the portion of the Crown road that runs for approximately 121 metres to the west of the eastern boundary between The Glen and Mr and Mrs Wood’s triangular shaped property, DP 817891. Stevenson J referred to this portion of the Crown road as the “disputed portion” and in these reasons the Court will either do the same, or refer to it as “the disputed area”.

The 2008 Decision, the 2014 Decision and Stevenson J’s 2016 Reasons

18. Ms Kirkman applied to the Minister in 2007 to close and to acquire the part of the Crown road subject to her enclosure permit (EP16493). Mr and Mrs Wood made a corresponding application in 2012 based on their enclosure permit (EP16608). The Minister purported to determine these applications in the 2014 decision, which approved the sale of the disputed part the Crown road to Mr and Mrs Wood.

19. But in 2008, after Ms Kirkman’s application and before the Woods application, another event took place, which Ms Kirkman also disputed in the proceedings before Stevenson J. As Stevenson J found, on 28 November 2008, in the 2008 decision, the Minister purported to alter the terms both of Ms Kirkman’s enclosure permit and Mr and Mrs Wood’s enclosure permit. The 2008 decision had the effect of subtracting the disputed portion from the descriptive words in Ms Kirkman’s enclosure permit and including it within the description of Mr and Mrs Wood’s enclosure permit. Before Stevenson J, for convenience, the parties often relevantly referred to the 2008 decision as the “permit decision” because of this aspect of its subject matter and from time to time these reasons will do the same.

20. Before Stevenson J in 2016, the Minister accepted that the 2008 permit decision was infected by jurisdictional error and was a nullity. But Ms Kirkman did not become aware of the relevant effect of the 2008 permit decision until some five years later in 2013. On 4 December 2013, the Department wrote to her about proposed road closures in the locality, revealing to her the effect of the 2008 permit decision. The Department invited her to apply to purchase part of the Crown road that adjoins The Glen that is not in dispute. In this letter the Department said to Ms Kirkman:

“Generally [the roads being proposed for closure] will be sold to landholders whose property incorporates, or adjoins these roads. Preference may be given to those landholders who hold an Enclosure Permit over the road”.

21. Ms Kirkman was aggrieved that the 2008 permit decision was made without her knowledge. She sought an explanation from the Department for the subtraction of the disputed area from her road enclosure permit and its addition to Mr and Mrs Wood’s road enclosure permit. The explanation given to her in a letter from the Department on 30 January 2014 to Ms Kirkman’s solicitors was conveyed partly in speculative terms that were not particularly helpful to Ms Kirkman in her efforts to understand what had happened. The letter did not throw much light on the process of making the 2008 decision, other than that it was believed to have been made to accommodate existing fencing. The Department’s letter of 30 January 2014 was in the following terms:

“There are no office records available to indicate when and why [Ms Kirkman’s enclosure permit] was altered. However, [Mr Wood’s enclosure permit] was altered on 28 November, 2008 at Mr Wood’s request to reflect the fencing at that time.

Presumably, [Ms Kirkman’s enclosure permit] may well have been amended at that time, as there would have been two permits over the same parcel of road, ie. the easternmost (about 121m) of road south of [The Glen].

Both permit descriptions now reflect the fencing that exists as shown on the attached copy of D.P. 817891 and the attached enlargement.

On behalf of the Office I apologise for your client not being advised at the time of the alteration of the permit and any distress this matter may have now caused.”

22. The speculative element in this letter is the reasons for the subtraction of the disputed portion from Ms Kirkman’s enclosure permit: namely, “as there would have been two permits over the same parcel of road”. But because there were “no office records available” this must have been speculative at that time.

23. The letter also referred to the description on the new enclosure permit as “now reflect[ing] the fencing that exists as shown on the attached copy of DP 817891”. This was a reference to a fence that was then erected on and over the Crown road. This fencing seems to have been in place when Ms Kirkman acquired The Glen in 1999 and apparently for many years prior to that. Stevenson J referred to this long-standing fence as the “old fence” and these reasons will do the same. Ms Kirkman raises some issues related to this fencing to support her challenge of the 2017 decision.

24. As Stevenson J explained in his decision, the old fence ran from west to east roughly along the southern boundary of the Crown road. But at a point at or near to the western end of the disputed portion it turned north by close to 90 degrees and traversed the Crown road in a northerly direction until it reached the northern boundary of the Crown road with The Glen. Then it ran east for approximately 121 metres towards DP817891, with some give-and-take, along what is the southern boundary of The Glen and the northern boundary of the Crown land.

25. Again as Stevenson J explained, importantly, the old fence fenced off from The Glen the disputed portion of the Crown road, despite the disputed portion being encompassed within Ms Kirkman’s enclosure permit.

26. This fencing and other cadastral features of these adjacent lands are clearly visible in a survey plan that was done on 15 November 2014, but only partly visible in the plan that was available to Stevenson J. The 15 November 2014 survey plan shows that immediately to the south of Lot 558 in DP 755846 is DP 400556, which is divided into two lots, A and B. Lot A is the northernmost of the two lots. It lies immediately to the south and abuts the southern boundary of the Crown road as it traverses the area of the southern boundary of Lot 558 in DP 755846. The fencing just discussed, described as "fence off boundary", and the juxtaposition of Lot A in relation to Lot 558, is illustrated in the 15 November 2014 survey plan below:

27. Upon discovering what happened, Ms Kirkman took steps to alter the fencing on the Crown road so that it corresponded with her enclosure permit. In around May 2014, Ms Kirkman obtained a survey which showed the alignment of the old fence. And then between May and June 2014 she caused a new post and electric wire fence to be erected precisely on the southern boundary of the Crown road (consistently with that survey). Stevenson J referred to this 2014 fence as the “new fence” and these reasons will do the same.

28. The 15 November 2014 survey plan also shows the position of an electric fence that Ms Kirkman constructed in 2014 to enclose the disputed portion described as part of her enclosure permit (EP16493) before its amendment by the 2008 permit decision. The electric fence shown on the survey plan as "recent electric fence" and is marked in blue.

29. Stevenson J then considered (at [19] to [28]) the course of events between June 2014 and August 2014, when the 2014 decision was made. It is convenient to set out this part of the history from his Honour’s reasons:

“[19]   On 4 June 2014 the Department wrote to Ms Kirkman’s solicitors stating that a site inspection had revealed the pending construction of the new fence and continued:

‘To bring the [new fence] into alignment Ms Kirkman should fence her boundary [in effect consistently with the old fence and so as to exclude the Disputed Portion]. Alternatively, the fence may be located on the [southern] side of the Crown road, …however, this will need to be negotiated with Mr Wood under the requirements of the Dividing Fences Act [1991 (NSW)]. This option is not the preferred option by the Department as Mr Wood has an enclosure permit legalising his occupation of this section of the road, which accurately reflects the current and historical fencing arrangements.’

[20]   Plainly, this letter was written on the assumption that the purported Permit Decision was valid.

[21]   On 8 August 2014 an officer of the Department, Ms Miao Wang prepared a submission in relation to Ms Kirkman’s application to purchase that part of the Crown road as was the subject of her enclosure permit.

