I have set out below an overview of the relevant facts, which summarises the applicant's amended 'Statement of Facts and Contentions' filed 17 August 2016. These facts were not disputed by the respondent.
By advertisement published in November 2014 in the North West Magazine and the Walgett Spectator newspaper, LLS called for EOIs for Long Term (formerly Annual) Grazing Permits on TSRs. This advertisement also notified that "all existing annual grazing permits in the North West Local Land Services District will cease on 31 December 2014", and provided that "persons interested in applying for LGPs on any of the 'existing areas' of annual grazing permits for a 5 year period - being 1 January 2014 [sic] to 31 December 2019 - must lodge an EOI". "Submissions" were to reach LLS "by close of business 5pm on the 5th December 2014". By a letter dated 14 November 2014, LLS notified the applicant and his wife in similar, but not identical, terms.
By resolution on 24 November 2014, the North West local board of LLS formally adopted a long term grazing permit policy known as the LGP Policy.
By letter dated 3 December 2014, the applicant lodged the EOI applications for LGPs, relevantly in respect of a part of the TSR described as "the land adjoining the entire southern boundary of 'Yooloobil' and running east to Hillstead" having an approximate area of 350 ha.
Although there was some delay in LLS's collection from the post office of the applicant's EOI applications, they were accepted as being received on time.
LLS then called for all EOIs to be re-submitted and by email dated 19 December 2014 sent to the applicant's solicitors, and by subsequent email dated 19 December 2014 sent to the applicant's son and representative, Reece Mills, Gerard O'Connor, a Team Leader, Travelling Stock Reserves at LLS advised both that "definite offers will close on Monday 22nd… If amended bids are not received by this time any existing definitive bids will be assessed". The purpose of calling for the EOIs to be resubmitted was that LLS had split the part of the TSR 7800 described in paragraph [26] above as follows:
(1) EOI 1 affronting Yooloobil - the one you currently have DSE 1.65 Area 116.7; and
(2) EOI 1a adjoining Yooloobil and running towards Hillstead - DSE 1.65 - Area 220Hec.
By email dated 22 December 2014 sent to Gerard O'Connor, Reece Mills, lodged "revised Expression of Interest for the Long Term Grazing Permits for stock routes adjoining our properties", for LGPs, relevantly in respect of parts of TSR 7800 described as:
(1) Facing the southern boundary of our property 'Yooloobil'" having an approximate area of "116.7 ha; and
(2) Adjoining the south-eastern corner of our property 'Yooloobil' and running east towards 'Hillstead'" having an approximate area of "220 ha.
By email dated 22 December 2014, Gerard O'Connor advised Reece Mills, that "you have won the areas listed below", relevantly as follows:
(1) The LTGP adjacent to the property Yooloobil currently held by you was uncontested and was won by you with the minimum bid; and
(2) The LTGP TSR 7800 adjacent to the property Carbeen - current AGP holder Cassandra Johnson & Simon Keen.
The second listed area is the relevant land.
By email dated 23 December 2014, Gerard O'Connor subsequently advised Reece Mills, that he had:
...received a response from the unsuccessful applicant of the area adjoining Yooloobil and running back down to Hillstead. They will be providing further information which may have an effect on the way the application is assessed and therefore may affect the outcome of the awarding of this particular area. My email yesterday was an update on the process and official letters and permits and conditions that will require signature and payment in advance for the areas will be sent in due course.
By email dated 23 December 2014 sent to Gerard O'Connor, Reece Mills responded to the effect that he could not understand what the issue would be.
By email dated 24 December 2014, Gerard O'Connor advised Reece Mills that:
I have been made aware of a situation that exists in relation to the area in question (area running down to Hillstead). The current permit holder has indicated that it is 'unfenced from their holding.' I was not aware of this fact and I will be ground truthing this area to confirm the current permit holders' claim. Section 20.10.4 [sic] of the policy [LGP Policy] states that an area which is un-fenced from the property can only be issued to the landholder that is it unfenced from or fenced into. Policy link below - it is on the North West LLS website …So as you can see the applications and assessment needs to be reviewed to ensure it is in line with the policy.
By email dated 24 December 2014 sent to Gerard O'Connor, Reece Mills, responded:
If the piece of land in question is that (approx. 16ha) on the western side of the Dolgelly Road adjoining the property 'Carbeen' to the west and south, and the TSR to the north, it should be acknowledged that there was previously a fence between it and the TSR which has been removed but not replaced (this can clearly be seen from a satellite image), and although the fence has been removed the LGP cannot be considered a [sic] being 'an unfenced area enclosed within the applicant's property'. By definition enclose is 'to surround or close off on all sides'.
By email dated 7 January 2015, Gerard O'Connor notified Reece Mills of LLS's decision to refuse to issue a LGP relevantly as follows:
I wish to advise that after consultation with management and in line with policy and previously outlined in previous email, it is the North West LLS' intention to award the area that you have applied for that was previously held by Aralu Farming to this entity based on our policy given the [sic] there is an area unfenced from the TSR that is part of the Aralu [Farming] [sic] holding.
