Minister for the Environment v Packham & Anor; Wheelhouse v Packham

[1994] HCATrans 283

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sll0 of 1993

B e t w e e n -

THE MINISTER FOR THE

ENVIRONMEN.T

Applicant

and

NICHOLAS A. PACKHAM

First Respondent

JOHNS. WHEELHOUSE

Second Respondent

Office of the Registry

Sydney No Slll of 1993

B e t w e e n -

JOHN SCOT WHEELHOUSE

Applicant

and

Wheelhouse	1	22/4/94
MASON CJ DAWSON J TOOHEY J

NICHOLAS A. PACKHAM

First Respondent

THE MINISTER FOR THE

ENVIRONMENT

Second Respondent

Applications for special leave

to appeal

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 APRIL 1994, AT 9.31 AM

Copyright in the High Court of Australia

MR K. MASON, QC: Solicitor-General for New South Wales. If

the Court pleases, in each of these matters I

appear with my learned friend, MR D.P. ROBINSON,

for the Minister. (instructed by V.K. Ingram,

Solicitor for National Parks & Wildlife Service)

MR D.F. JACKSON, QC:  Your Honours, I appear with my learned

friend, MR K.P. SMARK, for the respondent,

Wheelhouse, in the first matter and the applicant,

Wheelhouse, in the second. (instructed by Dunhill

Madden Butler)

MR R.V. GYLES, QC: If Your Honours please, I appear with my

learned friends, MR C.J. STEVENS, QC and

MR G. O'L. REYNOLDS, for Dr Packham in each case.

(instructed by O'Brien Connors & Kennett)

MASON CJ: Yes, Mr Solicitor?

MR MASON:  Your Honours, this application involves the

interpretation of certain provisions of the

National Parks and Wildlife Act. The approach the

court took to the administrative law principle

concerning improper purpose and an assertion, a

submission that there was a procedural miscarriage

in the Court of Appeal in that a point that was

abandoned turned out to be the basis upon which the

court's decision turned.

Your Honours, in the summary of argument, the

statutory provisions are set out at the bottom of

page 2 and the decision of the Court of Appeal and

the way they interpreted an earlier decision

of Woollhara Municipal Council was to the effect

that the ministerial power to grant licences to

occupy or use lands within a national park,

section 15l(l)(f), was confined to the grant of

licences whose purpose in the sense of the purpose

of the licencee was something that supported the

Wheelhouse 22/4/94

national park or was conducive to the national

park's own purposes.

That interpretation, if correct, has a

profound impact upon the application of the

legislation to national parks because, for the

reasons that are set out in the application book at

pages 112 to 114, there have been very many

circumstances where licences, particularly in the
nature of licences to cross, either through passing
physically or to cross through pipelines and the
like, serve interests that are not necessarily the
interests or not necessarily predominantly the
interests of enhancing the enjoyment of the

national park itself.

The city of Sydney is ringed in part by

national parks and if the power is interpreted the way the court did, then any permission to cross it

would be confined to a crossing that enhances the

use of the park itself. Our submission is that the

power is not so circumscribed and that the majority

of the court fell into a significant error in its
approach to the legislation.

The error was to confuse the requirement that statutory powers conform to any purposes found

within the legislation, a clearly correct

proposition, with the proposition that one must

find a purpose for every power and that that

purpose must necessarily, in this present case, be

the purpose of maintaining the use of national

parks as national parks and prohibiting any use

that is designed to serve other purposes.

The fact that the present application involved

a licence that conferred benefits on a private

individual as distinct from another aspect of the

public interest is incidental to the special leave

points which we seek to advance.

DAWSON J: Where do you find the purpose? In any specific

provision or simply generally?

MR MASON Well one has to look at the particular provision

and ask does it, properly construed in its context,

evince a purpose and if so, what is that purpose.

It may be that there is no specific purpose and

that, as we submit is the case here, it is the

political control on the Minister and the
principals of Wednesbury unreasonableness that

control - - -

DAWSON J:  I had in mind that no purpose can be absolute.

It must be relative to something.

Wheelhouse	22/4/94
MR MASON:	It must be relative to something but it need not

be and it certainly is not, in our submission, a
purpose to bind in the manner that the President

did here. Part of the difficulty, and this is

where the two points elide in some respect, is that
the learned President, in our submission, confused
the Minister's purpose with the purpose of the

licencee. A person who wants to have a kiosk, for

example, in a public park is moved presumably by a

profit motive, but that does not provide either a
justification or a basis for refusing or denying
the ministerial power to grant a licence in a

proper case.