[22]   Under the heading “Comments” Ms Wang wrote:

‘- It appears that Ms Kirkman recently installed a new electric fence enclosing that section currently under enclosure permit to Mr and Mrs Wood (along the southern boundary of Crown road south of lot 500/755846) without notice or consent.

- Mr Wood advised that he was not notified that [the new fence] would be installed on his boundary with the road. In this circumstance, the new electric fence should only be considered as a temporary fence and not be considered as a valid property boundary fence to support Ms Kirkman’s claim to purchase the road.” [Emphasis added]’

[23]   These comments were clearly also made on the assumption that the purported Permit Decision was valid, that Ms Kirkman’s enclosure permit no longer included the Disputed Portion and that the Disputed Portion was now within Mr Wood’s enclosure permit.

[24]   The submission continued:

‘Based on the discussions above:

• It is recommended that the [Disputed Portion] is closed and sold to Mr and Mrs Wood, which will be processed with the Woods’ application…’.

[25]   The document concluded:

‘DECISION

After consideration of all submissions received the roads are considered surplus to Departmental needs. On closing the land within the former public roads will remain vested in the Crown as Crown Lands.

Both Ms Kirkman and Mr and Mrs Wood were given an opportunity to resolve their conflicting EOIs, however no resolution was made.

Based on [the old fence] registered in 1992, satellite imagery, the inspection report and photos it is recommended that:

- the [Disputed Portion] is closed and sold to Mr and Mrs Wood…, and

- Ms Kirkman’s objection on the [Disputed Portion] is overruled…’.

[26]   On 13 August 2014, the Minister’s delegate, Ms Jamie Murray signed the submission as “approved”. Ms Murray did not add any reasons of her own at the time.

[27]   On 14 August 2014 the Department wrote to Mrs Kirkman notifying her of the decision.

[28]   In the Statement of Reasons filed on behalf of the Minister in these proceedings on 23 February 2015, Ms Murray said that she considered Ms Wang’s submission of August 2014 and said:

‘From my review of the August submission and my knowledge of the investigation [by the Department], I was satisfied that the Road was fenced in with [Mr Wood’s] property and had been fenced in that way since at least 1992. This fact was verified by several sources (aerial images/survey plans/photos supplied by parties and inspection by departmental officers). In considering all other relevant facts, submissions and documents, I assessed the competing interest in purchasing the section of road. As the road had been fenced in with [Mr Wood’s] property for some time, I determined that it should not be included in the parcel bring offered for sale to [Ms Kirkman].

I noted evidence that [Ms Kirkman] had recently installed a new electric fence enclosing the part of the land that was in dispute between [Ms Kirkman] and [Mr Wood]. I did not place any weight on this fence because it appeared that the new fence had been installed recently without notice or consent.

As stated above, I noted the dispute in relation to the existing enclosure permits. I did not put any weight on the enclosure permits when I made the August decision because I considered that the fencing arrangement provided a sufficient basis on which to make my decision. I would have come to the same decision regardless of what the enclosure permit description was.” [Emphasis added]’”

30. Before Stevenson J (see at [29] - [30]) it was common ground that as the purported 2008 permit decision was a nullity, it would not have been a relevant consideration for the Minister’s delegate to take it into account when making the 2014 decision. And it further followed, Stevenson J reasoned, that it would not have been relevant for the Minister’s delegate to take into account the alleged fact that Ms Kirkman’s enclosure permit did not include the disputed portion.

31. Stevenson J concluded (at [31]) that notwithstanding the Minister’s delegate’s statement that she “did not put any weight on the enclosure permits” when she made her decision, that it was clear from her reference to the new fence being installed “without notice or consent” (that is, without notice to Mr and Mrs Wood nor with their consent) that she did take it into account.

32. Stevenson J further concluded (at [32]) that the 2014 decision took into account that: the new fence enclosed the land the subject of Mr and Mrs Wood’s enclosure permit “without notice or consent” to him and the new fence was “not a valid property boundary fence”. Stevenson J found that this was reasoning that could not stand if the permit decision was treated as a nullity and if Ms Kirkman was still entitled to the area encompassed by her enclosure permit before the 2014 decision.

33. As a result, Stevenson J quashed the 2014 decision and the 2008 permit decision.

34. More facts relating to the 2008 permit decision and the 2014 decision are set out with the Court’s analysis of Ms Kirkman’s grounds for review of the 2017 decision.

The 2017 Decision

35. Some Legislative Background. The 2017 decision was made on 30 August 2017. The decision was an exercise by the Minister of power conferred under the Roads Act 1993, Part 4 – Closing of Public Roads. The Crown road in question is a "non-council public road", which is "a public road other than a council public road": Roads Act, s 32B. A "council public road" is defined as "a public road for which a Council is the roads authority": Roads Act, s 32B. It is common ground that the local council is not the roads authority for this road and it is therefore a "non-council public road".

36. The closure of non-council public roads by the Minister is governed by Roads Act, Part 2, Division 2 – “Closing of Non-Council Public Roads by Minister".

37. An application for the closing of non-council public road may be made in the case of the Crown road by any person: Roads Act, s 34(1)(a). The Minister may require applicants for road closure to lodge with the Minister fees to cover the costs to process the application, moneys to defray other costs incurred by the Minister and any further information relevant to the application: Roads Act, s 34(3). The Minister is required to give public notice of the proposed closing of a non-council public road in a local newspaper, identifying the road and inviting submissions: Roads Act, s 35. Any person may make submissions to the Minister with respect to the closing of the road: Roads Act, s 36. After considering the submissions made, the Minister may "by notice published in the Gazette close the non-council public road concerned": Roads Act, s 37. The effect of the closure of a non-council public road by the Minister is that "the road ceases to be a non-council public road" and "the rights of passage and access and previously existed in relation to the road are extinguished": Roads Act, s 38(1)(a) and (b). The former public road is then available for sale to adjoining owners.

38. The enclosure permits the subject of the 2014 and 2017 decisions were, when Ms Kirkman purchased her land in 1999, statutory permits created under the Crown Lands Act1989, s 61 that allowed adjacent landowners to enclose whole or part of any road. This provision empowered the Minister to grant permits to enclose roads on Crown land in the following terms:

“Enclosure of roads or watercourses on application

61. (1) The Minister may, on application being made by a holder of land, grant to the holder a permit to enclose wholly or in part any road or watercourse by which the land is traversed or bounded, subject to payment of such annual rent as may be determined by the Minister.

(2) An enclosure permit may be granted subject to -

a) conditions relating to the payment of rent,

b) conditions requiring the erection of gates or the provision of some other means of access or

c) both (so as not to interfere unnecessarily with any traffic); and

d) such other conditions as the Minister determines.”

39. Road enclosure permits issued under this legislation commonly include conditions for the payment of rent to the Crown. Both Ms Kirkman’s EP16493 and the Woods’ EP16608 imposed such an obligation.

40. In this case, the delegate sought to exercise power under Crown Lands Act, s 67(1)(d), which provides as follows:

“Cancellation or variation of enclosure permit on acquisition of adjacent land, closing of road etc

67. (1) An enclosure permit authorising the enclosure of a road or watercourse as if it were part of any land shall be cancelled or varied by the Minister on -

(a) the acquisition by the Crown or any public authority of the land;

(b) if the land is comprised in a holding—the determination or forfeiture of the holding;

(c) the road being closed or being dedicated as a public road; or

(d) the road or watercourse ceasing to be enclosed.

