NSWNSWCA

Neilson v Secretary, Department of Planning and Environment

[2024] NSWCA 28

Court of Appeal (NSW)|2023-09-15|Before: Ward P, Payne JA, White JA

View original source

At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2023-09-15

Before

Ward P, Payne JA, White JA

Catchwords

[2019] FCAFC 27 ASP15 v Commonwealth of Australia (2016) 248 FCR 372
[2019] HCA 49 Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021) 250 LGERA 1
[1994] HCA 61 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
[2000] HCA 5 Kuru v State of New South Wales (2008) 236 CLR 1

Source

Original judgment source is linked above.

Catchwords

[2019] FCAFC 27 ASP15 v Commonwealth of Australia (2016) 248 FCR 372[2019] HCA 49 Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021) 250 LGERA 1[1994] HCA 61 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135[2000] HCA 5 Kuru v State of New South Wales (2008) 236 CLR 1[2008] HCA 26 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332[2013] HCA 18 NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470[2005] HCA 77 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355[1998] HCA 28 Randren House Pty Ltd v Water Administration Ministerial Corporation (2020) 246 LGERA 1[2020] NSWCA 14 Re Federal Commissioner of TaxationEx parte Australena Investments Pty Ltd (1983) 58 ALJR 36 SAS Trustee Corporation v Miles (2018) 265 CLR 137[2018] HCA 55 Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1[2021] NSWCA 204 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362[2017] HCA 34 Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531[2014] HCA 9 Thornton v Repatriation Commission (1981) 52 FLR 285

Judgment (56 paragraphs)

[1]

A 71 Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455; [1991] FCA 268 Texts Cited: LL Fuller, "The Forms and Limits of Adjudication" (1978) 92 Harvard Law Review 353 Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022) New South Wales Legislative Council, Parliamentary Debates (Hansard) 30 October 1974 at 2309 NSW National Parks and Wildlife Service, Mimosa Rocks National Park: Plan of Management (February 2011) Category: Principal judgment Parties: Ian Stuart Neilson (appellant) Secretary, Department of Planning and Environment (respondent) Representation: Counsel: C Ireland and A Jucha (appellant) RPL Lancaster SC and JM McKelvey (respondent)

[2]

Solicitors: Gibney & Gunson (appellant) Crown Solicitor (respondent) File Number(s): 2023/119871 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Land and Environment Court Jurisdiction: Class 4 Citation: [2023] NSWLEC 32 Date of Decision: 23 March 2023 Before: Pain J File Number(s): 2022/18446

[3]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[4]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Mr Neilson, appealed from the dismissal of proceedings he commenced in the Land and Environment Court in its Class 4 jurisdiction. Before the primary judge, Pain J, the appellant sought declarations and orders in the nature of mandamus requiring the respondent, the Secretary, Department of Planning & Environment, to undertake works to upgrade two roads, Cowdroys Road and Lagoon Trail, in Mimosa Rocks National Park. The appellant required all weather access by a vehicle towing a boat on a trailer through the National Park to a commercial oyster lease located outside the boundaries of the National Park. The appellant sought mandamus on the basis that s 81 of the National Parks and Wildlife Act 1974 (NSW) ("NPW Act") and the Plan of Management for Mimosa Rocks National Park entitled him to have the Court compel the National Parks and Wildlife Service ("NPWS") to carry out significant roadworks on Lagoon Trail and Cowdroys Road. One of the Plan of Management's "policies and actions" was maintaining Lagoon Trail and Cowdroys Road to, respectively, an "all weather 2WD standard" and an "all weather 4WD standard". The primary judge dismissed the application and held that the Secretary had discretion in how to carry out the Plan of Management. The primary judge held that the duty in s 81 of the NPW Act is to implement, carry out and give effect to the Plan of Management overall. The issues before the Court were: (i) Does the Plan of Management for the National Park require Cowdroys Road and/or Lagoon Trail to be managed and maintained by the respondent? (ii) If the Plan of Management imposes a duty to maintain Cowdroys Road and Lagoon Trail, to what standard must they be maintained? (iii) Assuming the respondent is obliged to maintain Cowdroys Road and Lagoon Trail, has there been an unreasonable delay in that maintenance? (iv) What relief, if any, should be granted?

[5]

The Court (per Ward P and Payne JA agreeing, White JA contra) dismissed the appeal, holding:

[6]

On issue (i): (1) The primary judge was correct to conclude that there was no requirement imposed by s 81 of the NPW Act to maintain the relevant roads. The text, context and purpose of s 81 of the NPW Act make it clear that, as a matter of construction of both the NPW Act and the Plan of Management, the duty under s 81 of the NPW Act is to carry out and give effect to the Plan of Management as a whole: Ward P at [1]; Payne JA at [45]-[53]. Neither s 81 nor the Plan of Management impose an obligation to complete particular policies within a specified time or at all. The Plan of Management contains competing priorities, some which will require immediate action, some which are aspirational, and some which will be deferred or, if funds and staffing are not available, not be carried out at all. The Secretary has discretion in how to pursue those priorities: Ward P at [1]; Payne JA at [54]-[63]. How the respondent undertook the task of managing distributive priorities is not a matter that the legislature intended to be the subject of judicial review: Ward P at [1]; Payne JA at [56], [60], [63]. Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021) 250 LGERA 1; [2021] NSWLEC 92 considered. (2) The orders in the nature of mandamus sought by the appellant are outside the statutory purpose, which is to promote public access and tourism to the National Park. Use of roads through national parks to access commercial operations outside the National Park is not part of the statutory purpose: Ward P at [1]; Payne JA at [60]. Nothing in the relevant policies contemplated the provision of access, through the National Park, to any particular oyster lease outside the National Park: Ward P at [1]; Payne JA at [75]. (3) White JA (contra) at [223]-[229]: Where a plan of management requires that specific action be taken, compliance with the Secretary's obligation under s 81 of the NPW Act requires the Secretary to carry out and give effect to all the plan, including specific actions required by the plan, and a failure to carry out a plan of management in a specific respect is capable of remedy. The terms of the plan make that obligation subject to the availability of staff and funding, strategic planning and competing priorities.

[7]

On issue (ii): (4) There is nothing in the text of the Plan of Management to support the appellant's construction that the phrase "All Weather 4WD standard" implies a quality of road that can be driven by a 4WD vehicle hauling a boat trailer: Ward P at [1]; Payne JA at [110], [115]. The term "thoroughfare" was used as a synonym for "road" Ward P at [1]; Payne JA at [120]. The NSW Rural Fire Service Fire Trail Standards made several years after the Plan of Management provide no guide in interpreting the meaning of "All Weather 2WD" and "4WD" standards: Ward P at [1]; Payne JA at [112], [122]. (5) Nothing in the Plan of Management envisages road improvements so that boat access to the Lagoon be made available to conduct commercial operations. To the extent that one of the Plan's desired outcomes is that lessees enter licence agreements with NPWS, this is to ensure that their activities are undertaken in ways that minimise impacts upon the values of the park and the experiences of park visitors. Any necessary improvements to a road permitting the lessees access through the National Park are likely expected to be paid for by the licensee as a condition of the licence: Ward P at [1]; Payne JA at [113].

[8]

On issue (iii): (6) The delay was not unreasonable: Ward P at [1]; Payne JA at [153]. The primary judge applied the correct test from Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18: Ward P at [1]; Payne JA at [150]. Mere length of time is not sufficient to demonstrate unreasonable delay: [153]. The primary judge did not find that there was an "unlimited" discretion: Ward P at [1]; Payne JA at [146]. Evidence of considerable efforts by NPWS tends strongly against any conclusion that there was unreasonable delay: Ward P at [1]; Payne JA at [161]. For any persuasive onus to fall on the respondent to explain the delay, the appellant first had to establish that delay called for an explanation: Ward P at [1]; Payne JA at [164]. (7) The cases referred to by the appellant can be distinguished as in each of those circumstances the applicant alleging delay had a statutory entitlement to receive a decision: Ward P at [1]; Payne JA at [157]. AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424; [2019] FCAFC 27; ASP15 v Commonwealth of Australia (2016) 248 FCR 372; [2016] FCAFC 145; BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530; CMA19 v Minister for Home Affairs [2020] FCA 736; Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 58 ALJR 36; Thornton v Repatriation Commission (1981) 52 FLR 285; [1981] FCA 71; and Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455; [1991] FCA 268 considered. (8) White JA (contra) at [236]-[237]: By 21 January 2022 (when proceedings were commenced) more than a reasonable time had passed for NPWS to comply with the requirements to upgrade Lagoon Trail to a 2WD standard and Cowdroys Road to a 4WD standard. There was no evidence that the work was not done due to limited staff, limited funding or prioritisation of other works.

[9]

On issue (iv): (9) The exercise of discretion to grant relief should be refused. There was considerable uncertainty about what the order sought required in terms of work, regulatory approvals and costs. The orders sought were likely to destroy the banks of Nelson Lagoon. There was no evidence it was possible to launch a boat without constructing separate boat launch facilities. The making of the orders sought by the appellant would be antithetical to the proper role of the Court on judicial review as it would require the respondent to spend public money, in priority to any other expenditure necessary for the maintenance of the more than 890 national parks in New South Wales, so that the appellant can access his commercial oyster farming operation outside the boundary of the National Park: Ward P at [1]; Payne JA at [22]-[23],[173]. (10) White JA (agreeing relief should be refused) at [242]-[244], [247]: The relief sought in relation to the Lagoon Trail would be inutile because an order for the upgrading of the Lagoon Trail from a 4WD to a 2WD standard would not advance Mr Neilson's interest unless he could also obtain access to the waters of the lagoon which is blocked apparently to prevent degradation to the lagoon bank. The relief sought in relation to Cowdroys Road would be inutile because there is no evidence as to how the boat could be launched without modifications to the bank of the lagoon to provide a ramp, were the track upgraded to all-weather 4WD standard. The NPWS had no obligation to carry out such works to the bank and Mr Neilson could not lawfully do the works himself.

