Mills v Local Lands Services

[2015] NSWCATAD 207

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Mills v Local Lands Services [2015] NSWCATAD 207
Hearing dates:	18 May 2015, 15 June 2015, 26 June 2015
Date of orders:	13 October 2015
Decision date:	13 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision to refuse to issue the permit to the Appellant is confirmed.
Catchwords:	external appeal - jurisdiction - travelling stock reserve - long term grazing permit – expression of interest process – meaning of 'adjoins' – relevant consideration - application of policy - legal, factual or discretionary error
Legislation Cited:	Local Land Services Act 2013 Civil and Administrative Tribunal Act 2013 Local Land Services Regulation 2014
Cases Cited:	Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276 Builders Licensing Board v Sperway Constructions (Syd.) Pty Limited (1976) 135 CLR 616 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 Yammatree Pty Ltd v North West Local Land Service [2015] NSWCATAD 35
Category:	Principal judgment
Parties:	Aubrey Robert Mills (Appellant) Local Lands Services (Respondent)
Representation:	Counsel: H Irish (Appellant) P Russell (Respondent) Solicitors: Cole & Butler (Appellant) Bell & Johnson (Respondent)
File Number(s):	1510087

reasons for decision

1. This is an appeal under section 86 of the Local Land Services Act 2013 (“the Act”). It is an external appeal for the purposes of section 31 of the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”).

2. The matter concerns a decision of the Respondent, the Local Land Services (“the LLS”) to refuse to issue a Long Term Grazing Permit (“LGP”) in relation to a portion of Travelling Stock Reserve 7800 (“TSR7800”). The Appellant was notified of the decision by email on 7 January 2015. In these reasons I will refer to the portion of TSR7800 that is in issue as “the contested land”.

Background

3. The general background to the appeal is not in dispute. It is common ground that the Appellant and his wife, Kaye Denise Mills, have been the owners of the property known as "Yooloobil" (“Yooloobil”) since 1979. Yooloobil is located approximately 85 kilometres north of Moree. The Appellant and his wife employ their son, Reece Mills, to manage Yooloobil. They authorised him to manage all dealings in relation to expressions of interest for Long Term Grazing Permits on their behalf.

4. A nearby property known as “Aralu”, Garah (“Aralu”) wholly affronts the contested land. The principals of Aralu are Cassandra Johnson & Simon Keen of Aralu Farming. Aralu Farming also applied for a LGP over the contested land and was ultimately successful in that application.

The nature of an appeal

5. The matter is to be determined under section 79 of the NCAT Act and section 86(5) of the Act.

6. Section 86 of the Act provides:

86 Appeals concerning the issue, cancellation or suspension of permits

(1) An applicant for a permit may appeal to the Civil and Administrative Tribunal against a decision of Local Land Services to refuse to issue a permit.

Note : An appeal to the Civil and Administrative Tribunal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 . A decision of the Tribunal on such an external appeal may be appealed to the Land and Environment Court under Schedule 1 to that Act.

(2) The holder of a permit may appeal to the Civil and Administrative Tribunal against a decision of Local Land Services to cancel or suspend the permit.

(3) The appeal must be made within 28 days of the refusal or receipt of the notice of cancellation or suspension.

(4) A decision of Local Land Services to refuse to issue a permit or to cancel or suspend a permit is effective and operates (subject to any final determination on appeal) from the date of the decision.

(5) On hearing the appeal, the Civil and Administrative Tribunal may:

(a) revoke the decision to refuse to issue the permit and issue the permit (whether or not subject to conditions), or

(b) confirm the decision to refuse to issue the permit, or

(c) revoke the decision to cancel or suspend the permit, or

(d) confirm the decision to cancel or suspend the permit.

7. Section 31 of the NCAT Act provides

31 External appeal jurisdiction of Tribunal

(1) The Tribunal has

"external appeal jurisdiction" over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions).

(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its external appeal jurisdiction:

(a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,

(b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings.

(3) An "appealable external decision" is a decision of an external decision-maker over which the Tribunal has external appeal jurisdiction.

(4) An "external appeal" is an appeal to the Tribunal against an appealable external decision.

(5) A provision of enabling legislation that provides for a decision of an external decision-maker to be appealed to the Tribunal extends to the following:

(a) a decision made by a person to whom the function of making the decision has been delegated,

(b) if the provision specifies the decision-maker by reference to the holding of a particular office or appointment-a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,

(c) a decision made by any other person authorised to exercise the function of making the decision.

(6) Nothing in this section permits external appeal jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.

8. Section 79 of the NCAT Act provides:

79 Making and determination of external appeals

(1) An external appeal may be made to the Tribunal by a person entitled to do so under enabling legislation on such a basis or grounds, or in such circumstances, as may be provided by that legislation.

(2) In determining an external appeal, the Tribunal may:

(a) in the case of enabling legislation that specifies the orders that may be made by the Tribunal on the appeal-make any of those orders, or

(b) in any other case-make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:

(i) the appeal to be allowed or dismissed,

(ii) the decision under appeal to be confirmed, affirmed or varied,

(iii) the decision under appeal to be quashed or set aside,

(iv) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(v) the whole or any part of the case to be reconsidered by the decision-maker whose decision is under appeal, either with or without further evidence, in accordance with the directions of the Tribunal.

9. Clause 14 in Part 6 of Schedule 3 to the NCAT Act provides:

14 External appeals under lands legislation

(1) Except as otherwise provided by the lands legislation, an external appeal made under that legislation:

(a) may be made without requiring the leave of the Tribunal concerning the grounds for the appeal, and

(b) is to be by way of a rehearing.

(2) Fresh evidence, or evidence in addition to or in substitution for the evidence received by the external decision-maker, may be given in the appeal with the leave of the Tribunal.

10. I considered the nature of an appeal under these provisions in my decision in Yammatree Pty Ltd v North West Local Land Service [2015] NSWCATAD 35. At paragraph [20] I concluded that a rehearing is, in fact, a hearing de novo or, at its highest, some statutory hybrid. The Appellant accepts my conclusion in Yammatree. However, the Respondent contends that in an appeal by way of a rehearing, the powers of the Tribunal are exercisable only where the Appellant can demonstrate that, having regard to all the evidence now before the Tribunal, the decision that is the subject of the appeal is the result of some legal, factual or discretionary error. The Respondent has invited me to reconsider the issue.

11. Having reconsidered the issue, I am of the view that a rehearing is a hearing de novo. In Builders Licensing Board v Sperway Constructions (Syd.) Pty Limited (1976) 135 CLR 616 Mason J stated at 621-622:

Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. ... There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo ... The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.

On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.

But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing.

12. In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 Gleeson CJ, Gaudron and Hayne JJ explained at paragraph [11] (citations removed):

11.   … "the nature of [an] appeal must ultimately depend on the terms of the statute conferring the right [of appeal]". The statute in question may confer limited or large powers on an appellate body; it may confer powers that are unique to the tribunal concerned or powers that are common to other appellate bodies. There is, thus, no definitive classification of appeals, merely descriptive phrases by which an appeal to one body may sometimes be conveniently distinguished from an appeal to another.

13. And further from paragraph [68]

68.   Appeal, as such, was unknown to the common law. It is a creature of statute. It is not possible to adopt any hard and fast or universal approach to the process called "appeal" in a particular statute. The word encompasses "different litigious processes which have few unifying characteristics". No fewer than six forms of a procedure loosely called an "appeal" have been identified. Within these broad categories are various subcategories reflecting the particular nature of the "appeal" in question, the issues which the appeal presents and the purpose for which it exists, derived from the language in which it is expressed.

69.   In every case where the issue is that of the duty and function of an appellate court or tribunal, the only safe starting point is a careful examination of the language and context of the statutory provisions affording the appellate right, together with a consideration of the powers enjoyed by, and duties imposed on, the body to which the appeal lies.