…”

41. The Crown Lands Act, ss 61 and 67 have been re-enacted in identical terms in ss 5.34 and 5.40 of the Crown Land Management Act2016.

42. The Material before the Delegate and the 2017 Decision. The Minister’s submission describes the material before the Minister’s delegate when she made the 2017 decision and that constituted that decision. This material was provided to decision-makers such as the Minister’s delegate in accordance with Departmental practice by electronic means through a Departmental Records Management System, CM 9. In summary, this material constituted the following parts and subparts.

1. The Departmental Officer’s Submission. This submission was prepared by a Departmental officer with close familiarity with the subject matter of the decision. It gathered all the principal subcomponents of material to be presented to the Minister’s delegate for the making of the decision. It consisted of the following sub-parts:

1. Abstract. A summary is made of the issues for decision.

2. Summary and analysis of applicant’s submissions. Both Ms Kirkman’s and the Woods’ submissions are analysed in this section by the Departmental officer.

3. Comments. The Departmental officer makes observations preliminary to an assessment.

4. Assessment. The assessment contains the essential reasoning constructed by the Departmental officer to support the recommended decision. In this case the assessment presented five options to the decision-maker, one of which was presented as the recommended decision.

5. Recommended decision. The various components of the decision are set out for the Minister’s delegate to adopt, reject or vary.

2. Endorsement of the decision. This is the delegate’s approval of or variation to the recommended decision.

3. The Attachment to the Officer’s Submission. The Minister’s delegate could access this attachment (containing diagrams) by hyperlink embedded within the Officer’s submission.

4. The Background Information Document. This is a summary of the history of the enclosure permits issued over this Crown land. As will be seen, aspects of that history are contested in Ms Kirkman’s submissions.

43. With this structure in mind, the material before the Minister’s delegate and the reasoning in the 2017 decision are set out in relevant detail below.

44. For the 2017 decision, the Departmental Officer’s submission was prepared by an officer known as the Senior Business Centre Officer, Crown Lands based in Grafton. The Senior Business Centre Officer prepared the submission on 17 August 2017. The submission was supported by the Supervisor Business Centre (Roads) at Grafton and reviewed by the Senior Group Leader (Roads) both apparently on 30 August 2017.

45. The decision-maker, the Minister’s delegate, was the Manager Business Centre at Newcastle. Her approval took place on 30 August 2017, which should be taken as the date of the 2017 decision. The decision-maker is recorded as having "reviewed and approved" the Officer’s principal recommendation.

46. There is no issue in this case that the decision-maker had appropriate delegated authority from the Minister to make the decision.

47. The Officer’s Submission – the Abstract. The Officer’s submission commences with the Abstract which summarises the further issues for the decision-maker to consider. Under the heading “The Issue” the Abstract said the following:

“Issue

The issue regards conflicting interests from adjoining landlords, Jennifer Ann Kirkman and Geoffrey Robert Wood & Jan Margaret Wood, to purchase all or parts of the Crown road separating their properties (shown by bright pink on Diagram 1). Changes to enclosure permit descriptions for the subject road has been the subject of a dispute in court, resulting in the requirement to re-investigate and assess the road closure applications.

Within the submission below, it will be reasoned that the actual dates of any amendments to enclosure permits held by Kirkman and/or Wood are not critical or relevant to the determination of the road closure applications. This is because both properties which adjoin the subject road have concurrently held enclosure permits over the road for the majority of relevant time. The history of all permits granted over the subject road has been investigated for the purpose of thoroughness and transparency (see DOC 17/158337).”

48. The Abstract then set out a brief statement of the relevant historical enclosure permits said to benefit the land now owned by Ms Kirkman and the land now owned by Mr and Mrs Wood. The summary points out that the land was held under enclosure permits for the benefit of the properties both north and south of the Crown road between 1954 and 2001.

49. The Summary Statement set out below:

“*   The first enclosure permit relating to the subject road was granted to the southern adjoining property (Wood) in 1931. This permit described the road north of Portion 186, Parish Gostwyck.

*   An enclosure permit over the same area was then granted to the northern adjoining property (Kirkman) in 1954. This permit described road south of Portions 558 & 500, Parish Uralla.

*   The road was held under permit to both properties from 1954 until at least 2001.

*   Adjustments were made to both permit descriptions at unconfirmed date/s between 2001 and 2013, with the subject road taken in and out of both descriptions on more than one occasion.”

50. The second permit described the road as “south of portions of 558 and 500, Parish Uralla”. The Summary concluded that the road was held under permit to both properties.

51. The Officer’s Submission – Parties’ Submissions. The Officer’s submission then summarised the parties’ respective submissions. It is not necessary to reproduce this part of the Officer’s submission except to observe the following matters.

52. The Officer’s submission noted that Ms Kirkman had advanced reasons why she would like the Crown to consider her application were, "that I do hold an original enclosure permit over the land and have paid the lease on that land since 1999 and the owners before me and the others before them".

53. The Departmental summary of Ms Kirkman’s submissions refers to a Departmental enquiry that the disputed portion was first held under an enclosure permit granted in 1931 as RP 31/173 to the then owner of Mr and Mrs Woods’ property. The evidence also supports the conclusion that the disputed portion was first held under an enclosure permit granted in 1954 as RP 54/35 to the then owner of Ms Kirkman’s property. The Department's findings indicate that both Mr and Mrs Wood’s property and Ms Kirkman's property held permits and paid rent over the disputed portion between 1954 and about 2008, or 2012.

54. The Summary of the Submissions also notes Ms Kirkman's complaint that she has been waiting for seven years to purchase the road under her original permit plus another three years of courtroom battles and that she would like to purchase land that she has been waiting to acquire for 10 years.

55. The Summary also notes that Ms Kirkman is concerned as to how it is that Mr and Mrs Wood were able to close the road east of her permit in the direction of Gostwyck Road without her written consent. She points out that she is an adjoining landowner and the consent was never obtained to the Wood road closure application whereas Ms Kirkman did have to obtain another neighbour's consent to her application.

56. The Officer’s Submission – Comments. The Officer’s submission then makes comments upon the submissions made before proceeding to make recommendations. The comments are first made in relation to the competing applications to enclose the parts of the Crown road and then about the issue concerning Ms Kirkman’s application for an easement for access from Lot 500 to the east to the public council road, Gostwyck Road.

57. As to the first issue, the comments were the following:

“COMMENTS

Over the majority of time that the subject Crown road has been held under enclosure permit (1931 to 2017), the owners of both adjoining properties have concurrently held permits and paid fees for the same road area.

Text descriptions for permits held by both landholders have, at times, been amended in attempts to correct the conflict. These variations to the permits, however, were not consistently managed nor effectively communicated to both holders.

In relation to fencing and enclosure permits, therefore, the two landholders are considered to have an equal interest in the subject road.

*   For the reasons stated above, it will be recommended that current fencing be set aside as a consideration In determining the road closure and sale.