My investigations in relation to this area are that is [sic] was unfenced from the TSR at the time of purchase by the Aralu Farming entity from the TSR.
[2]
Evidence
The evidence before this Court was extensive, consisting of much of the evidence before the Tribunal, supplemented by further documentary and affidavit evidence, a view of the subject area and detailed oral evidence. The evidence included:
1. various versions of contentions (Exs A, B, 2 and 4);
2. detailed bundle of documents (Ex D) comprising both the applicant's and respondent's evidence before the Tribunal including:
1. affidavits filed for the applicant of Reece Mills of 24 April 2015 and 14 May 2015, Aubrey Mills sworn 15 May 2015 and various exhibits comprising correspondence passing between the parties and various title searches;
2. material relied upon by the respondent including a statutory declaration of James Moore of 28 March 2015 and statements of John Robert Tait of 5 May 2015, Gerard O'Connor of 6 May 2015 and Simon Keen of 7 May 2015;
3. transcripts of the hearing before the Tribunal on 18 May, 15 June and 26 June as well as the detailed written submissions of each of the parties;
1. affidavits of Reece Anthony Mills of 3 August 2016 and 12 August 2016, Aubrey Robert Mills of 16 August 2016 on behalf of the applicant, and affidavits of Herbert Ross Keen of 10 August 2016 and Gerard O'Connor of 10 August 2016 on behalf of the respondent; and
2. oral evidence of Reece Anthony Mills, Herbert Ross Keen and Gerard O'Connor.
The Tribunal has, at [69]-[91] of its decision, provided a summary of the evidence before it. Given the significant overlap between the evidence before the Tribunal and this Court, while I have considered the evidence in detail, I adopt but do not reproduce that summary.
The further evidence before this Court was generally an expansion of the evidence given before the Tribunal, except for some further documentary material and the evidence of Herbert Keen. Save for discrete references below, I do not summarise the further evidence.
[3]
Issues
The parties articulated their contentions in the following documents:
1. the applicant's amended 'Statement of Facts and Contentions' filed 17 August 2016 (Exhibit A);
2. the respondent's 'Statements and Facts and Contentions' filed 9 May 2016 (Exhibit 2);
3. the respondent's 'Supplementary Statement of Facts and Contentions' filed 19 May 2016 pursuant to an order of the Registrar of this Court that the respondent specify "the contentions that the respondent raises as reasons why the long term grazing permit should not issue" (Exhibit 3); and
4. the applicant's 'Statement of Facts and Contentions in Reply' filed 5 August 2016 (Exhibit B).
Considering the extensive evidence and submissions and noting in particular the manner in which the contentions have been framed, there are five, mostly interrelated, issues:
1. whether the decision to issue a LGP is required to be made in accordance with the LGP Policy;
2. whether cl 2.6 of the LGP Policy is the sole criterion by which the determination is required to be made;
3. whether subcl 2.10.4 of the LGP Policy applies to the decision to issue a LGP;
4. whether the relevant land was ever fenced; and
5. whether the issue that the relevant land is presently unfenced can be (or should be) dealt with by issuing a LGP subject to conditions.
I deal with each of these issues in turn.
[4]
Issue one: whether the decision to issue a LGP is required to be made in accordance with the LGP Policy
[5]
Applicant's position
The applicant relies on the Tribunal's reasons at [53]-[54] to submit that the decision to issue a LGP should be exercised by this Court by reference to the LGP Policy, and in particular cl 2.6. The applicant submits that the LGP Policy was formally adopted on 24 November 2014 and was identified in the advertisement inviting EOIs as well as on the LLS website. The applicant further submits the LGP Policy is a relevant consideration to be taken into account, and that the exercise of this Court's alternative powers under s 86(5)(a) and (b) of the LLS Act (per s 39(2) of the LEC Act) is directly informed by the LGP Policy.
[6]
Respondent's position
The respondent submits that the LGP Policy is of no relevant statutory force and therefore that any purported contravention of its terms does not invalidate the lawfulness of LLS's decision to not grant the LGP. The respondent submits that the LGP Policy was something that Gerard O'Connor, the Tribunal and the Court may have regard to, but that it is not determinative in the exercise of discretion and cannot fetter the exercise of discretion. Rather, the respondent submits that just as Gerard O'Connor was required to consider the individual circumstances of this case, the Court should adopt the same position on the evidence now before it.
The respondent further submits that even if LLS, the Tribunal or this Court were confined only to the terms of the LGP Policy when making a determination, the decision-maker would be fettering the exercise of its discretion if it did not take into account the fact that the relevant land is unfenced from Aralu.
Importantly, the respondent relies upon evidence of Gerard O'Connor that there has been a longstanding policy of LLS and its predecessors that where there is no boundary fence between a section of a TSR and an adjoining property, the owner of the adjoining property has the first and only right for a LGP.
[7]
Applicant's reply position
The applicant submits that the respondent wants it "both ways" by claiming, first, that little weight should be given to the LGP Policy but, at the same time, and second, that this Court is "bound to consider" the application of cl 2.10 of the LGP Policy.
