HOLSTER - V - DIRECTOR-GENERAL OF NATIONAL PARKS & WILDLIFE SERVICE [1999] NSWLEC 102

It is asserted that the respondent failed to take into consideration the fact that the applicant had been promised the mooring by the Corporation before his purchase of 5 Notting Lane. This assertion ignores the fact that it is the respondent which, by clause 23 of the Regulation, is charged with the responsibility of granting licences for moorings. The respondent is entitled to take into account the views of the Corporation as representing the views of the local community at Cottage Point, but is not bound by the Corporation's conduct. The respondent is bound to exercise an independent discretion and did so.

It is asserted that the respondent failed to take into consideration the fact that a fore and aft mooring as offered to the applicant would be unsafe and render the applicant's boat liable to damage. It seems to me that there are three answers to this assertion. Firstly, although there is some evidence in support of the fact that a fore and aft mooring would impose greater stresses on a vessel, the evidence is equivocal. According to Mr Toghill, Mr Holster's boat is a "deep sea boat" and is thus made to withstand all the stresses of the kind which would be imposed on it by a fore and aft mooring. Secondly, Mr Holster had two conversations with Mr Scheaffe in which he appears to have let Mr Scheaffe know his concerns. I can infer that Mr Holster expressed a concern about the perceived disadvantages of a fore and aft mooring. If he did not do so, then at least he had the opportunity of doing so. Mr Scheaffe states in his letter of 2 October 1996 that he gave careful consideration to all the information presented to him. Mr Scheaffe further states in his letter of 5 December 1996 that following Mr Holster's further representations, the National Parks & Wildlife Service had investigated the additional issues raised by Mr Holster. Thirdly, a fore and aft mooring is not the only mooring which has been offered to the applicant. There is also the alternative offer of a swing mooring on the western side of Cottage Point if Mr Holster remains concerned about the stresses imposed by a fore and aft mooring. I am thus not satisfied that the respondent failed to take this aspect of the matter into consideration.

The applicant asserts that the respondent failed to take into consideration the fact that the Corporation allowed changes to a mooring in close proximity to mooring No 90 without consultation with the applicant and which prevents the applicant from safely mooring his vessel on mooring No 90. Mr Robertson did not expand on this assertion in the course of his submissions. Nevertheless I take this assertion to be a reference to the mooring which is licensed to Mr Ell following Mr Ell's purchase of a larger boat. The evidence adduced before me shows that Mr Ell's larger boat is, however, moored fore and aft and thus occupies less space than a swing mooring. Accordingly, if it be the fact that the respondent failed to take this into consideration, it cannot be a material factor. However, having regard to the fact that Mr Holster made verbal representations to Mr Scheaffe regarding the matter and Mr Scheaffe's statement that he and the National Parks & Wildlife Service gave consideration to Mr Holster's representations, I am not satisfied that the applicant has demonstrated that this factor was not taken into consideration.

The applicant asserts that the respondent failed to take into consideration the fact that in the course of maintaining mooring No 90, Mr Treharne moved it without the applicant's consent, thereby constricting the size of vessel which could be moored thereto. There are two answers to this assertion. Firstly, there is conflicting evidence as to whether the mooring was moved as alleged. Mr Holster and Ms Forrester assert that it was moved a distance of some 20-25 ft. Mr Sorensen, relying on photographs taken by Ms Forrester, estimates that it was moved by 20ft or more. Mr Treharne denies this but admits that during servicing he may have replaced the mooring in a marginally different position. Secondly, if it be the case that the respondent failed to take this fact into consideration, I am not satisfied that it is a material fact, in view of the evidence that Mr Holster's boat cannot in any event be accommodated on a swing mooring in the area set aside for residents on the eastern side of Cottage Point. Moreover, I can infer that Mr Holster drew this fact to the attention of Mr Scheaffe on either or both of the occasions on which he spoke to him. As previously noted, Mr Scheaffe "gave careful consideration to all the information" presented to him as stated in his letter of 2 October 1996 and investigated Mr Holster's "further representations" as stated in his letter of 5 December 1996. Again, I am not satisfied that the applicant has demonstrated a failure by the respondent to take this factor into consideration.

The final matter which the applicant asserts was not taken into consideration is the alternative of a limited swing mooring. Some evidence was given by Mr Sorensen and by Mr Toghill about limited swing moorings. In cross-examination, however, Mr Toghill admitted that he was unaware of a report by a Committee of Inquiry on Concentrated Mooring Systems in New South Wales which recommended the abandonment of such mooring systems. Mr Toghill nevertheless thought that the Committee's criticisms of limited swing moorings could be overcome. Mr Treharne was critical of such a mooring system. One of Mr Treharne's criticisms is that it occupied more of the seabed than is reasonable in a crowded anchorage. There is no evidence, however, that such a mooring would fit into the area. In the absence of such evidence I am not satisfied that it is an alternative which could be considered.

The third cause of action upon which the applicant relies has thus not been made out. The applicant abandoned the fourth cause of action at the hearing. As to the fifth cause of action, I have referred (in paragraph 70 above) to the difficulties which the applicant faces in sustaining an argument based on estoppel. The authorities to which I have referred require me to dismiss the fifth cause of action.

I now turn to the applicant's sixth cause of action, namely that it is not reasonably open to the respondent to refuse to issue the applicant for a licence for the mooring. It is important to bear in mind the limited basis upon which a court can interfere with an administrative decision, as explained by Mason J in Minister for Aboriginal Affairs v Peco-Wallsend Ltd (1986) 162 CLR 24 at 40:

It is not the function of the Court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.

In this context Mason J's further statement (at 42) is also relevant:

So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

The basis of the applicant's sixth cause of action is that the decision of the respondent is "manifestly unreasonable". This ground, often referred to as Wednesbury unreasonableness, is only made out if it were shown that the respondent came to "a conclusion so unreasonable that no reasonable authority could ever have come to it" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 230 at 234, per Lord Greene MR). This is the accepted test which has been adopted in Australia (Peko-Wallsend, at 41).

In my view the applicant has not demonstrated that the respondent's decision is so unreasonable that no reasonable authority could ever have come to it. I need only refer to my conclusions based on the evidence and set out in paragraphs 120-123 and paragraph 131 above. The decision of the respondent to offer the applicant the choice of either a fore and aft mooring on the eastern side of Cottage Point, or a swing mooring on the western side of Cottage Point, was a decision which was reasonably open to the respondent. This cause of action also fails.

It follows that the applicant is unsuccessful in any of his claims and that the proceedings should be dismissed. I therefore make the following orders:

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