James Bryden as Executor of the estate of John Anthony (deceased) v Minister for Lands & Ors

Supreme Court of NSW|2011-08-23|Before: Pembroke J

Introduction 1Not far from Hampton on the Great Dividing Range west of Sydney, there is a strip of land that is dedicated as a public road and declared to be a Crown road within the meaning of the Roads Act, 1993 (NSW). This land derives its legal status as a Crown road and as a public road by reason of Clause 56 of Schedule 2 (Savings, transitional and other provisions) of the Roads Act. I will call it "the Crown road" but there is a discordance between its legal status and the practical reality. In truth, it is not a road in the ordinary sense of that word. It is a barely discernible and indistinct track across farmland, to which has been added some heavy road base at several swampy points and poorly constructed culverts at three creek crossings. Its boundaries are not clearly delineated and at intervals it is pock-marked with wombat holes. It is little more than a line on the map. 2The Crown road commences at its intersection with the Norman Lee Road, traverses Lot 500 which is owned by the second and third defendants (Mr & Mrs Hunter) and ends at a point that is close to, but falls short of, a paddock known as Lot 147 which is owned by the plaintiff. The intervening land between Lot 147 and the end of the Crown road is part of the Hampton State Forest. The late Mr Anthony was, and his executor the plaintiff is, the owner of Lot 147. Mr Anthony used the Crown road for access to his paddock on Lot 147.

The Statutory Scheme 7The statutory scheme pursuant to which the Minister made his decision under the Roads Act requires some explanation. Section 115 is contained in Part 8, Division 1 of the Roads Act . The heading to Part 8 is "Regulation of Traffic by Roads Authorities". The heading to Division 1 is "General Powers". The heading to Division 4 is "Miscellaneous". Nothing turns on the content of Divisions 2 and 3. Section 115(1) contains a general power to regulate traffic on a public road by means of barriers or notices. Section 115(2) limits the power, in the case of the Minister (as a "roads authority" for the purposes of the Act), to the specific purposes listed in paragraphs (a) to (g) inclusive. The verb "regulate" is defined in the Dictionary to the Act to mean "restrict or prohibit the passage along a road of persons, vehicles or animals". On the facts of this case, paragraph (d) is as I have mentioned, the only applicable paragraph. 8The plaintiff and the first defendant both accepted that satisfaction of paragraph (d) requires proof of the existence at the time the decision was taken of hazards from which the protection of the public was reasonably required. The requirement for reasonableness ensures that there be proportionality between the existence of particular hazards and the need to protect the public from them. The need for proportionality between hazard and response is in any event implicit in the language and syntax of Section 115(2)(d) and taking into account its evident purpose. The power to regulate, which includes a range of possible actions, may only be exercised for a specified purpose. The choice of which action will depend on the nature and extent of the hazards coupled with a judgment as to what is reasonable for the protection of the public in the light of those hazards. 9Section 115 contains no provision for notice or advertisement of any intended action to regulate a public road. However, Regulation 5 of the Roads Regulation 2008 applies to the exercise of the functions of a roads authority under Part 8 of the Roads Act. It provides: (1)A roads authority must give at least seven days notice of its intention to close a public road in the exercise of its functions under Part 8 of the Act: (a)by means of a notice published in a local newspaper, and (b)by means of conspicuous notices erected along the road. (2)No such notice is necessary in the case of an emergency. 10As I have mentioned, Part 8 of the Roads Act deals with the regulation of traffic including the prohibition of the passage of persons, vehicles or animals along a public road. It does not deal with the "closure" of a public road in the narrow sense in which that expression is used in Part 4 of the Roads Act . Regulation 5 requires notice of intention to close a public road, but the regulation's reference to a roads authority's function under Part 8 makes it clear that the notice requirement applies to the exercise of the power of regulation under Section 115, at least where the regulation involves the prohibition of the passage of vehicles. This must necessarily be the case given that Part 8 of the Act affords no power to "close" a road, although "regulation" in the sense of prohibition has a similar effect. As I have stated, one of the signs erected on 22 September 2010 pursuant to the power conferred by Section 115 actually said "Warning Road closed for the purpose of protecting members of the public from hazards". 11It follows therefore that in this case the Minister must not only satisfy the criteria set out in Section 115(2)(d), but as no notice was given, he must also demonstrate that there was an "emergency" within the meaning of Regulation 5(2). For reasons that I will explain, I have concluded that there was no emergency and that Regulation 5 was not complied with.

