Neilson v Secretary, Department of Planning and Environment

[2024] NSWCA 28

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Neilson v Secretary, Department of Planning and Environment [2024] NSWCA 28

Hearing dates:

15 September 2023

Date of orders:

21 February 2024

Decision date:

21 February 2024

Before:

Ward P at [1];
Payne JA at [2];
White JA at [175]

Decision:

(1)   Appeal dismissed.

(2)   Appellant to pay the respondent’s costs.

Catchwords:

ENVIRONMENT AND PLANNING— Land and Environment Court — Crown land — Management of Crown land — National Parks and Wildlife Act — Plan of management — statutory interpretation — whether Secretary has duties to implement individual policies in Plan of Management compellable by mandamus — whether delay implementing policies unreasonable — utility and appropriateness of relief

Legislation Cited:

Crown Land Management Act 2016 (NSW)

Environmental Planning and Assessment Act 1979 (NSW) s 5.5

Income Tax Assessment Act 1936 (Cth) ss 167, 185, 186, 501, 501A

Land and Environment Court Act 1979 (NSW) ss 20, 22

Migration Act 1958 (Cth) ss 6, 6A, 7, 21, 24, 65 189, 196

National Parks and Wildlife Act 1974 (NSW) ss 6, 8, 12, 72, 72AA, 81, 140, 193

Protection of the Environment Administration Act 1991 (NSW) ss 6, 9

Repatriation Act 1920 (Cth) Div 1 Pt 3

Rural Fires Act 1997 (NSW) s 62W

National Parks and Wildlife Bill 1974 (NSW)

Cases Cited:

AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424; [2019] FCAFC 27

ASP15 v Commonwealth of Australia (2016) 248 FCR 372; [2016] FCAFC 145

Associated Provincial Picture Houses Limited vWednesburyCorporation [1948] 1 KB 223

BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530

Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49

Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021) 250 LGERA 1; [2021] NSWLEC 92

Chevron USA, Inc v Natural Resources Defense Council, Inc, 467 US 837 (1984)

CMA19 v Minister for Home Affairs [2020] FCA 736

Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51; [1994] HCA 61

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5

Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Randren House Pty Ltd v Water Administration Ministerial Corporation (2020) 246 LGERA 1; [2020] NSWCA 14

Re Federal Commissioner of Taxation; Ex parteAustralena Investments Pty Ltd (1983) 58 ALJR 36

SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55

Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9

Thornton v Repatriation Commission (1981) 52 FLR 285; [1981] FCA 71

Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455; [1991] FCA 268

Texts Cited:

LL Fuller, “The Forms and Limits of Adjudication” (1978) 92 Harvard Law Review 353

Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022)

New South Wales Legislative Council, Parliamentary Debates (Hansard) 30 October 1974 at 2309

NSW National Parks and Wildlife Service, Mimosa Rocks National Park: Plan of Management (February 2011)

Category:

Principal judgment

Parties:

Ian Stuart Neilson (appellant)
Secretary, Department of Planning and Environment (respondent)

Representation:

Counsel:
C Ireland and A Jucha (appellant)
RPL Lancaster SC and JM McKelvey (respondent)

Solicitors:
Gibney & Gunson (appellant)
Crown Solicitor (respondent)

File Number(s):

2023/119871

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

NSW Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2023] NSWLEC 32

Date of Decision:

23 March 2023

Before:

Pain J

File Number(s):

2022/18446

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant, Mr Neilson, appealed from the dismissal of proceedings he commenced in the Land and Environment Court in its Class 4 jurisdiction. Before the primary judge, Pain J, the appellant sought declarations and orders in the nature of mandamus requiring the respondent, the Secretary, Department of Planning & Environment, to undertake works to upgrade two roads, Cowdroys Road and Lagoon Trail, in Mimosa Rocks National Park. The appellant required all weather access by a vehicle towing a boat on a trailer through the National Park to a commercial oyster lease located outside the boundaries of the National Park.

The appellant sought mandamus on the basis that s 81 of the National Parks and Wildlife Act 1974 (NSW) (“NPW Act”) and the Plan of Management for Mimosa Rocks National Park entitled him to have the Court compel the National Parks and Wildlife Service (“NPWS”) to carry out significant roadworks on Lagoon Trail and Cowdroys Road. One of the Plan of Management’s “policies and actions” was maintaining Lagoon Trail and Cowdroys Road to, respectively, an “all weather 2WD standard” and an “all weather 4WD standard”. The primary judge dismissed the application and held that the Secretary had discretion in how to carry out the Plan of Management. The primary judge held that the duty in s 81 of the NPW Act is to implement, carry out and give effect to the Plan of Management overall.

The issues before the Court were:

1. Does the Plan of Management for the National Park require Cowdroys Road and/or Lagoon Trail to be managed and maintained by the respondent?

2. If the Plan of Management imposes a duty to maintain Cowdroys Road and Lagoon Trail, to what standard must they be maintained?

3. Assuming the respondent is obliged to maintain Cowdroys Road and Lagoon Trail, has there been an unreasonable delay in that maintenance?

4. What relief, if any, should be granted?

The Court (per Ward P and Payne JA agreeing, White JA contra) dismissed the appeal, holding:

On issue (i):

1. The primary judge was correct to conclude that there was no requirement imposed by s 81 of the NPW Act to maintain the relevant roads. The text, context and purpose of s 81 of the NPW Act make it clear that, as a matter of construction of both the NPW Act and the Plan of Management, the duty under s 81 of the NPW Act is to carry out and give effect to the Plan of Management as a whole: Ward P at [1]; Payne JA at [45]-[53]. Neither s 81 nor the Plan of Management impose an obligation to complete particular policies within a specified time or at all. The Plan of Management contains competing priorities, some which will require immediate action, some which are aspirational, and some which will be deferred or, if funds and staffing are not available, not be carried out at all. The Secretary has discretion in how to pursue those priorities: Ward P at [1]; Payne JA at [54]-[63]. How the respondent undertook the task of managing distributive priorities is not a matter that the legislature intended to be the subject of judicial review: Ward P at [1]; Payne JA at [56], [60], [63].

   Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021) 250 LGERA 1; [2021] NSWLEC 92 considered.

2. The orders in the nature of mandamus sought by the appellant are outside the statutory purpose, which is to promote public access and tourism to the National Park. Use of roads through national parks to access commercial operations outside the National Park is not part of the statutory purpose: Ward P at [1]; Payne JA at [60]. Nothing in the relevant policies contemplated the provision of access, through the National Park, to any particular oyster lease outside the National Park: Ward P at [1]; Payne JA at [75].

3. White JA (contra) at [223]-[229]: Where a plan of management requires that specific action be taken, compliance with the Secretary’s obligation under s 81 of the NPW Act requires the Secretary to carry out and give effect to all the plan, including specific actions required by the plan, and a failure to carry out a plan of management in a specific respect is capable of remedy. The terms of the plan make that obligation subject to the availability of staff and funding, strategic planning and competing priorities.

On issue (ii):

1. There is nothing in the text of the Plan of Management to support the appellant’s construction that the phrase “All Weather 4WD standard” implies a quality of road that can be driven by a 4WD vehicle hauling a boat trailer: Ward P at [1]; Payne JA at [110], [115]. The term “thoroughfare” was used as a synonym for “road” Ward P at [1]; Payne JA at [120]. The NSW Rural Fire Service Fire Trail Standards made several years after the Plan of Management provide no guide in interpreting the meaning of “All Weather 2WD” and “4WD” standards: Ward P at [1]; Payne JA at [112], [122].

2. Nothing in the Plan of Management envisages road improvements so that boat access to the Lagoon be made available to conduct commercial operations. To the extent that one of the Plan’s desired outcomes is that lessees enter licence agreements with NPWS, this is to ensure that their activities are undertaken in ways that minimise impacts upon the values of the park and the experiences of park visitors. Any necessary improvements to a road permitting the lessees access through the National Park are likely expected to be paid for by the licensee as a condition of the licence: Ward P at [1]; Payne JA at [113].

On issue (iii):

1. The delay was not unreasonable: Ward P at [1]; Payne JA at [153]. The primary judge applied the correct test from Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18: Ward P at [1]; Payne JA at [150]. Mere length of time is not sufficient to demonstrate unreasonable delay: [153]. The primary judge did not find that there was an “unlimited” discretion: Ward P at [1]; Payne JA at [146]. Evidence of considerable efforts by NPWS tends strongly against any conclusion that there was unreasonable delay: Ward P at [1]; Payne JA at [161]. For any persuasive onus to fall on the respondent to explain the delay, the appellant first had to establish that delay called for an explanation: Ward P at [1]; Payne JA at [164].

2. The cases referred to by the appellant can be distinguished as in each of those circumstances the applicant alleging delay had a statutory entitlement to receive a decision: Ward P at [1]; Payne JA at [157].

   AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424; [2019] FCAFC 27; ASP15 v Commonwealth of Australia (2016) 248 FCR 372; [2016] FCAFC 145; BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530; CMA19 v Minister for Home Affairs [2020] FCA 736; Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 58 ALJR 36; Thornton v Repatriation Commission (1981) 52 FLR 285; [1981] FCA 71; and Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455; [1991] FCA 268 considered.

3. White JA (contra) at [236]-[237]: By 21 January 2022 (when proceedings were commenced) more than a reasonable time had passed for NPWS to comply with the requirements to upgrade Lagoon Trail to a 2WD standard and Cowdroys Road to a 4WD standard. There was no evidence that the work was not done due to limited staff, limited funding or prioritisation of other works.

On issue (iv):

1. The exercise of discretion to grant relief should be refused. There was considerable uncertainty about what the order sought required in terms of work, regulatory approvals and costs. The orders sought were likely to destroy the banks of Nelson Lagoon. There was no evidence it was possible to launch a boat without constructing separate boat launch facilities. The making of the orders sought by the appellant would be antithetical to the proper role of the Court on judicial review as it would require the respondent to spend public money, in priority to any other expenditure necessary for the maintenance of the more than 890 national parks in New South Wales, so that the appellant can access his commercial oyster farming operation outside the boundary of the National Park: Ward P at [1]; Payne JA at [22]-[23],[173].

2. White JA (agreeing relief should be refused) at [242]-[244], [247]: The relief sought in relation to the Lagoon Trail would be inutile because an order for the upgrading of the Lagoon Trail from a 4WD to a 2WD standard would not advance Mr Neilson’s interest unless he could also obtain access to the waters of the lagoon which is blocked apparently to prevent degradation to the lagoon bank. The relief sought in relation to Cowdroys Road would be inutile because there is no evidence as to how the boat could be launched without modifications to the bank of the lagoon to provide a ramp, were the track upgraded to all-weather 4WD standard. The NPWS had no obligation to carry out such works to the bank and Mr Neilson could not lawfully do the works himself.

Judgment

1. WARD P: I agree with Payne JA, for the comprehensive reasons that his Honour has given, that the appeal should be dismissed with costs.