The applicant maintains that weight must be given to the LGP Policy, and that the LGP Policy is intended to guide the decision-making of LLS authorised officers under the LLS Act. The applicant noted the evidence that Gerard O'Connor had drafted the LGP Policy and submitted that it would be trite to dismiss the LGP Policy given the role of LLS and the significant decisions that it is charged with making.
The applicant further submits that it would be unfair and unreasonable for the Court to find that a "long-standing practice and policy" trumps a written LGP Policy adopted as recently as 24 November 2014, and expressly advertised by LLS as applying to its assessment as to whether to grant a LGP. The respondent further relied upon the evidence that in 28 years Gerard O'Connor has only relied twice on the "invariable practice and policy", and put forward argument to suggest that the LGP Policy was not in fact 'longstanding'.
[8]
Consideration
It is clear that the LGP Policy is intended to provide a system to manage existing LGPs and provide guidance on EOIs over new areas. I agree with the finding of the Tribunal that it aims to ensure fairness and impartiality, consistency and transparency in the process and compliance with legislative obligations. The relevant sections were appropriately summarised at [36] of the Tribunal's decision which, again, I adopt and do not reproduce. However, this Court is not bound by the conduct and primary decision of Gerard O'Connor nor indeed by the reasoning of the Tribunal.
In summary, and for the reasons below, I find that this Court in determining whether to grant a LGP is entitled to give consideration to the LGP Policy, however strict adherence to the LGP Policy is not a pre-requisite to the requisite determination.
The evidence in relation to the background and events leading to the initial determination, summarised at [23]-[36] above (and succinctly at [55] of the Tribunal's decision), was relatively non-contentious and the evidence before this Court (and before the Tribunal) made it clear that the respondent had advertised the EOIs for a LGP in a manner which made a direct reference to the LGP Policy. The fact that the advertisement may have contained a representation that the LGP Policy would be applied does not, of itself, provide any restraint in my consideration of the appropriateness of the application. Adopting the reasoning of Kirby J in Neat Domestic Trading Pty Limited v AWB Limited and Another (2003) 216 CLR 277; [2003] HCA 35 at [138]:
The essence of lawful public administration in the exercise of discretion (as of good decision making generally) is to keep an open mind concerning the justice, reasonableness and lawfulness in the particular case, even if this sometimes involves a departure from a general policy.
There is no doubt that some aspects of the LGP Policy were relied upon by Gerard O'Connor more than others, however, I accept the respondent's submission that the LGP Policy is not determinative in the exercise of discretion. In any event, the weight to be given to discrete clauses is now a matter for this Court.
The essential question in relation to this issue is, if weight is to be given to the LGP Policy, as I find it should, which aspects of the LGP Policy should be considered and whether further adherence (and in the sense of slavish application) to one clause (such as 2.6) should be determinative if such a course would be against evidence of a "longstanding practice and policy" given that the LGP Policy was relatively recently adopted. Given my finding that the LGP Policy should not be disregarded, the questions below in relation to discrete clauses become more relevant.
[9]
Issue two: whether cl 2.6 of the LGP Policy is the sole criterion by which the determination is required to be made
Clause 1 of the LGP Policy reads:
The policy is intended to provide a system to manage existing LGPs and provide guidance on EOI over new areas. The policy aims to ensure the process has:
- Fairness and impartiality;
- Consistency and transparency;
- Appropriate security and confidentiality arrangements;
- Identification and management of actual and potential conflicts of interest; and
- Compliance with legislative obligations, LLS Board of Chairs and - Government policies.
Subclause 2.6.1 of the LGP Policy reads:
The highest tender will be successful except where the highest tender is not the adjoining neighbour. In the event of the highest tender not being the adjoining landholder, the adjoining landholder shall be given the opportunity to match the highest tender if they have lodged an EOI...
[10]
Applicant's position
The applicant relies on subcl 2.2.3.2 of the LGP Policy to submit that cl 2.6 of the LGP Policy is the sole criterion against which the assessment of whether the issue of a LGP should be made. The applicant submits that, in accordance with subcl 2.6.1, LLS gave the opportunity for the adjoining landholder, Aralu Farming, to match the highest tender, which was the applicant's tender, however Aralu Farming did not so do. Accordingly, the applicant submits that according to subcl 2.6.1, the LGP should be issued to the applicant.
The applicant submits that cl 2.6 does not refer to subcl 2.10.4, nor is it expressed to be subject to or conditional upon application of the site/infrastructure-based rules set out in cl 2.10.
[11]
Respondent's position
The respondent contended that LLS, the Tribunal and this Court are not bound by the provisions of the LGP Policy. The respondent therefore disputes the applicant's contention that the decision as to whether to issue a LGP is to be determined solely be reference to the criterion in cl 2.6 of the LGP Policy.
[12]
Consideration
Given my finding that the reference to the LGP Policy in the advertisement does not amount to a justiciable 'reasonable expectation,' and accepting that a reasonable reading of the LGP Policy provides that the "Assessment Process" (subcl 2.2.3) will be made "…solely against the defined Assessment criteria…" (cl 2.6) and that the "Assessment criteria" will be included on the LLS website, it is understandable for the applicant to consider that the assessment criteria in cl 2.6 would be applied.