Miscellaneous Provisions 12Before proceeding further, I should deal with several other statutory provisions solely for the purpose of explaining why they do not apply. Section 115(5) adds nothing in this case. It imposes a duty on a roads authority to remove a notice or barrier if there is no longer any need to regulate traffic for the purpose for which the notice or barrier was erected. It is directed to a change in circumstances where, for example, the hazards that may have justified the original decision to regulate have diminished or disappeared and the protection of the public is no longer required. That is not this case. If I find that there were hazards that justified the Minister's decision to regulate on 21 September 2010, nothing has changed or improved since that date to enliven the duty in sub-section (5). 13Nor does Section 122 have any application. Neither the plaintiff nor the first defendant submitted that it did. It seems to be directed at a more general level to the prohibition of vehicles passing along a road in order to prevent excessive damage to the road. Section 122 has its own regime for notice and advertisement but the section is not concerned with the specific purposes delineated in Section 115(2). Its purpose is different. 14Finally Section 115(3) does not apply on the facts of this case. It provides that a roads authority may not restrict the passage of heavy vehicles or animals along the roadway of an earth road unless clear sidetracks have been provided for their passage. Although there was competing evidence as to what is an earth road and whether the Crown road is an earth road, the question turns on the proper construction of the whole of the sub-section. Sub-section (3) is concerned with, among other things, the restriction of the passage of heavy vehicles along "the roadway" of an earth road. In that event, clear sidetracks must be established. It pre-supposes the existence not merely of an earth road, but more importantly of a roadway. 15A roadway is that part of a road used by vehicles. I am not satisfied as a matter of fact that the Crown road is an earth road, let alone that there is a roadway on it. Sub-section (3) does not require any special meaning to be attributed to the expressions "roadway" and "earth road". No road has in fact been formed and cambered, nor built and constructed with road base in the usual way that roads are constructed. There is some heavy road base at several swampy points, but nothing more. It matters not that the legal status of the strip of land is that of a Crown road and a public road. That says nothing about whether it is in fact a road - bitumen, earth or otherwise - as that word is ordinarily understood. The land is not a road in that sense. I repeat what I said in paragraph [1] above concerning the physical characteristics of the Crown road. In my view, it is not an earth road and there is no roadway. Section 115(3) therefore has no application.

The Hazards 16The evidence of the existence of hazards on the Crown road justifying the prohibition of access to it in order to protect members of the public requires some elaboration. The starting point is a joint expert report by competing civil engineers called by the plaintiff and the first defendant. Both experts, Mr Oste and Mr McNiven, have expertise in civil engineering including road construction and maintenance. They inspected the site separately in November 2010 and jointly on 8 August 2011. They agreed that there was no material difference in the condition of the Crown road on both occasions. They set out the matters on which they agreed but not those matters on which they did not agree. 17Mr Oste and Mr McNiven agreed on the existence of the following particular hazards: (a) The location of the Crown road was not clearly delineated for the majority of its length. They both agreed that this was a hazard because vehicles could drive off the Crown road into any number of hazards that may be present beyond its boundaries. They both agreed that the Crown road should be delineated to clearly indicate its location; (b) A number of wombat holes within the Crown road were potentially hazardous. They both agreed that these should be filled in or marked with guide posts to ensure that vehicles do not drop into unseen depressions; (c) The creek crossings and culverts were hazards as the location of the ends of the culverts was not clear. They both agreed that guide posts should be placed at the headwall positions of each culvert to clearly mark the extremities of each culvert. 18In the light of those hazards, Mr Oste and Mr McNiven agreed that the Crown road was only suitable for "four-wheel drive high clearance vehicles" and that a sign clearly indicating "Four-Wheel Drive Track Only" should be placed at the start of the road. 19Unfortunately, the parties did not confine themselves to the joint report. Mr McNiven, who was Mr Anthony's engineer, gave additional evidence that in his opinion: The Crown road is safe for public access on foot, to move livestock, and for four-wheel drive vehicles and some farm machinery access. Creek crossings have sustained some damage but appear to be stable. 20On the other hand, Mr Hundy, an officer of the Soil Conservation Service and Mr Sawtell, a natural resource compliance officer with the Land and Property Management Authority, were critical of the condition of the Crown road. In July 2010, Mr Hundy inspected the Crown road and provided an adverse report. Among other things, his report stated that there was "a high probability that erosion of the road formation will occur ... during large less frequent floods" and that "culvert headwalls have been poorly constructed ... and rock is likely to be flushed during flood flows". 21On 12 September 2010, Mr Sawtell inspected the Crown road. He was familiar with it and had conducted earlier inspections. He was particularly concerned by the creek crossing culverts. His inspection took place because of fears that structural design deficiencies had been exposed by recent high stream flow. His report dealt with the condition of each of the creek crossing culverts. The first culvert showed flood impact. The mesh holding the rock in the headwalls had subsided. The single pipe was not of sufficient size to handle the flow that had occurred. Water passing through it was constricted resulting in an increased flow rate discharging into a creek bank and commencing stream bank collapse near the outlet. The gravel laid over the larger rock, the cement mix, and even some of the larger rock had been washed downstream. 22The second creek crossing culvert showed serious flood impact. The structure as designed had largely collapsed at the headwalls upstream. This was the result of the steel mesh rock containment panels not being of sufficient strength to withstand the water pressure. The cemented headwalls had not been installed as required. The third creek crossing culvert also showed serious flood impact. The structure as designed was collapsing at the surface. The rock, gravel and soil forming the surface of the culvert had subsided forming a hole which was highly dangerous to any vehicle, stock or pedestrian. The inlet to the two pipes in place had practically blocked up with debris effectively damming the creek. Mr Sawtell thought that this crossing would fail completely with another high flow and would seriously impact on the adjoining boundary fence and the stream bed and banks downstream. 23Mr Sawtell also made critical observations of a number of other matters including the cuttings and gully crossing on a section of the Crown road that passes through the property of Mr Nicol; the presence of a large wombat burrow at one particular point in the middle of the Crown road; a large area of water that had pooled across one section of the Crown road; and the very uneven level of a swamp crossing at the northern end of the Crown road below the dam belonging to Mr & Mrs Hunter. He informed his superior officers, including Mr Michael Kneipp, Director West, Crown Lands Division, that the crossings were failing. In the case of the third crossing he said that it was "seriously failing". He said that the situation "needs urgent decision re culvert removal and bed and bank stabilisation". 24On 14 September 2010 Mr Sawtell again informed his superior officers, including Mr Kneipp, of the position of the creek crossings. He said that he was requesting the Soil Conservation Service to install a suitable barrier across the full length of the Crown road and another prohibiting unauthorised access. Mr Kneipp explained what happened next. He said that based upon a number of inspections, including the inspections by Mr Hundy and Mr Sawtell to which I have already referred, he concluded that a more comprehensive review was required by professional experts in engineering and environmental management to advise on future actions. He then gave evidence of the following sequence of events: 28 On or about 21 September 2010 I determined that use of the Unnamed Crown Road should be formally regulated for the protection of the public, including harm to the late Mr Anthony, and to minimise the First defendant's exposure to liability arising from continuing use of the Unnamed Crown Road. In determining that the Unnamed Crown road should be regulated I took into consideration that the Plaintiff would be able to continue to access Lot 147 via the Hampton State Forest track/tracks. 29 I formed the view that it was necessary to regulate the Road to the extent of 'prohibiting' all traffic along it. My view was based upon the briefings I had received from Mr Sawtell supported by photographs of the creek crossings showing that the headwalls at each end of the culverts were held in place with star posts connected with wire that traversed the crossing. Should any such wires break due to traffic, the headwalls would most likely collapse. There were also large fissures in the creek crossings and wombat holes in the areas where grading had occurred which appeared to be dangerous to vehicular and animal traffic. 25It must be kept in mind that the Crown road is a public road. It matters not that it was mostly used by Mr Anthony and some neighbouring farmers. As experienced farmers and regular users of the road, they may well have been sufficiently familiar with all of its dangers, pitfalls and partly concealed perils. They may well have had the experience and the skill to avoid the poorly constructed culverts and negotiate the creek crossings. They may well have been able to avoid the wombat holes and they are likely to have been generally aware of the boundaries and location of the track, despite the absence of any clearly marked delineation of its extremities. But from the perspective of the public, the concerns expressed by Mr Hundy and Mr Sawtell, and acted upon by Mr Kneipp, were justified. I accept their evidence and the conclusions which they reached. I did not think that their conclusions and opinions were alarmist or unreasonable. I formed the view that they reflected a sober assessment of the situation consistent with the proved facts. What is more, it was obvious at September 2010 that the condition of the Crown road was deteriorating and that the prospect of the deterioration being arrested was problematic. 26For those reasons, I am satisfied that as at 21 September 2010, the condition of the Crown road was dangerous to members of the public; that there were hazards on the Crown road; that the existence of those hazards justified the exercise of the power to regulate traffic on the Crown road; and that the decision to erect signs and barriers effectively closing the road for the time being was within a range of reasonable and proportionate responses that the Minister was justified in taking. 27I need go no further than conclude that the Minister's decision was within power. It is not my function to substitute my own decision. The limits of judicial review of administrative action are well-known and well understood. The words of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40-41 authoritatively explain the limitations to which I am subject: The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. 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. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned. It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.