2. PAYNE JA: The appellant, Mr Ian Stuart Neilson, appeals from the dismissal of proceedings he commenced in the Land and Environment Court in its Class 4 jurisdiction. Before the primary judge, Pain J, the appellant sought declarations and orders in the nature of mandamus requiring the respondent, the Secretary, Department of Planning & Environment, to undertake works to upgrade two roads in Mimosa Rocks National Park so as to assure the appellant of all weather access by a car towing a boat on a trailer through the National Park to a commercial oyster lease which is located outside the boundaries of the National Park.

Relevant facts

3. Day to day management of the National Park is delegated to the National Parks and Wildlife Service (“NPWS”) by the respondent. The NPWS is established under s 6 of the National Parks and Wildlife Act 1974 (NSW) (“NPW Act”). The powers and functions of the NPWS are set out in s 12. The NPWS is required to carry out such works and activities as the Minister may direct in relation to issues including the conservation and protection of land, wildlife, wilderness, Aboriginal objects and Aboriginal places, as well as the provision of facilities and opportunities for sustainable visitor or tourist use, research and public education.

4. There are more than 890 national parks and reserves managed by NPWS in New South Wales. Land under management covers more than 9 percent of the land area of the state. There are over 430 plans of management made in relation to these areas. The network of roads in national parks across the state is over 38,500km in length.

5. The South Coast Branch of NPWS, one of eight operational branches in the organisation, is responsible for an area covering approximately 789,800ha of national parks and conservation areas between Wollongong and the Victorian border. The South Coast Branch of NPWS is responsible for a road and trail network exceeding 4,000km in length.

6. The South Coast Branch of NPWS is divided into four operating areas, the Mimosa Rocks National Park being within the Eurobodalla operating area. The Eurobodalla operating area has 12 national parks, reserves and conservation areas to manage.

7. The Mimosa Rocks National Park comprises 5,804ha, with a 20km long coastline and 30km of management trails. The seaward and lakeshore boundaries of the park extend to the mean high water mark, with the beds of the three main waterbodies, Nelson Lagoon, Middle Lagoon and Wapengo Lake, excluded from the National Park. Nelson Lagoon, which lies outside the boundary of the National Park, has a surface area of 105ha and a catchment area of 2,900ha.

8. There are two broad types of national park roads: park roads (or public access roads), which are open to the public; and management trails, which are primarily used for park management activities. Just over half of the network consists of management trails. NPWS has a Roads Manual which contains a road classification system for prioritising the relative importance of roads within the network. Roads are classified as primary, secondary, minor or low based on the road’s function as determined by operational, visitor and community requirements.

9. The classification of roads determines the frequency with which roads are to be maintained, with different timeframes assigned for the maintenance of sealed, gravel or natural roads. The Roads Manual contains a “Road Maintenance Priority Matrix” which aims to provide for consistent allocation of resources within national parks for road maintenance. Once the roads and trails within a national park are prioritised in accordance with the Roads Manual, the operational branches of NPWS further prioritise road and trail maintenance in line with a priority system.

10. In the Roads Manual, the first of the roads the subject of this appeal, Lagoon Trail, is classified as a low, unsealed, natural surface road. It is described as a “4WD natural, unsealed Management Track” in the NPWS Asset Management System (“AMS”). In the Roads Manual, the second road the subject of this appeal, Cowdroys Road, is classified as a minor, unsealed, natural surface road. It is noted as a “4WD Public Access Track” in the NPWS AMS. A small portion of the road approximately 114m long at the southern end of the road accessible by opening a gate (a key to which NPWS has issued to the appellant) is classified as a management track.

11. The South Coast Branch of NPWS implements the Plan of Management as part of its annual program of works, subject to resourcing and special requirements from the Minister. The Plan of Management does not allocate any express funding priority (whether high, medium or low) to road and trail maintenance.

12. The Eurobodalla Area was allocated a $990,000 operational expenditure budget in the 2021-22 financial year and granted an additional $500,000 in tied funding for roads. In the 2021-22 financial year it spent $600,249 on roads and trail maintenance using $100,000 from its operational expenditure budget. Operational expenditure is allocated based on identified priorities in the Plan of Management and for various projects.

13. An extract of a spreadsheet of NPWS’ “road prioritisation” for 2021-22 identified Cowdroys Road and Lagoon Trail as of low importance. Both are scheduled for maintenance every 36 months in accordance with the Roads Manual.

14. In 2019, NPWS entered into a Land Management Deed to carry out maintenance works to roads and trails. Around May 2022, NPWS engaged a contractor to conduct upgrades to Cowdroys Road and Lagoon Trail. NPWS also completed some rehabilitation works on Lagoon Trail in June 2022. Between 2017 and May 2022, the NPWS performed periodic maintenance on both Cowdroys Road and Lagoon Trail.

15. Before the primary judge, the parties agreed a chronology of this maintenance work as summarised below.

1. Cowdroys Road (part of road unknown):

1. 15-18 May 2017: Vegetation management and road maintenance.

2. Cowdroys Road (“to Beach North end”):

1. 11 February 2015: Gravel road maintenance;

2. 1 June 2016: Road re-sheeting;

3. 17 April 2020: Sheeting and drainage reinstatement;

4. 4 May 2020: Upgrade of road;

5. 26 May 2020: Installing gate;

6. 10 August 2021: Repairing 4x4 damage to road;

7. 31 August 2021: Operational expenditure, road maintenance;

8. 21 October 2021: CRA for flood recovery.

3. Cowdroys Road (“4WD – 01”):

1. 16 May 2016: Natural road maintenance.

4. Cowdroys Road (“4WD – 02”):

1. 1 May 2022: Fire Access and Fire Trail capital expenditure, construction.

5. Lagoon Trail:

1. 29 January 2017: Natural road maintenance;

2. 31 May 2021: Maintenance (operational expenditure);

3. 25 October 2021: CRA for flood recovery;

1. 11 April 2022: Operational expenditure 21, LLS trail rehabilitation maintenance;

2. 11 April 2022: Rehabilitation works.

16. Resources devoted to roads maintained within the National Park are allocated to projects with a higher priority rating. One matter of particular concern to NPWS is access for fire and emergency vehicles. Operational and capital funding is available to maintain a “strategic” and “tactical” roads list in a Fire Access and Fire Trail (“FAFT”) plan for financial years 2019-20 to 2029-30. FAFT operational funding is used to maintain existing roads and trails, while capital funding is used to upgrade or build new trails in the FAFT network. A committee of the Rural Fire Service (“RFS”) determines which trails are tactical or strategic. Roads and trails which are not identified as strategic or tactical in the FAFT network have no dedicated operational or capital funding, instead relying on the NPWS recurrent operational fund. Funding for maintenance of such roads and trails thus competes against all other program outcomes within NPWS. The priority principles that guide the maintenance of the FAFT network include the elimination of public risk, maintaining safe, open and accessible roads for public access to communities, maintaining safe, open and accessible roads for visitor facilities, and maintaining open and accessible roads for essential NPWS management functions. The southern section of Cowdroys Road (which terminates near the edge of Nelson Lagoon) and the whole of Lagoon Trail are not in the FAFT network.

17. Operational branches of NPWS prioritise maintenance of roads and trails, assessed against the Roads Manual, budgetary constraints and operational capabilities. Dedicated and untied funding is shared amongst the eight operational branches in NPWS including the South Coast Branch which oversees the park.

18. The appellant holds a Class 1 Aquaculture Lease which he acquired on 18 January 2010 in relation to an oyster lease on Nelson Lagoon. The oyster lease lies wholly outside the boundary of the National Park. The appellant has been unable to access and maintain the oyster lease on Nelson Lagoon since February 2010. The appellant alerted the NPWS to his complaints about the condition of Cowdroys Road and Lagoon Trail in early 2010 and has had extensive communications with NPWS officers since that time. The appellant’s principal complaints are that the works on the roads conducted by NPWS did not provide all weather 4WD vehicle and boat trailer access to Nelson Lagoon along Cowdroys Road and all weather 2WD vehicle and boat trailer access to Nelson Lagoon along Lagoon Trail.

Engineering evidence about Cowdroys Road and Lagoon Trail

19. Mr Legler, a civil engineer, in an affidavit affirmed on 14 June 2022 attached a road condition assessment report on the road and trail dated 29 May 2022. In his opinion, the southern section of Cowdroys Road did not comply with the requirements for a category 9 fire trail as identified in the NSW Rural Fire Service Fire Trail Standards (“Fire Standards”), and a 4WD vehicle towing a boat trailer could not navigate the steep grading on that part of Cowdroys Road. He reported that, even after the works undertaken in 2022, Lagoon Trail was not maintained to a 2WD standard.

20. Another civil engineer, Mr Wearne, affirmed an affidavit on 11 August 2022 observing first that the section of Cowdroys Road beyond Gate 4 towards Nelson Lagoon was not suitable for a 4WD vehicle towing a trailer and secondly that on the management trail section 4WD access was possible only with care, because of the steep gradient. In his view, the foreshore of Nelson Lagoon was eroded and not suitable for boat trailer access. Mr Wearne assessed Lagoon Trail as suitable for all weather 4WD access with most of the track accessible to a 2WD vehicle.

21. The experts agreed that the final section of Cowdroys Road, between Gate 4 and Nelson Lagoon, is not suitable for a 4WD vehicle towing a trailer, that Lagoon Trail is suitable for dry weather 2WD access but not all weather 2WD access, and that there is no access to the water in Nelson Lagoon at the end of Lagoon Trail, in part because of structures erected by NPWS for the apparent purpose of preventing further erosion of the Lagoon’s foreshore.

22. A photograph of the structures and the eroded foreshore of Nelson Lagoon in the evidence showed the barriers, which resemble logs, laid by NPWS to prevent further erosion of the bank.

23. As I will explain, the appellant seeks orders for the removal of those barriers. What, if anything, should be done to prevent further erosion to the banks of Nelson Lagoon was not addressed in the orders sought by the appellant.

Relevant legislation

24. Part 5 of the NPW Act deals with plans of management. The crucial provision is s 81, which relevantly provides:

81   Operations under plan of management

(1)   Where the Minister has adopted a plan of management for a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area or wildlife refuge, it shall, subject to subsections (5) and (6), be carried out and given effect to by the Secretary.

…

(4)    Subject to subsection (4A), despite anything in this or another Act or in an instrument made under this or another Act, if the Minister has adopted a plan of management under this Part, no operations may be undertaken in relation to the lands to which the plan relates unless the operations are in accordance with the plan.

…

25. Section 193 provides:

193   Restraint etc of breaches of Act or regulations

(1)   Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(2)   Proceedings under this section may be brought by a person on the person’s own behalf or on behalf of the person and other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(3)   Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

(4)   In this section, breach includes a threatened or apprehended breach.

26. The legal basis for relief was said to be s 20(2)(b) of the Land and Environment Court Act 1979 (NSW), which invests the Land and Environment Court with the Supreme Court’s jurisdiction to review or command the exercise of a function conferred or imposed by a planning or environmental law. This provision allows the Land and Environment Court to make orders in the nature of mandamus.