More relevantly however, in relation to the applicant, the correspondence to him of 14 November 2014 calling for EOIs for LGPs contained the following:
The highest or any EOI may not necessarily be accepted.
In those circumstances there can be no suggestion that cl 2.6 (in particularly subcl 2.6.1) would be strictly applied.
It is clear that, if it was the case that cl 2.6 was to be strictly applied, which I do not accept, on the present evidence the applicant would at least have comprised the "highest tender". However again, because I find that the application of the LGP Policy, in particular the Assessment Process under clause 2.2.3 and the "criteria" set out under cl 2.6, are not determinative, the question remains as to the weight to be given to those clauses in the light of other clauses.
[13]
Issue three: whether subcl 2.10.4 of the LGP Policy applies to the decision to issue a LGP
Clause 2.10.4 of the LGP Policy provides:
Where the TSR is unfenced, and as a result the LGP is an unfenced area enclosed within the applicant's property, applicants holding no other application will be considered and the LGP may be reissued to the landholder. This clause only applies to TSRs that have been historically fenced into a holding or are unfenced from a holding. EOI submitted under this situation will be assessed on a case by case basis.
[14]
Applicant's position
The applicant disputes that subcl 2.10.4 of the LGP Policy applies to the decision to issue a LGP, and submits that this is an irrelevant consideration for the purposes of the assessment process.
The applicant submits, in contradistinction to subcl 2.10.5, subcl 2.10.4 does not expressly refer to applications from adjoining landowners, and therefore as a matter of construction, subcl 2.10.4 does not apply to competing applications by adjoining landowners. The applicant further submits that cl 2.10.4 does not apply because:
1. the TSR was not unfenced, but only partly unfenced, meaning the LGP is not "an unfenced area enclosed within the applicant's property";
2. for the TSR to have been "historically fenced into a holding", it would have to have been completely fenced into the holding, which is not the case on the facts; and
3. for the TSR to have been "unfenced from a holding", the TSR would have to be completely unfenced from the holding, which doesn't arise on the facts, as the boundary was fenced save for a distance of 500m that was unfenced since about 2002.
In the alternative, if this Court finds that subcl 2.10.4 of the LGP Policy does apply, the applicant contends that on the proper construction the subclause requires the applicant's EOI to "be assessed on a case by case basis" and that in the circumstances, the Court should exercise its discretion to issue a LGP to the applicant.
[15]
Respondent's position
The respondent submits that the fact that the relevant land is unfenced from Aralu is a relevant consideration that the LLS (and this Court) is required to take into account, regardless of the application of subcl 2.10.4 of the LGP Policy, and in any event, the relevant land is historically "unfenced from a holding" for the purposes of subcl 2.10.4 of the LGP Policy.
The respondent sets out the rationale for the principle enshrined in subcl 2.10.4 in its Statement of Facts and Contentions filed 9 May 2016, namely that a landowner should not be forced to pay the costs of fencing, and it removes the potential for serious conflict which would occur if a third party was given grazing rights to a TSR where there was no fence between the TSR and the freehold land of the neighbour.
[16]
Applicant's reply position
The applicant submits that, in any event, the TSR applied for is not "unfenced from a holding" but rather, "a part of a part of the TSR currently has a piece of fence missing from part of a holding".
The applicant further submits that in deciding not to issue the LGP, Gerard O'Connor believed he was required to, and did apply the LGP Policy, and that he accepted in evidence that the assessment criteria in cl 2.6 does not contain any cross-reference to subcl 2.10.4.
[17]
Consideration
I do not accept the applicant's primary position that 2.10.4 is an irrelevant consideration for the reasons that follow.
First, having found that the LGP Policy is relevant but not necessarily a determinative consideration, the terms and application of 2.10.4 thereof require attention. Clause 2.10.4, both because of its inclusion in the LGP Policy and because of the respondent's evidence (primarily through Gerard O'Connor) that the substance of the subclause, although the LGP Policy is itself relatively recent, reflects at least, what has been an enduring consideration (or "invariable practice" according to Gerard O'Connor) of the relevant authorities for some time is important. Gerard O'Connor's primary evidence in this regard, which was the subject of rigorous and testing cross-examination both before the Tribunal and this Court, was:
I say, and confirm my previous evidence to the effect of, that in my experience the invariable practice and policy of the NWLLS and its predecessors is and has been that where a TSR is unfenced (wholly or partly) from an adjoining private holding, the private holding has the first and only right to take a grazing permit over that adjoining TSR and if the private holding does not wish to take a grazing permit then a grazing permit is not offered to any other person.
I note that in other evidence, Gerard O'Connor's reference to "predecessors" referred to NWLHPA (the Livestock Health and Pest Authority), RLPB (Rural Lands Protection Board) and the PP Board (Pasture Protection Board).