Both landholders, and department field inspections, have confirmed that the subject Crown road is no longer enclosed within either property.

* As the road has ceased to be enclosed, it will be recommended that EP 16493 (which currently describes the subject road) be cancelled, as per Section 67(1)(d) of the Crown Lands Act 1989.

*   Additionally, it will be recommended to close and sell the subject road, as it will be shown that the road is not required for access to any waterway or property, there is no objection to its closure, and the road is under expression of interest to purchase from both adjoining landholders.”

58. The comments section of the Officer’s submission then summarises some relevant considerations that are commonly considered as guiding principles for what is described as the Department’s "road closure and disposal program”. These need not be set out in full but the observations made were the following in summary. The road was confirmed as a Crown road. No objections to the proposed closure were received other than from Ms Kirkman and the Woods. The road the subject of the application is unformed and used for grazing purposes. Legal and practical access to the road was limited to the Woods and Ms Kirkman and other properties not the subject of these proceedings. The Woods’ property and Ms Kirkman's property have their own separate formed primary access from the Gostwyck Road. The Crown road the subject of the application does not provide access to any other Crown land parcels or waterways and is not currently, nor previously, used by the general public. Fencing arrangements over the road have been altered as a result of the conflict between the Woods and Ms Kirkman. All local government and statutory authorities provide support for the closure.

59. The Comments section, under the heading “Access”, deals with Ms Kirkman’s application for an easement from Lot 500 to Gostwyck Road and records Mrs Kirkman as submitting why she needed this easement, in the following terms:

"I want a right-of-way over the Crown land from the Gostwyck Road to my lot DP 400556 and Lot 558 DP 755846 for access to these two separate titles and deeds for later when we wish to sell them"

60. Referencing the same guiding principles of the Department’s Road Closure and Disposal Program the Comments section notes that objections based on perceived future use such as subdivision need to be critically analysed. The Comments section points out that in such matters consideration needs to be given to any existing use of the road, the current local road access network, the standard of existing road formations and the local council's position on the issue.

61. The Comments section deals with Ms Kirkman’s contention that she may wish to sell Lot A in DP400556 and Lot 558 in DP755845 by pointing to a commonly applied guiding principle that "where a group of freeholds is held in one interest, sufficient access to the group only as required".

62. The Comment section about the easement issue provides tentative support for the course of not granting the easement that Ms Kirkman requested. The comments refer to adequate alternative access for Ms Kirkman, as follows:

“In this case, the subject road is not formed or currently used for access. The Kirkman property has a well-formed access directly from the local council road into Lot 500 DP 755846 and Uralla Council did not object to the proposed closure when referenced. Aerial imagery shows that the formed access from Gostwyck Road into Lot 500 extends partly into Lot 558 (Diagram E), indicating that if Kirkman chose to sell Lot 558 DP 755846 and Lot A DP 400556 as a separate property at some time in the future, access could be provided to these lots via the existing formation through Lot 500 DP 755846, or by an alternate route within the existing property. This would remain the case if the road north of Lot A DP400556 is closed and purchased by Kirkman, as will be recommended.

*   For the reasons stated above, it will be recommended that Kirkman's request for an easement over any of the Crown road proposed for closure be set aside.” 

63. The Officer’s Submission – Assessment. The Officer’s submission then undertook an assessment before reaching a recommended decision. The assessment noted that there are ordinarily three outcomes in considering applications for the closure of the Crown road: approval in whole or in part; refusal in whole or in part; and, approval with easement/right-of-way to maintain access.

63. The assessment presented five options to the decision-maker. These five options were exposed by dividing the whole of the Crown road in question into five separate sections, each of which are described as a “road,” and given a number from west to east, as roads 1 to 5. The division into these five roads conveniently appears in the Five Road diagram below, which is part of the documents accessible to the decision-maker through CM9:

65. The substance of the reasoning for the decision is contained in this Assessment and the Decision that follows it, rather than in the delegate’s review and approval. The Minister’s delegate added no additional reasons. The Court infers that the delegate’s approval should be taken as an adoption of the recommended decision but also an adoption of all the reasoning in the various parts of the Officer’s submission.

66. The Assessment noted that Road 1 (green in the Five Road diagram) is the subject of an expression of interest from Ms Kirkman, has been previously approved for closure and offered to Ms Kirkman and there is no conflicting interest for the sale of that road to her. So the assessment recommends the closure and offer of that road to Ms Kirkman.

67. As to Road 5 (grey in the Five Road diagram), the assessment notes it is under an expression of interest from the Woods and it has previously been approved for closure and offered to the Woods and there is no conflicting interests in the acquisition of Road 5. It is further notes that Ms Kirkman has requested an easement over that road but that matter will be considered separately.

68. The five possible outcomes considered by the Assessment were set out in the Assessment in the following terms by reference to various permutations of the Five Roads diagram accessible through CM9:

“1.   Outcome 1 – Close and sell the entire road adjoining Kirkman’s property to Kirkman. Roads 1, 2, 3 & 4 to Kirkman. Road 5 to Wood

2.   Outcome 2 – Close and sell the entire road adjoining Wood’s property to Wood. Road 1 to Kirkman. Roads 2, 3, 4 & 5 to Wood

3.   Outcome 3 – Close and sell the eastern half of road south of Lot 500 DP 755846 to Wood. Close and sell the western half of road south of Lot 500 DP 755846 to Kirkman. Roads 1, 2 & 3 to Kirkman. Roads 4 & 5 to Wood.

4.   Outcome 4 – Close the road separating Lot 1 DP 817891 from Lots 500 & 556 DP 755846 and, subject to survey at the purchasers cost, sell the northern half of the road to Kirkman and the southern half to Wood. This outcome would be subject to the requirement that the landholders engage in a single surveyor to undertake the survey.

Road 1 & 2 to Kirkman. Road 3 & 4 equally divided between Kirkman and Wood along a surveyed longitudinal split. Road 5 to Wood

5.   Outcome 5 – Close and sell the entire road south of Lots 500 & 558 DP 755846 to Wood. Roads 1 & 2 to Kirkman. Road 3, 4 & 5 to Wood.”

69. The Assessment summarised the approach recommended to be taken with these five possible outcomes. Outcome 1 was favoured by Ms Kirkman but rejects the Woods’ interest claimed in the disputed area, so it was “set aside”, apparently meaning not-preferred and not to be considered further. Outcome 2 rejected Ms Kirkman's claimed interest in the disputed area so it too was “set aside”. Outcome 5 was noted as providing an outcome where both parties would purchase a portion of the disputed area but it did not reflect "any recorded enclosure of the road or any expressed interest from either landholder", so it too was “set aside”. Outcomes 3 and 4 were reserved for further consideration.

70. Outcome 3 became the recommended outcome. The Assessment relevantly said the following about Outcome 3 (in which Road 3 in the disputed portion would go to Ms Kirkman and Road 4 would go to the Woods):

“Both Wood and Kirkman have paid the enclosure permit fees from the time they have owned their respective properties.

Through no fault of the landholders, the subject road has been described under permit to both properties for much of the time from 1954 until circa 2008-2012. When department officers have amended permit descriptions, in an effort to correct the confliction, the landholders have not been equally involved or notified of the facts or reasons for the amendments.

