Wilson v Lord Howe Island Board

[2019] NSWSC 724

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Wilson v Lord Howe Island Board [2019] NSWSC 724
Hearing dates:	6 June 2019
Decision date:	18 June 2019
Jurisdiction:	Equity
Before:	Ward CJ in Eq
Decision:	1. Plaintiff’s claim be dismissed with costs.
Catchwords:	EQUITY – Equitable remedies – Injunctions – proper construction of conditions of a permit obtained from the Australian Pesticides & Veterinary Medicines Authority – whether injunctive relief should be granted as a matter of discretion
Legislation Cited:	Administrative Appeals Tribunal Act 1975 (Cth), ss 43AA, 44 Agricultural and Veterinary Chemicals (New South Wales) Act 1994 (NSW), s 5 Agricultural and Veterinary Chemicals Code Act 1994 (Cth), ss 4, 109, 112, 113, 114, 115, 116, 118, 119, 167, Pt 7 Civil Procedure Act 2005 (NSW), s 56 Environment Protection and Biodiversity Conservation Act 1999 (Cth) Environmental Planning and Assessment Act 1979 (NSW) Lord Howe Island Act 1953 (NSW), ss 4, 10, 11 Marine Estate Management (Management Rules) Regulation 1999 (NSW) Marine Estate Management Regulation 2017 (NSW) Pesticides Act 1999 (NSW), s 6 Therapeutic Goods Act 1989 (Cth), s 52D(2)(b) Threatened Species Conservation Act 1995 (NSW)
Cases Cited:	2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 All Seasons Air Pty Ltd v Regal Consulting Services [2017] NSWCA 289 Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228 Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263 Coleman v Powel (2004) 220 CLR 1; [2004] HCA 39 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Dobrohotoff v Bennic [2013] NSWLEC 61 Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited (2008) 73 NSWLR 653; [2008] NSWCA 206 Lazarus v Independent Commission Against Corruption [2017] NSWCA 37; 341 ALR 483 Lord Howe Island First Peoples Association and Australian Pesticides & Veterinary Medicines Authority [2019] AATA 748 National Registration Authority v Barnett (1998) 83 FCR 222 Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202 Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 The Owners — Strata Plan No 4983 v Canny [2018] NSWCA 275 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Westfield Management Ltd v Perpetual Trustee Company [2006] NSWCA 245 Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508
Category:	Principal judgment
Parties:	Gai Nanette Wilson (Plaintiff) Lord Howe Island Board (Defendant)
Representation:	Counsel: IM Jackman SC with JG Duncan (Plaintiff) JK Kirk SC with JE Davidson and DE Birch (Defendant)   Solicitors: Mid-West Law Practice (Plaintiff) Crown Solicitor (Defendant)
File Number(s):	2019/00155344
Publication restriction:	Nil

Judgment

1. HER HONOUR: Before me for hearing on 6 June 2019, in a matter referred from the Expedition List, was an application brought by the plaintiff (Ms Wilson) for declaratory and final injunctive relief in relation to a Rodent Eradication Project (REP) that has been commenced by the defendant, the Lord Howe Island Board (the Board), on Lord Howe Island and adjacent islands (together, the Lord Howe Island Group). The matter was listed for hearing with some urgency in circumstances where the REP had already commenced and the plaintiff (for no doubt obvious reasons having regard to the usual undertaking as to damages that would ordinarily then have been required) did not seek any interlocutory relief.

2. The plaintiff is a resident of Lord Howe Island and an Islander within the meaning of that term in the Lord Howe Island Act 1953 (NSW) (the Act) (see the affidavit sworn 29 May 2019 of Gai Nanette Wilson at [2]-[3]). She is a shareholder and director of Somerset Resort Pty Ltd, the owner of a business which offers tourist accommodation on Lord Howe Island, and thus has an economic interest in a business operated on the island (see Ms Wilson’s affidavit at [4]).

3. The plaintiff apprehends that reputational damage may be caused to Lord Howe Island as a tourist resort (which may adversely affect her economic or business interests as a shareholder of Somerset Resort Pty Ltd) as a result of certain aspects of the proposed REP, namely: the volume of bait to be employed in the REP (to which I will refer as the tonnage issue) and the manner in which the external bait stations are proposed to be placed in outdoor areas (in particular, that not all of the external bait stations will be covered with a wooden roof or some other covering additional to over the lid of the bait stations themselves; and not all will be secured by larger size tent pegs crossed in the fashion now proposed for the bait stations placed in areas the Board considers likely to be frequented by children) (to which I will refer as the external bait stations issue) (see [14]-[15] of Ms Wilson’s affidavit). This is because the plaintiff apprehends that the proposed tonnage of bait to be employed may lead to excessive mortality of non-target species, particularly birds, and that the accessibility of the bait may result in serious harm to small children (Ms Wilson’s affidavit at [14]-[15]). (Neither of those concerns is well-founded on the evidence before me.)

4. The Board notes that the plaintiff does not claim to have suffered any hardship as a result of the alleged breaches of the permit that has been obtained from the Australian Pesticides & Veterinary Medicines Authority (APVMA) for the purposes of the REP (the Permit); rather, that the plaintiff’s concern is expressed only at the level of apprehension. The Board has adduced evidence, to which I will refer shortly, addressing the particular concerns of the plaintiff (as to the potential damage to the bird population and as to the risk of harm to small children as a result of the proposed REP) (see [117]-[124]; and [178] below).

5. As to the first of the plaintiff’s concerns, the Board acknowledges that it is inevitable that some birds will die as a consequence of the REP (though it says that the real danger to birdlife is the aerial broadcasting of the poison, not the use of the bait stations about which complaint is here made by the plaintiff) (see T 40.40; 44.11) but points to the measures it has put in place to minimise the harm to the bird population (including the taking into captivity of a large percentage of the endemic Lord Howe Island Woodhen and Currawong bird species during the implementation of the REP) and to the opinion of an expert avian ecologist to the effect that the REP does not pose an unacceptable population level risk to any non-target population of bird species on Lord Howe Island (see [120] below). As to the second concern, the Board has adduced expert evidence to show that there is little risk of serious harm to small children (see T 46.33-47.50) and points to the measures that have been taken to manage any health risk to children (or, for that matter, household pets) as a result of ingestion of bait.

6. The Board emphasises that delay or disruption to the REP (which, as noted above, has already commenced) is likely to result in failure of its purpose (there being a concern that the rodents will become resistant to the poison if the REP is not completed with the two proposed applications of the poison across the whole of the Lord Howe Island Group) and that the project will become financially unviable (with the waste of the considerable amount of “sunk costs” in relation to the REP, some $10.6 million having been expended to date).

7. Broadly, the issues now before me (narrowed, as I will explain, from those arising from the amended statement of claim as pleaded) are: first, as to the proper construction of the Permit; and, second, if the manner in which the REP is proposed to be implemented by the Board would involve a breach of one or more of the conditions of the Permit or is otherwise not permitted by the Permit, then as to whether, as a matter of discretion, the injunctive relief sought by the plaintiff should be granted.

8. For the reasons that follow, I am not persuaded that, on the proper construction of the Permit, the manner in which the REP is proposed to be carried out would be in breach of the conditions of the Permit but even had I been so persuaded I would not have exercised the discretion to grant final injunctive relief as sought in the plaintiff’s amended statement of claim having regard to: the investment of time and money in the eradication project to date; the fact that it has already been commenced (after widespread community consultation and environmental studies), with the risk that if now ceased the rodents may become resistant to the poison; and the expert evidence to the effect that there is not a significant risk to the native bird population nor of serious harm to small children arising from the matters of which the plaintiff here complains (as the plaintiff fears).

Background

9. The background to the present dispute is summarised below and is drawn to a large extent from the unchallenged evidence of Mr Andrew Walsh, the Project Manager employed by the Board who is responsible for delivery of the REP.

Lord Howe Island

10. The Lord Howe Island Group is located 587 km east of Port Macquarie and 780 km north-east of Sydney; and forms part of New South Wales (being vested in the Crown). It comprises the main island (Lord Howe Island) and 28 smaller islets and rocks. Only the main island is inhabited. The main island comprises an area of approximately 14.55km², of which some 3.98km is the low-lying inhabited part of the island; the remainder of the island comprising forested hills and mountains (see Mr Walsh’s affidavit affirmed 4 June 2019 at [10]). It is 12 km long, 1.0-2.8 km wide and formed in the shape of a crescent, with a coral reef enclosing a lagoon on the western side. The two-dimensional area of Lord Howe Island, according to the Board, is 1,603 ha; its three-dimensional area is approximately 2,135 ha (Mr Walsh’s affidavit at [11]). The plaintiff puts those figures at 1,573 ha and approximately 2,100 ha, respectively (see the amended statement of claim). The only relevance to the difference in this regard is that the plaintiff’s calculation of the maximum permitted tonnage of product to be dispersed turns on an arithmetical calculation based on the total area of land in question (to which I turn in due course).

11. There are approximately 400 permanent residents living on Lord Howe Island, in a settlement located in the northern section of Lord Howe Island. Covering about 15% of the island, the settlement consists of the main village covering approximately 200 ha together with outlying dwellings.

12. Approximately 75% of Lord Howe Island, together with all outlying islands, islets and rocks, is protected as either Crown reserve or a Permanent Park Preserve (which has similar status to that of a National Park). It is located within the Lord Howe Island Marine Park (NSW) out to three nautical miles (under NSW jurisdiction) and the Lord Howe Commonwealth Marine Reserve (under Commonwealth authority), a further area of 110,000 km².

13. The Lord Howe Island Group was listed as a World Heritage Site in 1982 and as a National Heritage Place in 2007.

14. It is accepted by both parties that tourism is the most significant industry and major source of income on Lord Howe Island and that tourism is heavily focused around the world heritage values of both the terrestrial and marine environments of the island. Further, it does not appear to be disputed that Lord Howe Island is home to an array of native plants and animals, many of which are endemic to the island (Mr Walsh’s affidavit at [14]), including the Kentia palm and the Lord Howe Island Woodhens and Currawongs, (to which birds I have already referred).