Gerard O'Connor was tested, with some success, on this evidence. I have some concerns about the extent of the "invariable practice and policy in light of his evidence that in considering the EOI he did (or sought to) apply the LGP Policy (and noting his acceptance that there is no cross-reference between cl 2.6 and subcl 2.10.4). Further, I note that, as the applicant has submitted, when pressed as to how many times in his 28 years' experience had he applied the "invariable practice," and he answered to the effect of two times. It is relevant however to note that he added that, "it wasn't up to me to apply that invariable practice. It was a decision taken by the former Pastures Protection Board, Rural Lands Protection Board…"
Second, having found that subcl 2.10.4 is not an irrelevant consideration as submitted by the applicant, I also do not accept the applicant's further submission that because 2.10.4 does not discretely refer to "adjoining landholders", as is the case in subcl 2.10.5, that 2.10.4 does not apply to competing applications by adjoining landowners. Despite the wording of subcl 2.10.4 being somewhat infelicitous, its meaning is reasonably clear. This finding of course, leaves open the question (which I consider below) as to whether, factually, the TSR is unfenced (and/or was "historically fenced into a holding").
Third, I do not accept the applicant's submission that the words "fenced into a holding" necessarily means "completely fenced". Again, the reasons for some demarcation and separation between properties by way of fencing are understandable and, in any event, the clause provides that assessment be undertaken on a "case by case basis".
As such, I find that the fact that the relevant land is presently unfenced from the Aralu is a relevant consideration which I am entitled to take into account irrespective of subcl 2.10.4 of the LGP Policy. This finding is supported by the past practices of relevant bodies, the practical consequences of the absence of fencing, and in any event, the fact that subcl 2.10.4 does invite a "case by case" consideration.
To the extent that there remains any doubt, I find that the "potential for serious conflict" raised by the respondent (and considered in Gerard O'Connor's evidence) if a third party was given grazing rights to a TSR where there was no fence between the TSR and the freehold land of a neighbour, would potentially give rise to a "situation of conflict" (using Gerard O'Connor's words). Therefore, irrespective of the weight to be given to the precise application of subcl 2.10.4 in the assessment process, I nevertheless find that the subclause, and more importantly its substance, is of relevance.
As noted below, in the event that reliance is to be placed on clause 2.10.4, there remains a question as to whether the relevant land (or part thereof) had been "historically fenced". In addition, the question then arises as to whether this Court, in consideration of the application afresh, appropriate conditions are able to be, and should be, imposed to address any outstanding concern reflective of either 2.10.4 or any "invariable practice and policy".
[18]
Issue four: whether the relevant land was ever fenced
[19]
Applicant's position
The applicant put forward affidavit evidence attesting that the relevant land was historically fenced, and that the fence had been removed. The evidence relied upon was evidence from:
1. the applicant himself, who attested that he recalled seeing a fence on the relevant land, and that the fence was "constructed with wooden posts approximately four feet high with several iron posts holding the fence with plain wire in place". The applicant gave evidence that, because he had no cause to pay the fence any particular attention, he cannot recall definitively when it fell or was removed; and
2. Reece Mills, who surveyed the area and attested that "while there is a very small portion of fence missing, there is a clear and defined line where the fence stood…". To support his statement that a fence once stood on the related land, Reece Mills pointed to the fact that there were "pieces of old rusty wire, old bent and snapped off iron posts and old wooden strainer posts" which he attested match the "old iron post, wooden post and rusty wire remnants found along the line".
[20]
Respondent's position
The respondent submits that the relevant land was never fenced. The respondent supports this contention by reference to the fact that five out of six witnesses have given evidence that in their living memory the relevant land was never fenced. This evidence relied upon was from:
1. Simon Keen (of Aralu Farming), who gave evidence that the relevant boundary had never been fenced and that he had never erected or pulled down a fence in that area (as was the suggestion made on behalf of the applicant). Simon Keen had spent his whole life around the area living on various neighbouring properties;
2. James Moore, who gave evidence (and was extensively cross-examined before the Tribunal) based upon his own observations and what he had been told by his father and grandfather that the boundary had never been fenced in circumstances where his family had been farming the adjacent property since 1876. He grew up and worked on the adjacent property "Hillstead" until 2002;
3. John Tait, who gave evidence from his observations of the boundary of the relevant areas that had not been fenced at least from 2002 to 2015 as he drove past it on many occasions;
4. Herbert Keen, whose evidence was not available to the Tribunal, and who stated that certain "piles" of fencing materials, which had been observed during the Court's view of the area and relied upon by the applicant as evidence of a past fence along the boundary, were in fact "pushed up" by him when he removed a fence in an adjacent area (but not the subject area) in the early 1980s. He gave evidence that he had pulled down some seven kilometres of fencing along that boundary over the years; and
5. Reece Mills, who while he gave evidence that he believed a fence had been removed from the relevant land, had no recollection of actually seeing a fence in the area of the relevant land.