Procedural Fairness 28This leads me to the second major issue. I have already explained that the Minister's decision on 21 September 2010 and the erection of the signs and barrier the following day were taken without notice or advertisement and without giving any opportunity to Mr Anthony to be heard or to make submissions. Although I have found that the decision was justified and that there were valid concerns, this was not "an emergency" within the meaning of Regulation 5(2) of the Roads Regulation . After all, there was no suggestion at the time that the situation was so serious that immediate and urgent action was required. Mr Sawtell's inspection and report occurred on 12 September 2010. He followed it up with emails on 13 and 14 September 2010. Mr Kneipp did not make a decision until 21 September and the signs and barriers were not erected until 22 September. That timeframe does not suggest that the seven days notice of intention to "close" a road prescribed by Regulation 5(1) was inappropriate. In my view, the circumstances were not, as a matter of fact, an emergency in the ordinary sense of that word. That is the sense in which it is used in Regulation 5(2). 29However, whether or not the Minister's failure to comply with Regulation 5(1) invalidates his decision, which I doubt, I am satisfied that it should be invalidated on other more general principles of administrative law. As Basten JA said in Commissioner of Police v Ryan (2007) 70 NSWLR 73 at [28]: The fact that the statute does not expressly provide for prior notification of an application to an affected party is of little weight. The principle that procedural fairness conditions the exercise of a statutory power, where the exercise of the power has the capacity to interfere with the rights, interests or legitimate expectations of an individual, is now beyond debate: see Kioa v West (1985) 159 CLR 550. Furthermore, the expression of such an obligation in relation to one part of a statutory scheme is unlikely to give rise to a significant inference that its omission in another part of the scheme was deliberate in the sense that it indicated an intention that, in the latter case, the implied obligation to accord procedural fairness did not operate or was diminished... 30That statement of principle applies, in my view, on the facts of this case. Its application requires me to make findings of fact in relation to the antecedent history that culminated in the Minister's decision on 21 September 2010. Those findings demonstrate to my mind an essential unfairness and practical injustice; not merely a disappointed expectation; not merely a departure from a previous position or representation; Re Minister for Immigration & Multicultural Affairs; ex parte Lam [2003] 214 CLR 1 at 12-14, [33] - [37] per Gleeson CJ. 31For the reasons that follow I have concluded that Mr Anthony was entitled to be heard before the decision taken on 21 September 2010. His right to be heard was not merely notional. It was valuable and practical. I reject the first defendant's submission that there was no unfairness because, so it was said, the Minister's decision would not have been any different if Mr Anthony had been given an opportunity to be heard. I do not think that it is appropriate to hypothesise. But if I did, the evidence of subsequent negotiations and communications with Mr Anthony's solicitor suggests that a different result might have ensued if Mr Anthony had been given an opportunity to be heard before the Minister's decision was taken. 32That leads me to Mr Anthony's reversal of fortune. It is a curious thing that the current situation has come about. The effective closure of the Crown road is the opposite of what one might have expected in June 2009 after the Minister informed Mr Anthony that he intended to implement certain recommendations of the local land board. More importantly, it is inconsistent with the reasonable expectation that Mr Anthony was entitled to hold. The circumstances that justified Mr Anthony's reasonable expectation unfolded in the following way.