The enclosure (fencing) of the road prior to either party purchasing their adjoining properly, as evidenced by survey on 27 April 1992, indicates that both properties had use of part of the road. Deposited Plan 817891 shows that the eastern half of road south of Lot 500 DP755846 was occupied by the southern property, now owned by Wood, and the western half of road south of Lot 500 was occupied by the northern property, now owned by Kirkman.

There is no conclusive evidence to confirm how long this fencing had been in place; however it was definitely established prior to either Wood or Kirkman purchasing their adjoining lands. This fencing remained in place until Kirkman removed it in response to the road closure process and conflict between the two landholders.

Both landholders, therefore, have a valid expectation and interest in the closure and purchase of the road. A fair and reasonable approach is to offer each landholder a portion of the road rather than to offer the entire road to one party.

This recommendation provides an outcome that reflects the use and occupation of the road by each property owner prior to their respective current ownership and prior to the dispute.

*   It will be recommended that the Crown road within and south of Lot 558 DP 755846, and the western half of road south of Lot 500 DP 755846, be approved for closure and offered for sale to Jennifer Ann Kirkman.

*   It will be recommended that the Crown road within, south of Lot 1 DP 817891, and the eastern half of road south of Lot 500 DP 755846, be approved for closure and offered for sale to Geoffrey Robert Wood and Jan Margaret Wood. “

71. The Assessment then moved to analyse Outcome 4 in the following terms, before recommending Outcome 3:

“Outcome 4 is presented as a secondary option for the Minister's delegate to consider, for the reasons stated below.

As described above, both landholders have a valid expectation and interest in the closure and purchase of the road. A fair and reasonable approach is to offer each landholder a portion of the road rather than to offer the entire road to one party. It is for this reason that Outcomes 1, 2 & 5 are recommended to be set aside.

While Outcome 3 is recommended, the delegate may decide that the preferred option is to offer each party an equal longitudinal half of the road under dispute, shown as Outcome 4. This is considered an equally fair and reasonable outcome.

It is not presented as the recommended outcome because it does not reflect the historical occupation of the subject road, would require cooperation between the two parties and additional costs to them both.

If Outcome 4 is determined as the outcome, it will be recommended that it be subject to the landholders engaging a surveyor to prepare a single plan, so that there is no disagreement regarding the boundaries of each lot. The surveyor's costs would be met by the landholders.”

72. The Officer’s submission – Decision. The Officer’s submission then set out the decision being recommended, which was then made by the delegate without attributing further reasons for the decision. The decision was relevantly in the following terms:

“DECISION

As the road described under Enclosure Permit 16493 has ceased to be enclosed, it will be recommended that EP 16493 be cancelled, as per Section 67(1)(d) of the Crown Lands Act 1989.

After consideration of all submissions received, the roads recommended for closure below and shown on Diagram F & Diagram G (Sheets 1& 2), are considered surplus to Departmental needs.

For the reasons stated, it will be recommended that road south of Lot 558 DP 755846 and the western half of road south of Lot 500 DP 755846 will be recommended to be closed and sold to Jennifer Ann Kirkman (Lot 1 on Diagram F).

The eastern half of road south of Lot 500 DP 755846 and road within & south of Lot 1 DP 817891, be closed and sold to Geoffrey Robert Wood and Jan Margaret Wood (Lot 1 on Diagram G (Sheets 1& 2)), subject to the easement for transmission line as previously approved within DOC14/057565.

On closing the land within the former public roads will remain vested in the Crown as Crown Lands.”

73. The decision is silent about any grant of an easement over the road within and south of Lot 1 DP 817891 that was being closed and sold to the Woods. This is consistent with the delegate’s reasoning in the Assessment not to grant that easement to Ms Kirkman.

74. Endorsement of the decision. As earlier indicated, the Minister’s delegate noted that she “reviewed and approved” the principal recommendation and the draft decision presented to her, without variation to the reasoning. Though made on 30 August, the decision was notified to Ms Kirkman by letter dated 26 October 2017.

Ms Kirkman’s Claim for Relief

75. Ms Kirkman’s Summons filed on 9 November 2018 seeks two declarations relating to the two parts of the decision. First, it seeks that the Minister’s decision to sell to the Woods the easternmost 136 metres of the Crown road abutting the southern boundary of Lot 500 of DP7558462 is invalid, of no legal effect and should be quashed. And second, it seeks a declaration that the Minister’s decision not to impose a condition on the sale to the Woods of the Crown road within Lot 1 in DP 817891 imposing a right of carriageway pertinent to Lot 558 in DP 755846 and Lot A in DP 400556, is invalid, of no legal effect and should be quashed. Other consequential relief is sought.

76. The summons also seeks an order pursuant to UCPR r 59.10(2) that the time to commence these proceedings be extended to the date that the proceedings were actually commenced. Under UCPR r 59.10(1) proceeding for judicial review of a decision must be commenced within three months of the date of the decision. That three month period expired here on 30 November 2018. The Summons was filed within time.

77. In her final supplementary written submissions, Ms Kirkman summarised her case for judicial review in a way that provides structure to the Court’s present analysis:

“As set out in greater detail below, in summary format the Plaintiff’s submission is:

a)   the decision-maker took into account the following irrelevant considerations:

i)   the 2008 Permit Decision;

ii)   the 2014 Decision;

iii)   the fence purportedly shown on DP 817891; and

iv)   the previous determination on 14 April 2014, of the Application to Close a Public Road made by Elliott dated 23 May 2007.

b)   the decision-maker failed to take into consideration, properly or at all, the following relevant matters:

i)   relevant matters concerning the decision to decline an easement to the Plaintiff over part of the Crown Road to be offered to the 2nd Defendant

ii)   the incompleteness of the 2nd Defendant’s Application to Close a Public Road; and

iii)   the enclosure permits;

c)   the decision-maker denied the Plaintiff procedural fairness;

d)   the decision-maker showed bias against the plaintiff.”

78. These reasons now consider these grounds of challenge to the 2017 decision in the order (d), (c), (b) and (a). This will involve closer examination of parts of the Attachment to the Officer’s Submission and material in the Background Information Document.

Bias

79. Ms Kirkman submits that the decision-maker demonstrated bias against her by holding (and not questioning) an opinion on a relevant matter that was used in the decision-maker’s reasoning: namely, that the disputed area that is part of the Crown road, forms part of the Woods’ enclosure permits.

80. Ms Kirkman put her bias argument in her final written submissions in the following way:

“[43]   This is manifested in the frequent references to the 2008 Permit Decision and the 2014 Decision in the Material which include the references (on page 391) that the change in the text description in EP 16608 “was a correction to EP 16608”,and that the 2nd Defendant’s application “included the eastern half of road south of Lot 500”.

[44]   The Material concludes with the first 3 recommendations “as per the decision above” The decision-maker was clearly directed to the entirety of the Submission and attachments.

[45]   The multiple references to the 2008 Permit Decision and the 2014 Decision, and the lack of comment by the decision-maker in relation to them, make clear that the decision-maker concluded that the disputed part of the Crown Road formed part of the 2nd Defendant’s enclosure permit.