Governance of Lord Howe Island

15. Lord Howe Island is substantially governed under the Act. The Board, which administers the affairs of Lord Howe Island, is a statutory authority established as a corporation under the provisions of the Act (s 4). Pursuant to s 11 of the Act, the Board is charged with the care, control and management of Lord Howe Island and the affairs and trade of the island, subject to the direction and control of the Minister (s 10).

Lord Howe Island Rodent Eradication Project

16. The objective of the REP, as its name suggests, is to eradicate rodents (both rats – the black or “ship” rat (Rattus rattus) – and house mice (Mus musculus)) from the Lord Howe Island Group by the use of a particular rodenticide (Brodifacoum). The rodents were accidentally introduced to Lord Howe Island in the late 1800s (mice) and early 1900s (rats) (see Mr Walsh’s affidavit at [15]). Predation by rodents on islands, particularly the ship rat, is listed as a Key Threatening Process at both Commonwealth and State level under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Threatened Species Conservation Act1995 (NSW). Many threatened species on Lord Howe Island have rodent predation formally listed as a key threatening process in their listing determinations under both those pieces of legislation (see Mr Walsh’s affidavit at [15]), including various critically endangered species of snail, the Lord Howe Island Woodfeeding Cockroach and the Little Mountain Palm.

17. Since the 1920s, various methods of rodent control have been attempted on Lord Howe Island, including a previous rodent baiting program conducted by the Board as well as the private efforts of Islanders (Mr Walsh’s affidavit at [18]-[21]).

18. Since at least 2001, the Board has been examining methods of eradicating (rather than simply controlling the number of) rodents from Lord Howe Island (Mr Walsh’s affidavit at [24]), the Board having formed the view that the existing rodent control programme did not adequately protect the Lord Howe Island Group’s native flora and fauna and was not a long term solution to managing the numbers of rodents to a level that would not threaten native plants and animals (Mr Walsh’s affidavit at [24]). This led to the formulation of the REP.

19. A key aspect of rodent eradication is that every rodent must have access to a lethal dose of bait at approximately the same time across the whole of the island (Mr Walsh’s affidavit at [23]). Exhibited to Mr Walsh’s affidavit is a Human Health Risk Assessment (HHRA) for the REP prepared in July 2017 which notes that resistance to the rodenticide had been raised as a concern and that resistance will be an issue should the ongoing control programme continue (see Exhibit 5).

20. The REP has been the subject of planning and consultation since 2001 as well as the subject of various trial studies (see Mr Walsh’s affidavit from [24]-[30]), which led to a survey of local residents in 2009 (see Mr Walsh’s affidavit at [31]) and the development of a draft REP in 2009, which was then the subject of peer review by various organisations and others (see Mr Walsh’s affidavit at [32]). Mr Walsh has deposed that the REP has been subject to several external expert peer and technical reviews, as well as scrutiny from a range of regulatory agencies at Commonwealth and State level (see Mr Walsh’s affidavit at [9]). The REP was also the subject of a plebiscite or community poll of the residents of Lord Howe Island in 2015 (Mr Walsh’s affidavit at [37]-[38]). The Board notes that the eradication programme had the support, in that community poll, of a majority of residents (52%) (although there was also a large proportion of residents (48%) who supported the continuation and expansion of the current control baiting programme).

21. Exhibited to Mr Walsh’s affidavit is a 2017 Conservation Outlook Assessment for Lord Howe Island, undertaken by the International Union for Conservation of Nature (which Mr Walsh explains is recognised within the World Heritage Conservation as the technical Advisory Board of the World Heritage Committee on natural World Heritage sites), which assessed rodents as amongst the highest ongoing risks to the biodiversity values of the site (Exhibit 5); noted the introduced rodents as having “significant impacts on the values of the site” (Exhibit 5); stated that overall the values of the site are “significantly threatened by [inter alia] rodents” (Exhibit 5) and concluded that it was crucial that invasive species eradication projects continue and are successfully implemented (see Mr Walsh’s affidavit at [16]; Exhibit 5).

22. Three HHRA studies have been conducted in relation to the REP (see Mr Walsh’s affidavit at [36], [40]-[41]), including the 2017 study referred to at [18] above. Other studies conducted have been: an economic evaluation of the project commissioned in 2016 (Mr Walsh’s affidavit at [42]); a study as to the feasibility of captive management of Lord Howe Island Woodhens and Currawongs, which led to the development of the Captive Management Progress in conjunction with Taronga Zoo in 2013 (Mr Walsh’s affidavit at [43]); and separate studies in relation to both birds and fish (see Mr Walsh’s affidavit at [44]-[45]).

23. Mr Walsh has deposed that the Board has received funding from the New South Wales Government’s Environment Trust and the Australian Government’s Caring for Our Country programme of $10.6 million (most of which funding has already been committed) to implement the REP in full (Mr Walsh’s affidavit at [110]-[111]), with additional expenditure of $500,000 expected by the end of June 2019. Mr Walsh has further deposed (at [115]ff) to the likely effect of delay on the REP and of a failure to complete the eradication programme that has now been commenced, opining (at [118]) that if an injunction (as sought by the plaintiff) were to be granted the REP would become financially non-viable.

24. Mr Walsh has also deposed to the number of permits, approvals and licences sought and obtained from Commonwealth and State regulators in relation to the project (see [46]ff).

25. Pausing here, I note that the claim, as pleaded, related to only two such permits: the Permit (obtained under the AGVET Code, the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 (Cth)) and a Marine Parks Permit (obtained from NSW Department of Primary Industries under the Marine Estate Management (Management Rules) Regulation 1999 (NSW) and the Marine Estate Management Regulation 2017 (NSW)). However, there is no longer an issue as to compliance with the Marine Parks Permit. The present dispute is thus confined to interpretation of the Permit obtained under the AGVET Code. Such a permit is necessary as the REP involves the use of a Schedule 6 Poison under the Standard for the Uniform Scheduling of Medicines and Poisons No. 24 (Poisons Standard June 2019) (the previous standard being No. 23 (Poisons Standard February 2019)) made under paragraph 52D(2)(b) of the Therapeutic Goods Act 1989 (Cth).

26. The Board first applied for a permit from the APVMA for the proposed use of the poison on 19 April 2016 (the first date of proposed use there being stated to be 1 June 2017). Relevantly (for the purposes of the tonnage issue), the application form stated the following, in response to a section seeking information as to the estimated or proposed scale of use:

The proposed one off eradication will be at a nominal treatment rate of 12kg of Pestoff 20R pellet bait/hectare on the first application; to be followed by a second application of 8kg of bait/hectare approximately 14-21 days after, weather permitting, for a total nominal treatment rate of 20kg/ha averaged over the island. The island is 1455 ha in the 2D view and approximately 2100 ha in the 3D view. A maximum of 42 tonnes would be used.

27. The meaning of “nominal” in that context was not explained, but on a fair reading might be thought to convey the nominated usage rate (or proposed usage rate) rather than some kind of warranty as to the ultimate actual usage rate, particular given later references that indicate that the maximum tonnage there expressed was an estimation (see below at [29], for example).

28. The application method was described as follows:

Aerial dispersal of bait over most of the Lord Howe Island Group. Dispersal by hand around dwellings. Placement of bait into either bait trays (and these trays put into buildings in locations such as ceiling spaces, under floors), or into bait stations. Application methods are detailed in Part 7.

29. Part 6 of the application (“Work Health and Safety”), consistently with the above, included (at 6-1.3):

The proposed treatment rate will be a nominal treatment of 12kg of Pestoff 20R pellet bait/hectare on the first application; to be followed by a second application of 8kg of bait/hectare approximately 14-21 days after, weather permitting, for a total nominal treatment rate of 20kg/ha averaged over the island.

and continued:

To achieve the nominal treatment rate across the island, it is expected that the maximum bait used would be 42 tonnes of Pestoff 20R pellets containing 0.02g/kg (20ppm) Brodifacoum. This amount considers operational flexibility, contingency and differences in vegetation and topography across the island (i.e. the 3-Dimensional area of LHI is approximately 2,100 ha taking into account its rugged topography).

Therefore the maximum total amount of Brodifacoum used over the entire island is in the order of 840g which equates to ~ 0.40g/ha.

30. Pausing here, the application form (at 6-13) clearly uses the language of approximation (“in the order of”) and “equates to ~….”.

31. The application form also noted how aerial baiting would be conducted, including that:

The bait will be dispersed using a purpose built spreader bucket … slung below a helicopter. A rotating disc throws the bait 360° consisitently [sic] to 35 m (note outlier pellets maybe thrown to 45 m), enabling a swathe of up to 70 m to be baited in a single pass. Overlapping each 50% swathe will ensure that there are no gaps in the distribution of baits … Application rates are adjusted to account for the 50% overlap (i.e. for the first drop 6kg/ha on each swathe wih 50% overlap will be applied to achieve a 12kg/ha application rate). Each bait drop will take approximately two days to complete dependant [sic] on weather.

32. A permit was initially obtained from the APVMA on 24 August 2018 (Exhibit 5, Doc 1). Relevantly, that version of the permit included condition 14:

Tamper proof bait stations must be adequately covered when used in the open air to prevent access by birds.

33. There was also a reference to tamper proof bait stations in condition 18 (which provides that “[t]amper proof bait stations, but NOT bait trays, may be used within the 30 m buffer zone”).

34. I interpose here to note (as the Board has noted in its submissions) that, prior to the Administrative Appeals Tribunal (AAT) decision, there was communication with the APVMA as to the adequacy of the lid of the Globe Pest Solutions Bait Station for the purposes of compliance with the original condition 14 (the original permit having been issued prior to the selection of the Globe Pest Solutions Bait Stations). After the Board selected those bait stations, Mr Walsh emailed Mr Peter MacLeod (Director, Minor Use, Registration and Management at the APVMA), providing images of the bait stations that had been selected and seeking confirmation as to whether the lid of those bait stations “would meet the ‘covered’ intent of condition 14” (see Exhibit 5, pp 796-797), to which Mr MacLeod responded by email on 13 November 2018, agreeing that it would (Exhibit 5, p 796). (The Board says that the fact that the APVMA does not appear to share the plaintiff’s view as to non-compliance with condition 20 is a matter that goes to the exercise of the Court’s discretion. The plaintiff says, and I tend to agree, that the view expressed by Mr MacLeod in this regard is irrelevant.)