Enclosure Permit 33In 2007 Mr & Mrs Hunter became the registered proprietors of Lot 500. As I have mentioned, the Crown road runs through the middle of their land. They did not like the intrusion on their quiet enjoyment which the Crown road generated. Attaching to Lot 500 is and was Enclosure Permit 343413. An enclosure permit provides permission to the owner of the land adjoining or encompassing a Crown public road to enclose the road as if it were part of the property, subject to the payment of an annual rent. The authority to enclose the road alleviates the need and expense of having to fence the road out of the property. The conditions attaching to the enclosure permit included a number of statements to the following effect: the holder of the permit was required not to impede or interfere with the public rights of passage and access that exist with respect to the land, whether such rights be exercised on foot, in a vehicle (including farm machinery), or by the movement of stock; the permit informed the holder that the Minister may direct the holder to take action specified in a direction, including action to remove gates or fences on the land; it also reminded the holder that the Crown road is a public road, managed by the Minister as roads authority under the Roads Act , over which the public has rights of passage and access and that the holder had an obligation to facilitate public passage through and along the route of the road. 34Notwithstanding the conditions attached to the enclosure permit, it is clear that Mr & Mrs Hunter did whatever they could to obstruct or inhibit the use of the Crown road by others, including in particular Mr Anthony. Their conduct reflects poorly on them. It was characterised by the local land board in the decision which it gave on 4 April 2010 (to which I will come) as follows: 68 Mr & Mrs Hunter seem convinced that their rights pursuant to the enclosure permit are greater than the reality of the terms of the grant. They used the land as their own; to some extent only paying lip service to the overriding rights of the public and other persons entitled to use the road.

Minor Works Permit 35It must have been a matter of considerable disappointment to Mr & Mrs Hunter that on 3 December 2007 the Minister granted approval to Mr Anthony to carry out minor works on the Crown road. The purpose of the minor works was to enable an access track to Lot 147 to be formed within the Crown road. The permitted minor works were limited to slashing undergrowth and removing vegetation and trees to a maximum width of four metres; light grading of the natural terrain to form an access track to a maximum width of four metres; slight crowning of the track formation to establish surface and cross fall drainage; establishing cross banks and/or mitre drains; strategic placement of gravel road base ; and the construction of creek crossings in accordance with approved engineering drawings. 36The minor works permit was subject to general and specific conditions. The general conditions included a requirement that ongoing maintenance be the responsibility of the persons having the use and benefit of the access track; that where the Crown road crosses the water course the proponent or contractor shall ensure the stability of the drainage systems; and that costs associated with the proposed work and any future maintenance were not the responsibility of the Department of Lands. The specific conditions included a requirement that the works be undertaken in a manner consistent with an evaluation of the environmental impact completed at the time and the relevant construction and engineering drawings dated 26 September 2005. In particular, all of the safeguards listed on the engineering drawings which relate to soil erosion control and sediment fence construction were required to be followed and implemented. When the works were completed the applicant was to obtain certification from the consulting engineers as to the structural integrity of each of the creek crossings and their suitability for the intended purpose of passenger vehicular access.

Road Closure Application 37Mr & Mrs Hunter's disappointment at the grant of the minor works permit to Mr Anthony must have been exacerbated when, in December 2008, they were informed of the Minister's refusal of an application by the previous owner of their land to have the Crown road closed. If granted, the closure of the Crown road would have enured for their benefit. The stated basis on which the Minister refused the application was that "the road provides the only legal access to [Mr Anthony's] property". This was not precisely accurate for the reasons that I explained in paragraph [2] above. But it substantially reflected the practical position.