Mimosa Rocks National Park Plan of Management

27. On 2 February 2011, a Plan of Management was adopted for Mimosa Rocks National Park, replacing an earlier 1998 version. The essence of the appellant’s case seeking mandamus is that on the correct understanding of the Plan of Management for Mimosa Rocks National Park he is entitled to have the Court compel NPWS to carry out significant roadworks on Lagoon Trail and Cowdroys Road so as to permit him to access Nelson Lagoon with a vehicle towing a boat trailer to conduct his commercial activities.

28. Although lengthy, the relevant extracts of the Plan of Management referred to by the parties should be set out to understand the context in which this appeal arises:

Foreword

Mimosa Rocks National Park covers 5,804 hectares between Tathra and Bermagui on the Far South Coast of NSW. It includes 20 kilometres coastline as well as areas of hinterland forest.

…

1 INTRODUCTION

This plan of management has been prepared in accordance with the NSW National Parks and Wildlife Act 1974 (NPW Act) to provide a framework of objectives, policies and actions to guide the long-term management of Mimosa Rocks National Park.

…

This is the second plan of management written for the park and replaces the 1998 plan. It reflects the same underlying management philosophy evident in the earlier document and is directed at refining the conservation and recreation management achievements of the past decade.

A plan of management is a legal document. Once the Minister for the Environment has adopted this plan, no operation may be undertaken within Mimosa Rocks National Park except in accordance with this plan. The plan will also apply to any future additions to the park. Where management strategies or works are proposed that are inconsistent with this plan, a formal amendment will be required.

…

2.3 Significance of Mimosa Rocks National Park

…

The park protects most of the catchment of Nelson Creek, which is the principal tributary of Nelson Lagoon. Maintaining high water quality in the creek is vital to the health of the lagoon which is an important oyster-growing area.

…

3.2 Strategies and Policies

…

Park management must also be consistent with the statewide policies adopted by the NSW National Parks and Wildlife Service. These are based upon legislative requirements, corporate directions, goals and strategies, and internationally accepted principles of park management. They relate to the management of natural and cultural values, recreation, commercial activities, research and communication.

…

5.1 Natural Heritage

…

5.1.5 Fire Management

…

Policies and Actions

1    Continue to manage fire within the context of the Fire Management Strategy for the park.

…

5.3 Public Use

5.3.1 Recreational and Tourism Activities

Mimosa Rocks National Park is a popular recreational destination, attracting some 140,000 visitors annually. Many of these visitors are residents of the Far South Coast region of NSW, though the park also attracts significant numbers of holidaymakers from throughout south-eastern Australia and further afield.

…

Car-based sightseeing opportunities are available along the park road network which consists of:

• All Weather 2WD roads;

• Dry Weather 2WD roads; and

• All Weather 4WD roads.

…

Desired Outcome

The role of the park in providing nature-based tourism experiences is recognised, with an appropriate range of recreational opportunities being catered for consistent with the protection of the natural and cultural values of the park.

Policies and Actions

General

1    Manage existing and new recreational activities and facilities so as to minimise impacts upon the natural and cultural values of the park, in particular: - Those parts of the park likely to be significantly impacted upon by the effects of rising sea levels (Sections 5.1.1 and 5.1.2);

- Listed endangered ecological communities (Section 5.1.3);

- Populations of threatened and otherwise significant plant and animal species (Sections 5.1.3 and 5.1.4);

- Places that contain culturally-sensitive Aboriginal sites or values (Section 5.2.1); and

- Cultural heritage features that are vulnerable to disturbance (Sections 5.2.1 and 5.2.2).

…

Vehicular Access

9    Permit public vehicular use along the following access routes only (refer Figure 4):

…

- Cowdroys Road;

…

- Lagoon Trail (also known as Nelson Creek Trail);

…

10    Manage park roads to All Weather 2WD standard thoroughfares except for Goats Knob/Quarry Road, Kings Ridge Trail, Mount Peter Trail and Cowdroys Road which will be maintained to All Weather 4WD standard.

…

Other Activities

…

47    Develop and implement a site plan for a car park and boat launching facility terminus at the eastern end of the Lagoon Trail with relevant agencies and interested users.

…

5.3.2 Leases and Licences

Desired Outcome

All operations and authorised uses in the park are covered by a lease, licence or other formal consent or agreement.

Policies and Actions

1    Ensure all operations and authorised uses in the park are covered by a lease, licence or other formal agreement.

2    Require all relevant lessees, licensees and other authorities operating in the park to develop and implement an environmental management plan for the ongoing management of their activities or infrastructure. All environmental management plans will be required to be consistent with the provisions of this plan of management and approved by the Service.

…

5.3.3 Other Uses

Commercial anglers licensed by the Department of Primary Industries occasionally fish along North Bunga Beach and in Bunga Lagoon. Government policy permits these fishermen to access these locations by vehicle. Elsewhere in the park, commercial anglers also occasionally fish in Middle Lagoon, with access provided via a management track.

Oyster leases licensed by the Department of Primary Industries are located in the Nelson Lagoon area. Eight growing leases are present within Nelson Lagoon with an additional four leases situated in Nelson Creek (Clarkes Bay). Two catching leases exist at the mouth of the lagoon. All of these lessees have vehicular access through the park to their lease areas. Various materials associated with the Nelson Lagoon growing leases are located within the park, as is a loading ramp at Nelson Creek.

None of these facilities or the vehicular access arrangements are currently covered by leases or licences.

A geodetic station (TS 1273) is sited atop Bunga Head. Although the station is partially collapsed and has not been used for many years, the Land and Property Management Authority is permitted to use the site for essential surveying work subject to various environmental protection conditions. By contrast, the trigonometric station located to the north of Middle Beach is in good condition but is no longer required by the Authority.

Key Issues and Opportunities

The creation of access and use agreements with individual commercial anglers would provide a means of minimising any adverse effects of their operations on park values and visitor experiences.

Arrangements with the Land and Property Management Authority concerning the future use of Bunga Head geodetic station need to include stringent conditions designed to protect the highly significant natural and cultural values of the area. They should also include measures directed at conserving and maintaining the trig, itself, which has historic value.

Desired Outcome

Agreements are in place with commercial anglers, aquaculture lessees and the Department of Lands that are designed to minimise impacts associated with their activities.

Policies and Actions

1    Ensure all operations and authorised uses in the park are covered by a lease, licence or other formal agreement.

2    Work with commercial anglers and aquaculture lessees to ensure that their activities are undertaken in ways that minimise impacts upon the values of the park and the experiences of park visitors.

…

5.5 Management Facilities and Operations

Management infrastructure located within the park, other than visitor facilities (as described in Section 5.3.1), is confined to a works depot, gravel pits and an extensive network of management tracks.

…

The park contains a network of management tracks that together total 30 kilometres in length. These tracks are closed to public vehicular use and are primarily retained for fire management and pest control purposes, though some are used by commercial fishing and aquaculture interests and by power line maintenance staff. The Service also maintains the Bithry Inlet, Middle Beach and Nelson Beach Roads, though all or parts of these roads are located within road reserves that do not form part of the park. The Tathra-Bermagui Road, Doctor George Road and part of Mumbulla Creek Road are also excluded from the park. The maintenance of these thoroughfares is the responsibility of the Bega Valley Shire Council.

…

Policies and Actions

…

4    Maintain the following vehicular tracks for management purposes (referFigure 4):

- Depot Fire Trail;

- Doctor George Fire Trail;

- Fords Trail;

- Hell Hole Fire Trail;

- Hidden Valley Fire Trail;

- Middle Ridge Fire Trail;

- Neilsen Fire Trail;

- Penders Access Tracks;

- Powerline Access Track;

- Oyster Lease Access Track;

- Sandy Creek Fire Trail;

- Tommys Bay Access Track; and

- Watertank Fire Trail.

Maintain these vehicular tracks to a minimum standard of All Weather 4WD roads.

…

6    Vehicular use of the management tracks listed in provisions 5.5.4 and 5.5.5 will only be permitted:

- For necessary management operations undertaken by, or on behalf of, the Service;

- Where essential for undertaking research licensed by the Service;

- Where vehicular access to professional fishing areas or oyster leases is essential, and where such access existed prior to park reservation and no suitable alternative access exists; …

…

5.8 Monitoring, Evaluation and Reporting

3    Commence a full review of this plan of management approximately ten years after adoption of the final plan by the Minister for the Environment. This plan will remain in force until such time that a new plan is adopted.

…

6 PLAN IMPLEMENTATION

The implementation of this plan will be undertaken within the annual programs of the Service’s Far South Coast Region. Priorities, determined in the context of Branch and Regional strategic planning, will be subject to the availability of necessary staff and funds and to any special requirements of the Director-General or Minister.

Regional programs are subject to ongoing review, within which, works and other activities carried out in Mimosa Rocks National Park are evaluated in relation to the objectives laid out in this plan.

Section 81 of the National Parks and Wildlife Act 1974 requires that this plan will be carried out and given affect to, and that no operations shall be undertaken in relation to Mimosa Rocks National Park unless they are in accordance with the plan. However, if after adequate investigation, operations not included in the plan are found to be justified, this plan may be amended in accordance with section 73B of the Act.

As a guide to the implementation of this plan, relative priorities have been assigned to actions in the plan as summarised below. The following criteria have been used to allocate priorities:

High   Imperative to achievement of the management objectives for the park. Must be undertaken in the near future to avoid significant deterioration in the condition of natural, cultural or recreational values.

Medium   Necessary to achieve the management objectives for the park but not urgent.

Low   Desirable to achieve management objectives but can be deferred until resources become available.

(Note: Policies and those actions that are undertaken in the course of day to day park management duties are not necessarily listed below.)

Action

Plan Reference

High Priority

…

Ensure all relevant lessees, licensees and other authorities operating in the park develop and implement environmental management plans for their activities or infrastructure. Monitor compliance

5.3.2.2/5.3.2.8

29. The clauses central to the appellant’s case were the “policies and actions” in cl 5.3.1 item 9 and more importantly cl 5.3.1 item 10, both of which fall within a section dealing with recreational and tourism use of the National Park (cl 5.3.1). The “policy and action” contained in cl 5.3.1 item 9 is, relevantly, to permit public vehicular use along Cowdroys Road and Lagoon Trail. The “policy and action” contained in cl 5.3.1 item 10 is, relevantly, to manage Lagoon Trail to an “All Weather 2WD standard” and Cowdroys Road to an “All Weather 4WD standard”.

Grounds of appeal

30. The notice of appeal advanced 18 grounds of appeal:

The respondent had a duty to maintain Lagoon Trail and Cowdroys Road to an All Weather 2WD and All Weather 4WD standard respectively

1 Her Honour erred in finding, including at [147] and [167], (notwithstanding first finding that s81 of the NPW Act imposed a duty on the Respondent to implement, carry out and give effect to the Plan of Management (PoM) at [133)), that there was no duty to implement, carry out and give effect to the obligation in clause 5.3.1, item 10 of the PoM to manage Lagoon Trail to an All Weather 2WD Standard and maintain Cowdroys Road to an All Weather 4WD Standard.