35. The APVMA’s decision to issue a permit to the Board was challenged in proceedings brought in the AAT by the Lord Howe Island First Peoples Association (see Lord Howe Island First Peoples Association and Australian Pesticides & Veterinary Medicines Authority [2019] AATA 748) (the AAT decision). Both the APVMA and the Board were respondents in those proceedings. (There is no evidence that the present plaintiff is or was a member of the said Association; and Senior Counsel for the plaintiff informed me that his instructions were that she is not – see T 31.25; an issue only of relevance insofar as it means that it cannot be inferred that the plaintiff by reason of membership of the Association was on notice of any information gained by the Association in the course of the AAT proceedings.)

36. It is relevant to note that the jurisdiction of the AAT is limited to a review of the imposition of conditions on the grant of such a permit; rather than the decision to grant the permit itself (see s 167 of the AGVET Code) (as recognised by the Deputy President of the AAT in his reasons on that application – see at [4]; and see National Registration Authority v Barnett (1998) 83 FCR 222, which recognised that s 167 preserves a jurisdiction of the AAT to review a decision to impose conditions upon registration, but omits any jurisdiction to review a decision to register unconditionally).

37. Following the AAT decision (to which I will return shortly), the conditions of the permit were amended and an amended permit (the Permit) was issued on 9 May 2019 (Exhibit 5, Doc 2). I consider below ([55]ff) the relevant conditions of the Permit. Suffice it here to note that the Permit, as issued following the AAT decision, has the following features (as did the initial version of the permit), as required by the AGVET Code: it bears a permit number (PER85459) (see ss 114(2), (4)(a)); it states the chemical product in respect of which it is issued (Pestoff Rodent Bait 20R) and the active constituent (0.02g/kg brodifacoum) (see s 114(4)(c)); it identifies the persons authorised by the Permit and what they are authorised to do (relevantly, stating that it authorises the permit holder (the Board) and its employees, contractors and persons under its direction) to possess and use the product and to distribute and apply the product (by hand or aerially) – see condition 6 (see s 114(4)(d)); it states the conditions of the permit (see s 114(4)(e)) (see further below); and it states the duration of the permit (i.e., that it is in force from 24 August 2018 until 31 August 2020) (see s 115(2)).

38. The Board points out that the conditions imposed by the APVMA were not conditions proposed in the Board’s application for the permit; rather, they were conditions initially imposed by the APVMA and then varied pursuant to the administrative review conducted by the AAT under the jurisdiction conferred by s 167(1)(m) of the AGVET Code. That said, in the Deputy President’s reasons, to which I will shortly turn, it is noted (at [14]) that the respondents (i.e., the Board and APVMA) had agreed upon a series of amendments to the permit “which are to be made so as to update its terms to take account of a number of changes made to the rodent eradication program since the permit was first issued” and a copy of the permit altered as agreed by the respondents was attached to the AAT reasons. Those agreed amendments were themselves subject to alteration by the Deputy President before the Permit was finally issued in May 2019.

39. Further, I note that the AAT decision records (see at [18]) that the applicant (not the present plaintiff) was directed to indicate which particular numbered conditions of the initial permit it sought to make the subject of the review; what variation, if any, it sought to those conditions; and the basis upon which it submitted that such variation or variations should be made. At [19], the Deputy President noted that, while not resiling from the wider submission it desired to embrace, the applicant had filed a set of particular submissions which it desired to vary or delete and had, in submissions in reply, narrowed the nature of its attack to particular conditions. Relevantly, the matters finally pressed by the applicant in the AAT proceedings do not appear to have included matters the subject of contention in the present proceedings (other than a request that the bait station be defined as that comprised within a particular exhibit in the proceedings (see [20] and in particular [20](a) of the AAT reasons). (The relevance of this, in the Board’s submission, is that the AAT decision must be understood in the context of what was “in play”, i.e., what was there argued and decided, noting that the applicant in the AAT proceeding had not sought the addition of a requirement in condition 20 that bait stations be covered with a wooden cover (or any form of additional cover) – see T 42.22ff.)

40. The Permit (which is in force from 24 August 2018 until 31 August 2020) applies as a law of NSW by virtue of s 5 of the Agricultural and Veterinary Chemicals (New South Wales) Act 1994 (NSW).

41. In its final form, the Permit authorises (subject to certain conditions and “CRITICAL USE CONDITIONS”) the application of a rat poison known as Pestoff Rodent Bait 20R, a product which contains 0.02 g/kg brodifacoum as its only active constituent. Brodifacoum is an anticoagulant. It is a cumulative poison, being stored in fatty tissue, the liver and kidneys. The plaintiff submits that it is highly toxic to mammals, birds and fish. The Board cavils with this insofar as the Board says the evidence establishes that, for humans, it is not an “acute poison” (see T 47.39); and that even a small child would need to consume a lot of the poison for it to have an acute effect and even then it is readily treatable (see T 46-47, reference being made to the report of an expert toxicologist, Dr DeMott, at [32]ff – see below at [177]ff).

42. I will explain the proposed manner of application under the REP of the Pestoff poison in more detail in due course. Suffice it here to note that the REP will involve the use of cereal-based bait pellets of the Pestoff 20R poison. The Pestoff pellets are cylindrical, with a diameter of 10 mm, and green in colour.

43. It is also relevant here to note that the antidote to the active ingredient in the Pestoff pellets is Vitamin K1, of which the Board has ensured there is an ample quantity on Lord Howe Island; and that the green colouring of the pellets makes it likely that it will be obvious if humans (particularly, children) have come into contact with the pellets. There was evidence in the proceedings before me (to which I will return in due course) to the effect that a small child would need to consume a large amount of the pellets before there was any grave effect on his or her health (see the report of Dr DeMott, the expert toxicologist from Ramboll, the organisation which prepared the third HHRA study; referred to at [177]ff below).

44. The REP provides for the distribution of the Pestoff 20R pellets through three means: by aerial (helicopter) broadcast; by hand broadcast; and by the placement of bait stations (both external and internal). Mr Walsh has explained in some detail in his affidavit the methodology to be employed. Relevantly, it may be summarised as follows.

45. Aerial broadcast of bait (which will encompass the highest distribution of the pellets) will be undertaken in two stages. The first application is planned to commence as soon after 1 June 2019 as the weather on the Island permits and is planned to take four to five days, which may not be consecutive (see Mr Walsh’s affidavit at [81]). As at 4 June 2019, when Mr Walsh affirmed his affidavit (and, indeed, as at 6 June 2019, when the hearing took place), the first aerial baiting application had not commenced. Mr Walsh’s evidence was that the then weather forecast for Lord Howe Island meant that it was unlikely that the first aerial baiting application would commence before 7 June 2019 (unless the weather improved) (Mr Walsh’s affidavit at [82]ff). The second aerial baiting application is proposed to take place 14-21 days after the conclusion of the first application, weather permitting (Mr Walsh’s affidavit at [86]-[87]). (Although there was some suggestion in the plaintiff’s oral submissions that the materials indicated there might be a third application of the poison, Senior Counsel for the Board confirmed that his instructions are that there are only to be two aerial applications of the poison and, as I understand it, the Board accepts that only two such applications are authorised by the Permit.)

46. Mr Walsh has deposed that it is critical for the success of the REP that a second application of bait occurs in all areas of the Island, in order to supply a dose of bait to any juvenile rodent which might have emerged from the nest following the breakdown of the first application of bait (Mr Walsh’s affidavit at [88]).

47. Mr Walsh has deposed that the target rate of bait coverage for the first aerial and hand baiting application is 12kg/ha (involving distribution of approximately 32 tonnes of bait) (see Mr Walsh’s affidavit at [84]-[85]); and the target rate for the second aerial baiting application is 8kg/ha (Mr Walsh’s affidavit at [87]).

48. Hand broadcasting in limited areas is anticipated to occur at the same time as the aerial broadcast (Mr Walsh’s affidavit at [83]).

49. As to the bait stations, approximately 18,000 external bait stations have been placed in the settlement area. The bait stations were placed there in April 2019 on a 10 metre x 10 metre grid in outdoor areas of the settlement (without bait in order for the rodents to become familiar with them). The placement of bait in the bait stations only commenced on 22 May 2019 (after, it would seem, the plaintiff had carried out her attempts to pick up the bait stations, which she relies upon as demonstrating that they are not secured). It is anticipated that the baiting of bait stations will conclude by approximately 31 October 2019. Some pre-baited internal bait stations are being placed inside dwellings (see Mr Walsh’s affidavit at [61]-[63]).

50. Bait stations are to be serviced every 7-10 days by the ground baiting team, which consists of 67 people. This involves replenishing the stations with bait, checking the bait stations are locked and secured to the ground, and searching for and removal of any loose pellets or rodent carcasses (Mr Walsh’s affidavit at [65]). Bait that has spoiled (for example, by getting wet) may be replaced (and in that sense the maximum tonnage issue is misleading, since not all bait pellets deployed will ultimately be consumed, by rodents or otherwise). The initial amount in each external bait station is 40 pellets, reducing progressively in subsequent weeks (see Mr Walsh’s affidavit at [66]-[67]).

51. Where bait stations are used in paddocks with livestock present, a wooden A-frame cover is placed over each bait station to prevent damage to, and interference with, bait stations (Mr Walsh’s affidavit at [68] and see Conditions 33 and 37 of the Permit). (The concern in this regard, as I understand it, is mainly as to the trampling of the plastic bait stations by cattle.)

52. Mr Walsh has also deposed to the daily briefings being given for the ground baiting team (see [69]-[70]) and the change in methodology for securing bait stations on leasehold properties where there are children under 5 years and in all common recreation areas ([77]), which is relevant to the second aspect of the external bait stations issue about which I say further below. Mr Walsh has also deposed to there being a special protocol for use of outdoor bait stations at the school and adjacent oval; and in recreation areas ([80]). There have also been special project management plans developed for all households where there are children or household pets.

Implementation of the REP

53. Mr Walsh has deposed to the implementation of the REP since early April 2019. Relevantly, a shipment of 58.2 tonnes of Pestoff has arrived on Lord Howe Island, together with 23,000 Globe Pest Solutions Bait Stations; and 4,000 Protecta Evo Mouse Bait Stations (for indoor use) (see Mr Walsh’s affidavit at [60]); and some 130 staff, have arrived at the island to be involved in the REP, together with two helicopters and pilots, and in addition to some 100 or so local residents. Aviaries have been constructed to house Lord Howe Island Woodhens and Currawongs.