Local Land Board Decision 38The conflict arising from the competing claims and demands over the use of the Crown road was the setting in which the Minister referred certain matters to the local land board. In the language of the Board, there was a "road block or stalemate". The evidence before the Board indicated that Mr & Mrs Hunter were inhibiting Mr Anthony from carrying out his permitted works on the Crown road; that Mr & Mrs Hunter contended that they were doing no more than asserting their rights; and that several other neighbours and adjoining land owners also complained that their access along the Crown road was impeded or interfered with by Mr & Mrs Hunter. 39Local land boards are established pursuant to the Crown Lands Act. The Minister may refer any matter arising out of the administration of the Act to a local land board "for inquiry and report": Section 22. Two relevant matters arising out of the administration of the Act were referred to the local land board in this case. The first concerned whether the Minister should exercise his discretion pursuant to Section 66(1)(a) of the Act to cancel the enclosure permit granted to Mr & Mrs Hunter. The second concerned whether the Minister or the Board should order the removal of gates and fences erected by Mr & Mrs Hunter on the Crown road. 40There are two sources of power by which the gates or fences could have been removed. Section 66(1)(b) provides a power, to be exercised in conjunction with the cancellation of an enclosure permit under Section 66(1)(a), to order gates or fences to be removed "by the former holder of the enclosure permit". Section 70(1)(b) provides a power for the Minister, or a local land board on application, to direct the removal of gates or fences by which a road has been enclosed. The Section 70 power is predicated on the existence of the enclosure permit. The Section 66(1)(b) power is predicated on the cancellation of the enclosure permit. 41If the Minister gives a direction for removal pursuant to Section 70(1)(b), the holder of an enclosure permit may within 28 days of the service of a notice of the Minister's direction, lodge a written objection to that direction: Section 71(1). However an objection to a direction may not be lodged if, among other things, the matter has already been considered by a local land board and the direction is in accordance with the local land board's recommendation: Section 71(6)(b). Although the extent of the local land board's jurisdiction is only to inquire into and report (Section 22(1), the noun "recommendation" when used in Section 71(6)(b) should be taken to refer to the substantial outcome of the report, namely what the local land board put forward in its report as the resolution that it proposed to the matter referred to by the Minister. 42The Board conducted a formal hearing and heard evidence from many witnesses including all interested land-owners as well as officers of the Land & Property Management Authority. On 4 April 2010 it gave its decision. It recommended that, in order to avoid ongoing conflict, the Minister cancel Mr & Mrs Hunter's enclosure permit; that the land the subject of the enclosure permit be fenced out of Lot 500; and that Mr Anthony's permission to carry out works on the Crown road be extended so as to enable the works to be satisfactorily completed. It summarised its reasons on those matters as follows: 72 The basis of the cancellation is that the Crown road should be available to the unimpeded use by the public. To avoid the ongoing conflict between the stakeholders, the Board recommends that the land the subject of enclosure permit 343413 be fenced out of Lot 500 on both sides, with access gates provided to allow the adjoining landholder of Lot 500 to be able to pass through the Crown road to enable access to both parts of their land severed by the Crown road. 73 Mr Anthony's permission to carry out works within the road reserve should be extended to allow sufficient reasonable time for him to complete the works in a matter satisfactory to the Land & Property Management Authority upon the terms of approval given to him on or about 21 December 2007 with supervision by the Authority and works carried out at its direction. 43The Board also recommended that the gates and fences erected by Mr & Mrs Hunter across the Crown road be removed. It did so in language to which it will be necessary to return in precise detail when dealing with the plaintiff's claim against the second and third defendants. But I should observe in passing that the removal of the gates and fences erected by Mr & Mrs Hunter was a natural corollary of the Board's recommendation that Mr & Mrs Hunter's enclosure permit be cancelled. It was an essential part of the overall solution which the Board proposed - to avoid ongoing conflict and to ensure unimpeded use by the public of the Crown road.