[10]

Judgment

WARD P: I agree with Payne JA, for the comprehensive reasons that his Honour has given, that the appeal should be dismissed with costs.
PAYNE JA: The appellant, Mr Ian Stuart Neilson, appeals from the dismissal of proceedings he commenced in the Land and Environment Court in its Class 4 jurisdiction. Before the primary judge, Pain J, the appellant sought declarations and orders in the nature of mandamus requiring the respondent, the Secretary, Department of Planning & Environment, to undertake works to upgrade two roads in Mimosa Rocks National Park so as to assure the appellant of all weather access by a car towing a boat on a trailer through the National Park to a commercial oyster lease which is located outside the boundaries of the National Park.

[11]

Relevant facts

Day to day management of the National Park is delegated to the National Parks and Wildlife Service ("NPWS") by the respondent. The NPWS is established under s 6 of the National Parks and Wildlife Act 1974 (NSW) ("NPW Act"). The powers and functions of the NPWS are set out in s 12. The NPWS is required to carry out such works and activities as the Minister may direct in relation to issues including the conservation and protection of land, wildlife, wilderness, Aboriginal objects and Aboriginal places, as well as the provision of facilities and opportunities for sustainable visitor or tourist use, research and public education.
There are more than 890 national parks and reserves managed by NPWS in New South Wales. Land under management covers more than 9 percent of the land area of the state. There are over 430 plans of management made in relation to these areas. The network of roads in national parks across the state is over 38,500km in length.
The South Coast Branch of NPWS, one of eight operational branches in the organisation, is responsible for an area covering approximately 789,800ha of national parks and conservation areas between Wollongong and the Victorian border. The South Coast Branch of NPWS is responsible for a road and trail network exceeding 4,000km in length.
The South Coast Branch of NPWS is divided into four operating areas, the Mimosa Rocks National Park being within the Eurobodalla operating area. The Eurobodalla operating area has 12 national parks, reserves and conservation areas to manage.
The Mimosa Rocks National Park comprises 5,804ha, with a 20km long coastline and 30km of management trails. The seaward and lakeshore boundaries of the park extend to the mean high water mark, with the beds of the three main waterbodies, Nelson Lagoon, Middle Lagoon and Wapengo Lake, excluded from the National Park. Nelson Lagoon, which lies outside the boundary of the National Park, has a surface area of 105ha and a catchment area of 2,900ha.
There are two broad types of national park roads: park roads (or public access roads), which are open to the public; and management trails, which are primarily used for park management activities. Just over half of the network consists of management trails. NPWS has a Roads Manual which contains a road classification system for prioritising the relative importance of roads within the network. Roads are classified as primary, secondary, minor or low based on the road's function as determined by operational, visitor and community requirements.

[12]

Engineering evidence about Cowdroys Road and Lagoon Trail

Mr Legler, a civil engineer, in an affidavit affirmed on 14 June 2022 attached a road condition assessment report on the road and trail dated 29 May 2022. In his opinion, the southern section of Cowdroys Road did not comply with the requirements for a category 9 fire trail as identified in the NSW Rural Fire Service Fire Trail Standards ("Fire Standards"), and a 4WD vehicle towing a boat trailer could not navigate the steep grading on that part of Cowdroys Road. He reported that, even after the works undertaken in 2022, Lagoon Trail was not maintained to a 2WD standard.
Another civil engineer, Mr Wearne, affirmed an affidavit on 11 August 2022 observing first that the section of Cowdroys Road beyond Gate 4 towards Nelson Lagoon was not suitable for a 4WD vehicle towing a trailer and secondly that on the management trail section 4WD access was possible only with care, because of the steep gradient. In his view, the foreshore of Nelson Lagoon was eroded and not suitable for boat trailer access. Mr Wearne assessed Lagoon Trail as suitable for all weather 4WD access with most of the track accessible to a 2WD vehicle.
The experts agreed that the final section of Cowdroys Road, between Gate 4 and Nelson Lagoon, is not suitable for a 4WD vehicle towing a trailer, that Lagoon Trail is suitable for dry weather 2WD access but not all weather 2WD access, and that there is no access to the water in Nelson Lagoon at the end of Lagoon Trail, in part because of structures erected by NPWS for the apparent purpose of preventing further erosion of the Lagoon's foreshore.
A photograph of the structures and the eroded foreshore of Nelson Lagoon in the evidence showed the barriers, which resemble logs, laid by NPWS to prevent further erosion of the bank.
As I will explain, the appellant seeks orders for the removal of those barriers. What, if anything, should be done to prevent further erosion to the banks of Nelson Lagoon was not addressed in the orders sought by the appellant.

[13]

Relevant legislation

Part 5 of the NPW Act deals with plans of management. The crucial provision is s 81, which relevantly provides: 81 Operations under plan of management (1) Where the Minister has adopted a plan of management for a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area or wildlife refuge, it shall, subject to subsections (5) and (6), be carried out and given effect to by the Secretary. … (4) Subject to subsection (4A), despite anything in this or another Act or in an instrument made under this or another Act, if the Minister has adopted a plan of management under this Part, no operations may be undertaken in relation to the lands to which the plan relates unless the operations are in accordance with the plan. …
Section 193 provides: 193 Restraint etc of breaches of Act or regulations (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (2) Proceedings under this section may be brought by a person on the person's own behalf or on behalf of the person and other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings. (4) In this section, breach includes a threatened or apprehended breach.
The legal basis for relief was said to be s 20(2)(b) of the Land and Environment Court Act 1979 (NSW), which invests the Land and Environment Court with the Supreme Court's jurisdiction to review or command the exercise of a function conferred or imposed by a planning or environmental law. This provision allows the Land and Environment Court to make orders in the nature of mandamus.

[14]

