National Parks and Wildlife Service v Haig

The National Parks and Wildlife Service (NPWS) appealed to the New South Wales Court of Appeal against a decision of the Land and Environment Court. The dispute concerned the NPWS's refusal to grant a permit to Mr. Haig to conduct commercial whale watching tours in the waters of Jervis Bay. Mr. Haig had been operating these tours for some years prior to the introduction of a permit system under the *National Parks and Wildlife Act 1974* (NSW).

The primary legal issue before the Court of Appeal was whether the Land and Environment Court had erred in finding that the NPWS had acted unreasonably and unfairly in refusing to grant Mr. Haig a permit. Specifically, the court had to consider whether the NPWS had properly taken into account all relevant considerations and disregarded irrelevant ones when making its decision, and whether the refusal was so unreasonable that no reasonable body, properly instructed as to the relevant law, could have reached it.

The Court of Appeal found that the Land and Environment Court had correctly identified the relevant considerations for the NPWS, which included the protection of wildlife, the public interest in conservation, and the potential impact of commercial operations on the marine environment. However, the Court of Appeal held that the Land and Environment Court had erred in its assessment of the reasonableness of the NPWS's decision. The Court of Appeal reasoned that the NPWS was entitled to consider the potential for increased environmental impact and the need to manage visitor numbers, and that its refusal, based on these considerations, was not so unreasonable as to be unlawful. The court emphasised that the NPWS had a statutory duty to protect national parks and their wildlife, and that this duty could justify a restrictive approach to commercial activities.

The appeal was allowed, and the decision of the Land and Environment Court was set aside. The Court of Appeal remitted the matter to the Land and Environment Court for redetermination in accordance with the principles stated by the Court of Appeal.