Kirkman v Minister Administering the Crown Lands Act 1989

Background

1. In 2007 Ms Kirkman applied to the Minister to close and sell to her that part of the Crown road the subject of her enclosure permit. Mr Wood made a corresponding application in 2012.
2. On or about 28 November 2008, the Minister purported to alter the terms of Ms Kirkman's enclosure permit, and the terms of Mr Wood's enclosure permit, by excluding the Disputed Portion from Ms Kirkman's enclosure permit and adding it to Mr Wood's enclosure permit. The parties referred to this purported decision as the "Permit Decision".
3. The Minister now accepts that the Permit Decision was infected by jurisdictional error and was a nullity.
4. Ms Kirkman became aware of the purported Permit Decision on 4 December 2013, when the relevant Department wrote to her about proposed road closures in the locality and invited her to apply to purchase that part of the Crown road as adjoins The Glen.
5. In that letter the Department said: "Generally [the roads proposed for closure] will be sold to landholders whose property incorporates, or adjoins these roads. Preference may be given to those landholders who hold an Enclosure Permit over the road".
6. On 30 January 2014, the Department wrote to Ms Kirkman's solicitors as follows: "There are no office records available to indicate when and why [Ms Kirkman's enclosure permit] was altered. However, [Mr Wood's enclosure permit] was altered on 28 November, 2008 at Mr Wood's request to reflect the fencing at that time. Presumably, [Ms Kirkman's enclosure permit] may well have been amended at that time, as there would have been two permits over the same parcel of road, ie. the easternmost (about 121m) of road south of [The Glen]. Both permit descriptions now reflect the fencing that exists as shown on the attached copy of D.P. 817891 and the attached enlargement. On behalf of the Office I apologise for your client not being advised at the time of the alteration of the permit and any distress this matter may have now caused."
7. The reference to the existing fencing in that letter was a reference to a fence that then existed on and over the Crown road. The fence was in place when Ms Kirkman bought The Glen in 1999 and for many years before then. I will refer to it as the "old fence".
8. The old fence ran from west to east roughly along the southern boundary of the Crown road but, at a point at or near to the western end of the Disputed Portion "doglegged" to the north and then ran east roughly along the northern boundary of the Crown land (being the southern boundary of the easternmost part of The Glen).
9. Thus, the old fence, for practical purposes, fenced off from The Glen that part of the Crown road as comprised the Disputed Portion notwithstanding the fact that the Disputed Portion was included in the land the subject of Ms Kirkman's enclosure permit.
10. In around May 2014 Ms Kirkman obtained a survey which showed the alignment of the old fence.
11. Between May and June 2014 she caused a new post and electric wire fence to be erected precisely on the southern boundary of the Crown road (consistently with that survey). I will refer to this as the "new fence".
12. On 4 June 2014 the Department wrote to Ms Kirkman's solicitors stating that a site inspection had revealed the pending construction of the new fence and continued: "To bring the [new fence] into alignment Ms Kirkman should fence her boundary [in effect consistently with the old fence and so as to exclude the Disputed Portion]. Alternatively, the fence may be located on the [southern] side of the Crown road, …however, this will need to be negotiated with Mr Wood under the requirements of the Dividing Fences Act [1991 (NSW)]. This option is not the preferred option by the Department as Mr Wood has an enclosure permit legalising his occupation of this section of the road, which accurately reflects the current and historical fencing arrangements."
13. Plainly, this letter was written on the assumption that the purported Permit Decision was valid.
14. On 8 August 2014 an officer of the Department, Ms Miao Wang prepared a submission in relation to Ms Kirkman's application to purchase that part of the Crown road as was the subject of her enclosure permit.
15. Under the heading "Comments" Ms Wang wrote: "• It appears that Ms Kirkman recently installed a new electric fence enclosing that section currently under enclosure permit to Mr and Mrs Wood (along the southern boundary of Crown road south of lot 500/755846) without notice or consent. • Mr Wood advised that he was not notified that [the new fence] would be installed on his boundary with the road. In this circumstance, the new electric fence should only be considered as a temporary fence and not be considered as a valid property boundary fence to support Ms Kirkman's claim to purchase the road." [Emphasis added]
16. These comments were clearly also made on the assumption that the purported Permit Decision was valid, that Ms Kirkman's enclosure permit no longer included the Disputed Portion and that the Disputed Portion was now within Mr Wood's enclosure permit.
17. The submission continued: "Based on the discussions above: • It is recommended that the [Disputed Portion] is closed and sold to Mr and Mrs Wood, which will be processed with the Woods' application…".
18. The document concluded: "DECISION After consideration of all submissions received the roads are considered surplus to Departmental needs. On closing the land within the former public roads will remain vested in the Crown as Crown Lands. Both Ms Kirkman and Mr and Mrs Wood were given an opportunity to resolve their conflicting EOIs, however no resolution was made. Based on [the old fence] registered in 1992, satellite imagery, the inspection report and photos it is recommended that: • the [Disputed Portion] is closed and sold to Mr and Mrs Wood…, and • Ms Kirkman's objection on the [Disputed Portion] is overruled…".
19. On 13 August 2014, the Minister's delegate, Ms Jamie Murray signed the submission as "approved". Ms Murray did not add any reasons of her own at the time.
20. On 14 August 2014 the Department wrote to Ms Kirkman notifying her of the decision.
21. In the Statement of Reasons filed on behalf of the Minister in these proceedings on 23 February 2015, Ms Murray said that she considered Ms Wang's submission of August 2014 and said: "From my review of the August submission and my knowledge of the investigation [by the Department], I was satisfied that the Road was fenced in with [Mr Wood's] property and had been fenced in that way since at least 1992. This fact was verified by several sources (aerial images/survey plans/photos supplied by parties and inspection by departmental officers). In considering all other relevant facts, submissions and documents, I assessed the competing interest in purchasing the section of road. As the road had been fenced in with [Mr Wood's] property for some time, I determined that it should not be included in the parcel bring offered for sale to [Ms Kirkman]. I noted evidence that [Ms Kirkman] had recently installed a new electric fence enclosing the part of the land that was in dispute between [Ms Kirkman] and [Mr Wood]. I did not place any weight on this fence because it appeared that the new fence had been installed recently without notice or consent. As stated above, I noted the dispute in relation to the existing enclosure permits. I did not put any weight on the enclosure permits when I made the August decision because I considered that the fencing arrangement provided a sufficient basis on which to make my decision. I would have come to the same decision regardless of what the enclosure permit description was." [Emphasis added]