54. In relation to the shipment of the 58.2 tonnes of Pestoff 20R rodent pellets, application was made by Mr Walsh on behalf of the Board on 8 February 2019 to the APVMA for consent to import that amount of the rodenticide for the stated purpose of eradication of rats and mice from Lord Howe Island to be dealt with under the conditions of the Permit. Import consent was given by the APVMA to the import of 58.2 tonnes of the product “to be dealt with under the conditions of APVMA Permit 85459” on 8 March 2019 (such consent to be valid from that date through to 3 April 2019).

The Permit

55. As noted earlier, the Permit was issued pursuant to s 112(2) of the AGVET Code. That section falls within Part 7 of the Code. Pursuant to s 109 of the AGVET Code, the term “permit” for the purposes of Pt 7 is defined as follows:

permit means a permit, in respect of an active constituent for a proposed or existing chemical product, or in respect of a chemical product, to do or omit to do any thing stated in the permit the doing of which, or the omission to do which, would, apart from the permit, be:

(a)   an offence against section 74, 75, 76, 77, 78, 79, 79B, 80, 81, 84, 85, 86, 87 or 91 or subsection 121(4A) or (5A); or

(b)   an offence against an eligible law of this jurisdiction; or

(c)   a contravention of a civil penalty provision mentioned in section 74, 75, 76, 77, 78, 79, 79B, 80, 81, 84, 85, 86, 87 or 91 or a contravention of the civil penalty provision set out in subsection 121(4) or (5).

56. The effect of a permit issued under Part 7 of the AGVET Code is that it authorises a person to whom it applies to do (or omit to do) something that is otherwise prohibited by the Pesticides Act 1999 (NSW) (Pesticides Act), so long as the person does so in accordance with the conditions of the permit (see s 116(1) AGVET Code; s 6 Pesticides Act). This is of relevance in circumstances where it is obviously important for persons involved in the dispersal of the product, as part of the REP, to understand what is, and what is not, authorised by the Permit (lest they be said to commit a criminal offence by applying the product otherwise than in accordance with the conditions of the Permit).

57. Under the AGVET Code, permits are issued by the APVMA, whether on an application by a prospective permit holder (s 112) or on the APVMA’s own initiative (s 112A). Permits may be unconditional, or subject to any conditions that the APVMA thinks appropriate (s 114(3)). Permits may be suspended or cancelled by the APVMA in various circumstances (ss 118, 119, 119A, 119B).

58. Permits issued by the APVMA are accessible on the APVMA’s public permits database (see Mr Walsh’s affidavit at [6]) “as located via in accordance with ss 113, 114(5).

59. Turning then to the relevant conditions of the Permit as it is now in force, I note the following.

56. Under the heading “CONDITIONS OF USE” and sub-heading “Directions for Use”, there appears condition 8, which comprises a table including a column headed “Product Application Method, Rate and Frequency” as follows:

Aerial (helicopter) broadcast

12 kg product/ha on initial broadcast, to be followed by a second application of 8 kg product/ha, approximately 7-21 days after, weather permitting, for a total 20 kg product/ha.

Aerial broadcast is to be undertaken only in the locations specified at [9] below.

Hand broadcast and outside bait stations around settlement area and baiting within dwellings:

Product to be dispersed by hand and/or placed into bait stations in accordance with [17]-[21] below.

The first hand broadcast is to be undertaken at a rate of 12 kg product/ha, and the second hand broadcast at a rate of 8 kg product/ha. The second hand broadcast must not be undertaken for a minimum period of 7 days following the first distribution.

Bait stations are to be placed on a 10m x 10m grid.

Within dwellings: product to be dispersed in accordance with [17] and [22]-[24] below.

61. Condition 9, which appears in the following section headed “CRITICAL USE CONDITIONS” and the sub-heading “Aerial (helicopter) broadcast” specifies the only areas where the product may be distributed aerially (being the Permanent Park Preserve [sic]; uninhabited Crown Reserve bordering the Permanent Park Reserve; and on Special Leases bordering the Permanent Park Reserve where livestock have been removed. Conditions 10-16 follow as to the aerial broadcast of the product, including condition 13 which provides that:

13.   A maximum of two (2) applications to be undertaken, in accordance with the Directions for Use (above).

62. The critical use conditions then contain a section headed “Hand Broadcast and Bait Stations in and around settlement area”, from which (and by reference to the table in condition 8 and to condition 18 referred to below) it is clear that there is a distinction between hand broadcasting and the placement of bait stations. There are two sub-headings in this section of the critical use conditions: “Property Management Plans” and “Outdoor areas of the settlement area”. Under the first, appears condition 17 which in effect provides that unless there is a Property Management Plan in place for a dwelling only bait stations on a 10m x 10m grid will be used. Under the second, are conditions 18-21 (those presently in issue being conditions 19-21).

63. Condition 18 deals with distribution of the product by hand broadcast and provides that this is only to occur in the areas there specified.

64. Conditions 19-21 deal with the use of bait stations (by reference to the header, in outdoor areas of the settlement area), as follows:

19.   In areas where bait stations are to be used outside, the product may only be distributed via Globe Pest Solutions Rodent Bait Stations.

20.   Bait stations must be adequately covered when used in the open air to prevent access to bait by birds.

21.   Bait stations must be locked and secured to the ground when installed, unless prevented by impervious ground conditions.

65. The Permit then goes on to deal with placement of product within dwellings (conditions 22-25) and other matters. Under the heading “ADDITIONAL CONDITIONS”, there are sections dealing, inter alia, with supply of product in containers (including the requirement that there must be attached to the container a label identical in content to Attachment 1 and that use of the product must be in accordance with instructions contained on its label – see conditions 30 and 31) and with livestock and poultry (including the requirement that “Bait station covers secured at ground-level must be applied to any bait stations used around the herd” – see condition 37). Pausing here, it is in order to comply with this last condition that the wooden A frames (or wooden roofs to which the plaintiff refers in her affidavit) are being deployed.

66. There are then sections of the Permit that deal with exposure and risk management (including the requirements for implementation of an education programme (condition 43) and for an adequate supply of the antidote (Vitamin K1 (condition 49)); for the following of all aspects of a specified risk mitigation plan (see conditions 53ff); for notification, record keeping and other conditions (conditions 57ff); and for additional safety directions and first aid directions (conditions 60ff).

AAT proceedings

67. As noted above, the final version of the Permit followed the administrative review carried out by the Deputy President of the AAT. As the reasoning of the Deputy President occupied some prominence in the plaintiff’s submissions as to the proper construction of the Permit, it is helpful to refer in further detail to those proceedings (and to a letter of 3 June 2019 from the AAT Registrar in response to a request for clarification or amendment of the reasons) before turning to the issues now before me.

68. I have already noted the nature of the proceedings in the AAT and the process that was followed as to the identification by the applicant in those proceedings of the matters it finally wished to press in relation to the variations it sought in respect of particular conditions of the Permit (which did not include the matters now in contention in relation to the bait stations or the proposed tonnage of bait to be distributed).

69. The Deputy President (at [23] noted the interests sought to be vindicated by the applicant (concerns about the risk to human health, ecological concerns about the birds, wildlife and fish in freshwater creeks, and the surrounding ocean waters, and concerns about the effect of the eradication upon tourism and the business of local fishermen and restaurants selling local fish).

70. The Deputy President noted that one circumstance of the present case was that close concern ought to be given to conditions which protect humans from injury to their health (see [25]), having regard to the particular provisions of the AGVET Code requiring the Board to be satisfied that safety criteria, efficiency criteria and trading criteria are met.

71. From [32], the Deputy President proceeded to discuss what he described as “the alterations proposed by the applicant, in the context of the concerns which the applicant desires to address” rather than, in the first instance, concentrating on particular drafting matters that might arise (see [31]), and in doing so the Deputy President said he would mention matters that had occurred to him arising from a consideration of the evidence called in the case.

72. Under the heading “Dangers to Human Health”, the Deputy President first considered the position of water tanks (see [34]-[36]) and then proceeded to consider the possibility of removal of pellets from bait stations or distributed by hand broadcast near dwellings or elsewhere in the settlement area by small children, and especially very small children – there addressing the risk that children walking within the settlement area might encounter loose pellets by the roads or footpaths or 30 metres from dwellings or near the lagoon “distributed not within bait stations but by hand broadcast or in some places by helicopter” (at [37]-[38]).

73. The Deputy President then turned to the use of the bait stations, stating at [39]-[40]:

39.   The applicant originally sought a change of language from that used in the existing permit in relation to the bait stations themselves. Having heard the respondent’s evidence, the applicant changed its attitude on the matter, and no longer pressed for a different kind of bait station to be utilised. Reference was made to Mr Walsh’s evidence at T 438, which, with respect, appears to me to be clear enough. The intention is to raise the pellets within bait stations with coffee cup lids to reduce the likelihood of pellets being washed out of the bait station in the event of rain water entering. The existing conditions now describe the bait station to be used so as to accord with exhibit 21 before me.

40.   The bait stations are to be locked and securely pegged to the ground and also covered with wooden roofs. That will make access by small children much more difficult than otherwise might have been the case. A child cannot pick up such a bait station and shake it, for example. Reaching pellets inside may be possible, and this is a particular risk which should be mentioned to parents, both tourists and locals.

74. Pausing here, it seems to me apparent, from the context in which [40] appears, that what the Deputy President was there doing was setting out his understanding of the evidence as to the proposed use of the bait stations, just as he did in the preceding paragraph when referring to the intention to raise the pellets within bait stations; I (as the plaintiff contends) paraphrasing what he considered the conditions (as ultimately imposed) would require. At this stage of the reasons, it is clear that the Deputy President was doing no more than what was indicated at [31] would be done, namely: discussing the alterations to the Permit proposed by the applicant in the context of the concerns the applicant desired to address (as well as matters that had occurred to the Deputy President); and not concentrating on the drafting of the conditions themselves (and therefore not paraphrasing conditions the drafting of which he was not yet there purporting to address).