70. The range and variety of the decisions that may, with leave, be the subject of an appeal under the Act is such as to suggest that generalities will be dangerous. So different are the various decisions amenable to appeal that it will only be of limited help to catalogue the process within the broad class of an "appeal in the strict sense" or an "appeal by way of rehearing", as if, without more, such classification dictates the way in which the particular appeal must be approached. True, such broad categories will offer a limited measure of guidance. But it remains for the appellate body in every case to discharge its functions in a way apt for all of the statutory provisions that are brought into play.

14. Construction of the Act is necessary for determination of the process to be taken. It is clear that the relevant provisions of the Act are akin to those examples given in Builders Licensing Board v Sperway Constructions and suggest a basis for saying that an appeal calls for a hearing de novo.

15. However, as was the case in Yammatree, even if I am wrong on that point, I am satisfied that the Appellant has identified legal, factual or discretionary errors. In her written submissions on behalf of the Appellant Ms Irish submitted that, if the Tribunal is persuaded that the powers of the Tribunal are exercisable only where the Appellant can demonstrate some legal, factual or discretionary error the following issues remain for determination:

34.   Whether, as a pre-condition to revocation of the Respondent’s decision (and issue of the permit), or confirmation of the Respondent’s decision, the Tribunal can be satisfied:

a.   that the expression of interest (EOI) process has been carried out by the Respondent in accordance with [the Act] and [the Local Land Services Regulation 2014 (“the Regulation”)] and [the Long Term Grazing Permit (LGP) Policy and Procedures (“the LGP Policy”)] in particular clauses 2.2.1 and 2.2.2,

b. that the assessment process carried out by the Respondent was in accordance with the Act and Regulation and LGP Policy in particular clauses 2.2.3 and 2.6 of the LGP Policy, including -

i.   whether clause 2.10.4 is a relevant consideration, and

ii.   (if so) whether on the facts of the case that clause applies, and

iii.   (if so) whether it is determinative of refusal of the permit,

c. that the approval process carried out by the Respondent was in accordance with the Act and Regulation and LGP Policy in particular clause 2.2.4,

d. that the issuance process carried out by the Respondent was in accordance with the Act and Regulation and LGP Policy in particular clause 2.2.5, including whether the issuance process was properly affected by any appeal made and assessed in accordance with clause 2.2.7.

35.   (If it is contended by the Respondent that the powers of the Tribunal are exercisable only where the Appellant can demonstrate some legal, factual or discretionary error) whether the decision to refuse to issue the permit is the result of legal, factual or discretionary error in any of the processes referred to in [34] a. - d. above.

36. Whether, on the basis of the material received by the external decision-maker and fresh evidence, or evidence in addition to or substitution for the evidence received by the external decision-maker, and taking into account relevant considerations under the Act and Regulation and LGP Policy and s 79 of the Civil and Administrative Tribunal Act 2013 and s 86(5) of the LLS Act, the Tribunal should:

a.   revoke the decision to refuse to issue the permit and issue the permit (whether or not subject to conditions), or

b.   confirm the decision to refuse to issue the permit.

16. For the reasons set out below I am satisfied that the powers of the Tribunal are exercisable in relation to this matter. I am satisfied that the Tribunal has jurisdiction to determine this matter and to receive fresh evidence in order to do so.

Other Applicable Legislation

17. The Act commenced on 1 January 2014. The objects of the Act as set out in section 3 are as follows:

(a) to establish a statutory corporation (to be known as Local Land Services) with responsibility for management and delivery of local land services in the social, economic and environmental interests of the State in accordance with any State priorities for local land services,

(b) to establish a governance framework to provide for the proper and efficient management and delivery of local land services,

(c) to establish local boards for the purpose of devolving operational management and planning functions to regional levels to facilitate targeted local delivery of programs and services to meet community, client and customer needs,

(d) to require decisions taken at a regional level to take account of State priorities for local land services,

(e) to ensure the proper management of natural resources in the social, economic and environmental interests of the State,

(f) to apply sound scientific knowledge to achieve a fully functioning and productive landscape,

...

18. Section 6 of the Act provides that for the purposes of the Act, the State is divided into the Local Land Services regions described or identified in Schedule 1 to the Act. The region that is relevant to these proceedings is the North West Local Land Services region.

19. The Local Land Services is a NSW Government agency. It is a statutory corporation established on 1 January 2014 under section 8 of the Act. Its functions are, inter alia, to administer, deliver and fund local land services and to develop and implement appropriate governance arrangements for the delivery of local land services.

20. Section 4 of the Act defines “local land services” as:

"local land services" means programs and advisory services associated with agricultural production, biosecurity, natural resource management and emergency management, including programs and advisory services associated with the following:

(a) agricultural production,

(b) biosecurity, including animal pest and disease and plant pest and disease prevention, management, control and eradication,

(c) preparedness, response and recovery for animal pest and disease and plant pest and disease emergencies and other emergencies impacting on primary production or animal health and safety,

(d) animal welfare,

(e) chemical residue prevention, management and control,

(f) natural resource management and planning,

(g) travelling stock reserves and stock watering places,

(h) control and movement of stock,

(i) related services and programs.

21. Section 14 of the Act sets out the functions of the Local Land Services. It provides:

(1) Local Land Services has the following functions:

(a) to administer, deliver or fund local land services,

(b) to develop and implement appropriate governance arrangements for the delivery of local land services,

(c) to prepare a State strategic plan,

(d) to provide and facilitate education and training in connection with agricultural production, biosecurity, natural resource management and emergency management,

(e) to make and levy rates, levies and contributions on rateable and other land for the purpose of carrying out its functions,

(f) to provide and administer grants, loans, subsidies or other financial assistance for activities in relation to local land services,

(g) to collect, collate, maintain, interpret and report information with respect to its functions,

(h) to communicate, consult and engage with the community, including the Aboriginal community, to encourage participation in relation to the delivery of local land services,

(i) to provide advice on matters referred to it by the Minister,

(j) to exercise such other functions as are conferred or imposed on it by or under this or any other Act.

(2) Local Land Services is to exercise its functions in accordance with any State priorities for local land services and any plan approved under Part 4.

(3) Local Land Services may do anything necessary, or supplemental or incidental, to the exercise of its functions.

22. Part 3 of the Act provides for the establishment of the Board of Chairs and a local board for each region. Relevantly, the North West Local Board (“NWLB”) is the local board concerned in these proceedings.

23. Section 29 of the Act provides:

29 Functions of local boards

(1) The functions of a local board for a region are as follows:

(a) to prepare a local strategic plan in respect of the delivery of local land services in the region,

(b) to monitor the performance of Local Land Services in the region, including by reference to the local strategic plan,

(c) to make recommendations to the Board in relation to the making of rates, levies and contributions on rateable and other land in the region,

(d) to collect, collate, maintain, interpret and report information with respect to its functions,

(e) to communicate, consult and engage with the community in developing plans and in respect of the delivery of programs and services by Local Land Services in the region,

(f) to develop a strategy for engagement of the Aboriginal community in the region in respect of the provision of local land services,

(g) to provide advice to the Minister,

(h) to exercise such other functions as are conferred or imposed on it by or under this or any other Act.

(2) A local board must exercise its functions in accordance with the policies, procedures and directions (however described) of Local Land Services.

(3) A local board for a region may, with the agreement of a local board for another region, exercise functions in the other region.

24. It is not in dispute that the NWLB adopted the LGP policy on 24 November 2014.

25. Schedule 6 to the Act sets out the savings and transitional provisions in relation to arrangements in existence at the time the Act commenced. Clause 12 of Schedule 6 provides:

12 Existing travelling stock reserves and stock watering places

(1) On the repeal date, Local Land Services is taken to be vested with the care, control and management of each travelling stock reserve the care, control and management of which was vested in an authority under Part 8 of the former RLP Act [i.e. the Rural Lands Protection Act 1998 as in force immediately before its repeal by the Act]

(2) Land that, immediately before the repeal date, was a stock watering place under Part 9 of the former RLP Act is taken to have been declared to be a stock watering place under this Act.