Did the Minister's delegate take into account an irrelevant consideration?

1. It was common ground that as the purported Permit Decision was a nullity, it would not have been relevant for the Minister's delegate to take it into account when making her decision.
2. It follows that it would not have been relevant for the delegate to take into account the alleged fact that Ms Kirkman's enclosure permit did not include the Disputed Portion.
3. Mr To, who appeared for Ms Kirkman, submitted that, notwithstanding the Minister's delegate's statement that she "did not put any weight on the enclosure permits" when she made her decision, it is clear from her reference to the new fence being installed "without notice or consent" (that is, without notice to Mr Wood nor with his consent) that she did.
4. That was especially clear, Mr To submitted, from the statements in Ms Wang's submission (which Ms Murray approved without comment, which she said in the Statement of Reasons that she considered and which plainly formed the basis for her decision) that: 1. the new fence enclosed the land the subject of Mr Wood's enclosure permit; 2. the new fence had, in that context, been erected "without notice or consent"; and 3. the new fence was "not a valid property boundary fence" (see the emphasised passages at [22] above).
5. I agree.
6. It is clear to me from Ms Wang's language that her statement that the new fence had been erected "without notice or consent" was intended to convey that Ms Kirkman had erected the new fence without notice to Mr Wood and without his consent. It is also clear that Ms Wang was not intending to recite a neutral, historical fact. The reference to the new fence being erected "without notice or consent" is in the same sentence in which Ms Wang stated (wrongly, now that it is acknowledged that the Permit Decision is a nullity) that the new fence enclosed land within Mr Wood's enclosure permit (and thus not in Ms Kirkman's enclosure permit). That makes plain that Ms Wang assumed the validity of the Permit Decision, thus assumed the Disputed Portion was no longer within Ms Kirkman's enclosure permit and placed reliance on that fact when making her recommendation.
7. Ms Murray used the same language in the Statement of Reasons and must, I would infer, also have placed some reliance on the same matter.
8. The result is that Ms Murray took into account an irrelevant consideration, namely a state of affairs that assumed the validity of the Permit Decision, when making her decision.
9. It is common ground that, if that be the correct conclusion, the decision is attended by jurisdictional error and should be set aside.
10. Having come to this conclusion, it is not necessary for me to address Mr To's alternative submission, that Ms Kirkman was denied procedural fairness. However, I will deal with the submission, albeit briefly.
11. Mr To submitted that the statement in the 4 December 2013 letter set out at [12] above should be read as a representation of a policy or practice generally adopted by the Minister in carrying out Crown road sales and that any proposed departure from same required that Ms Kirkman be afforded procedural fairness in the form of a right to be heard about the proposed departure.
12. Assuming that what was said in the letter should be seen as a statement of the Minister's policy or practice, it was followed in this case. The Minister did decide to sell the Disputed Portion to an adjoining landholder: Mr Wood. And, insofar as preference was not given to Ms Kirkman (who was only one of the two adjoining landholders) the Department's position, and thus the Minister's, was made clear in the letter of 4 June 2014 set out at [19] above.
13. I would not have set aside the Minister's decision on this basis.

Conclusion

1. I invite counsel to bring in short minutes to give effect to these reasons.

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: 20 December 2016