The Minister's Reversal 44The recommendations of the Board represented a comprehensive victory to Mr Anthony and a rebuff to Mr & Mrs Hunter. On 8 June 2010 Mr Anthony's victory was made even more complete when Mr Kneipp, as the Minister's delegate, informed him in writing that he had accepted the Board's recommendations. Mr Kneipp's letter set out the steps that would be taken to implement the Board's recommendations. He wrote in similar terms to Mr & Mrs Hunter. Those steps constituted the means by which the impasse would be resolved in accordance with the Board's recommendations. As a package, they represented a solution to the disputation. The Board had clearly worked hard to arrive at the recommendations that were set out in its report. Not only had it conducted a hearing and analysed the evidence and the issues, but it compiled its report with commendable thoroughness. 45The Minister embraced and accepted all of the Board's recommendations. He did not have to do so. The Minister could well have taken the view that by June 2010 the condition of the Crown road had so deteriorated since the hearing before the Board in 2009, that he was justified in not embracing the solution that the Board proposed. But he chose to accept the Board's recommendations in terms that were clear and unequivocal to Mr Anthony and Mr & Mrs Hunter. If the Minister had maintained that position, these proceedings would not have been necessary. Regrettably, the Minister took a different course. 46It is necessary to explain the particular steps proposed by the Minister to implement the Board's decision. They were set out in Mr Kneipp's letters dated 8 June 2010 to Mr Anthony and to Mr & Mrs Hunter. They included four major elements: (a) First, the gates and fences erected by Mr & Mrs Hunter within their enclosure permit were to be removed within 28 days. To that end, Mr Kneipp attached to his letter a ministerial direction to Mr & Mrs Hunter to remove the gates and fences. For reasons that I will explain, the notice was confused and unnecessary and has led to further tangential disputation; (b) Second, Mr Kneipp stated that "the Minister will exercise his discretion and cancel" Mr & Mrs Hunter's enclosure permit. He said that this would be effective from a date to be notified and "in consideration of the time required to remove gates"; (c) Third, Mr Kneipp stated that the Minister accepted the Board's recommendation that the land the subject of the enclosure permit be fenced out of Lot 500 on both sides, at Mr Anthony's cost; (d) Fourth, Mr Kneipp stated that officers of the Land & Property Management Authority would initiate discussion with Mr Anthony regarding further road works to be carried out by him according to the terms of the expired minor works permit previously issued to him. 47The fourth matter related to the completion by Mr Anthony of the works necessary to form an access track on the Crown road which are described in paragraphs [35] and [36] above. The disputation with Mr & Mrs Hunter was one of the factors that had resulted in those works remaining incomplete, and the permit having expired, at the time of the hearing before the Board. 48The effect on Mr Anthony of the Minister's decision set out in Mr Kneipp's letter dated 8 June 2010, was clear. They justified Mr Anthony's expectation that for the time being he would be entitled to continue to use the Crown road as a means of access to Lot 147 and that the Land & Property Management Authority would negotiate with him in good faith on the terms on which he would be permitted to complete the minor road works which were the subject of his now expired permit. 49On the other hand, Mr Anthony had no expectation and no forewarning about what in fact happened next. He had no inkling that the Minister would retreat from his decision to implement the Board's recommendations. Nor did he have any apprehension that the Minister would decide to prevent him and anyone else from having access along the Crown road. Nor could he have anticipated that any decision by the Minister to prohibit further access to the Crown road and not to implement the Board's recommendations, would be made without notice to him and without an opportunity for him to be heard. 50That surprising turnaround in the Minister's position arose as a result of the following sequence of events: (a) On 5 July and 14 September 2010, the solicitor for Mr & Mrs Hunter purported to formally object, pursuant to Section 71 of the Crown Lands Act , to the direction for the removal of gates and fences that accompanied Mr Kneipp's letter dated 8 June 2010; (b) On 15 September 2010, Mr Sawtell, whose role and function I have already explained, responded by saying, among other things, that, by reason of Section 71(6), an objection to a ministerial direction may not be lodged if the matter had already been considered by the local land board and the direction was in accordance with the Board's recommendation; (c) On the following day, 16 September 2010, Mr Sawtell resiled from the position which he set out in his 15 September letter. He had received some internal legal advice. He now said that the Board's report and recommendations were not clear; that there was doubt as to whether an appeal by Mr & Mrs Hunter was precluded by Section 71(6); and that the Minister was receptive to an objection by Mr & Mrs Hunter; (d) The reversal of the Minister's position in relation to Mr & Mrs Hunter's objection coincided with Mr Sawtell's developing concern about the existence of hazards on the Crown road that I explained in paragraphs [21] - [23] above. 51There was of course no legal connection between the deteriorating condition of the Crown road and the validity of Mr & Mrs Hunter's objection to the Minister's direction to remove the gates and fences that they had erected. As I have explained, the former reasonably justified some form of regulation under the Roads Act . The latter raised a false issue but was either valid or not, depending on a fair reading of the Board's report and the proper construction of Section 71(6). 52Nonetheless, there seems clearly enough to have been a perception within the Land and Property Management Authority that implementation of the recommendations of the local land board no longer sat conveniently with the necessity to regulate the Crown road. The Minister did not therefore pursue the implementation of the Board's recommendations, notwithstanding the unequivocal statements in Mr Kneipp's letters dated 8 June 2010 to Mr Anthony and Mr & Mrs Hunter. And he reversed his position on Mr & Mrs Hunter's objection to his direction to remove the fences and gates erected by them.