2 Her Honour ought to have found that on a proper construction of s81 and the PoM there was a duty to implement, carry out and give effect to the particular obligations in clause 5.3.1, item 10, within a reasonable time, because:

a. The Respondent accepted that it had a duty to implement, carry out and give effect to the PoM pursuant to s81 ([133]);

b. They are obligations in the PoM that is in turn subject to the duty imposed by s81;

c.   The language of the PoM does not confer a discretion as to what standard is to be applied to these roads;

d. s81 operates with clause 5.3.1, item 10 to impose a duty to manage Lagoon Trail to an All Weather 2WD Standard, and to maintain Cowdroys Road to an All Weather 4WD Standard; and

e. The fact that no time for compliance is specified does not nullify or remove the duty to bring them to the specified standard described in clause 5.3.1, item 10, within the reasonable time implied by law.

Neither road was at the standard required by the PoM

3    Her Honour correctly found at [164] that an ‘All Weather’ standard means a vehicle (whether 4WD or 2WD) can use the road in wet and dry weather.

4 Her Honour further correctly found that it was common ground as between the parties’ engineering experts that Lagoon Trail was not maintained to the required All Weather 2WD standard at [52].

5    Her Honour should have found as a result of the findings at [52] and [164] that Lagoon Trail was not maintained to the All Weather 2WD Standard.

6   Instead of leaving the matter open as her Honour did at [187], her Honour should have found that Cowdroys Road was not maintained to the All Weather 4WD Standard based on the following evidence and findings below:

a.   the evidence of the Appellant that he could only access Cowdroys Road in dry weather (with or without a trailer), as recorded at [18];

b.   the evidence that the Appellant could not access that last section of Cowdroys Road at all with his 4WD and boat trailer since 2010 (for 12 years) (at [129]);

c.   the evidence that the road was signposted a dry weather only (at [16] and [129]); and

d.   the evidence that Cowdroys Road was closed by the Respondent for lengthy periods of several months during wet weather (at [129]).

There was unreasonable delay in performing the duty in relation to each road

7   Her Honour erred in finding at [140] and [181] that there is an unlimited or “necessary” discretion as to when the duty will be carried out “based on available staffing and funding”, rather than a duty that is subject to a requirement implied by law that there be no unreasonable delay in its performance.

8 Her Honour erred in finding at [171] that the test for unreasonable delay in the performance of the s81 duty as applied to clause 5.3.1, item 10, of the PoM is Wednesbury or Minister v Li unreasonableness, namely that no Secretary in the position of the Secretary would have made the decisions on road maintenance which the Secretary did in fact make since 2011.

9 Her Honour erred in finding at [168] -[184] that there was no unreasonable delay in performing the duty imposed by a combination of s81 and clause 5.3.1, item 10, of the PoM.

10 Her Honour erred in finding at [173] that to establish unreasonable delay in performing the particular obligations in clause 5.3.1, item 10, of the PoM, the whole of the allocation of funding across the implementation of all aspects of the PoM would need to be considered, as such a requirement would amount to the acceptance of an unlimited discretion as to timing, as this would render the duty to perform those obligations within a reasonable time illusory contrary to law.

11   Her Honour erred at [184] in finding that the persuasive onus of negativing the existence of unreasonable delay had not shifted to the Respondent, and should have found that the Appellant had demonstrated a delay which required explanation by the Respondent and had not satisfied its resulting evidential onus.

12 Her Honour erred at [182] in finding that the adverse impact of the failure to perform the clause 5.3.1, item 1 0 obligations on the Appellant was irrelevant to assessing whether there was unreasonable delay, and should have found that this was a relevant consideration.

13   Her Honour should have found that there was unreasonable delay in performing the respective duties for the following reasons, and her Honour’s finding to the contrary was against the weight of the evidence:

a. The PoM containing the obligations in clause 5.3.1, item 1 0 has been in force since 2011.

b. Lagoon Trial [sic] was classified as a 4WD access road in the NPWS asset management system contrary to the All Weather 2WD standard specified in the PoM: [34].

c.   The roads are still not at the specified standards and on the evidence, have never been.

d.   The evidence recorded at [25] and [175] was that the Respondent was able to obtain funding for the roads from multiple sources.

e.   The Respondent had sufficient budget for works including as evidenced by $5.2m in untied operational expenditure funding in 2021/22 alone, yet had only spent comparatively minor amounts on the roads over many years as recorded at [12], until belatedly spending $47,636.25 on Lagoon Trail and $137,215.52 on Cowdroys Road in April/May 2022 after the commencement of proceedings.

f.   The recent expenditure on Cowdroys Road was post commencement of the litigation, and on the evidence was not pre-planned but instead was a defensive response to the commencement of proceedings (a matter left undecided by her Honour at [178]). However, the fact of that expenditure confirms that significant funding is available, as and when required, for these roads.

g.   The Respondent did not in fact prioritise road works in accordance with the “priority principles” put forward in the Respondent’s lay evidence from its own officers lssaverdis and He, and they are self-serving principles developed by the Respondent for the purposes of the proceedings [28] and [43].

h. The obligations in clause 5.3.1, item 10 had not been carried out despite many repeated demands by the Appellant (“extensive communications”) and assurances by the Respondent that they would be, in circumstances where the failure to perform the obligation was preventing commercial access to the Appellant’s oyster lease and causing a financial loss of $480,000 per annum [15].

i.   The Appellant has been unable to access the Oyster Lease using a 4WD vehicle with or without trailer along Cowdroys Road or Lagoon Trail since 2010 ([129]).

j. The (Appellant’s) uncontested evidence that. he has not had access to (the Oyster Lease) since about 2010 and has suffered and continues to suffer a significant and growing financial loss, as a consequence [82].

The respondent should have been ordered to do the roadwork required to achieve this standard for both of these roads

14    Her Honour erred in not ordering the Respondent to do the work identified in the evidence and required to place each road into the required standard.

15    In particular, her Honour erred in not ordering that the identified roadwork that on the evidence (referred to at [52] and [125] and as identified in the Further Amended Summons) was required to place Lagoon Trail into an All Weather 2WD Standard be done. The failure to so order was unreasonable, and contrary to the evidence and her Honour’s own finding at [52] that Lagoon Trail was not at the required standard.

16    Her Honour should also have ordered that the work required to be done to ensure a 4WD (including without trailer) can access the last section of Cowdroys Road in wet weather as identified in the Further Amended Summons. The failure to do so was unreasonable and contrary to the evidence and findings referred to at paragraph 6 above at [18] and [129].

17 The order should have extended to correcting the grade of Lagoon Trail and Cowdroys Road to a maximum of 15 degrees at the specific points or chainages specified in the Further Amended Summons as it was common ground between the engineering experts for each party below that the Fire Trail Standards provided a reasonable guide for what was required (in engineering terms) for 4WD access which in particular set a maximum longitudinal grade of no more than 15 degrees ([45], [49]).

18 Her Honour erred at [152] - [154] in not finding that the use of the word thoroughfare” in clause 5.3.1, item 10 of the PoM required that Lagoon Trail and Cowdroys Road needed to be managed so as to allow access to Nelson Creek Lagoon by vehicles with boat trailers rather than as “dead end” roads, and in particular should have found that this required an order for the removal of the log barriers placed by the Respondent at the end of Lagoon Trail.

31. Given the large number of grounds in the notice of appeal, I will address the questions raised by reference to the four discrete issues identified by the parties in their written submissions. Those issues are:

1. Does the Plan of Management for the National Park require Cowdroys Road and/or Lagoon Trail to be managed and maintained by the respondent? (grounds 1 and 2)

2. If the Plan of Management imposes a duty to maintain Cowdroys Road and Lagoon Trail, to what standard must they be maintained? (grounds 3-6)

3. Assuming the respondent is obliged to maintain Cowdroys Road and Lagoon Trail, has there been an unreasonable delay in that maintenance? (grounds 7-13)

4. What relief, if any, should be granted? (grounds 14-18)

Issue 1: Does the Plan of Management for the National Park require Cowdroys Road and/or Lagoon Trail to be managed and maintained by the respondent? (grounds 1 and 2)

Decision of the primary judge on issue 1

32. The primary judge identified the first issue as whether the Plan of Management required the respondent to manage and maintain the southern section of Cowdroys Road and Lagoon Trail to a particular standard. There was no challenge to her Honour’s finding that the nature and scope of a statutory duty is to be construed by reference to the statutory text considered in context: Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021) 250 LGERA 1; [2021] NSWLEC 92 at [20]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14], [37].

33. The appellant did not contest the primary judge’s approach that the terms of the Plan of Management must be construed in accordance with the principles of statutory construction. Relevant principles here include that the document must be read as a whole so as to give effect to all sections wherever feasible (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71]); where individual words require construction, their ordinary meaning must be considered in context (Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [25]-[41]); and that words will not be added into the reading of a provision unless the words address simple, grammatical, drafting errors which would defeat the object of the provision if uncorrected: Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38].

34. The primary judge held that the respondent has a duty to implement, carry out and give effect to the Plan of Management overall pursuant to s 81 of the NPW Act. The entire Plan of Management document, her Honour found, provides a necessary context for considering the duty owed by the respondent under s 81 of the NPW Act, including by outlining its purpose of guiding the long-term management of the National Park. The primary judge further found that no timeframes are specified for the carrying out of policies and actions identified in the Plan of Management.

35. Her Honour noted that in Pt 6 of the Plan of Management many of the items in Pt 5 are divided into prioritisation categories of low, medium and high priority, without any specified timeframes for carrying out actions. The actions the appellant relied on in cl 5.3.1 items 9 and 10 are not included in Pt 6 in this list of priorities. A note in Pt 6 states “Note: Policies and those actions that are undertaken in the course of day to day park management duties are not necessarily listed below”. The primary judge rejected the submission by the appellant that the day to day activities not prioritised in Pt 6 nevertheless have to be implemented regardless of any other prioritisation of actions in Pt 6.

36. The primary judge held that Pt 6 of the Plan of Management should be read as applying to all other parts of the Plan of Management. Pt 6 is headed “Plan Implementation” and contains opening paragraphs of a general nature referring expressly to the implementation of the whole plan. There was no basis, the primary judge found, for construing Pt 6 as limited in its application only to those clauses in Pt 5 which have been specifically categorised in Pt 6. The general opening words, which expressly state that the Plan of Management is to be implemented subject to availability of staff and funding, should be given work to do. As Pt 6 applies to the whole Plan of Management, any action canvassed at any point throughout the entire document will be subject to Pt 6. As such, the primary judge found at [140] that Pt 6 “imports a necessary discretion as to when and how the duty to implement the [Plan of Management] overall will be carried out based on available staffing and funding”.

37. The primary judge held that there is no constructional basis when the Plan of Management is read as a whole to find that the meaning of cl 5.3.1 (relating to recreational and tourism activities) is informed by cl 5.3.3 (relating to “other uses” including commercial angling and oyster farming). This was important because the extracts central to the appellant’s case – cl 5.3.1 items 9 and 10 – appear under cl 5.3.1 and not 5.3.3. The key issues and desired outcomes in cl 5.3.3 relate to access and use arrangements with commercial anglers to minimise any adverse effects of their operations on park values. Her Honour found at [144] that the fact cl 5.3.1 item 47 lists as a future action the development of a car park and boat launching facility at the eastern end of Lagoon Trail “does not take the statutory construction task in support of the Applicant any further”.