[46]   A further statement in the Material as to the opinion that the disputed part of the Crown Road forms part of the 2nd Defendant’s enclosure permit is at page 391, where the change in the text description in EP 16608 “was a correction to EP 16608”.

[47]   Whilst the Material contained reference to the previous 2016 Supreme Court judgment:

a)   the first reference to the previous judgment was incorrect given that when in [36] and [37] his Honour concludes that the decision (of 13 August 2014) “is attended by jurisdictional error and should be set aside”; and

b)   the second reference is silent about the inability to take the 2008 Permit Decision and the 2014 Decision into consideration and does not negate the effect of the other passages in the Submission and Background Information Document referring to the 2008 Permit Decision and 2014 Decision.

[48]   The question of whether the disputed part of the Crown Road forms part of the 2nd Defendant’s enclosure permit is one which was required to be considered afresh, but this was not done in the 2017 Decision.”

81. Ms Kirkman submitted that the decision-maker here was “so committed to a conclusion already formed, as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Le Geng 205 CLR 507; (2001) 65 ALD 1; [2001] HCA 17; at [72], (“Jia Le Geng”) per Gleeson CJ and Gummow J (Hayne J agreeing at [176]) and see also Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; (1990) 93 ALR 435; [1990] HCA 31 at 91 and Olsen v Olsen & Ors (2019) 101 NSWLR 225; [2019] NSWCA 278. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion: Jia Le Geng at [71]. Ms Kirkman submitted that the elements of bias referred to in Jia Le Geng are present in this case.

82. Ms Kirkman’s submissions of bias are not persuasive. In these submissions Ms Kirkman makes a number of separate allegations of bias that can be divided conveniently into four separate complaints.

83. Ms Kirkman’s first complaint of bias is based on two aspects of the material supplied with the decision: (a) that “the change in the text description in EP 16608 was described as “a correction to EP 16608’”; and (b) that Mr and Mrs Woods’ application “included the eastern half of [the] road south of Lot 500”.

84. This first charge of bias fails. It reads too much into the identified text and takes little account of the reasoning in the decision itself. As to the first aspect, the reference to “a correction to EP 16608” is in the Background Information Document, not in the reasons for decision. Both the Background Information Document and the delegate’s reasons for decision make clear that any “correction” to the Woods’ EP 16608 (in November 2008) is being treated neither as a valid correction, nor as a part of the delegate’s reasoning to the decision. The “correction” is merely being identified in the Background Information Document as a change that was evident in the historical records that were maintained by the Department. And the following reasoning in the Assessment makes clear that the “correction” was not an amendment upon which the delegate could place any reliance:

“Through no fault of the landholders, the subject road has been described under permit to both properties for much of the time from 1954 until circa 2008-2012. When department officers have amended permit descriptions, in an effort to correct the confliction, the landholders have not been equally involved or notified of the facts or reasons for the amendments.”

85. As to whether Mr and Mrs Woods’ enclosure permit included “the eastern half of [the] road south of Lot 500”, the decision-maker was entitled to rely upon the analysis in the Background Information Document that, “[a]t some unconfirmed time the description [in EP16608] was amended to exclude the subject road and was changed back in 2008 to again include the subject road”. This reflected some uncertainty in the underlying documents but nevertheless founded a reasonable inference from them: that the subject road was included in the Woods’ enclosure permit.

86. Is also suggested as part of this argument that bias was demonstrated by the delegate treating the Woods’ 2012 application to close the road as one that “included the eastern half of road south of Lot 500”, when the application did not include the disputed section of the road. But there are several problems with this contention. Once again it is not part of the delegate’s reasoning but is in the Background Information Document. And whilst the Woods’ application to close the road was a fairly unspecific document (as it presently appears in the Department’s records), it is crystal clear from the Woods’ correspondence sent to the Department for many years after their application that the Woods were applying to close the road including the disputed portion, thereby creating the conflict between the two applications. So for the decision-maker to act on that basis is hardly evidence of bias.

87. Ms Kirkman’s second complaint of bias is that “the multiple references to the 2008 permit decision and the 2014 decision, and the lack of comment by the decision-maker in relation to them” are said to “make clear that the decision-maker concluded that the disputed part of the Crown Road formed part of the 2nd Defendant’s enclosure permit”.

88. This contention of bias is difficult to follow. In the reasons for the 2017 decision, contained within the Assessment and the Decision sections of the Officer’s submission, as set out above, there are no references to the 2008 decision and the 2014 decision and certainly nothing to suggest that the decision-maker was attempting to rely upon those decisions contrary to Stevenson J’s judgment. And to the extent that the references being referred to in this argument are in the Background Information Document, it did not form part of the delegate’s reasoning such as would demonstrate bias.

89. Ms Kirkman’s third complaint of bias is not persuasive. She contends that when Stevenson J’s decision is referred to twice in the reasons for the 2017 decision that the second reference “is silent about the inability to take the 2008 decision and the 2014 decision into consideration”. She submits that any references to Stevenson J’s decision “do not negate the effect of” the other passages in the Officer’s submission and the Background Information Document referring to the 2008 decision and 2014 decision.

90. The passage in the Background Information Document to which Ms Kirkman’s submission is referring here (“the second reference”) is quite an adequate description of Stevenson J’s decision. It is as follows:

“Minister’s decision affected by jurisdictional error and to be set aside.

According to the judgment it was accepted by the Minister that the permit decision (the alteration of EP16493 in 2008) was infected by a jurisdictional error and was a nullity. Further, the Minister’s delegate took into account an irrelevant consideration (which assumed validity of the “permit decision”) when making her decision in determining the road closures applications. Therefore the decision should be set aside.

This judgment meant that the enclosure permits were to be reinstated to the descriptions that were in place prior to the permit decision of 28 November 2008 and the road closure applications would require reassessment.”

91. There could be no misunderstanding about the true effect of Stevenson J’s decision from this material, which gives a fair and accurate summary of Stevenson J’s principal reasoning and conclusions. In substance this summary is doing exactly what Ms Kirkman says it is not doing: it is saying that the form of the enclosure permits to be considered (based upon the true legal position) should be wound back to how they appeared before the 2008 decision and the 2014 decision, as those decisions cannot be taken into account in making the 2017 decision. But of course this is a statement in the Background Information Document and is in any event hardly a candidate to demonstrate bias.

92. Ms Kirkman’s fourth complaint of bias also fails. She submits that the question whether the disputed part of the Crown road forms part of the Woods’ enclosure permit is a question which was required to be considered afresh. And she submits that it was not considered afresh in the 2017 decision which is evidence of bias.

93. The delegate’s assumptions and reasoning in the Assessment assumes there is a conflict between Ms Kirkman’s enclosure permit (EP16493) and the Woods’ enclosure permit (EP16608): “[A]t the time each landholder purchased their respective property, they each held enclosure permits over the road…” This conflict could only arise if there is inconsistency between the two enclosure permits, which is undoubtedly the basis for the delegate’s reasoning.

94. But the delegate was entitled to act upon the material presented to her that demonstrates that there was such a conflict and that the Crown road did form part of the Woods’ enclosure permit. And there was ample material to that effect in the Background Information Document, which concluded that the Department had investigated the matter in 2008 and changed the Woods’ enclosure permit back to include the subject road.