26. Part 6 of the Act provides for the management, and regulation of the use of travelling stock reserves. Section 61, which falls within Part 6, provides:

"controlled travelling stock reserve" means:

(a) a travelling stock reserve the care, control and management of which is vested in Local Land Services under this Part, or

(b) a travelling stock reserve that is a stock watering place for which Local Land Services is the controlling authority under Part 7.

…

"travelling stock" means stock that are being moved by being walked, and includes travelling stock that are grazing.

"travelling stock reserve" means:

(a) any route or camping place reserved for travelling stock route or camping place under the Crown Lands Act 1989 , or

(b) any reserve for travelling stock, water reserve, reserve for access or crossing (where the reserve is for the purpose of providing travelling stock with access to or a crossing of water, whether expressly notified for that purpose or not), or

(c) any stock watering place.

27. Section 78 of the Act provides for the issuing of permits authorising certain uses of travelling stock reserves and public roads. It provides:

78 Stock permits authorising certain uses of travelling stock reserves and public roads

(1) An authorised officer of Local Land Services may issue a permit (a

"stock permit" ) to any person authorising the person to do anything (or omit to do anything) on or in relation to any public road or travelling stock reserve (whether controlled or managed) specified in the permit in respect of stock owned or in the charge of the person and that would otherwise contravene a provision of this Division.

(2) Without limiting subsection (1), an authorised officer may issue a stock permit authorising a person to do any one or more of the following:

(a) enter a controlled travelling stock reserve with stock,

(b) remain on a controlled travelling stock reserve with stock,

(c) walk stock on a public road or travelling stock reserve,

(d) graze stock on a public road or controlled travelling stock reserve.

(3) A stock permit cannot be issued authorising a person to graze stock (other than travelling stock) on a public road without the concurrence of:

(a) in the case of a public road that is not a Crown road-the local authority in which the road is vested, or

(b) in the case of a Crown road-the Minister administering the Crown Lands Act 1989 .

Note: Under section 40 of the National Parks and Wildlife Act 1974 the concurrence of the Minister is required before the issue of a permit to graze over a travelling stock reserve within the boundaries of a national park or historic site.

(4) A stock permit is to be in the approved form.

(5) Nothing in this section authorises or permits an authorised officer to issue a stock permit authorising a person to do (or omit to do) anything on or in relation to a freeway or tollway within the meaning of the Roads Act 1993 .

28. The Respondent contends that TSR7800 and the contested land do not fall within the definition of "controlled travelling stock reserve". Essentially this argument is founded on the fact that care, control and management of TSR7800 were vested in the Respondent under clause 12(1) of Schedule 6 to the Act and not under Part 6 of the Act. If this argument is correct, it would mean that TSR7800 is not a "controlled travelling stock reserve" for the purposes of Part 6 of the Act and therefore the provisions of section 78(2)(a), (b) and (d) of the Act would not apply. Further, the provisions of section 91 would not apply to TSR7800.

29. Section 91(1) provides that Local Land Services may require the owner of any land adjoining a controlled travelling stock reserve, or separated from such a reserve only by a road or watercourse, to carry out fencing work on the common boundary of the land and the reserve or of the land and the road or watercourse. I do not consider that the issue of whether or not the contested land is a "controlled travelling stock reserve" for the purposes of Part 6 of the Act is determinative of this matter. However, if the provisions of section 91 would not apply to TSR7800 it has implications in relation to the Respondent’s power to require fencing of any unfenced boundary to the contested land and therefore any condition that might be placed on the LGP over the contested land.

30. Section 79 of the Act provides for applications for LGP. It provides

79 Applications for stock permits and reserve use permits

(1) An application for a permit is to be made to Local Land Services in the manner prescribed by the regulations.

(2) A permit must not be issued unless:

(a) in relation to a reserve use permit (as referred to in section 77 (1))-the fee (if any) determined by Local Land Services has been paid or arrangements have been made for payment of the fee after issue of the permit, or

(b) in relation to a stock permit that solely authorises a person to walk stock on a public road or travelling stock reserve (as referred to in section 78 (2) (c))-the fee (if any) determined by Local Land Services has been paid or arrangements have been made for payment of the fee after issue of the permit, or

(c) in relation to a stock permit that solely authorises a person to graze stock on a public road (as referred to in section 78 (2) (d))-the fee (if any) prescribed by the regulations in respect of the permit, or such lesser amount as may be determined by Local Land Services in accordance with subsection (3), has been paid or arrangements have been made for payment of the fee or the lesser amount after issue of the permit, or

(d) in relation to a stock permit that solely authorises a person to graze stock on a controlled travelling stock reserve (as referred to in section 78 (2) (d))-the following fee (if any) or amount has been paid or arrangements have been made for payment of the fee or amount after issue of the permit:

(i) the fee determined by an auction, public tender or other means approved by Local Land Services for the permit,

(ii) the fee (if any) prescribed by the regulations in respect of the permit, or such lesser amount as may be determined by Local Land Services in accordance with subsection (3), or

(e) in relation to any other stock permit-the fee (if any) prescribed by the regulations in respect of the permit, or such lesser amount as may be determined by Local Land Services in accordance with subsection (3), has been paid or arrangements have been made for payment of the fee or the lesser amount after issue of the permit.

(3) For the purposes of subsection (2), any lesser amount determined by Local Land Services must be determined by reference to:

(a) a class of persons, public roads, travelling stock reserves or activities, or

(b) situations that come within circumstances described in the determination.

(4) Local Land Services must display in a conspicuous place in its office the fees prescribed by the regulations or determined by Local Land Services as payable for applications for permits.

(5) An application under this section is taken (for the purposes only of any appeal) to have been refused if it has not been determined within the period of 14 days after the making of the application.

(6) If Local Land Services has determined that the fee for a stock permit that solely authorises a person to graze stock on a controlled travelling stock reserve is to be determined by an auction, public tender or other means approved by Local Land Services (as referred to in subsection (2) (d) (i)) and such an auction, public tender or determination by other means occurs, Local Land Services may not accept the fee or lesser amount (as referred to in subsection (2) (d) (ii)) for the permit.

31. Pursuant to sections 80 to 84 of the Act, a stock permit, unless sooner cancelled or suspended, remains in force for the period specified in the permit; a stock permit may be cancelled or suspended by the Respondent at any time by notice in writing given to the permit holder; a stock permit is subject to such conditions as are prescribed by the regulations or specified in the permit; and the holder of a stock permit must ensure that their stock are not moved over, or grazed on, a TSR in contravention of any provision of the Act or the regulations.

32. Part 11 of the Act provides for the appointment and powers of authorised officers. It is not in dispute that Mr Gerard O'Connor is an authorised officer and the relevant decision-maker for the purposes of these proceedings.

33. The applicable Regulation is the Local Land Services Regulation 2014. It relevantly provides:

Part 5 Travelling stock reserves and public roads

Division 4 Permits

71 Applications for permits

(1)   An application for a permit is to be made to Local Land Services

(a)   orally or

(b)   in the approved form (if any) for the permit concerned

(2)   If an application is made orally, Local Land Services may request the applicant to confirm the application in writing

Note. If Local Land Services has delegated its functions relating to applications to a member of the Board, a member of the staff of Local Land Services or an authorised officer, the application may be made to that delegate

(3)   An application for a stock permit must be made at least 2 working days before the stock enter, remain on, walk or graze on, or are moved by vehicle over, a travelling stock reserve or public road in a region (unless Local Land Services agrees to accept the application although it is not made in that period)

Note. Section 79 of the Act requires an application to be made in accordance with the regulations Local Land Services need not process an application that is not received at least 2 working days before it is required

(4)   Fee for issue of permit

For the purposes of section 79 (2) (c) and (d) (n) of the Act, the following fee (being a fee in respect of a stock permit that solely authorises a person to graze stock on a public road or a stock permit that solely authorises a person to graze stock on a controlled travelling stock reserve) is prescribed

…

72   Refund of fees

Local Land Services may refund all or any part of a fee paid in respect of a permit if the permit is cancelled or suspended

73   Conditions of stock permits and reserve use permits

The holder of a permit must

(a)   produce the permit for inspection on demand by an authorised officer, and

(b)   comply with any reasonable request made, or direction given, by an authorized officer

Maximum penalty 5 penalty units

The Expressions of Interest

34. In early November 2014, the Respondent advertised for expressions of interests for Long-Term Grazing Permits for land within its control. The advertisement stated:

Long Term Grazing Permit Expression of Interest

The North West Local Land Services is Calling for Expressions of Interest for Long Term Grazing Permits (LTGP) on Travelling Stock Reserves

North West Local Land Services is making changes to Annual Grazing Permits. All existing Annual Grazing Permits in the North West Local Land Services district will cease on 31 December 2014.