The appellant’s submissions on issue 1

38. The primary judge’s error, the appellant submitted, was that her Honour failed to find that the duty in s 81 of the NPW Act “must equate to an obligation to perform the particular actions constituting the [Plan of Management]”. It was submitted that the primary judge erred in concluding that s 81 of the NPW Act did not impose a duty on the respondent to maintain Cowdroys Road and Lagoon Trail to the nominated standard, within a reasonable time, which time had now elapsed.

39. The primary judge was wrong, the appellant said, to find that Pt 6 of the Plan of Management, with its hierarchy of priorities, created an “unlimited discretion” as to how and when the respondent would carry out the duty to implement the Plan of Management. Her Honour was also wrong, the appellant submitted, to allow the respondent to rely on its own limited funding or staff availability to “negate the need to comply with the specific obligations in the [Plan of Management]”.

40. Instead, the appellant submitted that s 81 of the NPW Act, read together with cl 5.3.1 item 10 of the Plan of Management, imposed a “clear and definite” duty on the respondent to achieve certain road standards within a reasonable time. Section 81 could have been worded differently, the appellant submitted, if the Parliament had intended the duties in the Plan of Management to be carried out “in deference” to the respondent’s internal management priorities.

41. Nor, the appellant submitted, did Pt 6 “undermine” the duty to implement the Plan of Management. Rather, the appellant submitted that Pt 6 “acknowledges and defers to … the requirement in s 81 to carry out and give effect to the [Plan of Management]”. While it “allows the Respondent to distinguish between high medium and low priority actions” it “nowhere identifies that the clause 5.3.1 obligations can be permanently or indefinitely stalled … on the basis of the Respondent’s internal prioritisation decisions or resources”.

42. By instead interpreting Pt 6 in the way her Honour did, the primary judge risked leaving “nugatory” Parliament’s clear intention to impose obligations on the NPWS.

43. The appellant likened the primary judge’s approach to the doctrine of executive deference, developed by the US Supreme Court in Chevron USA, Inc v Natural Resources Defense Council, Inc, 467 US 837 (1984). That doctrine, the appellant said, forms no part of Australian law, referring to Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [56] (Gaudron J).

Consideration of issue 1

44. At the heart of this appeal is a question of statutory construction. Mandamus will lie where a power to be exercised for a statutory purpose exists but the repository of the power declines to exercise the power. In Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51; [1994] HCA 61 Brennan J at 88 explained:

The Commissioner is a public officer vested with a power to be exercised for the purpose, inter alia, of discharging her liabilities. When the power exists and the circumstances call for the fulfilment of a purpose for which the power is conferred, but the repository of the power declines to exercise the power, mandamus is the appropriate remedy even though the repository has an unfettered discretion in other circumstances to exercise or to refrain from exercising the power. …. (emphasis added)

45. The crucial provision is s 81 of the NPW Act. The relevant parts of which are set out at [24] above. The nature and scope of the duty imposed by s 81(1) of the NPW Act, and any discretion to perform the duty imposed, are to be construed by reference to the text of s 81, considered in light of its context and purpose: SZTAL at [14] (Kiefel CJ, Nettle and Gordon JJ); SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20] (Kiefel CJ, Bell and Nettle JJ), [41] (Gageler J), [64] (Edelman J). The primary judge was correct to determine the nature and scope of the respondent’s duty and discretion by reference to the relevant statutory text and in light of its context and purpose.

46. As to the text of s 81(1), the respondent is vested with a power and a singular duty to carry out and give effect to a plan of management. Here, that power and singular duty is for the Secretary to carry out and give effect to (that is, to implement) the Plan of Management for the Mimosa Rocks National Park. Section 81 does not prescribe what it means to “carry out” or “give effect” to a plan of management. It clearly does not specify that a plan of management is carried out or given effect to only if every policy and action it proposes be completed, in a reasonable time or at all.

47. As to context, the legislative materials tend against any conclusion that the legislature intended to require the Secretary to carry out as separate obligations every “policy or action” in a plan of management. When the National Parks and Wildlife Bill 1974 (NSW) was under consideration in the Legislative Council, a member proposed an amendment which would have forbidden the authority responsible for a given protected area from granting an easement contrary to a plan of management. The Minister for Planning and Environment and Vice-President of the Executive Council refused to support the amendment, saying:

The Government is not willing to go that far. As I see the amendment […] it is adequately covered by clause 81(1) in the powers of the director to implement the plan of management. He is obliged to go to a certain stage in his basic obligation to implement the plan. (New South Wales Legislative Council, Parliamentary Debates (Hansard) 30 October 1974, 2309) (emphasis added).

48. Plans of management operate negatively on the powers of the Secretary, who cannot undertake operations in a national park that are not authorised by the relevant plan. So much is plain from the terms by s 81(4). But beyond this restrictive effect, the Secretary’s positive obligation to implement a plan of management is a “basic” one. Nothing in this language supports construing plans of management as containing obligations in every identified “policy and action” to perform discrete duties compellable by mandamus.

49. In its statutory context, s 81(1) envisions that the plans of management the Secretary will administer often will involve multiple, overlapping priorities and will afford the Secretary discretion in how to pursue those priorities. The purpose of the singular duty in s 81 is to ensure the Secretary pursues the implementation of that broad and multifocal duty.

50. This conclusion, that the singular duty imposed on the Secretary by s 81 is to implement the Plan of Management as a whole, is supported by the statutory context, in particular, s 72AA. Section 72 of the NPW Act requires the Secretary to prepare a plan of management for various types of reserved land, including national parks. Section 72AA(1) then lists 23 matters the Secretary must consider when preparing a plan of management. Section 72AA relevantly states:

72AA   Objectives and content of plans of management

(1)   The following matters are to be taken into consideration in the preparation of a plan of management for land reserved under this Act—

(a)   the relevant management principles,

(b)   the conservation of biodiversity, including the maintenance of habitat, ecosystems and populations of threatened species,

(c)   the protection and appreciation of objects, places and structures of cultural significance, and tracts of land,

(d)   the protection of landscape values and scenic features,

(e)   the protection of geological and geomorphological features,

(f)   the protection of wilderness values and the management of wilderness areas,

(g)   the maintenance of natural processes,

(h)   the rehabilitation of landscapes and the reinstatement of natural processes,

(i)   fire management,

(j)   in the case of a plan of management for a national park, nature reserve or karst conservation reserve, the prohibition of the execution of any works adversely affecting the natural condition or special features of the park or reserve,

(k)   the potential for the reserved land to be used by Aboriginal people for cultural purposes,

(l)   the provision of opportunities for public understanding and appreciation of natural and cultural heritage values, including opportunities for sustainable visitor or tourist use and enjoyment of the reserved land,

(m)   the adaptive reuse of buildings and structures,

(n)   the appropriate (including culturally appropriate) and ecologically sustainable use of the reserved land, including use by lessees, licensees and occupiers of the land,

(o)   the preservation of catchment values,

(p)   the encouragement of appropriate research into natural and cultural features and processes, including threatening processes,

(q)   the identification and mitigation of threatening processes,

(r)   the statutory natural resource management, land use management plans and land management practices of land surrounding or within a region of the reserved land,

(s)   the regional, national and international context of the reserved land, the maintenance of any national and international significance of the reserved land and compliance with relevant national and international agreements, including the protection of world heritage values and the management of world heritage properties,

(t)   benefits to local communities,

(u)   the social and economic context of the reserve so as to ensure, for example, that the provision of visitor or tourist facilities is appropriate to the surrounding area or that pest species management programs are co-ordinated across different tenures,

(v)   the protection and management of wild rivers,

(w) the impact of the management and the use of land acquired under Part 11 on the reserved land’s management.

(2)   A plan of management must include the means by which the responsible authority proposes to achieve the plan’s objectives and performance measures.

…

(4)   A plan of management is to contain a written scheme of operations which it is proposed to undertake in relation to the land that is the subject of the plan of management.

51. Section 72AA provides contextual support for the primary judge’s conclusion that the statute permits the Secretary to include a wide discretion in a plan of management as to how and when the specified “desired outcomes” are sought to be achieved:

1. While the 23 factors in s 72AA(1) are not a prescription of the topics a plan of management must address, it is likely that many, and perhaps all of them, will be relevant to a given National Park. Sometimes these priorities may pull in opposite directions (eg (c), preservation of culturally significant “structures”, and (h), rehabilitation of landscapes). In context, the statute authorises the Secretary to create a plan of management containing interacting and competing priorities and leaves it to the Secretary to specify how these priorities will be balanced.

2. Section 72AA(2) speaks of a plan of management’s “objectives and performance measures”. The language of “objectives” is aspirational and contemplates that implementation of the plan will be an ongoing process. The language of “performance measures” contemplates that success in implementing a plan of management does not require a binary consideration of whether all of the plan’s “desired outcomes” have been achieved or not. The successful implementation of a plan of management is a process occurring over time. In context, the Secretary may “perform” the Plan of Management by achieving some identified priorities while deferring and not completing others.

3. Both ss 72AA(2) and (4) use the language of “proposal”. By s 72AA(2), the plan must detail “the means” by which it is “proposed” to achieve the plan of management’s objectives. By s 72AA(4), the plan must contain a “written scheme of operations” the Secretary proposes to undertake. This language contemplates that the details of a plan of management may be aspirational guidelines, rather than an exacting checklist of duties to perform. This language is consistent with a plan of management that allows the Secretary a wide discretion in setting priorities and seeking to achieve the “desired outcomes”.

52. Section 72AA authorises the Secretary to prepare broad, multifocal plans of management. So long as the s 72AA factors are taken into consideration in the preparation of a plan of management, the Secretary is entitled to specify whatever outcomes she wishes to pursue for a given national park, however aspirational or difficult to achieve those outcomes may be. The statute encourages the Secretary to be expansive in the aspirations contained in a plan of management, since s 81(4) (extracted at [24] above) forbids her from undertaking operations that are contrary to the relevant Plan. The inclusion in a plan of management of long-term and resource-intensive goals allows the Secretary to pursue them, within the limits of available budgets and staffing.

53. It cannot have been the legislative intention that, regardless of available funding, the detailed contents of a plan of management, including each and every “policy and action”, provide separate duties, compellable by mandamus, which must be performed within a reasonable time. All national parks, and all plans of management are in competition for limited public funds. The extent to which a plan of management can be carried out or implemented depends on the availability, in a particular funding period, of that public money. Plans of management are intended to and do contain broad statements of aspiration and detailed “policies and actions” but in context the legislature plainly envisaged that the execution of any particular policy or action would be subject to available funding and staff resources.

