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

Land and Environment Court (NSW)|1999-03-15|Before: Lloyd J

The applicant alleges that the respondent failed to take into account the fact that the previous owner of the subject property and licensee of the mooring had a boat of similar dimensions to that of the applicant. The evidence shows, however, that Mr Smith's boat was smaller (about 44 ft) and had a lesser draught than Mr Holster's boat. Moreover, Mr Holster never saw Mr Smith's boat moored at the mooring. Mr Treharne usually only saw it moored fore and aft to Mr Smith's pontoon.

The applicant alleges that the respondent failed to take into account the fact that licences being issued to residents of Cottage Point, except that proposed for the applicant, were for swing moorings. If by this assertion it is said that the respondent had bound itself to continue to license only swing moorings, then that is a proposition which I reject. It would allow the respondent no discretion at all. The fact which the respondent clearly took into account was that until Mr Holster arrived, all moorings which were licensed to residents of Cottage Point were swing moorings, but when Mr Holster arrived his boat was simply too big to be accommodated at a swing mooring in the area.

It is alleged that the respondent failed to take into account the fact that a swing mooring could be easily accommodated by restoring the circumstances of the surrounding moorings to those that existed at the time of Mr Holster's acquisition of 5 Notting Lane. The evidence does not, however, support this assertion. Although Mr Holster asserts that there is room for his mooring to be moored up to 10 metres northwards without the need for anyone else's mooring to be moved to the western side of Cottage Point, this assertion is not supported by the expert evidence. In this respect Mr Treharne, an experienced boat mooring contractor and whose evidence I accept, is of the opinion that there is no room for a swing mooring for a boat the size of Mr Holster's in the mooring area on the eastern side of Cottage Point whilst the other existing moorings in that area are retained. In particular, Mr Treharne states that relocating Mr Holster's mooring 10 metres northwards is only possible if two long-standing moorings belonging to fellow Notting Lane residents are shifted to the western side of Cottage Point. There was no evidence to the contrary, other than an assertion by Mr Holster. Mr Holster's own evidence was that his boat requires a radius of 150 ft on a swing mooring; and at low tide a 300 ft diameter circle cannot fit into the area allocated for residents' moorings on the eastern side of Cottage Point. That is to say, on Mr Holster's own evidence his boat is too big to be accommodated on a swing mooring in the area. It thus seems to me that the problem is principally caused by the fact that Mr Holster came to Cottage Point with a boat which is significantly larger than any other. It seems perfectly reasonable in these circumstances, therefore, for the respondent to offer Mr Holster 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.

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:

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.

Land and Environment Court of New South Wales CITATION: HOLSTER - V - DIRECTOR-GENERAL OF NATIONAL PARKS & WILDLIFE SERVICE [1999] NSWLEC 102

Mr Robertson also submits that quite apart from statutory construction, general principles of administrative law reject the notion that discretionary power vested in a decision-maker is validly exercised when the decision to do so is simply the reflection of another person's decision. In support of this submission Mr Robertson relies upon R v Anderson; ex parte IPEC Air Pty Ltd (1965) 113 CLR 177, Taylor v Tweed Shire Council (1975) 34 LGRA 154, Conroy v Shire of Springvale and Noble Park [1959] VR 737, H Lavender & Son Limited v Minister of Housing & Local Government [1970] 3 All ER 871, [1970] 1 WLR 1231, and Bromley London Borough Council v Greater London Council [1983] 1 AC 768 ( inter alia ).

If any vessel or mooring is not moved, or any mooring is not lifted, as directed by the Superintendent, the operation may be carried out by the Service at the expense of the holder of the licence . As with condition 16, Mr Leeming relies upon this condition as a contractual power. For the reasons which I have described in paragraphs 93-95 above in relation to condition 16, I do not agree with Mr Leeming's submission. It seems to me that condition 17 is not a contractual term but is merely advisory of provisions which exist elsewhere to remove the mooring (namely, clause 23(6) of the Regulation and s 160A of the Act). 100. Clause 23(6)(c) of the Regulation gives to the Director-General an express power to remove any mooring which is not removed within 21 days after the service of the direction referred to in clause 23(3). This power is, however, dependent upon the validity of the notice served pursuant to clause 23(3) and is not really an alternative source of power if it be the case that clause 23(3) is not available in the circumstances of this case. Since I have found that the notice in this case was a valid exercise of the powers of the respondent under clause 23(3), then it follows that the respondent may also validly exercise the power under clause 23(6) to remove the mooring. 101. I do not regard cl 23(6)(c) of the Regulation as an alternative source of power to remove the mooring in the present case. That is a provision which refers to the mooring constituting a danger, hazard, impediment or menace in a physical sense. That is to say, the mooring must be a physical hazard to other vessels using the waterway. I do not think that the mere fact that a mooring is unlicensed and hence uninsured brings it within this provision. It may be that an unattended mooring is a danger, hazard, impediment or menace to the use of the waterway, but no evidence was presented on this question. 102. If the notice of 27 October 1997 is not a valid exercise of the respondent's power under clause 23(3) of the Regulation, the question remains as to whether, if an incorrect source of power was mistakenly invoked, the respondent can nevertheless rely upon the alternative sources of power which I have found to exist. 103. The authorities relied upon by Mr Leeming support the general proposition that so long as there is power to issue the notice to remove the mooring, it does not matter that an incorrect source of power may have been mistakenly invoked. In the first of these authorities, R v Bevan; ex parte Elias and Gordon (1942) 66 CLR 452, Williams J said (at 487): Even if he did err as to the source of an authority which he undoubtedly possessed his mistake in no way affected the personnel of the Court or its proceedings, so that all the conditions on which the right of the court-martial to exercise jurisdiction depended were in fact fulfilled. His mistake under such circumstances would be in a non-essential matter which would not amount to want of jurisdiction (Moore v Attorney-General for the Irish Free State [1935] AC 484 at 498). … As the applicants were lawfully sentenced to death each order nisi should be discharged. 104. In Lockwood v The Commonwealth (1954) 90 CLR 177, Fullagar said (at 184): It is, I think, a settled principle that an act purporting to be done under one statutory power may be supported under another statutory power …

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

At a glance

Court

Decision date

Before

Source

Judgment (17 paragraphs)

Cases Cited (16)

Cited By (7)