Annual Grazing Permits will be replaced by Long Term Grazing Permits, which may be issued for a period of up to five years from January 1 2015 to December 31 2020.

If you currently hold an annual grazing permit and are interested in applying for a long term grazing permit you must lodge an expression of interest with North West Local Land Services.

Expressions of interest close at 5 pm on 5th December 2014.

Fee structure for Long Term Grazing Permits

The minimum 2015/2016 fee structure is calculated as follows:

Estimated Carrying Capacity expressed as Dry Sheep Equivalent (DSE) x area (HA) x $7.00 (inclusive of GST) or $100.00 which ever is the greater, as a guide most TSR's range from 1.5 to 2.5 DSE.

Fees will be charged annually and the highest or any EOI may not necessarily be accepted.

Conditions

•    Applicants may tender a higher annual fee than the minimum.

•   Landholders with property adjoining reserves will have opportunity to match highest tender.

•   Applicants must live no more than 50 kilometres by road to the LTGP.

Applicants are encouraged to download the LTGP policy and expression of interest application below or alternatively, relevant information is available at North West Local Land Service offices.

Further information can be obtained by contacting Gerard O'Connor on 0427 711 361.

Long Term Grazing Permit Policy.pdf ( Term Grazing Permit Expression of Interest Application.pdf

( of interest should be addressed to -:

EOI-TSR Management

PO Box 466

Narrabri 2390

35. By letter dated 14 November 2014, the Respondent wrote to the Appellant and informed him of the calling for EOIs for LGPs. That letter stated:

RE: Long Term (Formerly Annual) Grazing Permits For Travelling Stock Reserves (TSR)

The North West Local Land Services is calling For Expressions of Interest for Long Term Grazing Permits (LTGP) on Travelling Stock Reserves.

All existing Annual Grazing Permits within the North West LLS district will cease on 31 December 2014.

As a current permit holder we would like to make you aware that if you wish to lodge an Expression of Interest over "existing areas" of Annual Grazing Permits for a 5 year period you must lodge an EOI. This period being: 1 January 2015 to 31 December 2019.

The North West LLS has been advised that we must test the market in relation to these permits, so in addition to this letter, external advertising is also taking place using local newspapers.

To this end we advise that the following fee structure shall apply for this period.

...

Applicants may express a higher annual fee than the minimum fee.

Adjoining landholders will have opportunity to match or increase the amount proposed by the highest tender in the event where there are one or more adjoining landholders

Applicant must live no more than 50 kilometres by road to the LTGP.

Fees will be charged annually and may be increased by CPI.

All relevant information is available from all North West LLS offices and online at highest or any EOI may not necessarily be accepted.

For further information please contact Gerard O'Connor on 0427 711 361.

Expressions of interest should be addressed to -:

EOI - TSR Management PO Box 466 Narrabri NSW 2390

Submissions should reach the North West LLS by close of business, 5 pm on Friday the 5th December 2014.

The LGP Policy

36. The LGP Policy is intended to provide a system to manage existing LGPs and provide guidance on EOI over new areas. It aims to ensure fairness and impartiality, consistency and transparency in the process and compliance with legislative obligations and Government policies. As noted, the LGP policy was referred to in advertisements in regard to the EOIs. The relevant sections of the LGP policy stated:

2.2. Expression of interest (EOI) process

2.2.1. Call for expression of interest

2.2.1.1. Public Notices section of area specific NW LLS newspapers;

2.2.1.2. NW LLS Website;

2.2.1.3. Existing LGP holders shall be sent an EOI;

2.2.1.4. Leaflet to accompany Rates Notice / Land & Stock return;

2.2.1.5. Rangers site visits;

2.2.1.6. Display at offices;

2.2.1.7. Adjoining landholders to existing LGP areas will be notified;

2.2.1.8. NW LLS newsletter publications; and

2.2.1.9. Clear instruction that it is the landholder’s responsibility to act upon available information.

2.2.2. Submission and lodgement

2.2.2.1. All EOIs shall be lodged on the approved form in (Appendix 2)

2.2.2.2. EOI shall close on December 5, 2014. No late EOI will be considered

2.2.2.3. Submission of EOIs may be by Post, fax or Email. No verbal EOI will be considered.

2.2.2.4. EOIs can only be submitted by a single trading enterprise or entity.

2.2.3. Assessment Process

2.2.3.1. Local area Travelling Stock Reserve (TSR) Ranger assesses and ranks EOI; and

2.2.3.2. Decisions on the issuance of LGPs will be made solely against the defined assessment criteria.

2.2.3.3. Assessment criteria be included on NW LLS website

2.2.4. Approval

2.2.4.1. Manager, Land Services recommends ranking for approval.

2.2.4.2. General Manager approves successful applicants in consultation with Chair of NW LLS.

2.2.4.3. The official approving the application should not be involved in evaluating the EOIs.

2.2.4.4. The General Manager may request that the rankings be further reviewed by the Team leader TSR’s and the TSR Rangers prior to approval.

2.2.5. Issuance

2.2.5.1. Applicants are notified of successful LGP; and

2.2.5.2. LGP issued.

2.2.6. Unsuccessful applicants

2.2.6.1. Unsuccessful, including ineligible, applicants be notified in writing within 20 business days of finalisation of process with reason(s) as to why.

2.2.7. Appeals

2.2.7.1. All appeals must be made into writing and submitted to the General Manager, North West LLS.

2.2.7.2. The appeal will be assessed by an independent regional LLS General Manager and the General Manager, North West LLS.

2.2.7.3. This assessment of the appeal will be final.

…

2.4. Confidentiality

2.4.1. Measures shall be put in place to manage the security and confidentiality of EOI.

2.4.2. Tender box and electronic tender to the assessing officer shall have appropriate security and confidentiality controls.

...

2.6. Assessment criteria for existing LGP areas

2.6.1. The highest tender will be successful except where the highest tender is not the adjoining neighbour. In the event of the highest tender not being the adjoining landholder, the adjoining landholder shall be given the opportunity to match the highest tender if they have lodged an EOI. If the adjoining landholder matches or increases the tender the adjoining landholder with the matching or increased tender will be granted the LGP (i.e. adjoining landholders have a greater capacity to manage stock issues in a timely manner).

2.6.2. In the event of multiple adjoining landholders the highest tender will be accepted.

2.6.3. Where final tender values are the same an option to split the LGP area will be discussed with the affected applicants.

2.6.4. Applicants who reside more than 50 km by road from the area will not be considered.

2.6.5. EOIs from applicants who have a history of non-compliance or poor performance may be rejected.

2.7. Assessment criteria for consideration of new or the removal of LGPs areas

2.7.1. Will the conversion of the area result in a net financial gain for the authority based on the average income over the past 2 years.

2.7.2. The area has been zoned Agricultural Production (a) in the NW LLS TSR Plan of Management.

2.7.3. Areas should only be considered where the NW LLS will receive a benefit including economic and TSR resource condition improvement.