Procedural Fairness 53The material point is that, for whatever reason, the Minister adopted a wholesale change of position. This was notwithstanding that the Crown road was the conventional route by which Mr Anthony had accessed his paddock on Lot 147; that Mr Anthony had already spent substantial monies in carrying out works on the Crown road; and that the prohibition of traffic on the Crown road, if permanent, would no doubt diminish the value of Lot 147. I should point out that during the disputation with Mr & Mrs Hunter, Mr Anthony more often used an alternative and less satisfactory track through the Hampton State Forest. The Minister's change of position was also in the face of Mr Anthony's reasonable expectation arising as a result of the assurance contained in Mr Kneipp's letter dated 8 June 2010 (based on the Board's recommendations), that officers of the Land & Property Management Authority would negotiate in good faith with him with a view to permitting him to complete the minor works on the Crown road that he had been originally authorised to undertake. 54It is true that Mr Anthony would have become increasingly aware from at least June 2010 that officers of the Land and Property Management Authority, in particular Mr Sawtell, were concerned about the condition of the Crown road. He would have perceived, I think, some loss of confidence in him. He may not necessarily have been surprised if the Minister had chosen not to accept the recommendations of the local land board. But once the Minister chose to adopt the Board's recommendations, Mr Anthony had no reason to expect that the unqualified position outlined with such clarity in Mr Kneipp's letter dated 8 June 2010, would no longer be maintained, without notice to him. Nor did he have any reason to expect that the Crown road would be suddenly regulated, to the point of prohibiting his passage along it, without notice to him. Nor could he have anticipated that the decision to regulate the Crown road would be taken without giving him an opportunity to make submissions or be heard. 55A legitimate expectation that is sufficient to found an entitlement to be heard before an administrative decision is taken may arise in a variety of circumstances. One of the clearest cases is where, as here, the administrative body has given an express assurance, or made a representation, that it will adopt a particular course of action favourable to the claimant. If the administrative body subsequently decides to reverse its decision, to adopt a different course and to depart from its previously stated position, it may well be obliged, depending on the circumstances, to afford procedural fairness to the claimant before doing so - unless there is a clear contrary statutory intention: Annetts v McCann (1990) 170 CLR 596 at 598 (Mason CJ, Deane and McHugh JJ). Of course, there must be an essential unfairness, not merely a disappointed expectation or a departure from a previous position or representation, without more: Re Minister for Immigration & Multicultural Affairs; ex parte Lam (supra) at [35] - [37]. 56A decision by a roads authority, such as the Minister, to regulate a road under Section 115 of Roads Act is one that affects the public generally. And there is no express or implied exclusion of procedural fairness that can be discerned from the language of the Act. But it would be quite wrong to say that the public at large is entitled to procedural fairness when a decision to regulate a road is made. Something more is required. The Minister did not owe a general duty of consultation. The plaintiff contended that Mr Anthony's right to use the road, as the owner of Lot 147, was specially affected by the decision to regulate. That is correct but it is not enough by itself. There were other factors that distinguished Mr Anthony's position. 57Mr Anthony was entitled to procedural fairness in the making of the Minister's decision because of the particular circumstances and the sequence of events that I have recounted in paragraphs [44] - [52] above. His entitlement is founded on a legitimate expectation held by him arising from those facts. The relevance of a legitimate expectation in the context of an administrative decision was articulated by Mason CJ and Deane J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 291-292: The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a binding rule of law. ...[If] a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course. 58As I have explained however, a disappointed expectation is not sufficient by itself. Practical unfairness must result from the failure to accord procedural fairness: Lam (supra) at [33] - [37] (Gleeson CJ). 59Mr Anthony desired to complete the works on the Crown road. The Minister stated in Mr Kneipp's letter dated 8 June 2010 that departmental officials would commence discussions with him about allowing him to do so. The premise of the letter was the acceptance by the Minister of the recommendations of the local land board. As I have said, the Minister was not bound to accept those recommendations - but he did. By the letter, and having regard to the events which led up to it, the Minister created a legitimate expectation that Mr Anthony would be able to continue to use the Crown road and, subject to further negotiations with departmental officials, complete the works on it. 60It is important to observe that a legitimate expectation does not entitle an affected person to satisfaction of that expectation. Rather, in an appropriate case, it will entitle such a person to an opportunity to be heard if a decision is made to depart from the state of affairs from which the expectation is derived. 61But even where the rules of procedural fairness apply, their content will vary from case to case. The existence and content of a plaintiff's legitimate expectation are relevant to determining what is required to afford procedural fairness to a person affected by the exercise of a statutory power: Lam at [81]-[83] (supra) (McHugh and Gummow JJ). And the legislative framework must also be considered in determining that content: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [26]. Mr Anthony's concern was both general and specific: he was a member of the public and as such, entitled to notice under Regulation 5 of the Roads Regulation as a matter of course. But for the reasons that I have endeavoured to explain, his interest was greater than that of a mere member of the public. 62I have reached the view that in the circumstances of this case, the application of the rules of procedural fairness required the following three elements, all of which were absent: (a) Mr Anthony was entitled to be informed that the Minister was considering not implementing the recommendations of the local land board contrary to the position taken and set out in Mr Kneipp's letter dated 8 June 2010 to Mr Anthony; and (b) Mr Anthony was entitled to be informed that, because of the presence of "hazards", the Minister was considering the regulation of the Crown road, to prohibit the passage of vehicles, persons and livestock; and (c) Mr Anthony was entitled to be given a reasonable opportunity to put submissions in relation to (a) and (b) before the Minister's decision on 21 September 2010.