95. Ms Kirkman’s argument here and in much of her submissions misapprehends the task of judicial review. The main theme of judicial review is generally to review the errors of law but not errors of fact. The grounds of judicial review should not be used as a basis for a re-evaluation of the findings of fact or a reconsideration of the merits of the case and does not ordinarily enter into a consideration of the factual merits of the individual decision. Of course where the decision is challenged on the basis of irrationality in reasoning from primary facts or on the basis that findings of primary fact are perverse and against the weight of the evidence, an error of law may be demonstrated. But Ms Kirkman’s submissions did not go that far.

96. It is unclear what Ms Kirkman means by “considered afresh”. If that means that the decision-maker had the obligation to act upon primary facts supported by some evidence, then in the Court’s view she has done so. The material in the Background Information Document looked closely at what was encompassed within the Woods’ EP16608. And it set out the various changes that had occurred to EP16608 over time and concluded the disputed portion of the Crown road was included in EP16608. The delegate could have regard to this material in the Background Information Document.

97. But if Ms Kirkman’s “considering afresh” means the decision-maker was obliged to conduct her own enquiry into the primary evidence and not rely upon the materials presented to her, the legal basis for that submission has not been demonstrated. Ms Kirkman’s submission does not support the inference that the decision-maker was “committed to a conclusion already formed” such as would constitute bias.

Denial of Procedural Fairness

98. Ms Kirkman also submits that the decision-maker denied her procedural fairness. She concedes that she was given an opportunity to make submissions before the 2017 decision and that she took advantage of that opportunity. But she says that previous denials of procedural fairness to her could not be overcome. She put her argument in support of this contention in the following way:

“[41]   Whilst it is accepted that, for the 2017 Decision, the Plaintiff was given an opportunity to make submissions (which the applicant provided), that does not negate the previous denials of procedural fairness:

a)   lack of advice to the Plaintiff about the 2008 Permit Decision and inability to make submissions in relation thereto;

b)   lack of advice to the Plaintiff about the variation to her enclosure permit as shown in the screen dump and inability to make submissions in relation thereto;

c)   lack of advice to the Plaintiff about the change to her application especially the removal of the map which had accompanied her original application and replacing it with a map printed by a department officer some five years after that original application had been made. That new map reflected the invalid 2008 Permit Decision, and the Plaintiff had been unable to make submissions in relation to that change; and

d)   the failure to include the Plaintiff’s at a site visit or “field inspection” attended by departmental officers in May 2014, before the 2014 Decision;

e)   lack of advice to the Plaintiff about the 2nd Defendant’s competing application and no opportunity to make submissions in relation thereto, and subsequent advice that it was not lodged until 2012 which contrasts with the statement in the Submission the basis of the decision the subject of these proceedings.”

99. Any denials of procedural fairness leading up to the 2008 decision or the 2014 decision do not vitiate the 2017 decision. For Ms Kirkman to succeed on this ground, it is necessary for her to show that she was denied procedural fairness in the making of the 2017 decision. Each of the plaintiff’s five procedural fairness contentions, (a) to (e), will be dealt with in turn.

100. As to contention (a), the elements of the 2008 permit decision were well exposed by Stevenson J’s decision. The Court does not accept that Ms Kirkman was not able to put submissions about the 2008 permit decision before the 2017 decision. She was given notice in a letter from the Department on 2 April 2017 that “to facilitate the making of a decision new submissions are sought in regard to your application”. She was given further notice in a letter from the Department on 1 May 2017 that her road closure application “is being repossessed by a senior manager in the Grafton office, in the meantime your enclosure permit has been varied to show the lots at areas as shown in your original enclosure permit”.

101. As to contention (b), it is difficult to understand how a denial of procedural fairness could have occurred. The “screen dump” in question was the text of the unauthorised alteration made in November 2008 to the description of Ms Kirkman’s EP16493 in the 2008 permit decision. After she made an enquiry of the Department, Ms Kirkman was notified by email on 6 January 2014 by an officer of the Department that the altered text was as follows “Road south Lot 558, DP755846, Road part south (excluding easternmost 121m) Lot 500, DP755846.” This gave Ms Kirkman clear notice of the Department’s unauthorised change to the text of her enclosure permit in November 2008. She cannot complain now that she was not in a position to put submissions to the Department about that subject. Moreover, the Department’s letter of 1 May 2017 make clear that before the 2017 decision Ms Kirkman’s enclosure permit was re-amended to neutralise this unauthorised change.

102. As to contention (c), the denial of procedural fairness Ms Kirkman alleges concerns an alleged failure by the Department to inform Ms Kirkman about steps being taken by the Department in the course of making the 2008 permit decision. The steps in question were the unauthorised changing of the text of her enclosure permit and the unauthorised changing of the map attached to her road closure application, which she recounts in her affidavit in these proceedings of 18 June 2019. But the 2008 permit decision was declared void by Stevenson J and does not form, and should never have formed, any element of the reasoning to the 2017 decision. An inability to put submissions about something which is not part of the delegate’s reasoning is not a denial of procedural fairness.

103. That being said, Ms Kirkman’s evidence on the subject of the 2008 permit decision paints a disturbing picture of an irregularity having occurred concerning the integrity of her enclosure permit and her road closure application, when they were held within the Department’s hands. Her evidence was that the text of EP16493 and the map attached to her road closure application were both changed without her knowledge, probably in about November 2008 by somebody within the Department, something she says she was not aware of until 2013. The change to the descriptive text of EP16493 added the words “(excluding easternmost 121m)”, so it read “Road south Lot 558, DP755846, Road part south (excluding easternmost 121m) Lot 500, DP755846.” She also explains that the map that she had originally attached to her road closure application in 2007, which clearly showed that she claimed the whole of the disputed portion of the Crown road, had been replaced by another map (which clearly shows it was printed in 2012) and which seeks to depict that she was not seeking to enclose the disputed portion of the Crown road. Her evidence in these proceedings was not challenged by either defendant and can be accepted. None of this should have occurred without Ms Kirkman’s knowledge and consent and the fact that it did undoubtedly added to the contest before Stevenson J.

104. As to contention (d), Ms Kirkman’s affidavit of 18 June 2019 states that she has not attended any field inspection when Departmental officers have visited the disputed portion of the Crown Road. This can be accepted. But the obligations of procedural fairness do not require Ms Kirkman to be present at field inspections. Moreover, the only field inspection to which she points that she missed was in May 2014, preceding the 2014 decision. She does not point to her missing any identified field inspection after the 2014 decision and before the 2017 decision.

105. As to contention (e), it is difficult to understand how a denial of procedural fairness arises. Ms Kirkman’s affidavit of 18 June 2019 states that she became aware that the Woods did not apply to close the road until 2012 and she viewed the Woods’ road closure application when documents were subpoenaed for Stevenson J’s decision in 2016. She was thus in a position to put submissions concerning that application before the 2017 decision, had she chosen to do so.