The respondent submits that the only witness attesting to the fact that the relevant land was fenced is the applicant. The evidence that the applicant relies upon to demonstrate the existence of a fence is, according to the respondent, in fact part of the fencing material left behind when Herbert Keen, the father of Simon Keen (the owner of Aralu Farming) pulled down a fence in the area in the early 1980s.
[21]
Applicant's reply position
In response to the evidence put forward by the respondent, the applicant emphasised the fact that Simon Keen admitted that he had not studied the ground looking for evidence of a previous fence. Further, the applicant states that Simon Keen's evidence did in fact demonstrate that poles and wire remnants still exist in the vicinity of the unfenced section.
The applicant also challenges the probative value of John Tait's evidence given he only moved into the area in 2002 and his evidence is limited to the north of the TSR rather than the eastern end, which is where the relevant land is situated. Finally, the applicant submits that neither Simon Keen nor James Moore were able to attest to the fact that the relevant land was "never fenced".
[22]
Consideration
As in the hearing before the Tribunal, much of the evidence focused on the question of whether or not historically the relevant land was unfenced from the Aralu Farming Holdings. The finding in relation to that issue, as noted by the Tribunal, is relevant to the application of cl 2.10.4.
As noted above, there was detailed evidence and submissions before the Court. I have closely considered the evidence of Reece Mills and Aubrey Mills, who gave evidence for the applicant, and the evidence of Herbert Keen, Simon Keen, James Moore, John Tait and Gerard O'Connor for the respondent. As the respondent submits, five out of six witnesses have given evidence that the unfenced area was never fenced and the only evidence of a witness claiming to have seen the fence was that of Aubrey Mills, who gave evidence of having seen a fence along the relevant boundary up until about 2002. This evidence is contrary to the evidence of five other witnesses.
Whilst the matter is not without some doubt, I prefer the evidence called on behalf of the respondent. In the circumstances, I am satisfied that the applicant's recollection cannot be correct and, to the extent that there may have been a faint submission that the owners of Aralu were responsible for removing the fence, there is no compelling evidence to that effect.
In addition to the above, there were other matters (referred to in submissions as "agri-commercial" reasons) leading to the view that it would be improbable that any former owner would have fenced off the block given that it appeared to have been used for grazing and contained no water for stock.
In the circumstances, I am comfortably satisfied that the contested land is historically "unfenced from a holding" for the purposes of 2.10.4. Despite this, this finding is not conclusive of the matter because, as noted, 2.10.4 allows for EOIs submitted to be assessed "on a case by case basis".
[23]
Issue five: whether the issue that the relevant land is presently unfenced can be (or should be) dealt with by issuing a LGP subject to conditions
[24]
Applicant's position
Subclauses 2.10.1 to 2.10.3 of the LGP Policy provide:
2.10.1
Fencing & Grids - fencing of areas under LGP shall be undertaken by the LGP holder or the LGP holders agent. The fence remains the property of the LGP holder. The LGP holder is responsible for the maintenance of the fence. The minimum standard fencing are laid out in the LGP conditions, more substantive fencing may be constructed.
2.10.2
Existing Fences on areas that are awarded to new applicants - Where a fence exists that is the property of a former LGP holder, the new LGP holder and the former LGP holder may come to an arrangement with the fence. If no arrangement can be reached the existing fence owner must dismantle his fence and the new LGP holder may construct a new fence.
2.10.3
Stock grids on areas that are awarded to new applicants - Where a stock grid exists that is the property of a former LGP holder, the new LGP holder and the former LGP holder may come to an arrangement with the stock grid. If no arrangement can be reached the existing fence owner must dismantle his stock grid and the new LGP holder may construct a stock grid with the concurrence of the managing authority for that roadway.
The applicant submits that the issue that the relevant land is unfenced can be dealt with by this Court issuing a LGP subject to conditions. To support this, the applicant refers to the fact that the LGP Policy makes provisions for conditions and includes an Annexure 4 titled 'LGP Conditions - LGPs for Period 01/07/2014 to 30/06/2015', and further relies on the State Environmental Planning Policy (Infrastructure) 2007, which makes provision for exempt development and development which may be carried out with or without consent in a travelling stock reserve.
Pursuant to an Order made by this Court on 1 August 2016, the applicant filed on 3 August 2016 a document titled 'Applicant's Draft Conditions if the Appeal was Upheld' ('Draft Conditions'), the latest version of which became Exhibit C. The document sets out the proposed conditions for the Court to impose, should it decide to issue the applicant the LGP, which the applicant contends are in accordance with the standard conditions set out in Annexure 4 to the LGP Policy. In summary, the conditions provide for the relevant land to be fenced in the following way:
(a) an electric fence of two (2) wires - one (1) live and one (1) earth,
(b) one (1) iron post every 20 metres.
The applicant further provided in the Draft Conditions that such fencing would be carried out wholly at the expense of the LGP holder and that any local government authority approval required to erect the fence and electric grid would be obtained prior to erection.
In any event, the applicant submits that the "LEC does not routinely require evidence to establish the feasibility of steps, nor require undertakings, nor concern itself with the absence of evidence to show what, if any, other approvals would be necessary (unless integrated development) or costs involved".