What the court here did was slid into a merits

review through an approach that involved some form

of balancing. It was said that somehow or other,

one could balance the Minister's purpose against

the private purpose and that therefore one

characterized the purpose ultimately as being

essentially a private one and the key passages are

at pages 61 and 66 and 67. Once one arrived at

this situation, then one was in a situation where

the power was being exercised for a foreign purpose. That is, in a nutshell, the legal proposition that, in our submission, attracts

special leave in the first paragraph of the
application.

The matter is compounded by the fact that even on that test or even on the narrower test which the

court found, there should have been a decision in

favour of the Minister. That is because the Minister's purpose as found below and as not

challenged, was to achieve three matters, each of

which were park enhancing purposes.

The first was to provide a firebreak, a matter of some significance; the second was for drainage

purposes and the third was what is referred to as

the trade-off of the other land in that the

applicant for the licence was going to provide

foreshore access to and from this particular
national park in return, among other things, for

the licence to cross in another portion.

The good faith of the Minister was initially

challenged but that challenge was abandoned at

trial. The abandonment of that challenge and the

finding of the trial judge that the Minister's

purposes were what I have described compendiously

as "park-enhancing purposes" meant, and should have meant, that even on the narrower approach there was

no improper purpose in the exercise of the

particular power.

Wheelhouse 4 22/4/94

The power to grant licences to occupy or use lands necessarily encompasses and indeed in some

respects, exclusively encompasses, a right on

someone outside of the park to come on to the park

or to use the park in a particular way. That right,

if confined in accordance with the majority Court of

Appeal's interpretation of the

Woollhara Municipal Council case, which we

challenge, if it is thus confined it was

nevertheless clearly satisfied by the matters that I

have referred to. This involved a procedural

miscarriage which is the second basis of the special

leave application.

TOOHEY J:  I must say, Mr Solicitor, I have difficulty in

finding in the judgement an implication of bad

faith against the Minister.

MR MASON:  On page 63, Your Honour, about the middle of the

page, line 13:

here the drainage and firebreak benefits,

belatedly urged as advantages to the national
park, which would flow from the construction
of the second respondent's roadway, do not

bring within power -

the statute.

The task is thus, from first to last, one of characterisation of the purpose of the

development.	The proposed road remained, as
it began, a private driveway.	The other

purposes were invoked only later in an attempt

to give a different colour to the true purpose

which that law would assign to the

development.

Now, the respondent in its submission says that is

just referring to the proposed licencee's

justifications for the exercise of the power. That

is not, in our submission, a fair reading of the
passage I have just read.	But in any event, the

licencee's purposes are irrelevant. It is the

purpose of the person in whom the statutory power

is reposed that has to be the determinant of

whether or not the power has been exercised in a

legally proper or legally improper way.

TOOHEY J: But the power is exercised to give effect to some

request on the part of the private land holder.

MR MASON:	That is what moved the private landowner just like the kiosk developer would be moved by a
private interest. But what moved the Minister,
according to the findings, were the park enhancing purposes of providing a firebreak which was
Wheelhouse	22/4/94

something on the park and relating to the park,

providing drainage and the trade-off.

DAWSON J:  That is what is being denied here. What is being

said is the Minister's purposes are the same as the

second respondent's purposes, as I read it. These

are just to bolster up the case, the other

considerations. Is that not what is being said?

MR MASON:  It is the purposes at the time the power is

sought to be exercised and the purposes - - -

DAWSON J:  I am not saying it is right, but that is what

they are saying. All I am saying is that is what

the judgement says.

MR MASON:	Yes, and in my submission, that is necessarily to attack the good faith of the Minister and the basis
upon which the case proceeded. Now one can debate
whether firebreaks, drainage and the other benefit
are themselves park enhancing purposes, but one
cannot, in my submission, put them out of the
picture the way the learned President did, by saying they were belated and legally irrelevant.
TOOHEY J:	I understand that argument but on the other hand you appear to be wanting to put out of
consideration the purpose on the part of the
landowner.
MR MASON:	Well I submit that the power to grant a licence

necessarily imports - what one would call something

that takes away the pristine, unencumbered nature

of the park.	So that is the very nature of the
power that is exercised.	So it is, in my

submission, irrelevant to look at the private

motive; and this is where one can use the

expression "motive". he very action which the

legislation authorizes is the grant of a licence.