2.7.4. Suitability of the area to be converted to an LGP taking into account the effect on travelling stock drift ways and land degradation from grazing (e.g. erosion)

2.7.5. Where high conservation value on the areas including Threatened Ecological Communities and Endangered Ecological Communities have been identified a LGP may not be issued if it is deemed that this will have an adverse effect on these areas.

2.7.6. LGPs will only be issued on areas under conservation agreement if grazing is allowed under the agreement.

2.7.7. LGPs that have been identified as containing Aboriginal and Torres Strait islander sites of significance shall be reviewed and mitigating actions will be carried out to ensure there is no damage or harm done to such sites.

2.8. Cancellation, termination or withdrawal of LGP

2.8.1. If, for any reason, the LGP is no longer required during the duration of the LGP, the LGP holder must advise the North West LLS, in writing, that the LGP is to be cancelled.

2.8.2. Through written advice the Minister, LLS Board of Chairs or North West LLS Board, may at any time cancel or withdraw a LGP from the permit holder prior to the expiration date.

2.9. LGP not transferable

2.9.1. If the area over which this LGP is issued adjoins the LGP holder’s land, and the holding is sold, the LGP is not transferable to the new owner of the holding.

2.9.2. The North West LLS must be advised in writing that the LGP is to be cancelled.

2.9.3. The new owner of the holding must make written application to the North West LLS for consideration of a LGP over the area if they wish to make use of the area.

2.10. Site/infrastructure based rules

2.10.1. Fencing & Grids – fencing of areas under LGP shall be undertaken by the LGP holder or the LGP holders agent. The fence remains the property of the LGP holder. The LGP holder is responsible for the maintenance of the fence. The minimum standard fencing are laid out in the LGP conditions, more substantive fence may be constructed.

2.10.2. Existing Fences on areas that are awarded to new applicants - Where a fence exists that is the property of a former LGP holder, the new LGP holder and the former LGP holder may come to an arrangement with the fence. If no arrangement can be reached the existing fence owner must dismantle his fence and the new LGP holder may construct a new fence.

2.10.3. Stock grids on areas that are awarded to new applicants - Where a stock grid exists that is the property of a former LGP holder, the new LGP holder and the former LGP holder may come to an arrangement with the stock grid. If no arrangement can be reached the existing fence owner must dismantle his stock grid and the new LGP holder may construct a stock grid with the concurrence of the managing authority for that roadway.

2.10.4. Where the TSR is unfenced, and as a result the LGP is an unfenced area enclosed within the applicant’s property, applicants holding no other application will be considered and the LGP may be reissued to the landholder. This clause only applies to TSRs that have been historically fenced into a holding or are unfenced from a holding. EOI submitted under this situation will be assessed on a case by case basis.

2.10.5. Where there are no applicants for an existing fenced area:

2.10.5.1. Adjoining landholders will be notified and may submit an EOI for assessment; and

2.10.5.2. If no further EOIs are received, the area shall revert back to monthly grazing permit tenure.

2.11. Disputes

2.11.1. The LGP permit holder must give written notice to the General Manager, North West LLS specifying the nature of the dispute.

2.11.2. On receipt of that notice, North West LLS will endeavor in good faith to resolve the dispute expeditiously.

The Appellant’s contentions regarding the EOI process

37. The Appellant contends that the Respondent did not carry out the EOI process in accordance with the LGP Policy in particular clauses 2.2.1 and 2.2.2. He points to section 29(2) of the Act which provides:

(2) A local board must exercise its functions in accordance with the policies, procedures and directions (however described) of Local Land Services.

38. He does not contend that these procedural errors invalidated the EOI process so as to render the 22 December 2014 decision a nullity. However, he says that the Respondent interfered in the second EOI process when it unilaterally "split" the portions of TSR7800 that were the subject of his applications into:

1. EOI 1 - affronting Yooloobil; and

2. EOI 1a - adjoining Yooloobil.

39. He submits that this did not invite an EOI to be lodged in the approved form provided for in Appendix 2 to the LGP Policy.

40. Further, the Appellant contends that the EOI assessment process purported to continue after 22 December 2014 but that it was not done in accordance with the Act and Regulation and the LGP Policy. In particular he points to clauses 2.2.3 and 2.6 of the LGP Policy. He submits that if the assessment process continued after 22 December 2014, it was invalid.

41. Clause 2.2.3 of the LGP Policy provides that the local area TSR Ranger was to assess and rank EOIs and that decisions on the issuance of LGPs would be made solely against the defined assessment criteria to be included on the Respondent’s website. Clause 2.6 sets out the defined "Assessment criteria for existing LGP areas".

42. Further, the Appellant submits that clause 2.10.4 of the LGP Policy does not apply and therefore was an irrelevant consideration in the assessment process. However, he says that even if clause 2.10.4 was a relevant consideration in the assessment process, the Respondent failed to construe clause 2.10.4 properly.

Does Yooloobil adjoin the contested land?

43. It is not in dispute that the Yooloobil southern boundary affronts parts of TSR7800. The issue arises as to whether Yooloobil adjoins the contested land. The closest part of Yooloobil to the contested land is the south-east-corner. Yooloobil and the contested land are separated by an unmeasured Crown public road.

44. The Appellant submits that the meaning of "adjoin" is relevant to the construction of provisions relevant to this determination, particularly the LGP Policy. The Appellant submits that the meaning of "adjoin" is relevant to the first two assessment criteria in clause 2.6 of the LGP Policy.

45. The Macquarie Dictionary defines ‘adjoining” as:

adjective bordering; contiguous

46. The Oxford English Dictionary defines ‘adjoining” as:

Adjacent, contiguous; neighbouring; (also) physically joined, attached, connected

47. Ms Irish referred to a number of authorities which considered the meaning of the expressions "adjoin" and "adjoining". Bignold J in Auckland Lai v Warringah Shire Council (1985) 58 LGRA 276 at 283-284 concluded that the word 'adjoins' in the phrase 'adjoins land zoned for urban purposes' is intended to bear its loose sense of 'is near to' or 'is neighbouring on' rather than its exact meaning of 'is conterminous with'". A similar approach was adopted by Kirby P in Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 434.

48. I note the Respondent’s view that the Yooloobil boundary does not have a common boundary with, abut or touch the contested land. However, there is no doubt that the blocks are near and neighbouring.

49. In my view the LGP Policy does not require that an applicant for a permit satisfy the exact meaning of the expressions i.e. it is not necessary that the applicant’s land be physically joined or contiguous with the TSR to be able to take the benefit of the Policy. This is similar to the approach taken in Auckland Lai v Warringah Shire Council. That being the case, I am satisfied that Yooloobil is an adjoining neighbour to the contested land for the purposes of the LGP Policy. I note that the Respondent adopted this approach when inviting and determining the EOI.

50. In contrast, the Respondent disputes the Appellant's submissions as to the construction of the LGP Policy and alleged breaches of that Policy and its processes. It argues that such an approach and construction fetters the Respondent’s discretion to issue a permit under section 78 of the Act.

51. Mr Russell submitted that the NWLB does not have any relevant function or responsibility for the administration, delivery or funding of local land services; or the care, control and management of TSRs in the North West region. Those functions and responsibilities remain with the Respondent. He further submitted that, particularly in relation to those matters, the LGP Policy is of no relevant statutory force and effect such that any alleged contravention of its terms or processes does not and cannot in any way invalidate or affect the lawfulness of the decision to refuse an LGP to the Appellant. However, Mr O’Connor was entitled to have regard to the LGP Policy but it cannot be determinative of the exercise of his discretion and cannot operate as a fetter on the discretion conferred on him under section 78 of the Act.

Discussion

52. I agree with the Respondent that the care, control and management of TSRs in the North West region rest with the Respondent. I also agree that section 29 of the Act concerns the functions of a local board and the subsection 29(2) requirement that a local board must exercise its functions in accordance with the policies, procedures and directions refers to the functions of the local board and not to the functions of the Respondent. I also agree that any discretion to issue a stock permit ought to be exercised in the accordance with or informed by the objects of the Act and the practices, policies and procedures adopted or implemented by the Respondent from time to time for the care, control or management of TSRs under the Act.