Mimosa Rocks National Park Plan of Management

On 2 February 2011, a Plan of Management was adopted for Mimosa Rocks National Park, replacing an earlier 1998 version. The essence of the appellant's case seeking mandamus is that on the correct understanding of the Plan of Management for Mimosa Rocks National Park he is entitled to have the Court compel NPWS to carry out significant roadworks on Lagoon Trail and Cowdroys Road so as to permit him to access Nelson Lagoon with a vehicle towing a boat trailer to conduct his commercial activities.
Although lengthy, the relevant extracts of the Plan of Management referred to by the parties should be set out to understand the context in which this appeal arises: Foreword Mimosa Rocks National Park covers 5,804 hectares between Tathra and Bermagui on the Far South Coast of NSW. It includes 20 kilometres coastline as well as areas of hinterland forest. … 1 INTRODUCTION This plan of management has been prepared in accordance with the NSW National Parks and Wildlife Act 1974 (NPW Act) to provide a framework of objectives, policies and actions to guide the long-term management of Mimosa Rocks National Park. … This is the second plan of management written for the park and replaces the 1998 plan. It reflects the same underlying management philosophy evident in the earlier document and is directed at refining the conservation and recreation management achievements of the past decade. A plan of management is a legal document. Once the Minister for the Environment has adopted this plan, no operation may be undertaken within Mimosa Rocks National Park except in accordance with this plan. The plan will also apply to any future additions to the park. Where management strategies or works are proposed that are inconsistent with this plan, a formal amendment will be required. … 2.3 Significance of Mimosa Rocks National Park … The park protects most of the catchment of Nelson Creek, which is the principal tributary of Nelson Lagoon. Maintaining high water quality in the creek is vital to the health of the lagoon which is an important oyster-growing area. … 3.2 Strategies and Policies … Park management must also be consistent with the statewide policies adopted by the NSW National Parks and Wildlife Service. These are based upon legislative requirements, corporate directions, goals and strategies, and internationally accepted principles of park management. They relate to the management of natural and cultural values, recreation, commercial activities, research and communication. … 5.1 Natural Heritage … 5.1.5 Fire Management … Policies and Actions 1 Continue to manage fire within the context of the Fire Management Strategy for the park. … 5.3 Public Use 5.3.1 Recreational and Tourism Activities Mimosa Rocks National Park is a popular recreational destination, attracting some 140,000 visitors annually. Many of these visitors are residents of the Far South Coast region of NSW, though the park also attracts significant numbers of holidaymakers from throughout south-eastern Australia and further afield. … Car-based sightseeing opportunities are available along the park road network which consists of: • All Weather 2WD roads; • Dry Weather 2WD roads; and • All Weather 4WD roads. … Desired Outcome The role of the park in providing nature-based tourism experiences is recognised, with an appropriate range of recreational opportunities being catered for consistent with the protection of the natural and cultural values of the park. Policies and Actions General 1 Manage existing and new recreational activities and facilities so as to minimise impacts upon the natural and cultural values of the park, in particular: - Those parts of the park likely to be significantly impacted upon by the effects of rising sea levels (Sections 5.1.1 and 5.1.2); - Listed endangered ecological communities (Section 5.1.3); - Populations of threatened and otherwise significant plant and animal species (Sections 5.1.3 and 5.1.4); - Places that contain culturally-sensitive Aboriginal sites or values (Section 5.2.1); and - Cultural heritage features that are vulnerable to disturbance (Sections 5.2.1 and 5.2.2). … Vehicular Access 9 Permit public vehicular use along the following access routes only (refer Figure 4): … - Cowdroys Road; … - Lagoon Trail (also known as Nelson Creek Trail); … 10 Manage park roads to All Weather 2WD standard thoroughfares except for Goats Knob/Quarry Road, Kings Ridge Trail, Mount Peter Trail and Cowdroys Road which will be maintained to All Weather 4WD standard. … Other Activities … 47 Develop and implement a site plan for a car park and boat launching facility terminus at the eastern end of the Lagoon Trail with relevant agencies and interested users. … 5.3.2 Leases and Licences Desired Outcome All operations and authorised uses in the park are covered by a lease, licence or other formal consent or agreement. Policies and Actions 1 Ensure all operations and authorised uses in the park are covered by a lease, licence or other formal agreement. 2 Require all relevant lessees, licensees and other authorities operating in the park to develop and implement an environmental management plan for the ongoing management of their activities or infrastructure. All environmental management plans will be required to be consistent with the provisions of this plan of management and approved by the Service. … 5.3.3 Other Uses Commercial anglers licensed by the Department of Primary Industries occasionally fish along North Bunga Beach and in Bunga Lagoon. Government policy permits these fishermen to access these locations by vehicle. Elsewhere in the park, commercial anglers also occasionally fish in Middle Lagoon, with access provided via a management track. Oyster leases licensed by the Department of Primary Industries are located in the Nelson Lagoon area. Eight growing leases are present within Nelson Lagoon with an additional four leases situated in Nelson Creek (Clarkes Bay). Two catching leases exist at the mouth of the lagoon. All of these lessees have vehicular access through the park to their lease areas. Various materials associated with the Nelson Lagoon growing leases are located within the park, as is a loading ramp at Nelson Creek. None of these facilities or the vehicular access arrangements are currently covered by leases or licences. A geodetic station (TS 1273) is sited atop Bunga Head. Although the station is partially collapsed and has not been used for many years, the Land and Property Management Authority is permitted to use the site for essential surveying work subject to various environmental protection conditions. By contrast, the trigonometric station located to the north of Middle Beach is in good condition but is no longer required by the Authority. Key Issues and Opportunities The creation of access and use agreements with individual commercial anglers would provide a means of minimising any adverse effects of their operations on park values and visitor experiences. Arrangements with the Land and Property Management Authority concerning the future use of Bunga Head geodetic station need to include stringent conditions designed to protect the highly significant natural and cultural values of the area. They should also include measures directed at conserving and maintaining the trig, itself, which has historic value. Desired Outcome Agreements are in place with commercial anglers, aquaculture lessees and the Department of Lands that are designed to minimise impacts associated with their activities. Policies and Actions 1 Ensure all operations and authorised uses in the park are covered by a lease, licence or other formal agreement. 2 Work with commercial anglers and aquaculture lessees to ensure that their activities are undertaken in ways that minimise impacts upon the values of the park and the experiences of park visitors. … 5.5 Management Facilities and Operations Management infrastructure located within the park, other than visitor facilities (as described in Section 5.3.1), is confined to a works depot, gravel pits and an extensive network of management tracks. … The park contains a network of management tracks that together total 30 kilometres in length. These tracks are closed to public vehicular use and are primarily retained for fire management and pest control purposes, though some are used by commercial fishing and aquaculture interests and by power line maintenance staff. The Service also maintains the Bithry Inlet, Middle Beach and Nelson Beach Roads, though all or parts of these roads are located within road reserves that do not form part of the park. The Tathra-Bermagui Road, Doctor George Road and part of Mumbulla Creek Road are also excluded from the park. The maintenance of these thoroughfares is the responsibility of the Bega Valley Shire Council. … Policies and Actions … 4 Maintain the following vehicular tracks for management purposes (referFigure 4): - Depot Fire Trail; - Doctor George Fire Trail; - Fords Trail; - Hell Hole Fire Trail; - Hidden Valley Fire Trail; - Middle Ridge Fire Trail; - Neilsen Fire Trail; - Penders Access Tracks; - Powerline Access Track; - Oyster Lease Access Track; - Sandy Creek Fire Trail; - Tommys Bay Access Track; and - Watertank Fire Trail. Maintain these vehicular tracks to a minimum standard of All Weather 4WD roads. … 6 Vehicular use of the management tracks listed in provisions 5.5.4 and 5.5.5 will only be permitted: - For necessary management operations undertaken by, or on behalf of, the Service; - Where essential for undertaking research licensed by the Service; - Where vehicular access to professional fishing areas or oyster leases is essential, and where such access existed prior to park reservation and no suitable alternative access exists; … … 5.8 Monitoring, Evaluation and Reporting 3 Commence a full review of this plan of management approximately ten years after adoption of the final plan by the Minister for the Environment. This plan will remain in force until such time that a new plan is adopted. … 6 PLAN IMPLEMENTATION The implementation of this plan will be undertaken within the annual programs of the Service's Far South Coast Region. Priorities, determined in the context of Branch and Regional strategic planning, will be subject to the availability of necessary staff and funds and to any special requirements of the Director-General or Minister. Regional programs are subject to ongoing review, within which, works and other activities carried out in Mimosa Rocks National Park are evaluated in relation to the objectives laid out in this plan. Section 81 of the National Parks and Wildlife Act 1974 requires that this plan will be carried out and given affect to, and that no operations shall be undertaken in relation to Mimosa Rocks National Park unless they are in accordance with the plan. However, if after adequate investigation, operations not included in the plan are found to be justified, this plan may be amended in accordance with section 73B of the Act. As a guide to the implementation of this plan, relative priorities have been assigned to actions in the plan as summarised below. The following criteria have been used to allocate priorities: High Imperative to achievement of the management objectives for the park. Must be undertaken in the near future to avoid significant deterioration in the condition of natural, cultural or recreational values. Medium Necessary to achieve the management objectives for the park but not urgent. Low Desirable to achieve management objectives but can be deferred until resources become available. (Note: Policies and those actions that are undertaken in the course of day to day park management duties are not necessarily listed below.) Action Plan Reference High Priority … 5.3.2.2/5.3.2.8 Ensure all relevant lessees, licensees and other authorities operating in the park develop and implement environmental management plans for their activities or infrastructure. Monitor compliance

[15]

The clauses central to the appellant's case were the "policies and actions" in cl 5.3.1 item 9 and more importantly cl 5.3.1 item 10, both of which fall within a section dealing with recreational and tourism use of the National Park (cl 5.3.1). The "policy and action" contained in cl 5.3.1 item 9 is, relevantly, to permit public vehicular use along Cowdroys Road and Lagoon Trail. The "policy and action" contained in cl 5.3.1 item 10 is, relevantly, to manage Lagoon Trail to an "All Weather 2WD standard" and Cowdroys Road to an "All Weather 4WD standard".

[16]