Failure to Take into Account Relevant Considerations

106. Ms Kirkman submits that the delegate failed to consider a number of matters which she alleges are relevant and should have been taken into account. But the principal answer to her submission is the applicable legal principle relevant to this ground of challenge. The ground of judicial review of failing to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which the decision-maker is bound to take into account in making the decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 66 ALR 299; [1986] HA 40 at 39, per Mason J (“Peko Wallsend”).

107. Here the decision to close the road was made under Crown Lands Act 1989, s67(1)(d) which requires that the Minister “shall” cancel an enclosure permit upon “the road…ceasing to be enclosed”. The only mandatory requirement to be established before a permit cancellation decision can be made is that the road has ceased to be enclosed. The matters referred to in Ms Kirkman’s written submissions are not matters which the Minister is bound by the applicable statute to consider.

108. Ms Kirkman says that the matters that she raises as not having been taken into account, are matters required to be taken into account by implication from the subject matter, scope and purpose of the Crown Lands Act: Peko Wallsend, at 39-40. But it is not at all obvious that that Minister must take into account any of the particular matters Ms Kirkman’s written submissions have identified, when the Minister is exercising Crown Lands Act, s 67(1)(d) powers. And therefore, this ground of judicial review posed in Ms Kirkman’s written submissions fails to the extent that it can be determined. But as will be seen are some issues in relation to failing to take into account relevant considerations that cannot be resolved either way without assistance from the Minister.

109. But some short observations may be made about the matters Ms Kirkman has raised, to show that when the delegate’s reasons are read properly the matters were indeed mostly considered in some form. Ms Kirkman submits that the delegate did not take into account the following matters.

110. First, in relation to the part of the 2017 decision not to grant Ms Kirkman an easement to Gostwyck Road over the area of the Crown Road being closed within the Woods land, Lot 1 DP817891, she submits that without direct knowledge of the physical condition of Lot 588 from a site inspection that it could not be determined that “access could be provided to these lots via the existing [road] formation through Lot 500 DP 755846 or by an alternative route within the existing property”. But the Department used aerial photography to ground its conclusion. Which method was the best is a matter of judgment for the decision-maker. This is also an answer to Ms Kirkman’s submission to the same effect about access to Lot A in DP400556.

111. Second, the Woods road closure application is said by Ms Kirkman not to identify clearly the road to be closed. It is true that the Woods original road closure application is non-specific. But it has plainly been supplemented by other material supplied by the Woods and has, as a result, then been treated by the Department as being a road closure application for the disputed portion.

112. Third, Ms Kirkman submits that there has been no production of any version of the Woods’ enclosure permit until one dated 1 May 2017, after Stevenson J’s 2016 decision and before the 2017 decision was issued to the Woods. Ms Kirkman received an amended one herself the same day. Ms Kirkman submits that because the covering letter from the Department forwarding the 1 May 2017 enclosure permit (EP16608) to the Woods says “your enclosure permit has been varied to show the lots and area as shown on your original enclosure permit” (emphasis added) that an enquiry should have been undertaken to ascertain what was shown on the original enclosure permit. In that sense the delegate is said to have failed to take into account relevant considerations.

113. But the enclosure permit dated 1 May 2017 with this letter to the Woods is a self-contained document issued under the Crown Lands Act, which looks valid on its face. Mrs Kirkman says that it does not accurately describe the disputed portion of the Crown Road. Her submission appears to be correct. The Woods 1 May 2017 enclosure permit refers in the text of Schedule 1, only to “Crown roads within and south of Lot 1 DP817891, being the road is highlighted on the attached diagram schedule six comprising an area of about 1.795ha.” This is not a reference to the Crown Road directly south of Lot 500. This reference is to be contrasted with the enclosure permit issued the same day to Ms Kirkman, which does clearly refer to the disputed area.

114. But without further clarification in submissions from the Minister it is not possible for the Court to reconcile how the 1 May 2017 enclosure permit issued to the Woods now actually conflicts with the enclosure permit issued to Ms Kirkman. What was issued on 1 May 2017 may have been another attempt to the conflict these enclosure permits. But that is not what the covering letter says which was an attempt to return to “your original enclosure permit”.

115. But the Assessment in the Officer’s submission includes reasons for preferring Outcome 3 which was selected. These reasons included a finding that “At the time each landholder purchased their respective property, they each held enclosure permits over the road separating Lot 1 DP 817891 from lots 558 and 500 DP7556.” Ms Kirkman questions whether there actually was an original permit issued to the Woods or their predecessors in title over the disputed area of the Crown road.

116. But there was available material providing a proper basis on which the delegate could act to conclude that these two landholders held conflicting enclosure permits over the disputed area for a long period. That was the Department’s long held working assumption, otherwise the invalid 2008 permit decision makes no sense. Both landowners had paid enclosure permit fees over the disputed area from the time of their first ownership.

117. But the Court does not understand how at the time of the 2017 decision that conflict can be said to continue and therefore to require resolution, in light of the issue of the two latest enclosure permits 1 May 2017, which do not appear to be in conflict at all. There may be a simple solution to this but it is not obvious to the Court without assistance. Before deciding this issue the Court wishes to hear from the Minister. The Minister has offered in written submissions to respond to further enquiries from the Court.

118. But there is another matter raised in Ms Kirkman’s affidavit of 18 June 2019, which is really by way of submission rather than the nature of evidence. That matter also needs to be addressed by the Minister for the assistance of the Court.

119. In her affidavit Ms Kirkman questions the statement made in the Comments section of the 2017 decision, “[b]oth landholders and department field inspections have confirmed that the subject Crown road is no longer enclosed within either property”. The Court does not understand this part of the reasoning to the decision. It is a mandatory consideration directly required by Crown Lands Act, s 67(1)(d) for the decision-maker to determine whether or not the Crown road is still enclosed before the enclosure permit can be cancelled. Indeed it is the only clear mandatory requirement for the delegate to have jurisdiction to make such a decision. The Crown Lands Act directly requires this determination to be made before permit cancellation can occur.

120. But leaving aside the field inspections, Ms Kirkman says that it is not true to say that the disputed area of the Crown road is “no longer enclosed”. And there is substantial evidence, including the 2014 survey plan reproduced earlier in these reasons, suggesting that Ms Kirkman is correct and that Crown Road is still enclosed within her property by the electric fence she constructed in 2014. The Court does not yet see on what basis the delegate could have been satisfied that this mandatory requirement for decision-making under this legislation was met. The Court would be assisted by submissions from the Minister on this subject.

Taking into Account Irrelevant Considerations

121. The Court has requested further submissions from the Minister. If necessary Ms Kirkman may advance submissions in reply. For this reason it is unnecessary for the Court at this stage to determine the issues under this heading. The Court will determined these issues once it has heard the further submissions that have been requested.

Conclusions and Orders

122. The Court’s reasoning has led to the conclusion that the Minister should provide submissions about two matters. The Court requests the Minister either to provide those submissions to Ms Kirkman and the Court and/or appear at a resumed hearing to assist the Court about the identified subjects. As there are a significant number of documents in this case it may be better for the matter to be dealt with at a short hearing rather than entirely by written submissions. If that is the preferred course, the parties should contact my associate to arrange a date for the completion of the matter for the hearing time of no more than 1 hour.

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Amendments

30 October 2020 - case citation in coversheet

Decision last updated: 30 October 2020