The structure of the Plan of Management

54. The content of the duty to carry out the Plan of Management for the Mimosa Rocks National Park requires construction of the Plan of Management itself. The Plan of Management identifies various competing priorities in implementing the myriad policies and actions the subject of the Plan of Management. This is unsurprising in a document of 86 pages addressing long-term management of a national park comprising 5,804ha, 20km of coastline and over 4,000km of roads within which are located significant sites of Aboriginal heritage, protected flora and fauna and significant sites of national and international importance. The Plan of Management identifies policies and actions about a vast range of subjects including the management of native and introduced plants and animals, fire management, Aboriginal heritage, non-Aboriginal heritage, promotion of the National Park, management facilities, research and surveying.

55. The Plan of Management is a necessarily multifocal document, with conflicting priorities, under which all decision-making was necessarily “polycentric”, as that term was described by Basten JA in another context in Randren House Pty Ltd v Water Administration Ministerial Corporation (2020) 246 LGERA 1; [2020] NSWCA 14 at [11]-[16] as decisions involving overlapping public policies and different distributive priorities. As explained by Professor Lon L Fuller in a seminal article in 1978 (LL Fuller, “The Forms and Limits of Adjudication” (1978) 92 Harvard Law Review 353, 395):

We may visualise this kind of situation by thinking of a spider web. A pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole. … This is a ‘polycentric’ situation because it is ‘many centered’ — each crossing of strands is a distinct center for distributing tensions.

56. The Plan of Management is best understood as a document identifying numerous “desired outcomes”. Subject to staffing and resources, the Plan of Management specifies 15 separate “desired outcomes”. To label one or more specific policies and actions in the Plan of Management as more important than other policies and actions is to involve the Court in making decisions involving overlapping public policies and different distributive priorities. This is an unlikely legislative intention, as it is inconsistent with the statutory purpose of s 81 which allocates decisions involving overlapping public policies and different distributive priorities to the respondent. The legislature, in enacting s 81, has made clear that such public money as is allocated to NPWS is to be spent by NPWS only on policies and actions identified in a plan of management. The text and context of s 81 of the NPW Act provide no support for the startling proposition that, whatever the amount of public money allocated to NPWS in a particular year, NPWS has a statutory duty to perform every one of the “policies and actions” identified in a Plan of Management within a reasonable time.

57. The primary judge was correct to find that Pt 6 of the Plan of Management gave the respondent a necessary discretion to decide when and how specific policies and actions identified in the Plan of Management should be carried out. Pt 6 provides relevantly:

The implementation of this plan will be undertaken within the annual programs of the Service’s Far South Coast Region. Priorities, determined in the context of Branch and Regional strategic planning, will be subject to the availability of necessary staff and funds and to any special requirements of the Director-General or Minister.

Regional programs are subject to ongoing review, within which, works and other activities carried out in Mimosa Rocks National Park are evaluated in relation to the objectives laid out in this plan.

58. The appellant’s submission about statutory construction proceeds by assertion based upon the premise that the specific duty he asserts exists. The assertion that the primary judge was wrong to allow the respondent to rely on its own limited funding or staff availability to “negate the need to comply with the specific obligations in the [Plan of Management]” makes this clear. Contrary to the appellant’s assertions, Pt 6 of the Plan of Management applies to all parts of the Plan of Management, including Pt 5. The opening words of Pt 6 mandated it: “The implementation of this plan will be undertaken within the annual programs of the Service’s Far South Coast Region.” No qualification is placed on which part of “the implementation of this plan” Pt 6 affects.

59. The Plan of Management, in Pt 6, specifically recognises that not all of the aspirations, called “desired outcomes”, identified in the Plan can be achieved and that decisions based on “priorities” must necessarily be made in each of the “annual programs of the Service’s Far South Coast Region”. The Plan of Management itself makes pellucidly clear that the achievement of any of those priorities are always “subject to the availability of necessary staff and funds”.

60. The text, context and purpose of s 81 make it clear that the primary judge was correct to conclude that the obligation imposed by the section was to undertake the task of carrying out and giving effect to the Plan of Management as a whole. How the respondent undertook that task, in identifying priorities for seeking to achieve the “desired outcomes” by implementing particular “policies and actions” in the Plan of Management was not a matter that the legislature intended to be the subject of judicial review by the Court.

61. On the correct construction of s 81 and the Plan of Management, there is no obligation to improve particular roads in the National Park to which mandamus may lie. The obligation in s 81 is to undertake the task of carrying out and giving effect to the Plan of Management as a whole by seeking to achieve the “desired outcomes” in the context of identifying priorities and taking steps, within budgetary and workforce constraints, to carry out the policies and actions in the Plan of Management. It cannot seriously be suggested that the respondent failed to perform that obligation. The Secretary in preparing the Plan of Management and the Minister in approving it plainly did not intend that all of the identified “policies and actions” in the Plan of Management must be achieved within a particular timeframe or at all. The statute, in context, contemplates that plans of management will involve a large element of operational discretion.

62. Pt 6 of the Plan of Management itself could not be clearer - the implementation of this plan will be undertaken within the annual programs of the Service’s Far South Coast Region. This denotes a limit, at the outset, to the achievement of the identified “policies and actions” in the Plan of Management. The fact that “policies and actions” in the Plan of Management must be undertaken within the annual programs of the Service’s Far South Coast Region contemplates that some “policies and actions” in the Plan of Management may not be undertaken.

63. The fact that Pt 6 recognises “priorities” in and of itself is recognition that not all “policies and actions” in the Plan of Management are necessarily achievable by a particular time or at all; some “policies and actions” must be prioritised over others. In the Plan of Management there is no time by which any of the of the “policies and actions” must be undertaken. The specific limit upon implementation of the Plan of Management based on the availability of necessary staff and funds is consistent with the clear legislative intention of s 81 that judicial review remedies should not be available to enforce the performance of all of the specific policies and actions identified in a plan of management.

The relevant policies and actions

64. The relevant “policy” or “action” said to require the level of maintenance of Cowdroys Road and Lagoon Trail contended for by the appellant is contained in items 9 and 10 of cl 5.3.1 of the Plan of Management. The clause appears in Pt 5 of the Plan of Management, entitled “Management Policies and Actions”. It will be recalled that mandamus is available if the circumstances call for the fulfilment of a purpose for which the power is conferred. The primary judge was correct to conclude that the appellant sought to rely on policies and actions in cl 5.3.1 relating to public access and tourism activities to support a commercial activity. The purpose of cl 5.3.1 of the Plan of Management is to promote public access and tourism activities and not the appellant’s commercial interests.

65. Section 5.3 is entitled “Public Use” and cl 5.3.1 is entitled “Recreational and Tourism Activities”. Clause 5.3.1 is divided into sections concerning “Camping”, “Day Use and Walking” and “Tourism”. Within the “Day Use and Walking” section it states:

Car-based sightseeing opportunities are available along the park road network which consists of:

• All Weather 2WD roads;

• Dry Weather 2WD roads;and

• All Weather 4WD roads.

Most driving is confined to the 2WD roads that provide access to coastal visitor destinations. Other less popular recreational activities include cycling, which is permitted on public access roads and management trails, and horse riding which is restricted to public access roads only.

66. It will be recalled that the “desired outcome” of the policies and actions identified in cl 5.3.1 of the Plan of Management is as follows:

Desired Outcome

The role of the park in providing nature-based tourism experiences is recognised, with an appropriate range of recreational opportunities being catered for consistent with the protection of the natural and cultural values of the park.

67. This “desired outcome” is plainly aspirational. The “role” of the National Park is identified for this purpose as “providing nature-based tourism experiences” with an “appropriate range of recreational opportunities”. All of these outcomes must be “consistent with the protection of the natural and cultural values of the park”.

68. The “Policies and Actions” identified as giving effect to this “desired outcome” are then addressed over five pages, being “General”, “Vehicular Access”, “Camping”, “Picnicking”, “Walking” and “Other Activities”.

69. It could not be clearer that the two relevant policies or actions, maintaining Cowdroys Road and Lagoon Trail to the identified standards, are an aspect of achieving the aspirational or desired outcome of providing “nature-based tourism experiences”. That, in context, is the “purpose for which the power is conferred” in the language of Brennan J in Royal Insurance. The policies and actions in cl 5.3.1 are not to be read out of context as free-standing obligations, amendable to orders of mandamus via judicial review. Much less are the two relevant policies or actions, maintaining Cowdroys Road and Lagoon Trail, to be understood as creating an obligation for the benefit of commercial operators, as the appellant seeks to construe them.

70. The critical policies and actions in items 9 and 10 are contained within “Vehicular Access”:

9    Permit public vehicular use along the following access routes only (refer Figure 4):

- Aragunnu Road;

- Cowdroys Road;

- Gillards Road;

- Goats Knob/Quarry Road;

- Lagoon Trail (also known as Nelson Creek Trail);

- Middle Beach Road;

- Mogareeka Village Trail;

- Mumbulla Creek Road;

- Nelson Beach Road;

- Goalen North Road;

- Penders Road;

- Picnic Point Road;

- Kings Ridge Trail;

- Mount Peter Trail; and

- Goalen South Road.

10    Manage park roads to All Weather 2WD standard thoroughfares except for Goats Knob/Quarry Road, Kings Ridge Trail, Mount Peter Trail and Cowdroys Road which will be maintained to All Weather 4WD standard.

71. In context, those policies and actions are addressed to the purpose identified in the “desired outcome” of recreational access to the National Park. The appellant is not entitled to mandamus to pursue a commercial purpose.

“ACTIVITY 3 - EASTERN USE AREA

The eastern use area is estimated to have regular visitation and is noted as being a recreational fishing haven by DPI (Fisheries). The works proposed would facilitate improved access for fishing and a proposed future small vessel (e.g. canoe) facilities.

The foreshore of Nelsons Lagoon in the eastern use area has been eroded over a long period of time with a variety of causal factors such as; inappropriate land-based visitor access, flooding / water erosion, wave action due to boat use. Toe bank protection works are required to remediate the area and to minimise erosion of the bank in future.” (Blue 380)

193. The proposed works then in contemplation included improving access tracks to 4WD all-weather standard, not to a 2WD all-weather standard.

194. The proposed works also included work on Cowdroys Road to improve existing tracks to a 4WD all-weather standard. The proposed works also included:

“Activity 4 - Southern end improvements

• Toe bank protection works including erosion and sediment controls (Figure 4-10).

Placement of coir logs and/or timber logs and gabion rock along toe of bank and Mangrove planting behind logs on bank (Figure 4-5).

• Installation of a ramp for boat access by oyster farmer (Figure 4-10).

Preparation for boat ramp installation using appropriate size machinery and plant specific to the works required.

Preparation of the shore side footing for the new boat ramp with appropriate size machinery and plant specific to the works required.

The existing footprint (an any associated in-situ materials) within Nelsons Lagoon from old boat ramp would be re-used / purposing of the [sic] to construct new boat ramp.”

195. These works were further described as follows:

“ACTIVITY 4 - SOUTHERN END IMPROVEMENTS

The Southern end of Cowdroys Road is currently used by the oyster farmer to access oyster leases within Nelsons Lagoon. There is evidence of informal boat access being obtained and managed by the Oyster Farmer. This location has evidence of bank erosion has been identified as requiring remediation. The rehabilitation of the existing natural area to provide a ramping effect to allow for boat access by the oyster farmer, and toe bank protection works are proposed to address these issues.” (Blue 381)

196. The reviewer concluded that the carrying out of the proposed works, including the proposed improvements at the southern end, would address the objectives of the proposal, which were to improve sediment runoff and erosion controls and install a ramp for boat access by Mr Neilson.