Validity of Mr & Mrs Hunter's Objection 63That leads me to the curious reversal of the Minister's position in response to Mr & Mrs Hunter's objection to the direction for the removal of their gates and fences on the Crown road. The issue is whether Section 71(6) of the Crowns Lands Act operates as a bar to their objection. At first the Minister decided that it did. Then he decided that it did not. The latter decision has the appearance of a triumph of form over substance. But there is more to it than that. The whole matter reflects confusion by the Minister. In truth, there need never have been a Ministerial direction pursuant to Section 70 and the objection pursuant to Section 71 is, or should be, a false issue. 64I should repeat the material facts: (a) The erection of gates and fences was a condition of Mr & Mrs Hunter's enclosure permit: Section 61(2)(b). Without gates the holder of an enclosure permit could not fulfil its obligation to provide access to the public road; (b) The local land board took the view that in order to ensure unimpeded access to the Crown road, the enclosure permit should be cancelled and Mr & Mrs Hunter 's gates and fences removed; (c) In doing so the local land board recognised the distinction between removal pursuant to Section 70(1)(b) and removal pursuant to Section 66(1)(b). I explained that difference in paragraph [40] above. Thus the Board stated in its report: 76 The second referral is to determine whether the gates erected across the Crown road should be removed. 77 The Board is able to make an order that the gates and fences erected by Mr & Mrs Hunter within the land the subject of the Enclosure Permit be removed pursuant to Section 70(b). 78 If the Minister accepts the recommendations made by the Board in relation to the inquiry under Section 22(1) and the application of Section 66, then the fences and gates erected by Mr & Mrs Hunter must be removed. (d) The Board obviously contemplated that, assuming its recommendation for the cancellation of the enclosure permit was accepted, the gates and fences erected by Mr & Mrs Hunter would also necessarily be removed - by an order made pursuant to Section 66(1)(b). 65The Board did not suggest that its recommendation for the removal of Mr & Mrs Hunter's gates and fences should operate independently of its recommendation for the cancellation of the enclosure permit. For sound reasons, the two travelled together. However, Mr Kneipp's letters dated 8 June 2010 introduced confusion. They have now given rise to an unnecessary dispute. Mr Kneipp attached a notice to his letter to Mr & Mrs Hunter which purported to be a direction to remove gates and fences pursuant to Section 70. This was inappropriate, unnecessary and probably mistaken given that in the same letter Mr Kneipp stated that the Minister will cancel the enclosure permit - "from a date to be notified and in consideration of the time required to remove gates". 66In substance, the Minister was adopting the Board's twin recommendations for cancellation of the enclosure permit and removal of gates and fences. The Board and the Minister were therefore of one mind as to the substance. The Board knew that this required the exercise of power under Section 66(1)(a) and (b). The Minister on the other hand appears to have been confused and as a result of that confusion to have introduced Section 70. 67The exercise of the power to cancel an enclosure permit pursuant to Section 66(1)(a) and the exercise of the power to order the removal of gates and fences pursuant to Section 66(1)(b), do not give rise to any statutory right of objection. On the other hand, a direction to remove gates and fences pursuant to Section 70 does. This is understandable in the circumstances predicated by Section 70, namely that the enclosure permit remains on foot. 68In the result, the Minister has issued a Section 70 direction which operates when an enclosure permit remains on foot. This is notwithstanding that Mr Kneipp's letter stated that the enclosure permit would be cancelled. No cancellation has yet taken place. Nor was I provided with any explanation as to why the Minister has not given effect to the clear statement of intention in Mr Kneipp's letter. 69However because the Section 70 direction operates independently of any cancellation of the enclosure permit, it is not "in accordance with the local land board's recommendation" within the meaning of Section 71(6)(b). The Board did not recommend that a Section 70 notice be issued. It recommended only that "if the Minister accepts the recommendations ... in relation to the enquiry under Section 22(1) and the application of Section 66" then the gates and fences "must be removed" - obviously also pursuant to Section 66. The Board intended that the cancellation of the enclosure permit and the removal of the gates and fences operate in tandem. The Minister's Section 70 direction operates independently, regardless of whether the enclosure permit is cancelled. 70For those reasons, Section 71(6)(b) is not satisfied and there is no bar to Mr & Mrs Hunter's objection. But this is an outcome that verges on the surreal. The problem is of the Minister's own making. If he had cancelled the enclosure permit pursuant to Section 66(1)(a) and ordered the removal of the gates and fences pursuant to Section 66(1)(b), in accordance with substantive intent set out in Mr Kneipp's letters dated 8 June 2010, there could be no objection. The intrusion of Section 70 by the attachment to the letter to Mr & Mrs Hunter of a notice purporting to derive its authority from Section 70, was extraneous and confused. 71Mr & Mrs Hunter may object to the Section 70 notice. But it is open to the Minister to withdraw the notice, to revert to the position outlined in substance in Mr Kneipp's letter, and to implement the recommendations of the Board by cancelling the enclosure permit and ordering the removal of the gates and fences pursuant to Section 66(1)(a) and (b) respectively. An order under Section 66(1)(b) must however be served on Mr & Mrs Hunter: Section 66(2).

Conclusion 72For those reasons, the decision taken by the Minister on 21 September 2011 pursuant to Section 115(2) of the Roads Act to regulate the Crown road by prohibiting vehicular access along it, is voidable. It should be set aside. The objection by Mr & Mrs Hunter to the Minister's direction pursuant to Section 70 of the Crown Road Act is valid. The Minister should pay the plaintiff's costs of the proceedings. Having regard to the matters that I explained in paragraph [70], the Minister should also pay the costs of the second and third defendants. I will grant a stay of these orders for 28 days pending any appeal. I direct the Minister to provide a copy of these reasons to each of the members of the local land board. The plaintiff's solicitors should deliver to my Associate agreed short minutes of order to reflect these reasons. o0o 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: 02 September 2011

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