75. I make this point because of the emphasis that the plaintiff places on [40] of the Deputy President’s reasons. I do not consider that this paragraphs of the reasons bears the weight sought to be attributed to it by the plaintiff (in effect, as amending the condition itself) nor does it in my opinion helpfully inform the construction of condition 20 (or, for that matter, condition 21). Cases are, as the Board notes, only authorities for what they decide (see Coleman v Powel (2004) 220 CLR 1; [2004] HCA 39 per McHugh J (cited in Lazarus v Independent Commission Against Corruption [2017] NSWCA 37; 341 ALR 483 at [87]; All Seasons Air Pty Ltd v Regal Consulting Services [2017] NSWCA 289 at [45]). By analogy, the AAT decision must relevantly be understood as a determination only of what was there in issue.

76. It would certainly seem that the Deputy President understood the evidence before him to be that (at least in general) the bait stations would be “also covered with wooden roofs”, which the Deputy President noted as being so as to make it much more difficult for a child to have access to the pellets by making it impossible for a child to pick up the bait station and shake it. However, the requirement for an additional cover (be it wooden or otherwise) was not made explicit in the Permit in relation to bait stations other than those to be placed in the vicinity of livestock (and in that context the concern was clearly that of livestock not children).

77. Moreover, it is clear that the context in which these comments were made by the Deputy President was as to the risk that small children might have access to the bait inside bait stations not to the risk to small birds. The risk to birdlife was addressed (at [49]ff of the AAT decision) but there in the context of the risk of the aerial drop of pellets or the eating by birds of contaminated rodents or fish, not in the context of the bait stations as such. Relevantly, the Deputy President accepted that the consequence of loss of some of the birdlife on the island (from the helicopter drop of pellets or eating of contaminated rodents or fish) could not be avoided, since conditions “cannot be formulated which would save all of the birds endangered by the eradication especially in the forested areas, while adhering to the main object of the eradication program itself” (see at [49]).

78. The later reference in the AAT decision to covering bait stations with a wooden roof (see at [52]) makes clear that there the Deputy President was referring to the use of bait stations in areas used for crops and dairy and other cattle; and was considering the purpose of the wooden roofs to be to prevent access by cattle to the bait stations (as noted earlier, presumably by trampling the plastic stations and thus exposing the bait pellets).

79. The Deputy President ultimately accepted the Board’s submissions as to the draft amendments to the then existing conditions of the permit (with a variation that the Deputy President considered necessary in order to stress the vigilance required by parents in respect of children – but in that regard this vigilance was seen as requiring supervision of small children at all times – see at [56]-[57]).

80. After the decision, and the issue of the Permit in its current form, the solicitor acting for the applicant in the AAT proceedings (and now acting for the plaintiff in these proceedings) communicated to the Registrar of the AAT (by two letters each dated 29 May 2019) identifying a perceived inconsistency between [40] of the reasons for decision and the direction given by the Tribunal; and requesting an amendment to the direction under the equivalent of the slip rule (s 43AA(3)(b)).

81. I have already extracted [40] of the reasons. The actual direction made in the AAT decision was as follows:

The decision under review is set aside and in substitution the Tribunal directs that the condition of the permit be altered so as to be consistent with the document attached to the Tribunal’s reasons and to conform with paragraph 57 of those reasons.

82. Paragraph 57 of the Deputy President’s reasons, which followed his express acceptance of the submissions of the Board as to the draft amendments (with the one exception referred to above – see [76]), was to set out the additional variations to conditions (being conditions 1(a)-(c) and 2). There was no further variation there made to the conditions that are now conditions 19-21 of the Permit.

83. The response from the Registrar of the AAT, by letter dated 3 June 2019, to the requested amendment (having referred the matter to the Deputy President) was, relevantly, as follows:

The correspondence with the Registrar on the topic of an application for a direction under s. 43AA of the Administrative Appeals Tribunal Act 1975 (Cth) has been drawn to the attention of the Deputy President. Such a direction may be made when there is an obvious error in the text of the decision or in the reasons for decision. There appear to be two possible differences between the remarks made in paragraph 40 of the reasons for decision and conditions 20 and 21 of the permit as issued.

Paragraph 40 was as follows:

[Paragraph 40 was there set out]

Condition 20 states that the bait stations are to be “adequately covered” and paragraph 40 says that they will be “covered with wooden roofs”. There is no apparent inconsistency between those two uses of language, even though one is more general than the other.

Condition 21 states that the bait stations must be “secured to the ground” and paragraph 40 of the reasons states that they will be “securely pegged to the ground”. Again, it does not appear that the language of the permit is inconsistent with the description of what is proposed in paragraph 40, although it is somewhat more particular than the language of condition 21.

In those circumstances the Tribunal declines to make a direction under s.43AA to alter the text of the decision of the Tribunal dated 18 April 2019.

The Tribunal notes that the Board has submitted its opposition to the application of the applicant under s.43AA that paragraph 40 of the reasons contains an error of fact. That matter is perhaps not for the Tribunal to comment upon, save to note that the Tribunal is not satisfied that the evidence did not justify what is stated in paragraph 40.

84. The plaintiff submits that the correspondence from the AAT makes plain that the Deputy President saw no inconsistency between conditions 20 and 21 of the Permit on the one hand and what was said at [40] of the AAT decision on the other and, hence, the plaintiff argues that the content and application of conditions 20 and 21 are informed by [40] (in other words, that the AAT has spelled out in [40] the manner in which conditions 20 and 21 must be met). The Board rejects such a proposition. I will consider this in due course.

The present proceedings

85. At this point it is relevant to note the way in which the issues were raised on the pleadings.

86. By amended statement of claim filed pursuant to leave given by me on 31 May 2019, the plaintiff, relevantly, pleads the following as conditions of the Permit: the “Directions for Use condition” (see [12] of the amended statement of claim; that setting a portion of the table in condition 8 of the Permit, but omitting, among other things, the part dealing with bait stations); the “maximum product condition” (see [13] of the amended statement of claim; set out below); and the “external bait stations conditions” (setting out conditions 19-21 of the Permit at [14] of the amended statement of claim) but then going on, at [15] of the amended statement of claim, to allege that the external bait station conditions “were amended or added to by force or effect of” the AAT decision “requiring that the bait stations be securely pegged to the ground also be covered with wooden roofs” (and particularising this allegation by reference to [40] of the AAT reasons for decision).

87. As to the maximum product condition, it is alleged at [13] of the amended statement of claim that:

Consistent with the APVMA application for a permit providing for a maximum use of 42 tonnes of Pestoff, the APVMA Permit, through its conditions, including the Directions for Use condition, permits a maximum use of 42 tonnes of Pestoff (the maximum product condition).

88. The amended statement of claim then pleads various contraventions of those alleged conditions (some prospective and some, it would seem, retrospective): at [27]-[30] of the amended statement of claim, contravention of the maximum product condition by the Board “[i]n proceeding to disperse 58.3 tonnes of Pestoff, or alternatively an unlimited quantity of Pestoff in excess of 42 tonnes” (something clearly prospective since the dispersal is not yet complete); at [31]-[34] of the amended statement of claim, contravention of the external bait station conditions (by: not covering the bait stations as required by condition 20; not securing the bait stations to the ground as required by condition 21 “or securely pegged to the ground as required by and through the decision of the AAT”; and not covering the bait stations with wooden roofs “as required by and through the decision of the AAT”).

89. Although the amended statement of claim also pleads a contravention both of the so-called “Attachment 1 label condition” relating to the Permit and of the insurance conditions under the Marine Parks Permit, neither of those matters was pressed at the hearing.

90. At [40] of the amended statement of claim, it is alleged that, in the premises, the Board is in breach of its duty in respect of the conduct of the REP (relevantly, particularised by reference to the breach of the APVMA “and in acting contrary to law”).

91. As to the relief claimed, the plaintiff did not press the claim for declaratory relief in prayers 1 and 3; and did not press for the orders in prayer 12 and 13.

92. The balance of the relief claimed is for:

• a declaration that the Board is limited to using a maximum of 42 tonnes of Pestoff for the purposes of the REP (prayer 2);

• orders (in the nature of mandatory injunctions), requiring the Board to fulfil its duty to comply with conditions 20 and 21 of the Permit (prayers 4 and 6 respectively), by providing cover to the bait stations in accordance with condition 20 and securing the bait stations to the ground in accordance with condition 21, respectively; further or in the alternative that the Board fulfil its duty to comply with conditions 20 and 21 of the Permit “as amended or added to by force or effect of the AAT decision by requiring that the bait stations be covered with wooden roofs and be securely pegged to the ground (prayer 8); that the Board fulfil its duty to comply with the Permit by using a maximum of 42 tonnes of Pestoff for the purpose of the REP (prayer 11); and

• orders in the nature of negative or prohibitive injunctions, to restrain the Board from: proceeding with the REP otherwise than: in compliance with condition 20 of the Permit (prayer 5), condition 21 of the Permit (prayer 7), conditions 20 and 21 of the Permit “as amended or added to by force or effect of” the AAT decision (prayer 9); or otherwise than by using a maximum of 42 tonnes of Pestoff for the purposes of the REP (prayer 11).

93. By its amended defence, among other things, the Board: does not admit that it owes a duty to the plaintiff in respect of any of the matters pleaded (see [2](a) of the amended defence); responds to various of the factual allegations (including pleading that the Pestoff 20R contains a green indicator dye which stains lips and mouth if consumed by humans – see [7](a)(iv) of the amended defence); responds to the alleged health risk (see [7](b) of the amended defence and to the steps taken to minimise the risk to humans, domestic animals and native wildlife – see [7](c)-(e) of the amended defence); admits the conditions pleaded at [12] and [14], though setting out the relevant Directions for Use condition in full; denies the condition pleaded at [13] or that the amendment or addition to the external bait station conditions was as pleaded by the plaintiff at [15]; admits that it has an operational plan in relation to the REP and that it provides for a maximum use of 58.2 tonnes of Pestoff rodent bait to be dispersed but otherwise denies [27] and [28] of the amended statement of claim; admits that it has informed the plaintiff that its position is that there is no restriction on the total tonnage that may be dispersed under the Permit (see [29](a) of the amended defence); denies the relevant breaches; and says, in response to the relief claimed, that injunctive relief would not be ordered on any or all of the grounds set out at [43](a)-(h) of the amended defence (the discretionary grounds).