197. On 31 March 2021, a delegate of the Minister Administering the Crown Land Management Act 2016 (NSW) granted a licence to Local Land Services South East (Bega) to have access to the bed and bank of the Nelson Lagoon for the purpose of “Environmental Rehabilitation Erosion Control Works and Regeneration”. An overview of the project prepared by Local Land Services (South East) stated:

“Bega Valley Shire Council completed a Rapid Catchment Assessment in 2016 to identify catchment and foreshore issues impacting on water quality and estuary health. Sections of bank erosion and the poor condition of access roads adjacent to the lagoon are identified as key management actions for this area. The Mimosa Rocks National Park Plan of Management (2011) also recognises closure and rehabilitation of access tracks as a priority management action.

Therefore through the Marine Estate Management project works to upgrade roads and tracks, improve drainage and manage vehicle access have been funded through a partnership project between NPWS and LLS.

Included in this project is 25 m of bank protection works on the southern side of the lagoon (see Figures 1 and 2). Banks in this area are ~ 0.5 m in height and suffering erosion from a lack of riparian vegetation and human traffic. Bank protection works followed by revegetation in conjunction with managing vehicle access (so that only pedestrian/kayak movement will be feasible in this area) will be undertaken through this project.

Project works

Specifically bank protection works will include:

•    Installation of large logs (collected as fallen timber from the park) along the toe of the bank on the narrow beach for 25 m. Logs will be keyed in together so that they provide a continuous wall for erosion protection and will be pushed into place using machinery. There will be no excavation into the bed and works will occur at low tide so that there is no impact on water quality.

•    Planting of 200 tube stock on the bank face or behind the logs.

•    Collection of local mangrove seeds and planting in and behind the structure.”

NPWS’s advice in 2020

198. On 28 February 2020, NPWS informed Mr Neilson (amongst others) that works had been scheduled to commence on Cowdroys Road and Lagoon Trail in the near future. NPWS stated that the works would “…improve access and water management along Cowdroys Road and Lagoon Trail adjacent to Nelson Lagoon”. The email stated:

“We have scheduled work to start on 27th April after the school holidays, with the aim to have it completed by 30 June 2020 as in the original project plan - weather permitting.

NPWS and South East Local Land Services appreciates the frustration some stakeholders feel about the delay in work beginning. The initial delay was because of increasingly severe drought conditions through winter and spring 2019. We decided to delay earthworks to avoid an unacceptable risk of silt impacting water quality in the Nelson Lagoon. This silt would have come from buildust created by the earthworks and increased vehicle movements on soils with a negligible moisture content.”

199. On 26 March 2020, the chair of the NSW Shellfish Committee, Associate Professor Shauna Murray, advised Mr Neilson as follows:

“I can inform you that in regard to your concerns regarding the lack of adequate road access for oyster farmers at Nelson Lagoon to enable road access to oyster leases at Nelson Lagoon, NSW National Parks and Wildlife Service has informed Shellfish Committee that roadworks to provide boat access to Nelson Lagoon for estuary users is scheduled for completion by the end of June 2020.”

200. This evidence of the advice given by NPWS to the Shellfish Committee was hearsay. But the letter was admitted without objection.

2022 Tender for work on Cowdroys Road

201. A tender for works on Cowdroys Road was awarded to a private contractor for a price of $145,000 on 25 May 2022. The work for which the tender was awarded was for the upgrading of existing fire and vehicle access tracks . This did not include the track at the southern end of Cowdroys Road.

Inferences as to NPWS’s decisions

202. It is evident from NPWS’s commissioning of NGH Environmental Pty Ltd’s Review of Environmental Factors that at some point before July 2019, NPWS determined not to upgrade Lagoon Trail to a 2WD all-weather standard and to close access to the lagoon from the eastern end of the track for boats larger than a kayak or canoe. It is also evident from the tender issued for works on Cowdroys Road that between March 2020 when NGH Environmental Pty Ltd’s Review of Environmental Factors was issued, and May 2022, when the tender was issued, NPWS must have decided not to pursue the previously proposed “Activity 4” for the works at the southern end of Cowdroys Road.

203. NPWS gave no evidence as to when, how or why those decisions were made.

204. Ms Issaverdis and Mr He for NPWS gave evidence, in very similar terms, as to how the allocation of funding for road and trail management was allocated. Their evidence is summarised in the reasons of Payne JA at [8]-[14]. Neither explained why the funding described in the letter from the Department of Primary Industries to Mr Neilson of 17 May 2019, or that described in the email from the Chair of the NSW Shellfish Committee to Mr Neilson of 26 March 2020 was not available.

205. Ms Issaverdis deposed that in the 2021-22 financial year Eurobodalla operating area received $500,000 in tied funding for roads and an additional $100,000 was allocated for roads from an operational expenditure budget of $990,000. All of that money was spent . Neither Ms Issaverdis nor Mr He said whether funding for the proposed Activity 4 on the southern end of Cowdroys Road had been sought but not approved, or whether it had not been sought. Their evidence was in generalities.

206. An agreed chronology of works undertaken to Cowdroys Road in 2020 includes that between 17 April and 26 May 2020 over $100,000 was spent on “sheeting and drainage reinstatement” and “assist contractor upgrade of road”. This money was not spent on the management trail at the southern end of Cowdroys Road to allow Mr Neilson access to the lagoon.

Substantive relief sought

207. The substantive relief sought by Mr Neilson was as follows:

“3    … order that:

a.    The Respondent do such work and take such steps as are necessary to upgrade Lagoon Trail to an all weather 2WD standard within 28 days. The works to comprise:

i.    reducing the height, and easing the grade, of the cross bank nearest to the northern end of Lagoon Trail to a maximum of 15 degrees;

ii.    regrading the road over a length of 30 metres to the new car park; and

iii.    removing the logs that impede access to the mean high water mark at the end of Lagoon Trail.

b.    The Respondent do such work and take such steps as are necessary to upgrade Cowdroys Road to an all weather 4WD standard within 28 days. The works to comprise:

i.    ensuring the grade at CH800 is not greater than 15 degrees;

ii.    reducing the height of the cross bank at CH1400 so it is no greater than 15 degrees;

iii.    regrading so that the grade from CH1400 to CH 1642 is no more than 15 degrees; is not greater than 15 degrees; and

iv.    placing a gravel surface over the road from CH200 to CH1400.

…”

The Legislation

208. Section 81 of the National Parks and Wildlife Act 1974 (NSW) (“NPW Act”) relevantly provides:

“81 Operations under plan of management

(1)    Where the Minister has adopted a plan of management for a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area or wildlife refuge, it shall, subject to subsections (5) and (6), be carried out and given effect to by the Secretary.

…

(4)    Subject to subsection (4A), despite anything in this or another Act or in an instrument made under this or another Act, if the Minister has adopted a plan of management under this Part, no operations may be undertaken in relation to the lands to which the plan relates unless the operations are in accordance with the plan.”

209. Section 193 relevantly provides:

“193 Restraint etc of breaches of Act or regulations

(1)    Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

...

(4)    In this section, breach includes a threatened or apprehended breach.”

The Plan of Management

210. Relevant provisions of the plan are set out in the reasons of Payne JA at [28]. Mr Neilson relies upon s 5.3.1. This section is in a part headed “Management Policies and Actions”. Section 5.1 is headed “Natural Heritage”. Section 5.2 is headed “Cultural Heritage”. Section 5.3 is headed “Public Use”. Section 5.3.1 is headed “Recreational and Tourism Activities”. In this section under the heading “Desired Outcome”, the plan states:

“The role of the park in providing nature-based tourism experiences is recognised, with an appropriate range of recreational opportunities being catered for consistent with the protection of the natural and cultural values of the park.”

211. In s 5.3.1 under sub-headings “Policies and Actions” and “General”, the plan provides that public vehicular access should be permitted along Cowdroys Road and Lagoon Trail, that Park roads should be managed to all-weather 2WD standard thoroughfares except for Cowdroys Road, which was to be maintained to all-weather 4WD standard (Items 9 and 10). This is not to imply that Lagoon Trail and Cowdroys Road were singled out for special attention. Other roads were also referred to.

212. The plan of management does not provide for the development of a boat launching facility terminus at the southern end of Cowdroys Road.

213. Section 5.3.3 of the Plan is headed “Other Uses”. It states that the Desired Outcome of this part of the plan is that agreements be in place with aquaculture lessees, amongst others, that are designed to minimise the impacts of their activities. To achieve or advance that outcome the plan stated (under the heading “Policies and Actions”) that operations should be covered by a lease, licence, or other formal agreement. Section 5.5.3 provides:

“Oyster leases licensed by the Department of Primary Industries are located in the Nelson Lagoon area. Eight growing leases are present within Nelson Lagoon with an additional four leases situated in Nelson Creek (Clarkes Bay). Two catching leases exist at the mouth of the lagoon. All of these lessees have vehicular access through the park to their lease areas. Various materials associated with the Nelson Lagoon growing leases are located within the park, as is a loading ramp at Nelson Creek.

None of these facilities or the vehicular access arrangements are currently covered by leases or licences.”

214. By the time the plan was promulgated in 2011 this statement was out of date. Mr Neilson did not have vehicular access through the park to a point at which he could launch a boat to his lease area.

215. At no time did NPWS propose any formal licence for Mr Neilson.

216. Section 5.5 is headed “Management Facilities and Operations”. Under the sub-heading “Policies and Actions”, item 4 refers to the maintenance of specified “vehicular tracks for management purposes”. These are the fire trails or access tracks to be maintained to a minimum standard of all-weather 4WD roads. The tracks specified did not include the track at the southern end of Cowdroys Road. Because the primary judge found that the management track at the southern end of Cowdroys Road was part of Cowdroys Road, and that was not in issue on the appeal, nothing turns on the absence of reference in s 5.5 to the Cowdroys Road track.

Section 6 under the heading “Plan Implementation” provides:

“The implementation of this plan will be undertaken within the annual programs of the Service’s Far South Coast Region. Priorities, determined in the context of Branch and Regional strategic planning, will be subject to the availability of necessary staff and funds and to any special requirements of the Director-General or Minister.

…

As a guide to the implementation of this plan, relative priorities have been assigned to actions in the plan as summarised below. The following criteria have been used to allocate priorities:

High    Imperative to achievement of the management objectives for the park. Must be undertaken in the near future to avoid significant deterioration in the condition of natural, cultural or recreational values.

Medium    Necessary to achieve the management objectives for the park but not urgent.

Low    Desirable to achieve management objectives but can be deferred until resources become available.”

Matters not in issue

217. A question was raised during the hearing of the appeal whether, in cl 9 of the Plan of Management, “Cowdroys Road” included the management trail at the southern end of the road. This is not clear from the map attached to the plan. The primary judge found that it did (J [51]) and there is no notice of contention.