[25]
Respondent's position
The respondent submits that there has never been a boundary fence between the relevant land and the land owned by Aralu Farming, or alternatively the boundary has been unfenced since well before 2002. If the applicant were granted a LGP over the relevant land this would require the construction of infrastructure (namely boundary fences and cattle grids), which would likely be a significant impost to Aralu Farming and would require Council consent. The respondent further contended that the Court should not issue an LGP without evidence of the feasibility of overcoming the fact that there is no boundary fence between the relevant land and the land owned by Aralu Farming, and that given Aralu Farming uses its land for cropping and the applicant intends to use the relevant land for grazing, this would likely create a situation of conflict.
The respondent further submits that, given a LGP over the relevant land has now been issued to Aralu Farming for the period 1 January 2016 to 31 December 2019, should the Court issue a LGP to the applicant, there would be two LGPs over the relevant land, which would inevitably create conflict.
In its written submissions, the respondent raised a number of issues with the conditions suggested by the applicant relating to the suitability of the electric fence and grid, namely that the proposed fence and grid:
1. are inappropriate given the locale, temporary nature of electric fencing and grids, and the potentially conflicting use of the relevant land by the applicant and Aralu Farming (described above at [96]);
2. encroach upon Aralu Farming's land, and therefore will require Aralu Farming's consent - which has not been given or sought;
3. will require consent of the Moree Plains Shire Council, which has not been given by the Council and is in conflict with the Council's current and proposed LGP Policy; and
4. are in breach of the conditions set out at Annexure 4 of the LGP Policy, which require the electric fence to be at least 20 metres from the centre of the road unless approval has been given by the issuing Ranger to vary this distance, and further provide that public roads and private access roads to holdings are not to be obstructed and that an electric ramp requires approval from a Ranger.
The respondent further submitted in its closing submissions that the EOI process was not conducted on the basis that the applicant could propose conditions for the issue of a LGP, and to award the applicant a LGP on such a basis would lead to an unfair result. The respondent also noted that there would be substantial costs arising from the imposition of the Draft Conditions, including monitoring and managing the applicant's compliance with the conditions and dealing with any complaints arising from the erection of the electric fence. Further, the respondent submitted that the Draft Conditions did not:
1. precisely specify the alignment, configuration or location of the proposed fence and grid;
2. impose a time limit for the taking of any steps or provide for what would occur in the event the steps were not taken within a time specified;
3. include any requirement for the reporting or supervision of any of the steps; and
4. provide for LLS to cancel the LGP in the event the Draft Conditions were not met.
[26]
Applicant's reply position
In submissions, the applicant reiterated that he will fence the part of the boundary that is currently unfenced, and noted that cl 2.10.1 places responsibility for such fencing on the LGP holder. The applicant submits that his proposed fence and grid set out in the Draft Conditions will be sufficient, however importantly notes that should the Court find something more is required, the applicant undertakes to submit to such a requirement. Further, the applicant submits that, if the LGP is issued by the Court and the consent authority requires some different standard of fencing, the applicant undertakes to submit to any of the conditions that the consent authority might reasonably impose. In sum, the applicant states that it "raises no barrier to providing what is ultimately determined to be an appropriate fence".
In relation to the respondent's submissions that a LGP over the relevant land has already been issued to Aralu Farming, the applicant submits that that LGP has no relevance, and noted that the current annual fee being paid by Aralu Farming does not represent the best return on the asset.
[27]
Consideration
The essential question is whether the conditions now proposed by the applicant are appropriate.
The applicant has proffered both in written and final oral submission that if the Court was not satisfied with the present proposal, the applicant would accept conditions to provide a fence to any (reasonable) standard required. Further, the applicant submitted that if the standard conditions otherwise attached to Exhibit C (which contains the applicant's proposed conditions) are to be overtaken or further refined by supplementary or updated standard conditions (such as those in Exhibit 5), the applicant would accept those further conditions.
Whilst I accept the applicant's complaint that the respondent has not provided conditions that it says would be appropriate, having considered the evidence more particularly from Reece Mills and that of Gerard O'Connor, I have formed the view that the present conditions are insufficient to address the concerns raised by the respondent for the reasons that follow.
I prefer the evidence of Gerard O'Connor over that of Reece Mills based upon his lengthy experience as a Ranger in the employ of the respondent, that the current proposal is not appropriate because it is the "minimum standard" and that, given the temporary nature of the proposed electric fencing and grids, such fencing would be inappropriate.
There is little doubt that there is a potential for conflicting use of the relevant land by the applicant and Aralu Farming and the adequacy of the fencing would be important in this regard. I am concerned that there is no evidence as to Aralu Farming's view of the proposed fencing. It would not be uncommon (and the situation is provided for in the LGP Policy) that adjoining properties would in many circumstances be adjacent to TSRs in circumstances where there would be competition for permits. In the present circumstances, the position of Aralu Farming cannot be neglected both because it would appear that Aralu Farming's consent (in both a formal and informal sense) would be required for the provision of fencing and, in particular, the nature and precise extent of the fencing.