94. The discretionary grounds pleaded in the amended defence are: that the Board intends at all times to comply with its obligations under the Permit as properly construed; that the breaches alleged are “merely technical in nature”; that it is highly unlikely that there would be any harm to the environment of Lord Howe Island or the inhabitants arising out of any of the alleged breaches; that the plaintiff has not suffered any hardship; that the Board will suffer significant detriment if it is required to halt the REP; that there will be significant harm to the environment of Lord Howe Island if the REP is halted; and that the plaintiff has delayed in bringing these proceedings (for the reasons set out in the amended defence).

Reliance by plaintiff on AAT reasons

95. Before turning to the construction of the particular conditions of the Permit, I note that the Board takes issue with the reliance placed by the plaintiff on [40] of the AAT decision, whether that be reliance by the plaintiff on an alleged breach constituted by failure to comply with [40] of the reasons or on the basis that the reasons inform the proper construction of conditions 20 and 21.

96. The Board notes that the decision of the AAT was made in the context of an administrative review of the conditions imposed under the Permit by the APMVA, which resulted in the APVMA Permit in its current form and that the relevant order of the Tribunal was as set out earlier in these reasons (see [81] above).

97. The Board refers to the particulars to [33] of the amended statement of claim and says that, insofar as there is an allegation that the failure to comply with the reasons of the AAT is a separate breach (as opposed to the plaintiff relying upon the reasons of the AAT merely as informing the content of conditions 20 and 21), what is here in issue is the proper construction of the conditions of the Permit, not the AAT’s reasons (noting that a party can only “enforce” orders of a court or tribunal, not its reasons for decision). The Board points out that, to the extent that those paragraphs of the AAT’s reasons contained errors of fact, the Board was unable to appeal against them, as appeals only lie on questions of law (referring to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)); and that the application by the plaintiff for a correction to the orders of the AAT in accordance with the slip rule was refused.

98. The Board submits that, in circumstances where failure to comply with a condition of a permit is an offence (see s 116(3A) of the AGVET Code), it should not readily be found that there is a condition which does not emerge from the face of the Permit itself (such as, for example, an alleged condition that would require the Board to install wooden roofs over nearly 18,000 bait stations, especially when to require such roofs would create a delay of several months to the REP, referring to Mr Walsh’s affidavit at [112]).

99. I will return to the reliance sought to be placed by the plaintiff on [40] of the reasons in the AAT decision (see [114] below), when addressing the proper construction of conditions 20 and 21. Suffice it here to note that I do not accept that [40] of the reasons imposes some separate or stand-alone condition (not otherwise stated in the Permit) with which the Board as permit-holder (or any other person authorised to act in accordance with the Permit) would be bound as a matter of law to comply.

100. The AGVET Code makes clear that a permit must contain the conditions with which (at pain of commission of a criminal offence) a person authorised to act in accordance with the permit must comply. There is nothing in the AGVET Code, nor was I taken to any authority to permit such a finding, that requires a person authorised to act in accordance with a permit issued under the Code separately to comply with the reasons for the imposition of the permit conditions let alone that the conditions of a permit (which have the force of law) can be expanded or supplemented by such reasons.

101. In the amended statement of claim, the formulation adopted by the plaintiff (see for example at [15]) was to plead that conditions “were amended or added to by force or effect of” the AAT decision. Insofar as that is a reference to the reasons for the decision then the Board’s complaint that the plaintiff is seeking to rely on the reasons as having the force of a permit condition seems to me to be well-based. However, in oral submissions Senior Counsel for the plaintiff disavowed any reliance on the reasons of the Deputy President as being the decision itself (see T 13.28) and simply argued that the reasons are a permissible aid to construction of the Permit. I consider that submission later in these reasons.

Issues in the proceedings

102. By the time of the (expedited) hearing before me, the issues in the proceedings had been narrowed to: first, the proper construction of conditions 20 and 21 of the Permit (the external bait stations issue), which has two aspects; second, whether, on its proper construction, the Permit allows the use of a maximum 42 tonnes of the Pestoff pellets (the tonnage issue); and, third, whether, if the proposed means of implementation of the REP would contravene the Permit in one or more of those respects, injunctive relief as sought by the plaintiff should be granted as a matter of discretion.

103. As adverted to above, certain of the declaratory relief sought in the amended statement of claim was not ultimately pressed (including the declarations sought in prayers 1 and 3). In that regard, the plaintiff accepted that the making of declarations of that kind would amount to a declaration in civil proceedings of criminal conduct (it being a criminal offence to apply the poison otherwise than as permitted by the Permit). Hence, the terms in which some of the issues were identified by the plaintiff are not particularly apt (see, for example, issue 1, which was prefaced by the words “[d]o the bait stations that have been deployed by the Board contravene conditions 20 and 21 of the APVMA Permit, in that …”). I have therefore reworded the issues to limit consideration to the proper construction of what is permitted or required by the Permit; not whether there has been (to date) a breach of the Permit. The Board accepts, in this regard, that there is no difficulty with the making of a declaration as to prospective conduct.

104. Further, given that the plaintiff no longer presses for a declaration as to conduct that would amount to a criminal offence, and there is now no issue raised as to the Marine Park Permit, the issue that had been raised by the Board as to the plaintiff’s standing to seek the declaratory relief in prayers 3, 12 and 13(b) of the amended statement of claim now does not arise; and hence it is not necessary to consider the submissions made by the parties on the question of standing.

105. As further explained in oral submissions by Senior Counsel for the plaintiff, the issues raised as to the construction of the Permit (the first and second issues as I have referred to them above) are as follows (and I will deal with them in this order):

1. in relation to condition 20:

1. whether as a matter of construction the bait stations must be covered by more than the lid of the bait station in order to comply with the requirement that the bait stations be “adequately covered” when used in the open air to prevent access to bait by birds; and

2. whether (even if there is no requirement for any further covering other than the lid of the bait station itself) the bait stations are adequate to prevent access to bait by birds;

1. in relation to condition 21, what is meant by “secured to the ground”, i.e., whether the proposed means of securing the bait stations in some areas of the settlement without covering those stations with a wooden roof or some similar additional cover; (and perhaps also, although this was not clear on the pleading, without adopting the crossed-over method of affixation now to be used in certain areas) would comply with condition 21; and

2. whether, on its proper construction, the Permit permits only the use of a maximum of 42 tonnes of the Pestoff pellets.

106. The alleged contravention of Condition 30 of the Permit, as pleaded at [39A]-[39C] of the amended statement of claim (which related to labelling on buckets from which the hand broadcasting of bait was to be carried out), is now no longer an issue (the plaintiff accepting that, in the circumstances set out in the affidavit of Mr Walsh at [129]-[133], this issue has been addressed by the Board), save for its relevance to the question of discretion as to whether relief should be granted following the determination of the other issues (and in respect of the ultimate issue of costs of the proceedings).

Evidence

107. The plaintiff relies on an affidavit affirmed 22 May 2019 of her solicitor, Mr Vrisakis, which mainly attaches various communications with the Board’s solicitor and the relevant Permit; her affidavit sworn 29 May 2019 deposing to the matters referred to earlier (and to her testing of the security of the pegging of the bait stations – see at [12]-[13], in which she says that she was able easily to pick up 20 bait stations in various locations on the Island “with little resistance from the pegs in the Bait Stations into the ground”); and an affidavit sworn 29 May 2019 of another Islander, Mr Stuart Henry King, deposing to having witnessed on two occasions a four year old girl “lift one of the bait stations pegged to the ground completely off the ground without any apparent effort” and, on numerous occasions jump up and down on bait stations, dislodging them from the ground and then shaking them (see at [10]-[11]).

108. The Board relevantly relies on the following affidavit evidence: Mr Walsh’s evidence as to the project generally, the plaintiff’s complaints about external bait stations and labelling, and discretionary factors against the granting of relief; an affidavit of Ms Helen Sims affirmed 22 May 2019, the solicitor with carriage of the proceeding, going to various discretionary factors against the granting of relief; an expert report dated 3 June 2019 of a mechanical engineer, Mr David Lyons explaining the force required to remove an external bait station when secured in various ways; an expert report dated 4 June 2019 of Dr Terence O’Dwyer, an avian ecologist (the O’Dwyer Report), explaining the risks of the REP to bird species on Lord Howe Island and the capacity of birds on Lord Howe Island to access the external bait stations; an expert report dated 4 June 2019 of Dr Robert DeMott, a toxicologist (the DeMott Report), explaining the potential human health risks and their management related to the implementation of the REP. Where relevant, I will summarise that evidence when considering the issues raised in these proceedings. In the interests of time, I will not separately summarise all of that evidence in these reasons.

109. The Board also relied (though this is no longer relevant, given that the insurance issue has fallen away) on an affidavit affirmed 4 June 2019 of Mr John van Gaalen, the Manager, Business and Corporate Services, employed by the Board, who deposed to various matters going to the Board’s insurance cover. It is not necessary to consider that evidence.

1.    External bait stations issue

110. I turn first to the external bait stations issue, in respect of which there were two arguments addressed to the construction of condition 20 (and one as to the construction of condition 21).

(a)(i)    On the proper construction of condition 20 is an additional cover to the lid required?

111. Condition 19 prescribes the use of a particular brand of bait station for external use. One such bait station was in Court during the hearing (though not formally tendered). To my observation (and though I accept there are limitations one might place on a visual observation made from the distance of the bench, this does not appear to be in issue), this type of bait station is a plastic station which has attached to it a hinged lid. Inside there is a raised (coffee cup style) platform, in which the pellets of bait are to be placed. There are two exit/entry holes, through which rodents may enter the bait station. The holes are small enough to prevent access by some, but not all, bird species (see the O’Dwyer Report) (and, in particular, some birds may be able to gain access by placing their head and neck through the holes even if their entire body would not be able to fit through the holes).

112. Other conditions of the Permit require the placement of a cover over the Globe Pest Solutions bait stations where used in specific areas (see the conditions relating to use in paddocks where there are cattle grazing to which I have already referred – conditions 33 and 37). The plaintiff’s principal complaint as to cover, as I understand it, is not as to the adequacy of the wooden cover that is to be used in the grazing paddocks but, rather, that the Board does not propose to place any additional cover over the bait stations in other outdoor areas of the settlement. Moreover, the plaintiff does not suggest that a particular type of cover be used for all the bait stations, simply that there must be an additional cover (additional to the bait station lid) for all bait stations placed in the outdoor areas of the settlement area.