Grounds of appeal

The notice of appeal advanced 18 grounds of appeal: The respondent had a duty to maintain Lagoon Trail and Cowdroys Road to an All Weather 2WD and All Weather 4WD standard respectively 1 Her Honour erred in finding, including at [147] and [167], (notwithstanding first finding that s81 of the NPW Act imposed a duty on the Respondent to implement, carry out and give effect to the Plan of Management (PoM) at [133)), that there was no duty to implement, carry out and give effect to the obligation in clause 5.3.1, item 10 of the PoM to manage Lagoon Trail to an All Weather 2WD Standard and maintain Cowdroys Road to an All Weather 4WD Standard. 2 Her Honour ought to have found that on a proper construction of s81 and the PoM there was a duty to implement, carry out and give effect to the particular obligations in clause 5.3.1, item 10, within a reasonable time, because: a. The Respondent accepted that it had a duty to implement, carry out and give effect to the PoM pursuant to s81 ([133]); b. They are obligations in the PoM that is in turn subject to the duty imposed by s81; c. The language of the PoM does not confer a discretion as to what standard is to be applied to these roads; d. s81 operates with clause 5.3.1, item 10 to impose a duty to manage Lagoon Trail to an All Weather 2WD Standard, and to maintain Cowdroys Road to an All Weather 4WD Standard; and e. The fact that no time for compliance is specified does not nullify or remove the duty to bring them to the specified standard described in clause 5.3.1, item 10, within the reasonable time implied by law. Neither road was at the standard required by the PoM 3 Her Honour correctly found at [164] that an 'All Weather' standard means a vehicle (whether 4WD or 2WD) can use the road in wet and dry weather. 4 Her Honour further correctly found that it was common ground as between the parties' engineering experts that Lagoon Trail was not maintained to the required All Weather 2WD standard at [52]. 5 Her Honour should have found as a result of the findings at [52] and [164] that Lagoon Trail was not maintained to the All Weather 2WD Standard. 6 Instead of leaving the matter open as her Honour did at [187], her Honour should have found that Cowdroys Road was not maintained to the All Weather 4WD Standard based on the following evidence and findings below: a. the evidence of the Appellant that he could only access Cowdroys Road in dry weather (with or without a trailer), as recorded at [18]; b. the evidence that the Appellant could not access that last section of Cowdroys Road at all with his 4WD and boat trailer since 2010 (for 12 years) (at [129]); c. the evidence that the road was signposted a dry weather only (at [16] and [129]); and d. the evidence that Cowdroys Road was closed by the Respondent for lengthy periods of several months during wet weather (at [129]). There was unreasonable delay in performing the duty in relation to each road 7 Her Honour erred in finding at [140] and [181] that there is an unlimited or "necessary" discretion as to when the duty will be carried out "based on available staffing and funding", rather than a duty that is subject to a requirement implied by law that there be no unreasonable delay in its performance. 8 Her Honour erred in finding at [171] that the test for unreasonable delay in the performance of the s81 duty as applied to clause 5.3.1, item 10, of the PoM is Wednesbury or Minister v Li unreasonableness, namely that no Secretary in the position of the Secretary would have made the decisions on road maintenance which the Secretary did in fact make since 2011. 9 Her Honour erred in finding at [168] -[184] that there was no unreasonable delay in performing the duty imposed by a combination of s81 and clause 5.3.1, item 10, of the PoM. 10 Her Honour erred in finding at [173] that to establish unreasonable delay in performing the particular obligations in clause 5.3.1, item 10, of the PoM, the whole of the allocation of funding across the implementation of all aspects of the PoM would need to be considered, as such a requirement would amount to the acceptance of an unlimited discretion as to timing, as this would render the duty to perform those obligations within a reasonable time illusory contrary to law. 11 Her Honour erred at [184] in finding that the persuasive onus of negativing the existence of unreasonable delay had not shifted to the Respondent, and should have found that the Appellant had demonstrated a delay which required explanation by the Respondent and had not satisfied its resulting evidential onus. 12 Her Honour erred at [182] in finding that the adverse impact of the failure to perform the clause 5.3.1, item 1 0 obligations on the Appellant was irrelevant to assessing whether there was unreasonable delay, and should have found that this was a relevant consideration. 13 Her Honour should have found that there was unreasonable delay in performing the respective duties for the following reasons, and her Honour's finding to the contrary was against the weight of the evidence: a. The PoM containing the obligations in clause 5.3.1, item 1 0 has been in force since 2011. b. Lagoon Trial [sic] was classified as a 4WD access road in the NPWS asset management system contrary to the All Weather 2WD standard specified in the PoM: [34]. c. The roads are still not at the specified standards and on the evidence, have never been. d. The evidence recorded at [25] and [175] was that the Respondent was able to obtain funding for the roads from multiple sources. e. The Respondent had sufficient budget for works including as evidenced by $5.2m in untied operational expenditure funding in 2021/22 alone, yet had only spent comparatively minor amounts on the roads over many years as recorded at [12], until belatedly spending $47,636.25 on Lagoon Trail and $137,215.52 on Cowdroys Road in April/May 2022 after the commencement of proceedings. f. The recent expenditure on Cowdroys Road was post commencement of the litigation, and on the evidence was not pre-planned but instead was a defensive response to the commencement of proceedings (a matter left undecided by her Honour at [178]). However, the fact of that expenditure confirms that significant funding is available, as and when required, for these roads. g. The Respondent did not in fact prioritise road works in accordance with the "priority principles" put forward in the Respondent's lay evidence from its own officers lssaverdis and He, and they are self-serving principles developed by the Respondent for the purposes of the proceedings [28] and [43]. h. The obligations in clause 5.3.1, item 10 had not been carried out despite many repeated demands by the Appellant ("extensive communications") and assurances by the Respondent that they would be, in circumstances where the failure to perform the obligation was preventing commercial access to the Appellant's oyster lease and causing a financial loss of $480,000 per annum [15]. i. The Appellant has been unable to access the Oyster Lease using a 4WD vehicle with or without trailer along Cowdroys Road or Lagoon Trail since 2010 ([129]). j. The (Appellant's) uncontested evidence that. he has not had access to (the Oyster Lease) since about 2010 and has suffered and continues to suffer a significant and growing financial loss, as a consequence [82]. The respondent should have been ordered to do the roadwork required to achieve this standard for both of these roads 14 Her Honour erred in not ordering the Respondent to do the work identified in the evidence and required to place each road into the required standard. 15 In particular, her Honour erred in not ordering that the identified roadwork that on the evidence (referred to at [52] and [125] and as identified in the Further Amended Summons) was required to place Lagoon Trail into an All Weather 2WD Standard be done. The failure to so order was unreasonable, and contrary to the evidence and her Honour's own finding at [52] that Lagoon Trail was not at the required standard. 16 Her Honour should also have ordered that the work required to be done to ensure a 4WD (including without trailer) can access the last section of Cowdroys Road in wet weather as identified in the Further Amended Summons. The failure to do so was unreasonable and contrary to the evidence and findings referred to at paragraph 6 above at [18] and [129]. 17 The order should have extended to correcting the grade of Lagoon Trail and Cowdroys Road to a maximum of 15 degrees at the specific points or chainages specified in the Further Amended Summons as it was common ground between the engineering experts for each party below that the Fire Trail Standards provided a reasonable guide for what was required (in engineering terms) for 4WD access which in particular set a maximum longitudinal grade of no more than 15 degrees ([45], [49]). 18 Her Honour erred at [152] - [154] in not finding that the use of the word thoroughfare" in clause 5.3.1, item 10 of the PoM required that Lagoon Trail and Cowdroys Road needed to be managed so as to allow access to Nelson Creek Lagoon by vehicles with boat trailers rather than as "dead end" roads, and in particular should have found that this required an order for the removal of the log barriers placed by the Respondent at the end of Lagoon Trail.

[17]

Issue 1: Does the Plan of Management for the National Park require Cowdroys Road and/or Lagoon Trail to be managed and maintained by the respondent? (grounds 1 and 2)

[18]

Decision of the primary judge on issue 1

The primary judge identified the first issue as whether the Plan of Management required the respondent to manage and maintain the southern section of Cowdroys Road and Lagoon Trail to a particular standard. There was no challenge to her Honour's finding that the nature and scope of a statutory duty is to be construed by reference to the statutory text considered in context: Bushfire Survivors for Climate Action Inc v Environment Protection Authority (2021) 250 LGERA 1; [2021] NSWLEC 92 at [20]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14], [37].
The appellant did not contest the primary judge's approach that the terms of the Plan of Management must be construed in accordance with the principles of statutory construction. Relevant principles here include that the document must be read as a whole so as to give effect to all sections wherever feasible (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71]); where individual words require construction, their ordinary meaning must be considered in context (Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204 at [25]-[41]); and that words will not be added into the reading of a provision unless the words address simple, grammatical, drafting errors which would defeat the object of the provision if uncorrected: Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38].
The primary judge held that the respondent has a duty to implement, carry out and give effect to the Plan of Management overall pursuant to s 81 of the NPW Act. The entire Plan of Management document, her Honour found, provides a necessary context for considering the duty owed by the respondent under s 81 of the NPW Act, including by outlining its purpose of guiding the long-term management of the National Park. The primary judge further found that no timeframes are specified for the carrying out of policies and actions identified in the Plan of Management.
Her Honour noted that in Pt 6 of the Plan of Management many of the items in Pt 5 are divided into prioritisation categories of low, medium and high priority, without any specified timeframes for carrying out actions. The actions the appellant relied on in cl 5.3.1 items 9 and 10 are not included in Pt 6 in this list of priorities. A note in Pt 6 states "Note: Policies and those actions that are undertaken in the course of day to day park management duties are not necessarily listed below". The primary judge rejected the submission by the appellant that the day to day activities not prioritised in Pt 6 nevertheless have to be implemented regardless of any other prioritisation of actions in Pt 6.

[19]

The appellant's submissions on issue 1

The primary judge's error, the appellant submitted, was that her Honour failed to find that the duty in s 81 of the NPW Act "must equate to an obligation to perform the particular actions constituting the [Plan of Management]". It was submitted that the primary judge erred in concluding that s 81 of the NPW Act did not impose a duty on the respondent to maintain Cowdroys Road and Lagoon Trail to the nominated standard, within a reasonable time, which time had now elapsed.
The primary judge was wrong, the appellant said, to find that Pt 6 of the Plan of Management, with its hierarchy of priorities, created an "unlimited discretion" as to how and when the respondent would carry out the duty to implement the Plan of Management. Her Honour was also wrong, the appellant submitted, to allow the respondent to rely on its own limited funding or staff availability to "negate the need to comply with the specific obligations in the [Plan of Management]".
Instead, the appellant submitted that s 81 of the NPW Act, read together with cl 5.3.1 item 10 of the Plan of Management, imposed a "clear and definite" duty on the respondent to achieve certain road standards within a reasonable time. Section 81 could have been worded differently, the appellant submitted, if the Parliament had intended the duties in the Plan of Management to be carried out "in deference" to the respondent's internal management priorities.
Nor, the appellant submitted, did Pt 6 "undermine" the duty to implement the Plan of Management. Rather, the appellant submitted that Pt 6 "acknowledges and defers to … the requirement in s 81 to carry out and give effect to the [Plan of Management]". While it "allows the Respondent to distinguish between high medium and low priority actions" it "nowhere identifies that the clause 5.3.1 obligations can be permanently or indefinitely stalled … on the basis of the Respondent's internal prioritisation decisions or resources".
By instead interpreting Pt 6 in the way her Honour did, the primary judge risked leaving "nugatory" Parliament's clear intention to impose obligations on the NPWS.
The appellant likened the primary judge's approach to the doctrine of executive deference, developed by the US Supreme Court in Chevron USA, Inc v Natural Resources Defense Council, Inc, 467 US 837 (1984). That doctrine, the appellant said, forms no part of Australian law, referring to Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [56] (Gaudron J).

[20]

Consideration of issue 1

At the heart of this appeal is a question of statutory construction. Mandamus will lie where a power to be exercised for a statutory purpose exists but the repository of the power declines to exercise the power. In Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51; [1994] HCA 61 Brennan J at 88 explained: The Commissioner is a public officer vested with a power to be exercised for the purpose, inter alia, of discharging her liabilities. When the power exists and the circumstances call for the fulfilment of a purpose for which the power is conferred, but the repository of the power declines to exercise the power, mandamus is the appropriate remedy even though the repository has an unfettered discretion in other circumstances to exercise or to refrain from exercising the power. …. (emphasis added)
The crucial provision is s 81 of the NPW Act. The relevant parts of which are set out at [24] above. The nature and scope of the duty imposed by s 81(1) of the NPW Act, and any discretion to perform the duty imposed, are to be construed by reference to the text of s 81, considered in light of its context and purpose: SZTAL at [14] (Kiefel CJ, Nettle and Gordon JJ); SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20] (Kiefel CJ, Bell and Nettle JJ), [41] (Gageler J), [64] (Edelman J). The primary judge was correct to determine the nature and scope of the respondent's duty and discretion by reference to the relevant statutory text and in light of its context and purpose.
As to the text of s 81(1), the respondent is vested with a power and a singular duty to carry out and give effect to a plan of management. Here, that power and singular duty is for the Secretary to carry out and give effect to (that is, to implement) the Plan of Management for the Mimosa Rocks National Park. Section 81 does not prescribe what it means to "carry out" or "give effect" to a plan of management. It clearly does not specify that a plan of management is carried out or given effect to only if every policy and action it proposes be completed, in a reasonable time or at all.
As to context, the legislative materials tend against any conclusion that the legislature intended to require the Secretary to carry out as separate obligations every "policy or action" in a plan of management. When the National Parks and Wildlife Bill 1974 (NSW) was under consideration in the Legislative Council, a member proposed an amendment which would have forbidden the authority responsible for a given protected area from granting an easement contrary to a plan of management. The Minister for Planning and Environment and Vice-President of the Executive Council refused to support the amendment, saying: The Government is not willing to go that far. As I see the amendment […] it is adequately covered by clause 81(1) in the powers of the director to implement the plan of management. He is obliged to go to a certain stage in his basic obligation to implement the plan. (New South Wales Legislative Council, Parliamentary Debates (Hansard) 30 October 1974, 2309) (emphasis added).