218. Mr Neilson did not contend that NPWS was in breach of item 47 of section 5.3.1 of the Plan of Management in not having developed a site plan at the eastern end of Lagoon Trail for a boat launching facility.

Interpretation of the Plan

219. Mr Lancaster SC, who appeared with Ms McKelvey for NPWS, submitted that the Plan of Management did not impose a statutory duty requiring the constant maintenance of the two roads that were the subject of the applicant’s case. He submitted that the applicant’s formulation of the Secretary’s duty was too specific and that the Plan of Management should be read as stating an aspiration that maintenance of the Cowdroys Road and the Lagoon Trail to the standard specified would be achieved, but the Secretary could indefinitely defer taking any of the steps required to carry out the provision in section 5.3.1 referred to at [211] above. He submitted that this was not because the Secretary might be constrained indefinitely by budgetary considerations where other work of higher priority had to be attended to, but because the plan did not stipulate a time for achievement of the objective of upgrading Cowdroys Road and the Lagoon Trail to the specified standards, and also, because the Plan of Management required that the actions stipulated was expressly subject to “budget and policy”, there could be a long-term deferral of the works. He submitted that:

“The duty has not been refused to be performed…The Secretary is underway with the process of complying with the duty, on the evidence, subject to other priorities to which she is subject and [to which] regard [is] required to be had by the Plan of Management. Mandamus does not lie for this kind of alleged conduct…Mandamus…doesn’t lie to stipulate how a discretion is to be exercised. We’re in analogous territory here…”

220. He also submitted that the Secretary’s duty was to give effect to the Plan of Management and there was no allegation that the Secretary was not giving effect to the Plan of Management. This was a reference to the carrying out of the Plan of Management as a whole. He submitted that mandamus could not lie unless each and every action specified in the Plan of Management was subject to a specific and separate duty.

221. Payne JA considers that the Secretary’s obligation to “carry out” and “give effect to” a plan of management does not require that the Secretary carry out or give effect to every policy and action specified in the Plan of Management in a reasonable time or at all (at [46]).

222. I respectfully disagree. There is no doubt that the Plan of Management must be read as a whole and that the specific and general obligations of the Secretary to carry out and give effect to the plan are subject to the Secretary’s discretion, particularly the discretion in Part 6 under the heading “Plan Implementation”. In particular, implementation of the plan is subject to the determination of priorities determined “in the context of Branch and Regional strategic planning” and “subject to the availability of necessary staff and funds and to any special requirements of the Director-General or Minister”.

223. But subject to those matters, where a plan of management requires that specific action be taken, compliance with the Secretary’s obligation under s 81 of the Act to “carry out” and “give effect to” the plan requires the Secretary to carry out and give effect to all the plan, including specific actions required by the plan.

224. The terms of the plan make that obligation subject to the availability of staff and funding, strategic planning and competing priorities. But that does not derogate from what s 81 requires by its express words. Not every action has to be taken at once, but within a reasonable time having regard to the allocation of priorities, available staff and funding and “special requirements” of the Director-General or the Minister.

225. This is reinforced by s 193 which entitles any person to bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of s 81. It may be expected that particular individuals would have an interest in enforcing particular obligations required by a plan of management. The fact that any person can bring proceedings to enforce the obligation of the Secretary to carry out and give effect to a plan of management suggests that, where any person perceives that a matter in which he or she is interested has been neglected by the Secretary’s asserted failure to carry out the Plan of Management, a failure to carry out the Plan of Management in a specific respect is capable of remedy. An individual complainant might have no means of knowing whether the Secretary had failed to carry out a plan of management at all, or as a whole.

220. Mr Neilson did not seek a mandatory injunction in reliance on s 193(1). His application in the Land and Environment Court sought orders without identifying the legislative source of those orders. In the Land and Environment Court the NPWS noted that Mr Neilson’s summons was silent in respect of the power relied upon. The NPWS submitted that it was unclear whether Mr Neilson was relying upon s 20(2)(b) of the Land and Environment Court Act 1979 (NSW), being a general power of the Court to “review, or command, the exercise of a function conferred or imposed by a planning or environmental law…”. The NPWS noted that there was a more direct power the Court had to remedy or restrain a breach of the NPW Act in s 193 of that Act. It accepted that:

“…the Court has power to civilly enforce s 81 of the NPW Act as the Applicant seeks to do if the Court is satisfied there is an obligation on the Respondent to implement the Plan of Management (POM) for Mimosa Rocks National Park as alleged by the Applicant and that obligations have been breach as alleged.”

227. In oral submissions in the Land and Environment Court, counsel for Mr Neilson said that he relied upon s 22(1)(b) of the Land and Environment Act but did not disclaim reliance on s 193.

228. I respectfully disagree with Payne JA’s observations (at [50]-[53]) that the competing and diverse matters to be considered by the Secretary under s 72AA of the Act in preparing a plan of management support the conclusion that the obligation imposed upon the Secretary by s 81 is not to carry out specific actions that may be required by a plan of management, but only to carry out the Plan of Management as a whole.

229. Section 72AA specifies matters that are required to be considered by the Secretary in preparing a plan of management. They are general and wide-ranging. I agree with Payne JA that they authorise the Secretary to prepare broad and multifocal plans of management. But to be effective, a plan of management must not only be multifocal and aspirational, but also specific.

230. In this case, the Plan of Management is appropriately specific.

231. I agree with Payne JA that the extent to which a plan of management can be carried out or implemented depends on the availability in a particular funding period of that public money (at [53]). That is, expressly provided for in the Plan of Management in question in this case. NPWS’s evidence fell well short of establishing that if funding had been requested for the works to upgrade the southern end of the track at Cowdroys Road or to improve Lagoon Trail to a 2WD all-weather standard it would not have been available.

232. No such explanation was provided by Mr He, nor by Ms Issaverdis. in their affidavits. They spoke in general terms about how the NPWS prioritised the allocation of funds for roads and trail networks. When Mr He was asked about his knowledge as to whether Mr Neilson had himself offered to fund or contribute to the funding of the maintenance or upgrade of Lagoon Trail or Cowdroys Road, he said that he was not involved in “operations”. His evidence was given at a higher level of generality than the question of whether there was actually enough money, with or without contributions from Mr Neilson, to upgrade Lagoon Trail or Cowdroys Road if an appropriate request for funding had been made.

233. Neither Mr He nor Ms Issaverdis addressed the report of Associate Professor Sean Murray of 26 March 2020 that the Shellfish Committee had been told that roadworks to provide boat access to Nelson Lagoon for estuary users was scheduled for completion by the end of June 2020.

234. Ms Issaverdis and Mr He did not explain with any specificity why the NPWS did not have available funding in 2020 or later to upgrade Cowdroys Road to all-weather 4WD standard, or to upgrade Lagoon Trail to all-weather 2WD standard. They did not say whether funding had been requested.

235. I accept Mr Neilson’s submission that by 21 January 2022 (when proceedings were commenced) more than a reasonable time had passed for NPWS to comply with the requirements to upgrade Lagoon Trail to a 2WD standard and Cowdroys Road to a 4WD standard.

236. NPWS did not adduce evidence that work was not done because of the absence of staff, or because requests for funding had been made but refused, or higher priority had been allocated to other works.

237. I do not accept NPWS’s submission that the Secretary had not refused to comply with the requirements of items 9 and 10 of s 5.3.1 that Lagoon Trail be managed to an all-weather 2WD standard and Cowdroys Road to an all-weather 4WD standard. Certainly there was no express refusal. To the contrary, assurances were given which were not honoured. But as I concluded at [202] NPWS determined not to take those actions.

238. Accordingly, I do not accept NPWS’s submission that this case is analogous to one where mandamus to enforce a duty that is subject to a discretion will not lie to stipulate how the discretion will be exercised.

Discretionary Considerations

239. Prerogative relief by way of mandamus (or mandatory injunctive relief under s 193) is discretionary.

240. Mr Neilson’s purpose in seeking the relief claimed is to obtain vehicular access to the edge of the lagoon, not only with his 4WD car, but with an attached trailer carrying a boat, so as to be able to launch the boat into the lagoon and tend to his oyster lease.

241. The blocking of access to the lagoon at the eastern end of Lagoon Trail was done for what appear to be good reasons that are consistent with what I infer to be the Branch’s strategic planning for the prevention of degradation of the bank of the lagoon. Mr Neilson did not allege that NPWS was in breach of its obligation under item 47 to prepare a site plan for the installation of a boat launching facility at that point. The plan of management did not require NPWS to provide a boat launching facility at the eastern end of Lagoon Trail. It did not act unlawfully in placing a barrier at the end of the trail to prevent vehicular access to the water’s edge.

242. An order for the upgrading of the Lagoon Trail from a 4WD to a 2WD standard would not advance Mr Neilson’s interest unless he could also obtain access to the waters of the lagoon.

243. The relief sought related not only to the upgrading of the trail, but also to the removal of the coir logs. There is uncontradicted evidence that that would be damaging to the conservation of the bank. It is not a measure relevant to the relief that the trail be maintained to a 2WD standard. There would be no ground for making that order. Without it, the relief sought in relation to the Lagoon Trail would be inutile.

244. For these reasons, as a matter of discretion, I would refuse the relief sought in order 3(a) of the amended notice of appeal.

245. The Plan of Management does not require that Cowdroys Road be constructed to a standard that would enable a 4WD vehicle to traverse the road carrying a boat trailer. It neither requires nor permits the construction of a boat launching facility at the southern end of Cowdroys Road as had been proposed by NPWS in 2021. (That fact would have been a sufficient reason for NPWS’s not seeking funding for the work described as proposed Activity 4 in the review of NGH Environmental Pty Ltd.)

246. Neither Mr Legler nor Mr Wearne expressed a view as to whether bringing the southern end of Cowdroys Road to an all-weather 4WD standard (which would require reducing the gradient) would thereby also enable the track to be traversed by a 4WD vehicle with a trailer and boat attached. Even if upgrading the track to all-weather 4WD standard would allow trailer and boat access to the end of the road, there is no evidence as to how the boat could be launched without modifications to the bank of the lagoon to provide a ramp. Thus there is no evidence that Mr Neilson would obtain any practical advantage if the management track at the southern end of Cowdroys Road were brought to a 4WD all-weather standard, but not to a standard that enabled a 4WD vehicle to traverse the track towing a boat trailer, and without modifications to the eroded bank to enable him to launch his boat. The NPWS had no obligation to carry out the latter works. Mr Neilson could not lawfully do the works himself.

247. It is unnecessary to consider whether, if Mr Neilson were otherwise successful, the specific relief sought would be appropriate, or whether only declaratory relief should be given. The availability of funding in the current budgetary period, and the availability of staff and contractors, would be relevant to that question.

248. For these reasons, as a matter of discretion I would refuse the relief sought in order 3(b) of the amended notice of appeal.

249. It follows that neither of the orders sought by the appellant can be made.

250. The appeal should be dismissed with costs.

**********

ANNEXURE A

**********

Decision last updated: 21 February 2024