53. Nevertheless, it is clear that the Respondent advertised for EOIs for LGPs for land within its control and in doing so it made direct reference to the LGP Policy. In my view, the Respondent represented that the EOI process would be carried out in accordance with terms set out in the advertisement and the LGP Policy. In these circumstances the LGP Policy was a relevant consideration that was to be taken into account.

54. It is also my view that those responding to the advertisement were entitled to rely on that representation in regard to the manner in which the EOI process would be conducted. They had a reasonable expectation that any discretion that Mr O’Connor was to exercise in relation to the EOI process would be exercised by reference to the LGP Policy. Any failure to do so would constitute a failure to take account of a relevant consideration.

Background to the determination

55. The Respondent has provided a reasonable summary of the background events leading to the determination, much of which is non-contentious. This chronology of events is primarily derived from the evidence presented by Mr Reece Mills and Mr Gerard O’Connor. Additional material is provided by the other witnesses who gave evidence at the hearing.

The Respondent's decision was to refuse to issue a stock permit to the Appellant and his wife in relation to the contested land. The contested land is approximately 220 hectares in size and is part of TSR7800. Maps in evidence indicate the relative location of TSR7800, Yooloobil, Aralu and surrounding properties. A road known as the ‘Dolgelly Road’ crosses the contested land to the east of Yooloobil and to the west of Aralu. A capped bore is located within the contested land.

The Moore family had farmed property known as Hillstead since 1876. Hillstead was located both north and south of the contested land. In the late 1970s or early 1980s, a fence was erected inter alia running east from the Dolgelly Road on the boundary of TSR7800 and Hillstead so that the land to the east of the Dolgelly Road could be farmed with oats and used as a fattening block.

In 2002, Hillstead, then consisting of 8000 acres, was broken up and sold by Frank Moore. In that sale:

(a)   part of Hillstead both north and south of TSR7800 was purchased by Simon Keen and renamed Aralu;

(b)   the other part of Hillstead was purchased by John Tait who retained the name Hillstead for the part he purchased.

After the breakup and sale of Hillstead, the adjacent TSR7800 was apportioned, by agreement, between Aralu and the new Hillstead property. Aralu retained the use of the contested land together with another section of TSR7800 west of the contested land and fronting Yooloobil (“TSR7800 - Yooloobil”). The use of that part of the TSR7800 to the east of the contested land went to the new Hillstead property.

In 2006, Aralu Farming was granted an Annual Grazing Permit over the contested land and TSR7800 - Yooloobil.

In 2012, the Appellant was granted an annual grazing permit for TSR7800 - Yooloobil. Each of Aralu and Yooloobil were entitled to use the TSR land adjoining their respective properties.

Aralu adjoins the contested land both north and south. The closest part of Yooloobil property to the contested land is the south-east-corner. Yooloobil and the contested land are separated by an unmeasured Crown public road.

In the first week of November 2014, the Respondent advertised for EOIs for LGPs for land within its control. The advertisements were placed in the North West Magazine and the Walgett Spectator Newspaper. By letter dated 14 November 2014, the Respondent wrote to the Appellant and informed him of the calling for EOIs for LGPs.

On 24 November 2014, NWLB resolved to adopt the LGP policy.

On 1 December 2014, Aralu Farming lodged an EOI for the contested land.

The Appellant submitted three EOIs on or before 5 December 2014. He submitted one EOI over TSR7800 - Yooloobil and the contested land, an area of approximately 350 hectares. In subsequent communications, the Respondent informed the Appellant that it would require a separate EOI for each of those areas.

By about 19 December 2014, the Respondent informed the Appellant and all other applicants that they had an opportunity to advise their EOIs as an annual rental in a definitive dollar value exclusive of GST. The Respondent advised that such offers were to be lodged by 2 pm on Monday 22 December 2014.

The Appellant’s revised EOIs were lodged within the allowed time. Reece Mills, on behalf of the Appellant, sent an email to Mr O'Connor attaching revised EOIs numbered 1, 1a, 2 and 3. The contested land is the subject of the Appellant’s EOI 1a. He offered an Annual Tender price of $5,101. The Appellant’s tender was the highest tender.

On 22 December 2014 at 2.24 pm, Mr O'Connor emailed Reece Mills advising him that he had "won the areas listed below". The list that Mr O'Connor provided included the contested land.

On 23 December 2014, Cassandra Johnson of Aralu Farming informed Mr O'Connor that the Aralu joined the contested land - partly by way of a fenced boundary and partly by way of an unfenced boundary.

Also on 23 December 2014, Mr O'Connor sent an email to Reece Mills advising that he had received a response from the unsuccessful applicant of the contested land; that further information to be provided may have an effect on the way the application is assessed and therefore may affect the outcome of the awarding of this particular area; and that the 22 December 2014 email was an update on the process. The official documentation would be provided in due course.

On 24 December 2014 at 7.47 am Mr O'Connor emailed Reece Mills advising him that he had been made aware of Aralu Farming’s claim that the contested land is unfenced from its holding; that he had not been aware of this fact and that he would be ‘ground truthing’ the area to confirm the Aralu Farming’s claim. He referred to section 2.10.4 of the LGP Policy and noted that it provided that ‘an area which is unfenced from the property can only be issued to the landholder that it is unfenced from or fenced into’. Mr O'Connor provided a hyperlink to the LGP Policy and indicated the need to review the applications and assessment to ensure that it was in line with the policy.

Also, on 24 December 2014 at 10.42 am Reece Mills sent an email to Mr O'Connor advising inter alia that the land that Aralu Farming claimed was unfenced was previously fenced but that the fence had been removed and not replaced. He stated that, although the fence had been removed, the LGP cannot be considered as being an "unfenced area enclosed within the applicant's property". Further, he argued that Aralu Farming should be required to re-fence the area which is unfenced, a length of approximately 500 metres, as any other outcome would suggest a very dangerous precedent for other LGP areas.

Also on 24 December 2014, Mr O’Connor inspected the contested land and confirmed that it did in fact join Aralu along a boundary of which approximately 500 metres was unfenced. Mr O’Connor satisfied himself that there was no evidence of the unfenced part of the boundary being recently fenced.

Prior to 7 January 2015, Mr O’Connor made enquiries of the Aralu Farming principals and of Mr John Tait and Mr James Moore, all of whom confirmed that to their knowledge there had never been a fence on that the unfenced part of the boundary.

On 7 January 2015 at 9.18 am, Mr O’Connor emailed Reece Mills advising of his intention to award the contested land to Aralu Farming. This decision was said to be based on the LGP Policy and his view that there is an area unfenced from the TSR that is part of the Aralu holding and that it was unfenced from the TSR at the time Aralu Farming purchased it.

The Respondent granted the Appellant an LGP for TSR7800 – Yooloobil.

The relevant considerations

56. It is clear that the Appellant was advised that he had "won” the contested land. It is equally apparent that the principals of Aralu Farming were advised that they were unsuccessful applicants. Mr O'Connor clearly had discussions with the principals of Aralu Farming and advised them that they were unsuccessful applicants but it is unclear whether they were advised in accordance with clause 2.2.6 of the Policy. It seems that the communication was by telephone.

57. In my view, this chronology of events shows that Mr O'Connor made a determination on 22 December 2014. His determination was that the Appellant was successful in his application for a LGP over the contested land. The Respondent has conceded that the issue of a stock permit is coextensive with a decision to issue a stock permit. Determination of the EOI was therefore completed on 22 December 2014. I agree with the Appellant's submission that the power to re-determine the EOI was spent following Mr O'Connor's determination on 22 December 2014.

56. Mr O’Connor purported to act in accordance with the LGP Policy. As noted, He advised Mr Reece Mills on 24 December 2014 of Aralu Farming’s claim that the contested land is unfenced from its holding and of the need to review the applications and assessment to ensure that it was in line with the policy.