[21]

The structure of the Plan of Management

The content of the duty to carry out the Plan of Management for the Mimosa Rocks National Park requires construction of the Plan of Management itself. The Plan of Management identifies various competing priorities in implementing the myriad policies and actions the subject of the Plan of Management. This is unsurprising in a document of 86 pages addressing long-term management of a national park comprising 5,804ha, 20km of coastline and over 4,000km of roads within which are located significant sites of Aboriginal heritage, protected flora and fauna and significant sites of national and international importance. The Plan of Management identifies policies and actions about a vast range of subjects including the management of native and introduced plants and animals, fire management, Aboriginal heritage, non-Aboriginal heritage, promotion of the National Park, management facilities, research and surveying.
The Plan of Management is a necessarily multifocal document, with conflicting priorities, under which all decision-making was necessarily "polycentric", as that term was described by Basten JA in another context in Randren House Pty Ltd v Water Administration Ministerial Corporation (2020) 246 LGERA 1; [2020] NSWCA 14 at [11]-[16] as decisions involving overlapping public policies and different distributive priorities. As explained by Professor Lon L Fuller in a seminal article in 1978 (LL Fuller, "The Forms and Limits of Adjudication" (1978) 92 Harvard Law Review 353, 395): We may visualise this kind of situation by thinking of a spider web. A pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole. … This is a 'polycentric' situation because it is 'many centered' - each crossing of strands is a distinct center for distributing tensions.
The Plan of Management is best understood as a document identifying numerous "desired outcomes". Subject to staffing and resources, the Plan of Management specifies 15 separate "desired outcomes". To label one or more specific policies and actions in the Plan of Management as more important than other policies and actions is to involve the Court in making decisions involving overlapping public policies and different distributive priorities. This is an unlikely legislative intention, as it is inconsistent with the statutory purpose of s 81 which allocates decisions involving overlapping public policies and different distributive priorities to the respondent. The legislature, in enacting s 81, has made clear that such public money as is allocated to NPWS is to be spent by NPWS only on policies and actions identified in a plan of management. The text and context of s 81 of the NPW Act provide no support for the startling proposition that, whatever the amount of public money allocated to NPWS in a particular year, NPWS has a statutory duty to perform every one of the "policies and actions" identified in a Plan of Management within a reasonable time.

[22]

The relevant policies and actions

The relevant "policy" or "action" said to require the level of maintenance of Cowdroys Road and Lagoon Trail contended for by the appellant is contained in items 9 and 10 of cl 5.3.1 of the Plan of Management. The clause appears in Pt 5 of the Plan of Management, entitled "Management Policies and Actions". It will be recalled that mandamus is available if the circumstances call for the fulfilment of a purpose for which the power is conferred. The primary judge was correct to conclude that the appellant sought to rely on policies and actions in cl 5.3.1 relating to public access and tourism activities to support a commercial activity. The purpose of cl 5.3.1 of the Plan of Management is to promote public access and tourism activities and not the appellant's commercial interests.
Section 5.3 is entitled "Public Use" and cl 5.3.1 is entitled "Recreational and Tourism Activities". Clause 5.3.1 is divided into sections concerning "Camping", "Day Use and Walking" and "Tourism". Within the "Day Use and Walking" section it states: Car-based sightseeing opportunities are available along the park road network which consists of: • All Weather 2WD roads; • Dry Weather 2WD roads;and • All Weather 4WD roads. Most driving is confined to the 2WD roads that provide access to coastal visitor destinations. Other less popular recreational activities include cycling, which is permitted on public access roads and management trails, and horse riding which is restricted to public access roads only.
It will be recalled that the "desired outcome" of the policies and actions identified in cl 5.3.1 of the Plan of Management is as follows: Desired Outcome The role of the park in providing nature-based tourism experiences is recognised, with an appropriate range of recreational opportunities being catered for consistent with the protection of the natural and cultural values of the park.
This "desired outcome" is plainly aspirational. The "role" of the National Park is identified for this purpose as "providing nature-based tourism experiences" with an "appropriate range of recreational opportunities". All of these outcomes must be "consistent with the protection of the natural and cultural values of the park".
The "Policies and Actions" identified as giving effect to this "desired outcome" are then addressed over five pages, being "General", "Vehicular Access", "Camping", "Picnicking", "Walking" and "Other Activities".

[23]

The appellant's reliance on Bushire Survivors

The case said by the appellant to provide support for the orders sought here is Bushfire Survivors, where Preston CJ of LEC at [49] said of the EPA's statutory duty to develop guidelines and policies involved only a "limited discretion as to when, what and how the duty is to be performed" (emphasis added). The appellant relied on that case for the proposition that mandamus lies here to compel performance of the s 81 duty.
The conclusion in Bushfire Survivors was reached in relation to a different agency, operating under a different statute. In that case, the Environmental Protection Agency (EPA) was required by s 9(1)(a) of the Protection of the Environment Administration Act 1991 (NSW) (POEA Act) to develop environmental quality objectives, guidelines and policies to ensure environment protection. An environmental action group complained that the objectives, guidelines and policies formulated by the EPA made no mention of climate change. It sought mandamus.
Preston CJ of LEC found that s 9(1)(a) imposed a duty on the EPA and that duty was subject to a discretion: [48] The performance of the duty involves discretion. I now will explore the nature and scope of this discretion. The discretion to perform the duty is limited by the terms in which the duty is imposed. There is no discretion as to whether or why the duty is to be performed. There is no discretion as to whether any environmental quality objectives, guidelines and policies to ensure environment protection need to be developed because there is a duty on the EPA to do so, and there is no discretion as to why environmental quality objectives, guidelines and policies need to be developed because the duty requires such instruments to be developed to ensure environment protection. [49] There is a limited discretion as to when, what and how the duty is to be performed. When do the circumstances demand that the EPA must develop particular environmental quality objectives, guidelines and policies to ensure environment protection? What type of instrument - an environmental quality objective, guideline or policy - should be developed? What should be the subject matter of environment protection in respect of which such an instrument should be developed? How should the selected instrument address the selected subject matter?
The controls on this discretion, Preston CJ of LEC found, included the terms of s 9(1)(a), the meaning of "environment protection" under s 6 of the POEA Act, the EPA's statutory objectives and functions (especially the requirement it act with environmental expertise) and general administrative law principles of reasonableness.

[24]

Conclusion on grounds 1 and 2

The primary judge was correct to conclude that the duty under s 81 of the NPW Act, as a matter of construction of both the NPW Act and the Plan of Management, is to carry out and give effect to the Plan of Management as a whole. Section 81 and the Plan of Management did not impose any obligation upon the Secretary to complete particular "policies and actions" in a plan of management within any specified time or at all.
The appellant's suggestion that each of the isolated elements of the Plan of Management constituted stand-alone duties which the respondent was required to perform within a reasonable time was incorrect. The Plan of Management provides a "framework of objectives, policies and actions to guide the long-term management of [the National Park]": Pt 1 Plan of Management. The Plan of Management, in Pt 6, acknowledges that it contains competing priorities, some which will require immediate action and some which will be deferred or, if funds and staffing are not available, not be carried out at all. The Plan of Management is designed to be in place for at least 10 years: cl 5.8.3.
The Plan of Management operates by identifying "desired outcomes", and then listing "policies and actions" designed to achieve those desired outcomes. In the case of cl 5.3.1, the applicable "desired outcome" is to provide "nature-based tourism experiences":
The Plan of Management contemplates a scheme of priorities. It is plain on the face of the Plan of Management that not all policies and actions contained in the Plan are of equal importance. Some policies and actions identified in the Plan must as a matter of practicality be addressed after other policies and actions have been completed. As the introduction to Pt 6 of the Plan of Management explicitly states, when and how policies and actions are addressed depends on competing priorities, as well as staffing and funding.
The appellant's characterisation of the applicable duty replaces the statutory words in s 81, imposing a duty to carry out and give effect to the Plan of Management, with an obligation to compete a myriad of specific policies and actions derived from specific sentences in the Plan of Management taken out of context, which context incudes Pt 6.
The orders in the nature of mandamus sought by the appellant here are outside the statutory purpose, which is to promote public access and tourism to the National Park. Use of roads through national parks to access commercial operations is not part of the statutory purpose.

[25]

Issue 2: If the Plan of Management imposes a duty to maintain Cowdroys Road and Lagoon Trail, to what standard must they be maintained? (grounds 3-6)

Notwithstanding my conclusion on issue 1, I will consider the remaining issues: Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26 at [12]; Boensch v Pascoe (2019) 268 CLR 593; [2019] HCA 49 at [8].
In the context I have described, the relevant policies and actions in cl 5.3.1, particularly items 9 and 10, are that Lagoon Trail be maintained to an "All Weather 2WD standard" and Cowdroys Road to an "All Weather 4WD standard". The two phrases are not defined in the Plan of Management. In addressing this issue subsidiary issues are: 1. What is meant by: 1. "All Weather 4WD standard" in the Plan of Management; and 2. "All Weather 2WD standard" in the Plan of Management. 1. Do Cowdroys Road and Lagoon Trail extend to the mean high water mark of Nelson Lagoon?