TOOHEY J:  But why should you look at motive? Why should

you not look at what is sought to be achieved by

the grant of a licence, which takes you in turn

into an area of characterization which can lead you

in the end, on one view, to a conclusion that the

power was not being exercised for a purpose

consistent with the Act. I am not suggesting it

has to take it to that end, but that is a possible

view and the one that the majority took.

MR MASON: Well if one asks what is being achieved, what is

being achieved is to grant a licence and a licence

is a licence and that is the very act, as

Justice Mahoney put it in his approach at the
bottom of page 99, where he tried to describe the
point of difference between himself and the other

members of the court. It is the difference between

Wheelhouse 6 22/4/94

the very act that is authorized by the statute

which cannot by any process of characterization

itself be treated to be a foreign purpose. If, of
course, the Minister were motivated to grant the
easement for a foreign purpose, for example, the

licence was being granted in return for some bribe,

to take an extreme case, that would clearly be a

foreign purpose and it would be what moved the granted.

What the Court of Appeal has done through an

approach to characterization, intruded in a method

of second-guessing the very decision which the

statute permits and it has done that by introducing

a legally irrelevant factor, in my submission,

namely the purpose of the licencee, and it has

certainly done it by excluding a legally relevant,

and we submit the predominantly legally relevant

factor, namely what moved the Minister. That

involved the procedural miscarriage which occurred

for the first time in the Court of Appeal.

Your Honours, the summary of argument refers just to the material in the application book about

the significance of this decision and that is at

pages 112 to 115 of the application book itself.

If this decision is correct it puts the validity of

a very large number of easements and licences under

risk of challenge and it would appear submits their

validity to real doubt.

MASON CJ: Yes, thank you, Mr Solicitor. Mr Jackson?

MR JACKSON:  Your Honours, we adopt the submissions that

have been advanced on behalf of the Minister and

may I just add a couple of things that we would

seek to make.

MASON CJ: Yes.

MR JACKSON:  Your Honours, there are two issues which are of

importance. As to the first issue, the approach to

the construction of section 15l(l)(f), what we

would submit is that the material to which the

Court has been referred at pages 112 to 116 does demonstrate the significance of the issue and its importance. It also demonstrates, in our submission, the unlikelihood in real terms of the

view that the power to grant licences in

section lSl(l)(f) is as limited as the majority in

the Court of Appeal thought.

And, Your Honours, if one thinks for example,

of the various types of national parks in New South

Wales, one of them which has been in contemplation

for years has been the Sydney Harbour National Park

Wheelhouse 22/4/94

which always, of course, borders on private
property. There must be some relationships between
them.

We would draw attention, Your Honours, also to the fact that if one looks at, for example,

section 15l(l)(c) it contemplates that there may be

leases of land within the national park granted for

the erection of buildings for use in connection

with paragraph 3:

the protection or preservation of the park or

site from fire.

If there can be grants of leases of land for

construction of buildings for that purpose, it would

seem a little odd if there could not be licences

which were granted allowing the occupation of land
in circumstances where the occupation of the land by
a licence would itself contribute towards the
prevention of the spread of fire.

Your Honours, one could imagine circumstances where, as a firebreak, a licence was given for

privately conducted sporting ovals on the
boundaries of part of a national park and,

Your Honours, there could be access roads from one

part of the park across to another which were in

fact firebreaks or, Your Honours, where use of them

was allowed for those purposes.

But, Your Honours, to use for example a more

direct example, a person living on the boundary of

a park might agree to let rangers or the persons with emergency vehicles go through that person's

property in order for them to get easier access to

the park in return for that person having a licence
to have access through the park to some other

place.

MASON CJ:  Mr Jackson, assume there is some validity in your

argument that the Court of Appeal has incorrectly
limited the power.	None the less, is it a case

that we should take up? This question of

interpretation involves no question of general

principle. It is a matter of, as it were,

ascertaining what are the limits on the power, by

reference to purpose, to be gathered from the
provisions of the Act as a whole context statutory

policy.

MR JACKSON: Well, Your Honour, could I just say two things

in relation to that. The first is that what

Your Honour says is true in one sense, if I may say

so with respect, but the first thing is that the
ambit of operation of the statute is very

considerable, relevantly in relation to the number

Wheelhouse 22/4/94

of instances potentially involved. And,

Your Honours, it is a case where, as a practical

matter it would be, one might think, very difficult

to enact, for example, statutory provisions which

would "cure", if I could use that expression, the

Court of Appeal's approach or modify it in
circumstances where one could be sure that the

result of it was effectively to bring it to an end.

DAWSON J: Is that really so?