57. The Respondent submitted that it was incumbent on Mr O'Connor, as decision-maker, to consider the individual circumstances of this case. I agree with that submission. However, in my view it was incumbent on him to do so before making his determination.

58. It is clear that Mr O'Connor understood that he was required to act in accordance with the LGP Policy. However, selectively applied the provisions of the Policy. He proceeded to conduct the EOI process without reference to clause 2.2.7 of the LGP Policy and possibly without reference to clause 2.2.6 of the Policy. In my view this constituted a failure to take account of a relevant consideration.

59. Clause 2.2.7 of the LGP Policy provides for appeals in relation to the EOI process. As unsuccessful applicants, the principals of Aralu Farming were entitled to appeal Mr O'Connor’s decision.

60. However, clause 2.2.7.1 of the LGP Policy provides that appeals must be made into writing and submitted to the General Manager, North West LLS. Further, clause 2.2.7.2 of the Policy provides that the appeal will be assessed by an independent regional LLS General Manager and the General Manager, North West LLS. It is clear that these provisions were not applied.

61. It seems that the principals of Aralu Farming communicated directly with Mr O'Connor and that he acted on the information that they provided to him. He ‘ground tested’ the information and satisfied himself that the contested land is unfenced from Aralu Farming holding. He then made a fresh determination without reference to clause 2.2.7 of the LGP Policy.

62. In my view, this is a failure to take account of a relevant consideration. Accordingly, if the powers of the Tribunal are exercisable only where the Appellant can demonstrate some legal, factual or discretionary error, I am satisfied that the powers of the Tribunal are exercisable in relation to this matter. Having formed that view, it is not necessary that I consider the Appellant’s remaining contentions in regard to errors on the part of the Respondent.

63. I agree with the Appellant that the decision to refuse to issue the permit was the result of legal, factual or discretionary error in the EOI processes.

64. Pursuant to section 86(5) of the Act, on hearing the appeal Tribunal may revoke the decision to refuse to issue the permit and issue the permit (whether or not subject to conditions), or confirm the decision to refuse to issue the permit.

65. In my view, the correct approach is to consider the evidence that was presented before the Tribunal and to take account of the LGP Policy as a relevant consideration. Clause 2.10.4 of the Policy is a particularly important consideration and turns on the question of whether or not the contested land is unfenced from Aralu Farming holding.

66. As noted above, clause 2.10.4 of the Policy provides:

2.10.4. Where the TSR is unfenced, and as a result the LGP is an unfenced area enclosed within the applicant’s property, applicants holding no other application will be considered and the LGP may be reissued to the landholder. This clause only applies to TSRs that have been historically fenced into a holding or are unfenced from a holding. EOI submitted under this situation will be assessed on a case by case basis.

The Evidence

69. It is common ground that at the moment the contested land is unfenced from the Aralu Farming holding. As noted, the Appellant has asserted that until recently the contested land was fenced off from the Aralu Farming holding but that the fence had been removed. Much of the evidence focused on the question of whether or not historically the contested land was unfenced from the Aralu Farming holding. A finding of fact in relation to that issue is necessary for the purposes of considering clause 2.10.4 of the Policy.

The Appellant’s evidence and submissions

70. The Appellant relies on his own affidavit and oral evidence and that of Mr Reece Mills. Ms Irish made both written and oral submissions, each of which was comprehensive. While I have read and considered the evidence and submissions I will only refer to them briefly.

Reece Mills.

71. Reece Mills attended the hearing and gave evidence. His evidence is mostly concerned with his dealings with the Respondent in relation to the EOI. He also provided a useful video showing the contested land, which he filmed. In the video, he apparently walks along the boundary line that is said to be unfenced. I agree with his description that the video shows pieces of old rusty wire, old bent and snapped off iron posts and old wooden strainer posts, as well as a large pile of old fence materials heaped up at the western end of the line.

72. Reece Mills’ evidence was that he could not definitively say that he ever saw a fence on the boundary of Aralu and the contested area. He had no recollection of seeing a standing fence there. However, in his correspondence with Mr O’Connor he stated that a fence that was previously there had been removed but not replaced and that it could be seen from a satellite image.

73. He suggested solutions to the issue of how the unfenced section of the boundary to the contested land could be resolved if the permit is issued to the Appellant. He agreed that a second grid would need to be installed. He conceded that he had not made inquiries I regard to the cost of the measures that he suggested or what approvals would be required to achieve them.

Aubrey Mills.

74. The Appellant attended the hearing and gave evidence. He has owned Yooloobil since 1979 and has usually travelled to the property from Moree at least three times a week. He travels past Hillstead and Aralu on his way to and from Yooloobil via TSR7800. He travels past the contested land at least six times a week. In the past, he has also taken cattle past the contested land.

75. He stated that to the best of his recollection there has always been a fence on the boundary of the TSR7800 and Aralu west of the Dolgelly Road, and that the area was fenced at least up until Simon Keen purchased Aralu. To the best of his recollection the fence was constructed with wooden posts approximately four feet high with several iron posts holding the fence with plain wire in place. He recalled that his cattle would sometimes stray from the TSR into Aralu, because the fence was old, and he would have to go and retrieve them.

76. He has not had cause to pay particular attention to the fence in the past ten or so years and therefore he cannot definitively point to a date when any of it fell or was removed. However, he is certain that the fence was there at least up until Simon Keen purchased Aralu.

77. To his knowledge the area of the southern boundary of TSR7800 and Aralu west of the Dolgelly Road was not farmed or cropped prior to it being sold to Simon Keen. However, shortly after it was sold he observed a tractor, offset plough and a bulldozer in the area. He believes that the fences and some trees may have been removed with that machinery.

78. The Appellant also gave evidence that there used to be a fence running north/south to the western side of Dolgelly Road. His evidence was that there was no gate along those fences however there was a cocky's gate on the fence on the southern boundary of the presently unfenced portion of Aralu, just to the west of Dolgelly Road.

The Appellant’s submissions on the evidence

79. Ms Irish submitted that it is clear that there are old fencing materials in the vicinity of the presently unfenced portion of Aralu. She submitted that the Tribunal could not find, on the basis of the Respondent’s evidence, that the presently unfenced portion of Aralu was never fenced.

80. She made detailed submissions as to the proper construction of the LGP Policy and particularly clause 2.10.4 of the Policy. She submits that Mr O'Connor had wrongly interpreted the provisions of the Policy.

81. Ms Irish submitted that the Respondent has failed to prove that TSR7800 has been historically unfenced from Aralu’s holding so as to attract the application of clause 2.10.4. She further submits that in any event the Tribunal would prefer the Appellant’s evidence that the so-called “unfenced section” “was historically entirely unfenced”.

82. She further submits that on the basis of the material before it the Tribunal should revoke the decision to refuse to issue the permit to the Appellant and issue the permit (whether or not subject to conditions).

The Respondent’s evidence and submissions

83. The Respondent relies on the statements, statutory declaration and oral evidence of Mr Simon Keen, Mr James Moore, Mr John Tait and Mr Gerard O'Connor. Mr Keen, Mr Moore and Mr Tait gave evidence of their own observations and also gave hearsay evidence of what they had been told about the area. Mr Russell made both written and oral submissions. While I have read and considered the evidence and submissions I will only refer to them briefly.

James Moore

84. Mr Moore attended the hearing and gave evidence. He was born in 1966, grew up on and worked on Hillstead as a station hand until it was sold in 2002. His family had been farming Hillstead since 1876. His experience included moving or mustering stock by horse or bike along TSR7800. He said that the southern boundary of the TSR, from the Dolgelly Road to the east, was fenced in the late 1970s/early 1980s. To his knowledge, the southern boundary of the contested land to the west of the Dolgelly Road had never been fenced in his time on Hillstead. He conceded that he could not say that the section was never fenced. He had been told by his father and grandfather that the boundary had never been fenced.

John Tait.