[26]

Decision of the primary judge on issue 2

The primary judge found that the words "manage", "maintain" and "standard" in the items should all be given their ordinary meaning:.
As the meaning of all weather 2WD and 4WD "access" or "standard" is not expressly explained in the Plan of Management, the primary judge held that they should be given their ordinary meaning, that a 4WD or 2WD vehicle relevantly can use the road in wet and dry weather, rather than a technical meaning. The primary judge found at [157] that "[n]o statutory basis exists for inferring that the Fire Standards which the engineering evidence of Mr Legler and Mr Wearne refer to, essentially giving the words a technical meaning". This is so because the Fire Standards were developed in 2016, so plainly could not have been contemplated in 2011 when the Plan of Management was made. That a duty is "always speaking" (see Bushfire Survivors at [65]-[66]) does not mean that standards created after 2011 by a separate state government agency must by inference apply "in the absence of any relevant indicia that they do". Her Honour also rejected the appellant's alternative submission that, even if the Fire Standards do not apply, a maximum slope of 15 degrees should be applied because the experts both considered that reasonable.
The primary judge found that the northern section of Cowdroys Road from Gillards Road to the Rodley Access Track was identified by the FAFT as a "tactical road" (meaning its maintenance is not funded by the NPWS recurrent operational budget). But her Honour went on to find that the southern section of Cowdroys Road and the entirety of Lagoon Trail are not part of the FAFT network and are "essentially unclassified". That some internal documents refer to them as fire trails "does not aid in the construction of the expressions in issue as having a technical meaning". Her Honour found that "[n]either road is classified as a fire trail under Pt 5.5 item 4 of the [Plan of Management] and that is the duty the Applicant seeks to review".
The primary judge found that there is no requirement in the Plan of Management that the two roads accommodate a 4WD vehicle towing a boat trailer. Neither the ordinary meaning of the phrase "All Weather 4WD standard" nor the general references to the presence of oyster leases in the Plan of Management import such a requirement:
The primary judge, in summary, found that: 1. All Weather 4WD standard: 1. means a 4WD vehicle can use the road in wet and dry weather; 2. does not require a boat trailer to be towable by the vehicle; and 3. is not determined by reference to Fire Standards; 1. All Weather 2WD standard: 1. means a 2WD vehicle can use the road in wet and dry weather; and 2. is not determined by reference to the Fire Standards.

[27]

Appellant's submissions on issue 2

The appellant's submissions focused mostly on items 9 and 10 in cl 5.3.1 of the Plan of Management. Item 9, as I have explained, refers to permitting public vehicular use along several access routes including Cowdroys Road and Lagoon Trail. Item 10 relevantly states "Manage park roads to All Weather 2WD standard thoroughfares except for … Cowdroys Road which will be maintained to All Weather 4WD standard".
There is little, if any, real dispute between the parties on the actual state of Cowdroys Road and Lagoon Trail. At trial, a conclave of engineering experts delivered a joint report on the topic. It was common ground between the parties that Lagoon Trail was maintained to a dry weather 2WD standard, but not a wet weather 2WD standard. However, as I found on issue 1, this fact does not indicate a breach of duty or obligation. If as the respondent submitted and the primary judge found the 4WD standard, the "All Weather 4WD standard" extends to vehicles only, and not vehicles with boat trailers, then the only section of Cowdroys Road that does not conform to the standard is the last section, after the gate to which the appellant has a key issued by NPWS. It is clear that work is needed to bring the last section of Cowdroys Road to an "All Weather 4WD standard". However, as I have found, this fact does not indicate a breach of duty or obligation by the respondent.
The real dispute between the parties is whether, as the appellant argued, "All Weather 4WD standard" implies a quality of road that can be driven by a 4WD vehicle hauling a boat trailer.
The appellant maintained that the phrase "All Weather 4WD standard" imposed a duty to make Cowdroys Road passable for such a vehicle. The appellant's submissions in support of this construction proved elusive.
The argument focused upon item 10 of cl 5.3.1 which described Lagoon Trail and Cowdroys Road (along with all other "park roads") as "thoroughfares". They were thus not "dead end roads", the appellant argued, but thoroughfares that led to Nelson Lagoon itself. Park users wishing to use these roads as "thoroughfares" would necessarily require a boat to then travel onto the Lagoon, for commercial or recreational purposes.

[28]

Consideration of issue 2

There is nothing in the text of the Plan of Management to support the appellant's construction that, "All Weather 4WD standard" implies a quality of road that can be driven by 4WD vehicle hauling a boat trailer. As set out at [28] above, within cl 5.3.1, the Plan of Management states: Car-based sightseeing opportunities are available along the park road network which consists of: • All Weather 2WD roads; • Dry Weather 2WD roads; and • All Weather 4WD roads. Most driving is confined to the 2WD roads that provide access to coastal visitor destinations.
The appellant's submission that the primary judge should have found that this required an order for the removal of the log barriers placed by NPWS at the end of Lagoon Trail finds no support in the Plan of Management.
The Fire Standards provide no guide in interpreting the meaning of "All Weather 2WD" and "4WD" standards. The Fire Standards were made several years after the Plan of Management and neither Cowdroys Road or Lagoon Trail are a fire trail.
Nothing in the Plan of Management envisages road improvements so that boat access to the Lagoon be made available to conduct commercial operations. As I have found, to the extent that one of the Plan's desired outcomes (in cl 5.3.2) is that lessees including aquaculture lessees enter licence agreements with NPWS, this is to ensure that their activities are undertaken in ways that minimise impacts upon the values of the park and the experiences of park visitors. The fact that in the Plan of Management it is stated to be desirable that the lessee enter into a licence agreement is no doubt in the expectation that any necessary improvements to a road permitting the lessees access through the National Park be paid for by the licensee as a condition of the licence.
The alleged obligations for which mandamus is sought arise in a section of the Plan of Management specifically addressing "recreation". The clear statutory purpose of the specified road standards is to facilitate sight-seeing by occupants of a car, and not access by a car towing a boat for the purpose of commercial oyster farming outside the boundaries of the National Park. The primary judge's description of the appellant's construction as "strained" was an understatement.
It is plain that "All Weather 4WD standard" should not be interpreted to embrace 4WD vehicles hauling a boat trailer. Such a construction is not the plain reading of the words "All Weather 4WD standard". The Plan of Management does not specify any particular boat access points to the Lagoon, much less boat access points to conduct commercial operations.

[29]

Issue 3: Assuming the respondent is obliged to maintain Cowdroys Road and Lagoon Trail, has there been an unreasonable delay in that maintenance? (grounds 7-13)

Although on my findings this issue does not arise I will address it briefly. The relevant grounds comprised: 1. An alleged error in the finding of the primary judge at [140] and [181] of an unlimited or "necessary" discretion (ground 7); 2. An allegation that the test in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 or Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 was not the correct test for unreasonable delay (ground 8); 3. An allegation that there was error in the conclusion that there was no unreasonable delay (ground 9); 4. An allegation that it was an error to find at [173] that the whole allocation and use of funding for the NPWS needs be considered before granting relief (ground 10); 5. An allegation that the primary judge erred in failing to find that the persuasive onus of negativing the alleged unreasonable delay shifted to the respondent (ground 11); 6. An alleged error at [182] in finding that the adverse impact on the appellant was "irrelevant" to an assessment of whether there was unreasonable delay (ground 12); and 7. An allegation that the finding that there was no unreasonable delay was against the weight of evidence (ground 13).
The appellant grouped these grounds into three separate sub-issues: 1. Whether there was an unlimited or necessary discretion (ground 7); 2. The test for unreasonable delay (ground 8); and 3. Whether there was unreasonable delay (grounds 9 to 13).

[30]

Whether there was an "unlimited" or "necessary" discretion (ground 7)

The appellant complained about the primary judge's findings at [140] and [181]: [140] As Pt 6 applies to the whole PoM, any action canvassed within it will be subject to Pt 6, which imports a necessary discretion as to when and how the duty to implement the POM overall will be carried out based on available staffing and funding. How the NPWS spends limited resources is necessarily discretionary in light of limited funding. When the 86 pages of the PoM are considered, including the sections extracted above in [53] that construction of the duty must be correct. … [181] Ultimately nothing flows to the benefit of the Applicant's case from this scrutiny of NPWS spending and the sources of funds obtained as the NPWS has necessary discretion as to when and how actions in the PoM are implemented. There are many demands on the available funding which needs to be prioritised by NPWS.
Her Honour further held that this conclusion was fortified by the absence of timeframes in the Plan of Management for the implementation of policies and actions.

[31]

The test for unreasonable delay (ground 8)

In deciding whether the delay was unreasonable, the primary judge referred to the test for administrative unreasonableness in Wednesbury. She did so apparently at the appellant's invitation: [169] Issue 5 identifies unreasonable delay by the Respondent. Wednesbury unreasonableness was identified by the Applicant in the assumed context that Pt 6 of the PoM did not apply to Pt 5 actions not referenced in Pt 6 in relation to issue 1. (emphasis added)
The primary judge also referred to Bushfire Survivors: [170] Bushfire Survivors identified that the exercise of a statutory duty must be reasonable in a legal sense at [55] as the Respondent accepted in submissions above in [104]: 55. The last mentioned constraint on the exercise of discretion is one of avoidance of unreasonableness, not only in the sense of Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), that the decision is so unreasonable that no reasonable person could have arrived at it, but also in the sense used in Minister for Immigration and Citizenship v Li of a decision lacking an evident and intelligible justification.