MR JACKSON: Well, Your Honours see the number of instances

referred to in those pages of the record book and

there are many, one might think, where it would be

difficult to know precisely that they were all

covered. It would be possible, no doubt, but

difficult, we would submit, and really unnecessary

for that to have to happen.

But, Your Honour, coming more directly to what

Your Honour the Chief Justice put to me, true it is

that it is a question involving the construction of
the Act and one looks at the whole of the Act to

arrive at that conclusion. But involved in that,

Your Honours, is an underlying question of the

approach to be taken to determining what is, or how

the ambit on unrestricted powers is to be defined

and that does seem to involve, so far as the Court

of Appeal's decision is concerned, some view as to

the restrictions to be imposed upon it.

Your Honours, what I was going to say next was

this, that we would submit that the interpretation

given by the Court of Appeal in this particular

case was too narrow and if that is the true

interpretation, if the view taken by the Court of

Appeal is the true interpretation of the Woollhara

case, then that case itself should be reconsidered

by the Court.

Could I go then to the second issue,

Your Honours, the approach taken by the Court of
Appeal.	Your Honours, at page 69, line 14, Your

Honours will see that Mr Justice Mahoney noted that

the suggestion that the Minister had acted mala fide had been withdrawn. Could I refer also to

page 89, lines 17 to 23, where he said once again

the suggested had been expressly abandoned.

Your Honours, the Minister simply adopted the view

of the advisory council which is set out at page 72

and Your Honours will see a report there which goes

on through pages 73, 74 and 75. May I direct

Your Honours attention to two passages in it. The

first is at page 74, between lines 10 and 18 where

it is said:

Wheelhouse 22/4/94

it would be of considerable value to the

National Park to obtain a strip of land

adjacent to the foreshore -

because, to put it shortly, that would allow
greater access to the national park.

The second thing, Your Honours, is at page 75, between lines 24 and 35 where Your Honours will see

reference to an increase in the size of the park -

but through the acquisition of foreshore

lands - a precedent we would wish to support.

Then, Your Honours will see in the next paragraph

references to the driveway being a firebreak and

the:

opportunity to remediate the currently less-

than-satisfactory storrnwater run-off.

Now, Your Honours, one sees in those observations

that there were three matters referred to, all of

which, in our submission, could be characterized as

being plainly for the benefit of the park. And,

Your Honours, we would submit in those circumstances

it just is not open to the Court of Appeal per the

President to say, as he did at page 63 at line 20,

that:

The other purposes were invoked only later in

an attempt to give a different colour to the

true purpose which that law would assign to

the development. In my view the law is

neither naive nor so readily manipulated.

Once the position was that the Minister

DAWSON J:  What does he mean the law will assign to the

development.	He means which he assigns, does he
not?

MR JACKSON:  Your Honour, I think perhaps it has a slightly

declamatory air to it, if I could put it that way.

Your Honours, the point I was seeking to make about

it was this, that once one had the position that

what the Minister did was to adopt the

recommendations in the document, the document

contained a number of matters, they were all

matters that were adopted by the Minister, and

Your Honours, true it is that it may be a question

of characterization· but it is not fatal that the

processes of characterization can result in double

or treble characterization of particular acts or

conduct. Your Honour, one sees that in another

contexts, of course, but the fact that the grant of

a licence has a benefit·to an individual, as it

Wheelhouse 10 22/4/94

almost inevitably will have, does not mean that the

grant of it cannot be characterized as being for

the benefit of, to put it shortly and at its

narrowest form, for the benefit of the park.

So, Your Honours, we would submit on both

bases there should be special leave.

MASON CJ: Yes, thank you, Mr Jackson. The Court need not

trouble you, Mr Gyles.

These applications seek to raise for

consideration the interpretation placed upon

section lSl(l)(f) of the National Parks and

Wildlife Act 1974 (NSW) by the Court of Appeal.

That question of interpretation raises no question of general principle. In other respects, the case

comes down to the issue of characterization: what

is the purpose of the proposed grant of the

licence? That issue is not one which should

attract the grant of special leave.

We do not regard the judgment of

President Kirby as containing a finding of bad

faith on the part of the Minister.

The applications for special leave are

therefore refused.

MR GYLES:	I ask for costs, if Your Honours please.
MASON CJ:	You do not oppose costs, Mr Solicitor,

Mr Jackson?

The applications are refused with costs.

AT 10.00 AM THE MATTER WAS ADJOURNED SINE DIE

Wheelhouse 11 22/4/94