Walden v Administration of Norfolk Island

[2007] NFSC 7

SUPREME COURT OF NORFOLK ISLAND

Walden v Administration of Norfolk Island [2007] NFSC 7

PROPERTY – property listed in the Heritage Register – whether land is adversely affected by its inclusion – whether land be removed from the Register – 1988 Conservation Management Plan – operation of the Heritage Act 2002 – heritage proposal and variation process – operation of the Norfolk Island Plan 2002 – whether unlawful acquisition of property without compensation – procedural fairness  – whether decision-maker under a duty to notify person affected of any rights of challenge – whether criteria must be applied to the portion in question

The Constitution (Cth) s 51 (xxxi)

Heritage Act 2002 (NI) ss 6, 7, 11, 12, 13, 14, 15

Land Titles Act 1996 (NI)

Norfolk Island Act 1979 (NI) ss 13, 19

Norfolk Island Planning Act 2002 (NI)

Norfolk Island Planning and Environment Board Act 2002 (NI)

Chapman v Luminis Pty Ltd (No 4) (2002) 123 FCR 62 Considered

Commonwealth of Australia v Tasmania (1983) 158 CLR 1 Cited

Mutual Pools and Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 Cited

Secretary, Department of Health v Harvey (1990) 21 ALD 393 Cited

ETHELYNE YVONNE WALDEN v ADMINISTRATION OF NORFOLK ISLAND
SC 11 OF 2006

KIEFEL J
24 JULY 2007
BRISBANE (BY VIDEO LINK) (HEARD ON NORFOLK ISLAND)

IN THE SUPREME COURT
NORFOLK ISLAND	SC 11 OF 2006

ETHELYNE YVONNE WALDEN
PLAINTIFF

ADMINISTRATION OF NORFOLK ISLAND
DEFENDANT

JUDGE:	KIEFEL J
DATE OF ORDER:	24 JULY 2007
WHERE MADE:	BRISBANE (BY VIDEO LINK) (HEARD ON NORFOLK ISLAND)

THE COURT ORDERS THAT:

1.The plaintiff’s application is dismissed.

2.The plaintiff is to pay the defendant’s costs of the action, including any reserved costs, such costs to be taxed failing agreement.

IN THE SUPREME COURT
NORFOLK ISLAND	SC 11 OF 2006

ETHELYNE YVONNE WALDEN
PLAINTIFF

ADMINISTRATION OF NORFOLK ISLAND
DEFENDANT

JUDGE:	KIEFEL J
DATE:	24 JULY 2007
PLACE:	BRISBANE (BY VIDEO LINK) (HEARD ON NORFOLK ISLAND)

REASONS FOR JUDGMENT

1. The plaintiff is the registered proprietor of land at Beefsteak Road, Norfolk Island described as Portion 91b of Lot 4, Section 18, pursuant to the Land Titles Act 1996 (NI).  The land was transferred to her by her father, Mr George Olsson, in 2002.  The property (‘the Beefsteak’) is some 10.61 hectares in size and is unimproved, apart from some fencing.  A small triangular portion of the land, on its north-east corner is contained within the Kingston and Arthur’s Vale Historic Area (the ‘KAVHA’) and listed in the Heritage Register established under the Heritage Act 2002 (NI) (the ‘Heritage Act’).  The plaintiff’s case is that the land is adversely affected by its inclusion in each of the KAVHA and the Heritage Register.  Amongst the orders that she seeks is one that it be removed from the Register.

   BACKGROUND

2. In April 1980 the Australian Government published the Kingston and Arthur’s Vale Historical Area Management Plan.  A map of the Area, which is some 250 hectares, appeared as Figure 1 of the Plan.…