[32]

Whether the delay was unreasonable (grounds 9 to 13)

The appellant's case was conducted on the asserted conclusion that Pt 6 of the Plan of Management did not apply to Pt 5 actions not specifically referred to in Pt 6, such as the maintenance of Cowdroys Road and Lagoon Trail. As discussed above, the primary judge rejected that construction of the Plan of Management. The appellant argued in the alternative, even while accepting that the respondent has a discretion in relation to prioritisation of actions subject to available staff and funding, that there was unreasonable delay in maintaining the two relevant roads to the required standard and that this was a breach of the duty in s 81, given the lengthy period he has not had access to his oyster lease.
Her Honour found that nothing flows to the benefit of the appellant from scrutiny of NPWS spending and the sources of funds, since NPWS has the necessary discretion as to when and how actions in the Plan of Management are implemented based on the various demands it must manage.
The primary judge found that the appellant's personal circumstances carried very little weight in considering whether unreasonable delay had occurred. The cases relied on by the appellant, largely migration and citizenship cases, were of little assistance given the broad statutory duty considered here, the absence of any conferral of a right of access to the appellant under the Plan of Management and the manner in which oyster growing activities outside of the National Park are considered. The appellant's oyster lease, which he chose to renew in 2016 even despite the road access difficulties, never included any provision for access (such as that described as a condition of a licence above):
Her Honour held that, given her finding that the statutory duty owed by the respondent relates to implementation of the whole of the Plan of Management, to address the issue of unreasonable delay arguably requires consideration of the whole of the allocation of funding across the implementation of all aspects of the Plan of Management, not just road maintenance. As such, she held that on this basis alone the appellant could not succeed on his unreasonable delay case focused only on the funding of road maintenance.
The primary judge found that the evidence of Ms Issaverdis and Mr He identified that funding of NPWS activities is a complicated combination of dedicated FAFT funding, recurrent NPWS operational funding and opportunistic sources of external funding, and that the priority principles they identified appear orthodox and rational. The primary judge found that she did not need to consider whether the appellant's characterisation of how funding for the maintenance of Cowdroys Road in May 2022 occurred supported the unreasonableness argument, "given all the other reasons why the Applicant cannot succeed".

[33]

Submissions of the appellant on issue 3 Whether there was an "unlimited" or "necessary" discretion (ground 7)

The appellant submitted: 1. All agencies have limited resources and staffing, so a failure to provide resources cannot negative a statutory right: Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455; [1991] FCA 268 at [55]. 2. The primary judge's finding gave carte blanche to the respondent as to whether to give effect to an obligation at all. 3. Delay is grounds for mandamus even if the defendant believes the delay to be subjectively acceptable: NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470; [2005] HCA 77 at [38] per Gummow J and at [117]-[118] per Kirby J. 4. In Bushfire Survivors, Preston CJ of LEC at [49] said of the EPA's statutory duty to develop guidelines and policies involved only a "limited discretion as to when, what and how the duty is to be performed".

[34]

The test for unreasonable delay (ground 8)

The appellant complained about the primary judge's adoption of the Wednesbury test.
Instead, the correct test for unreasonable delay, the appellant submitted, was set out in Thornton v Repatriation Commission (1981) 52 FLR 285 at 292; [1981] FCA 71 per Fisher J: The question is whether there are circumstances which a reasonable man might consider render this delay justified and not capricious ... a delay for a considered reason and not in consequence of neglect, oversight or perversity.
The appellant then noted that Murphy J, sitting as a single justice of the High Court, approved this test in Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Ltd (1983) 58 ALJR 36 at 36G. The Full Court of the Federal Court approved the Thornton test for delay in ASP15 v Commonwealth of Australia (2016) 248 FCR 372; [2016] FCAFC 145 at [23].
The appellant submitted that, because the primary judge applied the wrong test, her Honour's determination on delay should be set aside and the question should be reheard by this Court on appeal.

[35]

Whether the delay was unreasonable (grounds 9 to 13)

The appellant submitted that there was a sufficient budget to upgrade the two roads because $137,000 was spent on the maintenance of Cowdroys Road in May 2022, and because the entire South Coast Branch of NPWS had untied operational expenditure of $5.2 million for 2021-22. The primary judge found that "no inference can be drawn by the Court that this was significant in the hands of the NPWS such that the discretion to spend it should have been exercised in the way [Mr Neilson] seeks".
The appellant gave 10 reasons why the explanation given by the respondent cannot prove that the delay in maintaining the roads was reasonable: 1. The Plan of Management has been in force since 2011, leaving a "vast period of time" for the roads to be brought to standard. 2. Lagoon Trail was wrongly classified as a 4WD access road in the NPWS asset management system, where it should have been classified to the 2WD standard. 3. The roads are still not to standard. Work performed on them between 2020 and 2022 has not brought them to standard. 4. The respondent was able to obtain funding for the roads from multiple sources. 5. The respondent had $5.2 million in untied funding for 2021-22 alone, which was sufficient to carry out the works. In contrast, it had only spent minor amounts on the roads over many years: $47,636.25 on Lagoon Trail and $137,215.52 on Cowdroys Road. 6. Recent expenditure on Cowdroys Road post-dated the commencement of these proceedings. "On the evidence [this] was not pre-planned but instead was a defensive response to the commencement of proceedings" (the primary judge made no finding on this issue). In its Narrative Statement of Disputed Facts, the appellant invited the Court to find that the ad hoc and litigation-responsive nature of the recent works proved that when the respondent wants to do work and have it funded, she can do so. 7. The respondent's "priority principles" are self-serving principles developed for the purposes of the proceedings. Further, the respondent did not apply its own priority principles. 8. The works have not been carried out over a long period, despite frequent demands by the appellant and assurances by the respondent that they would be. 9. The appellant has been unable to access the oyster lease using a four-wheel drive along the roads since 2010. 10. The appellant has repeatedly communicated to the respondent his ongoing financial loss from his access difficulties. The respondent went so far as to physically stop the appellant's effort to bring the roads to standard.

[36]

Consideration of whether there was an "unlimited" discretion (ground 7)

The fundamental premise of the appellant's complaint in ground 7 is incorrect. The primary judge did not find that the was an "unlimited" discretion. Her Honour concluded, correctly, that any policy or action in the Plan of Management was subject to Pt 6, which imports a necessary discretion as to when and how the duty to implement the Plan of Management overall will be carried out based on available staffing and funding. How the NPWS spends limited resources is necessarily discretionary in light of limited funding. The relevant statutory obligation was to implement the Plan of Management overall. When and how that overall duty was undertaken was based on available staffing and funding. A discretion was granted in terms by Pt 6 to carry out the Plan of Management subject to identified constraints, including staffing and funding. The discretion so described was not "unlimited" and it is incorrect to accuse the primary judge of having so concluded.
The appellant's complaint that a failure to provide resources cannot negative a statutory right assumes the correctness of the construction of the statute and Plan of Management as providing a right to the appellant, susceptible to an order of mandamus, to travel on two roads in the National Park in all weather conditions in a vehicle hauling a boat to access a commercial oyster lease lying outside the boundaries of the National Park.
The appellant's repeated complaints about the primary judge's findings giving "carte blanche" to the respondent are unpersuasive. The primary judge, correctly, engaged in an exercise of statutory construction. There is nothing at all surprising in the conclusion that an operator of a commercial operation located outside a national park has no "right" to insist that public money be spent on two roads in the National Park which would permit him to travel through the National Park to access his commercial operation.
I reject ground 7.

[37]

Consideration of the test for "unreasonable delay" (ground 8)

The fundamental problem with the appellant's complaint that the primary judge erred in considering the Wednesbury test is that her Honour set out and applied the decision of the High Court in Li. In that case, the applicant was refused a skilled overseas student visa under the Migration Act 1958 (Cth) by a delegate of the Minister and, on review, by the Migration Review Tribunal. During the review proceeding, the Tribunal refused to grant an adjournment that would have allowed the applicant to procure relevant information (a skills assessment). On appeal, the Federal Court and then the High Court found that the refusal to adjourn was unreasonable. In the joint judgment, Hayne, Kiefel and Bell JJ appeared to relax the Wednesbury test: [63] … The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision - which is to say one that is so unreasonable that no reasonable person could have arrived at it - nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgment in Wednesbury. … [76] Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
Whether the Court in Li did, in fact, relax the Wednesbury test is not clear: see Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 7th ed, 2022) at 6.40.
The appellant's preferred test set out in Thornton does not assist him. I doubt that the test adds anything to the formulation of the judicial review standard in Li. All of the circumstances must be considered and the identified "neglect, oversight or perversity" must be unreasonable.
Assuming, contrary to my conclusion, that the primary judge should have applied the Thornton test, and that the Thornton test is materially different to the judicial review standard in Li, there is nothing unreasonable in the delay here relied upon by the appellant. Little turns on the fact that the relevant road and trail have not been upgraded to the standard the appellant asserts was required for 12 years. The mere length of time is not sufficient to demonstrate unreasonable delay. I am not persuaded that anything like neglect, oversight or perversity has been shown.

