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Slack-Smith v Director-General of the Department of Land and Water Conservation

Slack-Smith v Director-General of the Department of Land and Water Conservation

Case [2003] NSWLEC 189 22 August 2003

Judicial Review

Natural Justice & Procedural Fairness

Proportionality

Legitimate Expectation

Separation of Powers

Statutory Interpretation

Administrative Law

Environmental Law

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Land and Environment Court

of New South Wales

CITATION: Slack-Smith and Another v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 189

PARTIES:
APPLICANTS
Ross Slack-Smith
Genise Janet Slack-Smith
RESPONDENT
Director-General of the Department of Land and Water Conservation

FILE NUMBER(S): 40856 of 2002

CORAM: Talbot J

KEY ISSUES: Judicial Review :- failure to afford procedural fairness
natural justice where appeal allowed - Wednesbury unreasonableness - test of satisfaction or jurisdictional fact - whether estoppel against requirement for development consent - severance of invalid conditions
Estoppel :- cannot prevent exercise of statutory discretion - cannot waive requirement for approval - advice that consent not required cannot raise estoppel

LEGISLATION CITED: Interpretation Act 1987 s 9
Local Government Act 1919 s 317B(5)
National Parks and Wildlife Act 1974
Native Vegetation Conservation Act 1997 s 4, s 21(2), 21(2)(a), s 47, s 47 (1), s 47(1)(a), s 47(2), s 48, s 48(1), s 48(2), s 68,
Noxious Weeds Act 1993
Rural Fires Act 1997
Rural Lands Protection Act 1998
Western Lands Act 1901 s 18DB
Western Lands Regulation 1997 s 29, Sch 4

CASES CITED: Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223;
Brickworks Limited v The Council of the Shire of Warringah (1963) 108 CLR 568;
Cann's Proprietary Limited v The Commonwealth and Another (1946) 71 CLR 210;
Corporation of the City of Enfield v Development Assessment Commission and Another (2000) 199 CLR 135;
Cox & Hazel Pty Ltd v Gidney [1981] 1 NSWLR 468;
Ex parte Hernes Estates Pty Ltd; Greater Wollongong City Council and Another (1967) 14 LGRA 102 at 108;
Julius v Oxford (Bishop) 49 LJ QB 585; 5 App Cas 235;
King Gee Clothing Company Proprietary Limited and Others v The Commonwealth and Another (1945) 71 CLR 184;
Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1985-1986) 162 CLR 24;
Mison and Others v Randwick Municipal Council and Others (1991) 23 NSWLR 734 Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17, unreported;
R v East Sussex County Council; Ex parte Reprotech (Pebsham) Ltd [2002] 4 All ER 58;
The Council of the City of Parramatta v Pestell (1972) 128 CLR 305;
The Melbourne Steamship Company Limited v Moorehead (1912) 15 CLR 333 Pyneboard Pty Ltd and Others v Trade Practices Commission and Bannerman (1982) 39 ALR 565;
Thompson and Others v The Council of the Municipality of Randwick (1950) 81 CLR 87 at 105-6;
Twist v The Council of the Municipality of Randwick (1976) 136 CLR 106;
Wyong Shire Council v Associated Minerals Consolidated Ltd and Another [1972] 1 NSWLR 114

DATES OF HEARING: 09/07/2003, 10/07/2003, 11/07/2003

DATE OF JUDGMENT:
08/22/2003

LEGAL REPRESENTATIVES:

APPLICANTS
Mr M A Robinson (Barrister) with Mr M H Baird (Barrister)
SOLICITORS
Navado Chartered Accountants and Solicitors
RESPONDENT
Ms J C Kelly (Barrister)
SOLICITORS
Department of Infrastructure, Planning and Natural Resources (formerly Department of Land…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Slack-Smith v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 189
Case: [2003] NSWLEC 189
Decision Date: 08/22/2003

CaseChat Overview and Summary

The applicants, Ross Slack-Smith and Genise Janet Slack-Smith, were issued a Direction to Carry out Remedial Work by the Director-General of the Department of Land and Water Conservation. The applicants sought judicial review of the Direction in the Land and Environment Court of New South Wales, seeking a declaration that the Direction was unlawful and an order that it be set aside. The applicants also sought an order that the Director-General be estopped from issuing any further notice against them in respect of the property. The applicants challenged the Direction on several grounds, including the claim that it was issued without procedural fairness and was unreasonable, uncertain, based on irrelevant considerations, and in excess of jurisdiction. The applicants also claimed that they were estopped from challenging the Direction due to representations made by officers of the respondent.

The court held that it was open to the Director-General to be satisfied that native vegetation had been cleared in contravention of the Native Vegetation Conservation Act 1997, and therefore, the decision to issue the Direction was not so unreasonable as to be invalid. The court found that the claimed oral and written approvals from DLWC officers could not be regarded as a development consent, nor could they give rise to an estoppel. The court also held that certain conditions in the Direction were unreasonable and therefore void but severable. These conditions included those related to the control of noxious weeds, pest animals, and property maintenance, as well as some specific prohibitions. The court allowed the remaining parts of the Direction to remain in force, as they constituted directions to carry out work related to the rehabilitation of the cleared land.

The court made the following declarations and orders:

1. Conditions 3.3, 6.1, 6.2, 7.1, 7.2, 7.4, 7.5, and 7.6 of the Direction were void.
2. Conditions 3.3, 6.1, 6.2, 7.1, 7.2, 7.4, 7.5, and 7.6 were severed and deleted from the Direction.
3. Costs were reserved.
4. The exhibits could be returned.

Orders