Additionally, the position of Moree Plains Shire Council is presently unknown and there is evidence that the proposed fencing may be in conflict with the Council's policies.
I also accept the respondent's submission that consideration of the conditions at Annexure 4 of the LGP Policy, which require the electric fence to be at least 20 metres from the centre of a road unless approval has been given by the issuing Ranger to vary the distance, appears not to be addressed, although I consider that if there had been a proposal for a fence which otherwise was acceptable, this Court would be entitled to vary the distance.
Although it was raised in the applicant's submissions, I do not accept that the present situation of the applicant proffering conditions is analogous to s 80A of the Environmental Planning and Assessment Act 1979 (NSW) because the respective regimes and protocols for assessment including prior notification to affected neighbours and similar requirements under that Act are not reflective of the position under the LGP Policy.
In addition to the above, and accepting the applicant's criticism that the respondent did not provide alternative suggestions in relation its concerns regarding the adequacy of the proposed fencing, and that those concerns were was raised late in the proceedings, I accept the respondent's submissions that the draft conditions are inadequate because they, first, did not provide appropriate specificity in relation to alignment, configuration or location of proposed fence and grid, second did not propose a timing for taking steps to provide what would occur in the event that steps were not taken within a specified time limit, and third, did not provide any requirement for reporting or supervision of any of the steps. These are each matters which I consider to be relevant in the circumstances.
Again whilst noting that there was a willingness on behalf of the applicant to attend to any reasonable requirements in relation to the provision of fencing, the respondent's concerns are sufficient for my finding that, whilst appropriate conditions are able to be imposed, the present proposed conditions are not adequate in the circumstances.
Finally, I accept that whilst there will be circumstances where adjacent land holders will need to either make prior arrangements between themselves and/or compete for access and use of areas of TSRs, I have concerns in relation to the fact that Aralu Farming presently enjoys an LGP granted over the relevant land, and that there has been no direct evidence of the effect of the Court upholding the appeal upon Aralu Farming.
[28]
Conclusion
The circumstances of this case have now involved two fully contested hearings, occupying seven hearing days including a view of the subject site and many hundred pages of documentary material, in circumstances where questions of policy and application are not without some difficulties.
The dispute between the parties has had an unfortunate and lengthy litigious history.
The essential issues are and have been simply articulated and primarily concern the appropriateness and application of the LGP Policy in the present circumstances.
As noted above, I have concluded that the LGP Policy is a relevant but not necessarily a determinative consideration. While this Court is entitled to impose conditions, I have concluded that in the circumstances, the conditions proposed are not sufficient to justify the grant of a LGP to the applicant.
My ultimate findings reflect those both of the initial decision of the respondent and the findings of the Tribunal albeit for slightly different reasons. In the event, the Court's orders are as follows.
[29]
Orders
The Court orders:
1. Appeal dismissed.
2. Costs reserved.
[30]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 13 March 2017
In summary, the applicant and his wife have been the owners of a property known as 'Yooloobil' since 1979, which is located approximately 85 kilometres north of Moree. 'Aralu' is a neighbouring property, and is owned and operated by 'Aralu Farming'.
In November 2014, LLS invited the applicant to submit an expression of interest ('EOI') for a LGP. Later that month, the local board of the LLS adopted the 'Long Term Grazing Permit Policy and Procedures' ('LGP Policy'). The applicant submitted an EOI in respect of various areas, including the relevant land. Aralu Farming also submitted an EOI in respect of the relevant land. While the applicant was initially notified that he had "won" the areas the subject of his EOI, including the relevant land, the respondent then notified the applicant that Aralu Farming had indicated that the relevant land was unfenced from the Aralu holding, and that this information affected the way that the applicant's application was to be assessed. After conducting relevant investigations and considering the LGP Policy, the respondent notified the applicant that the LGP for the relevant land was to be awarded to Aralu Farming.
The decision of the LLS to refuse to issue a LGP to the applicant was notified on 7 January 2015.
On or about 5 February 2015, the applicant appealed to the Tribunal against the decision of LLS. The Tribunal heard the appeal on 18 May 2015, 15 June 2015 and 26 June 2015.
On 13 October 2015, the Tribunal (comprising Senior Member Montgomery) determined the applicant's appeal in Mills v Local Lands Services [2015] NSWCATAD 207, confirming the decision of LLS to refuse to issue a LGP to the applicant.
On 11 December 2015, the applicant appealed to this Court against the decision of the Tribunal and on 23 February 2016 the applicant filed a Class 3 Application (in lieu of Summons Commencing an Appeal, Summons Seeking Leave to Appeal filed 11 December 2015). The orders presently sought are:
(1) Appeal allowed; and
(2) Revoke the decision to refuse to issue the permit and issue the permit (whether or not subject to conditions) to the applicant.
For the reasons that follow I find that the LGP Policy is a relevant but not a determinative consideration in the decision as to whether to issue a LGP. While the applicant submits that this Court issue a LGP subject to proposed conditions, I find that in the circumstances the proposed conditions are not sufficient to justify the grant of a LGP to the applicant.