85. Mr Tait gave evidence by telephone. His evidence concerned the period between his purchase of the northern part of Hillstead in 2002 and its sale and his departure in 2015. He gave evidence of his observation that the boundary was not fenced from 2002 to 2015. He knew the area well because he drove past it on his way to and from town and when he visited Mr Keen's father at Carbeen. He also worked on the bore cap and pipe scheme in that area.

Simon Keen

86. Mr Keen attended the hearing and gave evidence. He grew up on the property Dolgelly which was split is now two properties known as Dolgelly and Carbeen. They lie to the west of the southern part of the Aralu. According to Mr Keen the northern boundaries of Dolgelly and Carbeen were/are fenced from the TSR. Mr Keen says he did not fence the unfenced section after purchasing Aralu in 2002, nor has he done so since.

87. Mr Keen’s observations date only since his purchase of Aralu in 2002. He agreed that he cannot say that the unfenced section was never fenced. He relies on what his father told him. He conceded that poles and wire remnants still exist in the vicinity of the unfenced section. He has not studied the ground looking for evidence of a previous fence in the vicinity of the unfenced section.

88. Mr Keen has used the unfenced section of Aralu to crop it for forage feed for cattle since becoming aware of its freehold status in 2006-7.

Gerard O'Connor

89. Mr O'Connor attended the hearing and gave evidence. His evidence primarily concerns the LGP Policy and particularly the EOI process as referred to above. However he has also ground tested Aralu Farming’s claim that the unfenced section is in fact unfenced. Mr O’Connor also made enquiries of Mr Keen, Mr Moore and Mr Tait and drafted the statements for their signatures.

90. Mr O’Connor agreed in cross-examination that he considers himself bound by and strives to comply with the objectives of the LGP Policy. His evidence is that it has been the longstanding policy and practice of the Respondent and its predecessors that where there is no boundary fence between a section of TSR and an adjoining property, the owner of the adjoining property had the first (and only) right for a grazing permit on the adjacent TSR at a price nominated by the Respondent. Further, if the adjoining landowner did not take up the grazing permit then no grazing permit would be granted on that TSR.

91. The reason for this policy was the historical approach that land owners and the Respondent itself should not be forced to the cost of fencing. Further, it removes the potential for serious conflict which would occur if a third party was given grazing rights to a TSR where there was no fence between the TSR and the freehold land of the neighbour.

The Respondent’s submissions on the evidence

92. Mr Russell submitted that it was made clear from the evidence of Mr Moore, Mr Keen and Mr Tait that there are sound reasons why the presently unfenced portion of Aralu was never fenced. He submitted that these were and are:

93. it is too small an area for it to be worth anyone's time or money to fence;

94. there is and was no water there for livestock. The nearest water point is in the TSR7800 to the east of Dolgelly Road. The unfenced portion of Aralu was never farmed for crops until Mr Keen first did so in about 2006;

95. if fencing was to be put in, there would need to be a cattle grid installed or moved to the boundary line of TSR7800 where it crosses Dolgelly Road.

96. He further submitted that there is no evidence or suggestion that there is or ever was a cattle grid where TSR7800 crosses Dolgelly Road.

97. He argued that if in fact the unfenced portion of Aralu was fenced in the way that the Appellant has stated, then at some stage the block would have been an entirely enclosed block of land for livestock but without access to water. Further, the only gate allowing access to and from that block would have been the cocky's gate on the southern boundary of the block to the west of Dolgelly Road. This would have led to Carbeen land that has never formed part of Hillstead. If that were the case, the only way for any Hillstead stock to get in or out of that block would have been over Carbeen land.

Consideration

98. On the evidence before me I am satisfied that it is probable that the contested land falls within the scope of clause 2.10.4 of the LGP Policy.

99. It is common ground that about 500 metres of the boundary of Aralu and the contested land is not fenced at the moment. I am persuaded by the evidence of Mr Simon Keen, Mr James Moore and Mr John Tait that the presently unfenced part of the boundary has been unfenced at least since 2002. I cannot say that the section was never fenced. However, I am satisfied that Appellant’s recollection cannot be correct insofar as he specified dates in which he says that the area was fenced. If the section was ever fenced it was probably well before 2002.

100. In any event, I am satisfied that the owners of Aralu were not responsible for removing the fence.

101. I do not agree with Ms Irish’s submission that the Appellant’s evidence regarding a presence of a cocky's gate on the fence on the southern boundary of the presently unfenced portion of Aralu is entirely irrelevant. In my view it is improbable that the former owner of Hillstead would have fenced off the block given that it was solely used for grazing and contained no water for stock. Further, it is improbable that the block would have been fenced off in a way that meant that the only way that any Hillstead stock could get in or out of that block would have been through the cocky's gate and over Carbeen land.

102. I note Ms Irish’s submission as to the construction of clause 2.10.4 of the LGP Policy and I essentially agree with her construction. I accept that it is arguable that the contested land has not been historically fenced into a holding. However, I am satisfied that the contested land is historically “unfenced from a holding” for the purposes of the clause.

103. I agree with the Appellant that this finding is not conclusive of the matter. In these circumstances, clause 2.10.4 allows for EOls submitted to be assessed on a case by case basis. Therefore, the Tribunal has discretion in regard to the grant of a LGP over the contested land.

104. In my view, the fact that a major part of Aralu fronts the contested land and the contested land lies between the unfenced portion of Aralu is a significant consideration. If the applicant was granted a LGP over the contested land then there would be a need to fence the 500 metre unfenced section. This would be a significant impost on the owners of Aralu in circumstances where they purchased the land unfenced and would gain no obvious benefit from the fencing.

105. It is also questionable whether the Respondent could require the fencing and if so whether on the Respondent would be required to share the cost of the fencing.

106. If the boundary were not fenced, the use of TSR by the Appellant would likely create a situation of conflict between the Appellant and Aralu in circumstances where Aralu used the unfenced portion for cropping and the Appellant used the TSR for grazing. This would be likely to be the case notwithstanding the provisions of clause 64 of the Regulation which provides that a person in charge of stock must keep the stock under control at all times while the stock are on a public road or travelling stock reserve. In this context, ‘control’ means action designed to ensure that the stock do not stray to a location, or do not behave in a manner, that would be hazardous to passing traffic or to the general public or would cause damage to property adjacent to the public road or travelling stock reserve concerned.

107. In the absence of evidence that would be necessary to establish the feasibility of steps that the Appellant has proposed to avoid the potential conflicts that I have outlined above, I do not consider that it is feasible to grant the LGP over the contested land to the Appellant subject to conditions. I do not agree that it is feasible to impose a condition requiring the Appellant, as LGP holder, to fence at his own cost the unfenced section of the TSR boundary. Nor am I aware of any undertaking by the Appellant to do so. Similarly, the Appellant’s suggestions as to other measures that could be taken to avoid such potential conflicts have not been examined in any detail. For example, there is no evidence to show what, if any, approvals would be necessary or cost involved in relation to installing electric fences or electric grids, nor as to their effectiveness. In my view, a grant of an LGP should not be made subject to conditions unless there is a strong probability that those conditions can be satisfied. I am not satisfied that that is the case in the circumstances of this matter.

108. Clause 2.10.4 provides a mechanism that allows for a determination which avoids the potential for these conflicts.

109. As noted above, pursuant to section 86(5) of the Act, Tribunal may revoke the decision to refuse to issue the permit and issue the permit, or confirm the decision to refuse to issue the permit. In my view, the correct and preferable decision is that the LGP should be issued to Aralu Farming. However, that is not a decision that is open to the Tribunal. Accordingly, as it is my view that the Appellant should not be granted the LGP over the contested land, the Respondent’s decision to refuse to issue the permit to the Appellant should be confirmed.

110. I note that I make this decision after fresh consideration of the issues involved and I do so notwithstanding the view that I have expressed regarding the manner in which the Respondent conducted the EOI process.

Order

The decision to refuse to issue the permit to the Appellant is confirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 13 October 2015