Plaintiff’s submissions

113. The plaintiff’s first argument as to the construction of condition 20 in this regard is that condition 20 would be entirely otiose if the lid of the Globe Pest Solutions bait station was of itself sufficient to constitute an adequate cover to prevent access to bait by birds; and therefore that condition 20 mandates a cover additional to the mere lid of the Globe Pest Solutions bait stations. The plaintiff says that, unless the condition contemplates something additional to that which is intrinsically part of the Global Pest Solutions rodent bait station (referred to in condition 19), there would be little or no point in referring in a separate condition to a requirement that it be adequately covered. Given that condition 21 requires that the bait stations must be locked when installed, the plaintiff says that one cannot regard the locking of the lid as providing the additional work for condition 20 to do and submits that condition 20 contemplates some cover additional to the lidded bait station with the lid locked (T 13.6).

114. The plaintiff’s second argument is that the language of condition 20 of itself indicates that the cover is something over and above the bait station itself (see T 12.8ff). The plaintiff further says that [40] of the reasons paraphrases what the Deputy President thought would be required by the conditions (in this regard, that there be a wooden roof covering the bait stations) (see T 15.3); and that this is confirmed by the response to the application made to the AAT in relation to the perceived inconsistency between what was said at [40] of the reasons and what was said in condition 20.

115. The plaintiff further submits that the APVMA’s view as to what would satisfy the requirement of the condition in this regard, conveyed at a time prior to the AAT decision, is of no significance (see T 15.38; T 17.11) (here, responding to the submission by the Board as to the communications with the APVMA as to the adequacy of the lid as a cover for the bait stations, to which I have referred earlier).

(a)(ii)   Are the bait stations (without any additional) cover adequate to prevent access by birds?

116. The second aspect of the plaintiff’s argument as to the coverage of the external bait stations derives from the words “to prevent access by birds”. The plaintiff says that the evidence adduced by the Board from the avian ecologist (Dr O’Dwyer) unequivocally establishes that the Globe Pest Solutions bait stations, by themselves and without any cover, permit access to bait by birds (albeit the smaller variety of birds which inhabit Lord Howe Island).

Dr O’Dwyer’s report

117. It is relevant here to note that Dr O’Dwyer was asked to answer the following questions:

Question 1: Whether there is an unacceptable level of risk to any population of bird species on Lord Howe Island due to the Rodent Eradication Project (“REP”)

Question 2: Where Globe Pest Solutions Rodent Bait Station is used in the open air (an external bait station) with a closed lid, how likely is it that any bird or Lord Howe Island would be able to access the bait contained in the bait station?

Question 3: Do you consider the closed lid of an external bait station to be an adequate cover to prevent access to the bait inside a bait station by birds?

Question 4: Having regard to the photographs of the bait station supplied, do you think the addition of a wooden cover to an external bait station would affect the likelihood that any birds would be able to access the baits contained in an external bait station?

Question 5: In light of the captive management strategy, impact monitoring and other risk mitigation strategies being implemented on LHI as part of the REP, do you think the addition of wooden covers on each external bait station is likely to provide any additional, material reduction in the risks posed to birds under the REP?

118. Dr O’Dwyer summarised his conclusions as to questions 1-3, relevantly, as follows (in his report at [8]ff):

8.   As to Question 1, in my opinion, the REP does not pose an unacceptable population level risk to any non-target population of bird species on Lord Howe Island, factoring in the behaviour of those species, the size and method of deployment of the external bait stations, the Captive Management Program and other risk mitigation strategies being implemented on Lord Howe Island as part of the REP.

9.   As to question 2, while some small species of birds may potentially be able to access the entrances to bait stations that are intended for rats and mice, as discussed further below, no significant population-level threats are expected to any species, due to either dietary incompatibilities or due to the small number of individuals that are expected to attempt to access bait. Otherwise, the size of most of the bird species on Lord Howe Island will prevent them from accessing the bait inside a bait station. If the entrance to the bait stations was reduced in size to eliminate access to small birds, rats and mice would also be excluded, which would defeat the purpose of deploying the bait stations. [my emphasis]

213. The Board notes that, in that context, courts have considered factors including: the nature of the breach; whether the breach was more than merely technical in nature; the hardship and other matters personal to the plaintiff; the hardship and other matters personal to the defendant; and the harm to the environment generally caused by the unlawful conduct. It is submitted that in exercising its discretion to grant injunctive relief in this case, this Court can consider similar factors.

214. In addition to the matters referred to above, the Board also raises the following additional facts in respect of each of the plaintiff’s claims for injunctive relief: that the REP has been in development since as early as 2001 (Mr Walsh’s affidavit at [9], [24]-[45]); that the REP has been the subject of a plebiscite of the residents of Lord Howe Island (Mr Walsh’s affidavit at [37]-[38]); that the REP has been subject to several external expert peer and technical reviews, as well as scrutiny from various regulatory agencies at Commonwealth and State level (Mr Walsh’s affidavit at [9]); that the Commonwealth and State governments have provided $10.6 million in funds (Mr Walsh’s affidavit at [110]), and hence it may be inferred that the REP enjoys the support of those governments; that there are regulators, apprised of the situation, that have otherwise not taken steps to restrain the practices of the Board or the conduct of the REP (Mr Walsh’s affidavit at [106]-[109]); that the evidence indicates that there are no real risks to the environment or to human health arising from any of the breaches alleged by the plaintiff.

215. Conversely, it is said that the plaintiff’s complaints fail to take any account of the risks to human health from not proceeding with the REP, where that would involve ongoing programs, presumptively indefinitely (including use of poisons) to deal with the Island’s rodent problem (see Exhibit 5, pp 95-96, 314-315).

216. The Board says that the Board and the Lord Howe Island community generally will suffer significant detriment if it is required to halt the REP, in that: a key aspect of rodent eradication is that every rodent must get access to a lethal dose of bait at approximately the same time across the whole of the Island (Mr Walsh’s affidavit at [23]); a risk in halting an eradication program part-way through is that rats may build resistance to poison, meaning that subsequent eradication programs may not be effective (Exhibit 5 p 229); that the Board has already committed most of the funds advanced by the State and Commonwealth governments and many of the costs incurred are non-refundable if cancelled or will incur substantial cancellation costs (Mr Walsh’s affidavit at [111]); the REP must be undertaken in the seasonal window, which means that any decision which delays implementation of the project would therefore delay it by a year until winter 2020 (Mr Walsh’s affidavit at [115]); a failure to implement the REP in 2019 would likely mean the end of the project (Mr Walsh’s affidavit at [116]); and a failure to implement the REP will have a significant impact on the local economy, which Mr Walsh estimates to be in the order of $3.19 million (Mr Walsh’s affidavit at [117]).

217. The Board says that a failure to eradicate rats will lead to ongoing pressures on: threatened species on Lord Howe Island (Mr Walsh’s affidavit at [15]-[16]); various local businesses, including tourism businesses and the kentia palm industry (Mr Walsh’s affidavit at [17], [42], [119], Exhibit 5, pp 388-389).

218. The Board says that the plaintiff has delayed in bringing these proceedings arguing, relevantly, that: the timeframes of the REP were a matter of public record since at least late March 2019 (Ms Sims’ affidavit at [8]-[9]); and the initial installation of the bait stations commenced in mid-April 2019, so that any complaint about the adequacy by which they were secured to the ground should have been obvious to the plaintiff around that date.

Plaintiff’s submissions

221. The plaintiff maintains that it is entitled to the making of declarations and orders as sought. Insofar as the Board places reliance on discretionary matters, the plaintiff submits that the paramount public interest is that the Board comply with the law, which involves complying with the conditions in the Permit in order to introduce this particular poison into the environment.

222. It is accepted that “no doubt” there are perceived benefits from the REP but that also there are undoubtedly risks. The plaintiff says that the APVMA is the authority charged with the task of balancing the risks and benefits in the REP; that its set of conditions represents the way in which there is a legally enforceable balancing of those risks and benefits; and that it is not for this Court to second‑guess the way in which that balance has been struck in the APVMA conditions (or to say that some of the conditions may be overly onerous or some may be misguided). It is submitted that any variation to the conditions is a matter for application to the APVMA and not by way of discretionary considerations before this Court.

223. As to delay, the plaintiff cavils with the implicit assumption that she is a member of the body which conducted the AAT proceedings (as already noted). It is submitted that in the absence of evidence that the plaintiff is a member of that body or a member of the executive of that body then there is no reason for attributing to the plaintiff any knowledge which may have been gained by the First Peoples Association in those proceedings.

224. It is noted that the actual decision of the AAT was made on 18 April 2009 but the Permit conditions were not finalised until 7 May 2019 and that these proceedings were commenced two weeks later on 22 May 2019. It is submitted that this does not involve any delay of any materiality and that there is no evidence of any prejudice which the Board has suffered by reason of any delay; in particular, that there is no evidence of what the Board would have done differently had the plaintiff commenced these proceedings earlier and it is unrealistic to think they could have been commenced earlier.

Determination

225. At the outset, I note that there is an issue in the present case as to the manner in which one approaches the question of construction of a document such as the Permit.

226. In essence, the Board submits that the question of construction should be approached by analogy with the manner in which a document such as a development consent would be construed.

227. The ordinary rules of construction and principles of interpretation apply to a development consent as with a statutory instrument (Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 (Ko-veda) at [97]–[99]; Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 (Leda); Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 (Benedict Industries)). A consent is to be construed according to its terms, having regard to its enduring nature (Leda; The Owners — Strata Plan No 4983 v Canny [2018] NSWCA 275 (Canny); Benedict Industries; Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd(subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263 (Bunderra)).

228. In that regard it is relevant to note that a development consent has an enduring nature because it is not personal to the proponent but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 (House of Peace) at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [4] and Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 at 324). Thus, as a general rule, a development consent, being a public document operating for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it (Canny; Bunderra).

229. I have referred above to the submissions made by the Board by reference to what was said in Westfield Management. In Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202, Bathurst CJ accepted, as Leeming JA had pointed out in Bunderra at [56] (quoting Westfield Management at [36]), that “conditions of consent are to be construed not as documents drafted with legal expertise, but to achieve practical results” but stated that his Honour, was of the option that (at [35]):

[N]evertheless, principles of statutory construction can be of assistance in construing a development consent. In particular, the development consent should be construed to produce a “harmonious” result and to “give meaning to every word” of its provisions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]-[71].

230. See also the principles of construction as summarised by Pepper J in Leda in this regard.

231. I consider that there is force to the Board’s argument as to the approach to be adopted to construction of the Permit. Non-compliance with the conditions of a permit such as the Permit is a serious issue – a person distributing the product not in accordance with the conditions of the Permit is exposed to criminal liability. It is obviously important for persons distributing the product for the purposes of the REP to be able to satisfy themselves of what is required to be done (and what is prohibited) under the Permit. It is no doubt for that reason that permits such as this are publicly accessible.

232. In those circumstances it is apparent that one must be able to discern on the face of the Permit what conditions of use are imposed (and hence the requirement under the AGVET Code that a permit specify those conditions). I do not accept that a person using the product would be expected to trawl back through the application forms for the permit (even assuming they were publicly accessible) or the outcome of AAT proceedings (here , the AAT decision) to form a view as to whether a particular use is or is not permitted under the Permit. In that sense, there is an obvious analogy to the position of development consents. It seems to me that, as a general principal, permits such as the present ought to be construed without reference to the application(s) made for the permit or correspondence with the relevant authority as to use under the permit or any reasons for decision as to the variation of conditions of the Permit. Furthermore, I consider that it should be construed not as a document drafted with legal expertise, or as a statute would be construed, but purposively as a document intended to achieve practical results.

233. However, even if I am wrong in this I would still have reached the conclusions I have as to the proper construction of the relevant conditions and the Permit itself for the following reasons.

Determination as to proper construction of condition 20

234. Turning to condition 20, which forms part of a group of conditions relating to the use of external bait stations in outdoor areas of the settlement area, I accept that (construed in the context of condition 19, which immediately precedes it), it must be understood to refer to the particular brand of bait station identified in condition 19. That bait station comes with a hinged lid. However, I do not accept that it follows that the requirement that the bait station be “adequately covered” therefore should be construed as requiring that this means that it have an additional cover over the top of the lid itself.

235. I consider that the words “adequately covered to prevent access to bait by birds” have work to do and are not rendered otiose by reference to the fact that condition 19 specifies that the bait station be of a brand that comes with its own lid. That is because condition 19 specifies only the brand; whereas condition 20 in practical terms requires that the lid be closed in order adequately to cover the bait. Condition 21 does not compel a different conclusion in my opinion because the concept of the bait station being locked and secured to the ground when installed seems to me to encompass more than the lid being closed – rather, that the lid is locked (whether by use of the hinged locking mechanism so ably demonstrated in the course of oral submissions by Counsel or otherwise).

236. I do not consider that [40] of the AAT decision reasons should be taken into account in the construction of the Permit; but even if it were I am not satisfied that it relevantly informs the construction of condition 20 in circumstances where it is clear from the conditions of the Permit that where it was intended that there be a specific requirement for the bait station to have an additional cover this was specified.

237. Nor am I assisted by the correspondence from the AAT in relation to the application made by the plaintiff under the equivalent of the slip rule. There is no inconsistency between a general requirement that there be adequate cover and a specific requirement in relation to wooden roof covers, in the sense that the latter is one way in which the former may be effected; but there is no direction in the Permit expressly to require this in the case of all bait stations (and the Deputy President appears – from the decision conveyed that the operative direction not be amended – not to have accepted that there was an obvious error in not including this in the direction for the Permit conditions in the first place).

238. Thus, I am of the view that, on the ordinary meaning of the words “adequately covered”, this is effected by the closing of the lid and there is no requirement for an additional cover (other than where expressly specified in relation to the grazing areas).

239. In relation to the second limb of the plaintiff’s argument, as already indicated, I consider that it is not open to the plaintiff to expand the pleaded case in order to complain of a contravention in this regard but in any event I do not consider that the fact that some small birds might be able to gain access to the bait stations amounts to a breach of the condition. I read the words “to prevent access to bait by birds” as intended to explain the purpose of the requirement contained in condition 20 (by which one might test whether the cover is adequate); not as imposing a separate condition that in fact it be impossible for any bird to have access to bait contained in the bait station. To set such a condition would seem, on Dr O’Dwyer’s evidence, to set a standard that could not conceivably be met whilst also permitting the very object of the baits (the eradication of rodents) to be achieved.

240. Thus, I find that on the proper construction of condition 20 there will be no breach if bait stations of the requisite brand are placed in the outdoor areas of the settlement area (other than the grazing paddocks) without additional cover over and above the bait station lid – provided that the lid is closed so that the bait is covered (and, in accordance with condition 21, the lid is locked in the sense that the hinge is clipped shut).

Determination as to proper construction of condition 21

241. As to condition 21, I consider that the ordinary meaning of “secured” is “fastened”, “attached” or a synonym to that effect. The placement of tent pegs affixing the bait stations to the ground (even if those bait stations might be able to be picked up by someone intending to do so or otherwise dislodged in some fashion – such as a child jumping up and down on them, as the child of Mr King’s tenant has been observed to do) does not mean that the bait stations are not “secured” (it would just mean that they were not very well secured). The fact that the condition does not apply where bait stations are placed on impervious ground gives some indication that in other areas what is contemplated is the securing or attaching of the bait stations be by some means that can penetrate the ground and affix the bait station (albeit temporarily) to the ground.

242. While I do not accept the Board’s submission that the meaning of condition 21 is to secure the bait stations only against naturally occurring events (which seems to me impermissibly to read words into the condition that are not there), I see no reason to conclude that it would be a breach of condition 21 (for which criminal sanctions might be imposed) for a bait station to be pegged by the initial size pegs (and not crossed over as the bait station pegs are now being crossed in areas likely to be frequented by children).

243. I gain no assistance from reference to [40] of the AAT decision in reaching this conclusion.

Determination as to tonnage issue

244. There is no express condition providing for maximum tonnage as the plaintiff contends, nor do I consider that such a condition is implicit in the terms of the Permit. The Permit should be construed by reference to its terms, not to the application or applications that preceded it. True it is that the Board estimated initially a maximum 42 tonnes of product. However, I do not accept that the Permit, properly construed, limits the Board to that volume of tonnage. Any such condition would need to be explicit in the Permit itself. I accept the Board’s submissions in that regard.

245. It is relevant to note that the arithmetical calculation of the so-called maximum tonnage condition does not appear to take into account the area of the whole of the Lord Howe Island Group (which includes adjacent islands); and the fact that the plaintiff accepts that there might be a buffer for spoilage tells against such a construction.

246. It is by no means self-evident that an arithmetical calculation, of the kind that would need to be carried out (on the plaintiff’s argument) to discern the actual maximum amount the subject of the condition the plaintiff says is here imposed, would produce only one correct answer and, to the extent that it does not, it would give rise to unacceptable uncertainty as to the relevant condition. Had the AVPMA (or the Deputy President when rewording the permit conditions) wished to specify a maximum tonnage condition, then it would have been a simple matter so to do.

Discretionary considerations

247. Had I reached a different conclusion as to the external bait stations issue, I would not have exercised the discretion to grant the injunctive relief sought. That is because the public interest in compliance with the conditions must be balanced against: the public interest in the eradication of the rodents from the island (that will be inevitably prejudiced if the REP is delayed or cannot proceed, having regard among other things to the potential for the rats to develop resistance to the baits); the overwhelming evidence as to the lack of harm that will be suffered by humans from the baiting and the minimisation of harm to the bird population on the island; the time and effort that has gone into the preparation for and commencement of implementation of the REP (including the numerous studies from a variety of respected organisations as to the need for such a program in the interests of preservation of the significant wildlife values of the island) and (though this is the factor on which I place least weight) the fact of the considerable sunk cost that is likely to be wasted if the programme is not completed.

248. I do not accept that, had the issue arisen (which it does not), a decision not to grant injunctive relief would amount to usurpation of the role of the APVMA in balancing competing public interests in relation to the REP (as the plaintiff suggests). There is a distinction in my opinion between a refusal to grant relief in respect of a past breach (or, for that matter, a refusal to restrain particular conduct) and a variation of the Permit conditions.

247. The breaches in relation to the external bait stations, had they been made out, in relation to additional lid covers or the manner of securing of tent pegs would not in my view have been significant enough to warrant delay and disruption to the overall programme. Such a conclusion is no different to, say, a decision not to issue a mandatory injunction for the replacement of building work carried out in breach of a development consent or the like. There is in my opinion a clear distinction between exercising discretion not to grant relief in relation to a past breach and varying a condition in a permit that has prospective operation. Refusing to grant an injunction does not amount to the latter.

248. The fact that work has already commenced in relation to the baiting is a strong factor (having regard to the concerns as to the development of resistance by rodents to the poison) weighing against the grant of injunctive relief. Even had I been of the view that injunctive relief was warranted, I would not have granted injunctions in the terms sought. Furthermore, an injunction to require compliance with the law seems to me to be otiose – there is already an obligation to comply with the Permit (the relevant question being what that here requires); and an injunction to restrain breach of the Permit conditions as properly construed would need to be more precisely worded than as set out in the amended statement of claim – so that person(s) the subject of such injunctive relief would know precisely what was being restrained.

249. Had I formed the view that the tonnage condition was a condition of the Permit I would have been inclined to grant a negative injunction to restrain the dispersal of more than the maximum amount of product – on the basis that I am not persuaded that this would necessarily halt the REP and it would be sufficiently clear in its terms to meet the concerns stated above. (I would also have made it subject to any consent that might be granted by the APVMA to the variation of the conditions to permit the additional product.) However, that issue does not here arise as I am not satisfied that the Permit, as properly construed, imposes such a maximum tonnage condition.

Conclusion

252. For the above reasons, I dismiss the plaintiff’s claim. In the ordinary course, costs would follow the event. I see no reason here to depart from that course.

253. Accordingly, I order as follows:

1. Plaintiff’s claim be dismissed with costs.

**********