[38]

Consideration of whether the delay was unreasonable (grounds 9 to 13)

[39]

The cases relied upon by the appellant

It is first necessary to address the cases relied upon by the appellant said to establish a separate "unreasonable delay" principle. Each of those cases turns on closely defined rights and responsibilities in the particular statute there being addressed. Those cases were: 1. Thornton: Under the scheme contained in Div 1 Pt 3 of the Repatriation Act 1920 (Cth), the Repatriation Commission was tasked with determining an applicant's eligibility for a repatriation pension. When Ms Thornton made her application, the Repatriation Commission decided that it would defer the decision about her eligibility pending the outcome of a High Court appeal which would likely affect the outcome of Ms Thornton's application. Fisher J found that this was not an unreasonable delay. His Honour found that a reasonable person would not consider the delay unjustified or capricious. 2. Australena Investments: In this case, when the applicants failed to lodge income tax returns, default tax assessments were made against them under s 167 of the Income Tax Assessment Act 1936 (Cth). The applicants lodged objections against the whole of the default assessments under s 185 of that Act. Section 186 of the Act, in the form it then took, required the Commissioner to consider an objection and then either disallow it or allow it either wholly or in part. Almost a year after the objections were lodged, the Commissioner had not yet made a determination on the objections. Sitting at first instance in the High Court, Murphy J held that s 186 of the Act required the Commissioner to determine an objection within a reasonable time. His Honour concluded, however, that the delay was not unreasonable in the circumstances, including the complexity of the applicants' affairs. 3. ASP15: Section 196(1) of the Migration Act provided that an unlawful non-citizen detained under s 189 of the Act had to be kept in immigration detention until, inter alia, they were granted a visa. Section 65 required the Minister to make a decision on any visa application. The applicants, who came to Australia by boat, were detained under s 189 before, in 2012, applying for a visa. In 2015, they were granted temporary protection visas. The Full Court of the Federal Court found that, while s 65 contained no explicit time limit, implicitly a decision had to be made within a "reasonable time". Again, what was reasonable turned on the scheme of the Act. 4. Wei: Several applicants applied for permanent residency on humanitarian grounds. All but one of the applicants applied under s 6A(1) of the Migration Act, which along with ss 6 and 7, closely defined when a permanent residency permit could be granted. There was a delay in granting the visas. The scheme of the Migration Act was critical in deciding whether the delay was unreasonable. The issue was that further delay would cause the applicants to become illegal entrants. Neaves J found that the delay, for these applicants, was unreasonable. The last applicant, Mr Wei, applied for permanent residency some time later, after amendments to the Migration Act and, crucially, after a dramatic increase in the number of applicants for humanitarian visas. Because of this change of circumstance, the delay was, vis a vis this applicant, not unreasonable. 5. AQM18: Section 501(1) of the Migration Act provided that the Minister or a delegate could refuse to grant a visa to a person if the person did not pass a character test. By s 501A(2) of the Act, if the Minister's delegate or the Administrative Appeals Tribunal decided not to exercise the power under s 501(1), the Minister could personally set that decision aside and refuse to grant a visa. The Tribunal decided not to exercise its s 501(1) power to refuse the appellant's visa on character grounds. The Minister gave notice that he was considering setting aside the Tribunal's decision under s 501A(2). Ten months later, the Minister decided to exercise the power in s 501A(2) and refused the appellant a protection visa. Before the Full Court of the Federal Court, one issue was whether there was unreasonable delay. The Court found at [65] that "in considering whether there was unreasonable delay in the present case, if there were such a requirement, we have had regard to the nature of the power and the impact of it on the appellant". The full details of the power in s 501A(2) were relevant, including that it was a power vested personally in the Minister and was directed to broad questions of national interest. Exercising the power required careful consideration of public and private factors, more so than in a purely commercial matter. Tolerance for delay was higher. In the circumstances, the delay was not unreasonable. 6. BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530: Section 24(1) of the Migration Act required the Minister to either approve or refuse an application for citizenship made under s 21. After the applicants applied for citizenship, some 18 months went by in which the Minister made no decision. Bromberg J found at [23] that "an important consideration in determining whether 'there has been unreasonable delay in making the decision' is the scheme of the legislation within which the relevant decision-making power is found". The peculiar scheme of the Act's citizenship provisions was relevant. Bromberg J found that the Act treats citizenship as a public good. Normally there is no great urgency when applying for citizenship, since applicants are normally permanent residents. Further, there was no requirement for a hearing under the provisions of the Act. Bromberg J found that the Minister's delay was unreasonable. 7. CMA19 v Minister for Home Affairs [2020] FCA 736: The applicant sought a protection visa under s 65 of the Migration Act. Three years later, using the power in s 501A(2) of the Act, the Minister refused that application on character grounds. When making a decision under s 501A(2), as explained above, the Minister was exercising a narrow and personal power to cancel a visa. It was held that the delay in exercising this specific power, in its context, was unreasonable.

[40]

The alleged unreasonable delay in this case

The appellant's attempt to demonstrate that NPWS had a sufficient budget to upgrade the two roads to a standard permitting the appellant access for his commercial purposes failed. The first attempt, pointing to the $137,000 spent by NPWS on the maintenance of Cowdroys Road in May 2022, rather emphasised the respondent's good faith attempts to achieve the "desired outcomes". NPWS had been engaged in improving both Cowdroys Road and Lagoon Trail over the course of the Plan of Management. The fact that in 2020 $137,000 was spent on Cowdroys Road by NPWS and the appellant still complained that he was unable to access the oyster leases rather demonstrates that mandamus would not be an appropriate remedy. The appellant's principal point, that the entire South Coast Branch of NPWS had an "untied operational expenditure of $5.2 million for 2021-22", completely misses the point. The primary judge, correctly, found that "no inference can be drawn by the Court that this was significant in the hands of the NPWS such that the discretion to spend it should have been exercised in the way [Mr Neilson] seeks".
Far from demonstrating that mandamus should be granted, the appellant, by pointing to this sum of money to be spent on all 24 national parks in the South Coast Branch for 2021-2022, instead demonstrates why mandamus would be inappropriate. It is no small thing to require that public money should be spent to further the commercial interests of the appellant. The primary judge was correct that NPWS was the body which had oversight of when and how actions in the Plan of Management, and the plans of management for all other national parks, are implemented based on the huge number of demands it must manage. The Court should hesitate to intervene when so little was proved about the costs of the upgrades sought by the appellant or about the competing priorities of the NPWS in the 24 national parks located in the South Coast Branch.
There was little attention in the appellant's written submissions to cl 5.3.1 item 47, which was a policy for developing and implementing the site plan for a car park and boat launching facility terminus at the eastern end of Lagoon Trail. Plans were prepared, to include "formalisation of the boat ramp at the western end and bollards to manage vehicle access routes". A proposal for these upgrade activities was submitted for an environmental review, "subject to being compliant with any current (ie Section 5.3.1.47 of the MNRP PoM) or any future plan of management". On 27 April 2020, the relevant NPWS Branch Director issued a determination on whether this and other "minor projects" could proceed. The Branch Director determined that the proposed boat ramp and carpark were not to proceed, because the details of the proposal were "inconsistent with the objectives of the current National Park Plan of Management".

[41]

Conclusion on unreasonable delay

I would reject each of the appellant's ten reasons for asserting that the "respondent cannot prove that the delay in maintaining the roads was reasonable" for the following reasons: 1. The Thornton test (or any other test) for unreasonable delay does not require the respondent to prove anything. The applicant in such cases must always prove that the delay was unreasonable. In this case, the legal onus remained at all times on the appellant to prove his entitlement to the relief sought. 2. Whether or not Lagoon Trail was wrongly classified as a 4WD access road in the NPWS asset management system and whether it should have been classified as requiring the 2WD standard reveals nothing about unreasonable delay. 3. The fact that work was performed by NPWS on Cowdroys Road and Lagoon Trail between 2020 and 2022 is a matter tending against the granting of an order of mandamus. The NPWS has been actively performing work on both roads to improve their quality. 4. I do not accept that the appellant proved that NPWS was "able to obtain funding for the roads from multiple sources". What was proven, and accepted by the appellant's counsel, was that if the appellant was granted a licence then NPWS could accept payment by the appellant to bring the road to the standard he asserts the NSW public should be made to pay for. The suggestion that other sources of money were available to upgrade these roads is no more than speculation. 5. The assertion that the "untied" $5.2 million in funding for 2021-22 was available to carry out the works completely ignored the competing priories in the entire South Coast Branch of NPWS. The primary judge was correct that it was for the appellant to demonstrate that the money should be spent and that other more urgent priorities would not be affected. He went nowhere near doing that. 6. I reject the submission that spending on Cowdroys Road was a "defensive response to the commencement of proceedings". The primary judge made no such finding. The appellant bore the onus of proof. There is no basis whatsoever in the evidence for this assertion. 7. I reject the appellant's submission that the respondent's "priority principles" are self-serving principles developed for the purposes of the proceedings. The primary judge made no such finding. Her Honour saw the witnesses who gave evidence about the priority principles. There is no basis in the evidence for the finding that the appellant seeks. The repetitive assertion by the appellant that the works he asserts must be undertaken before other NPWS priorities have not been carried out over a long period takes the matter no further. 8. Whilst it is correct that the appellant has been unable to access the oyster lease using a four-wheel drive along the roads since 2010, it is no part of the statutory purpose of s 81 or the Plan of Management to provide road access through the National Park to a vehicle towing a boat to a commercial user of oyster farms lying outside the boundaries of the National Park. 9. I reject the appellant's submission that he has "repeatedly communicated to the respondent his ongoing financial loss from his access difficulties". The only evidence the Court was taken to in support of this submission was to the Shellfish Committee minutes. It was not proven that anything said by the appellant to the Shellfish Committee should or could have come to the attention of NPWS.

[42]

Issue 4: What relief, if any, should be granted? (grounds 14-18)

In this Court, the appellant sought orders in the nature of mandamus in the following terms: 1 Appeal allowed. 2 Orders of the court below be set aside. 3 In lieu thereof order that: a. The Respondent do such work and take such steps as are necessary to upgrade Lagoon Trail to an all weather 2WD standard within 28 days. The works to comprise: i. reducing the height, and easing the grade, of the cross bank nearest to the northern end of Lagoon Trail to a maximum of 15 degrees; ii. regrading the road over a length of 30 metres to the new car park; and iii. removing the logs that impede access to the mean high water mark at the end of Lagoon Trail. b. The Respondent do such work and take such steps as are necessary to upgrade Cowdroys Road to an all weather 4WD standard within 28 days. The works to comprise: i. ensuring the grade at CH800 is not greater than 15 degrees; ii. reducing the height of the cross bank at CH1400 so it is no greater than 15 degrees; iii. regrading so that the grade from CH1400 to CH 1642 is no more than 15 degrees; is not greater than 15 degrees; and iv. placing a gravel surface over the road from CH200 to CH1400. c. The Respondent pay the appellant's costs of proceedings 2022/18446 in the Land and Environment Court; and d. The Appellant's further amended summons dated 3 March 2023 filed in proceedings 2022/18446 be otherwise dismissed. 4 The Respondent pay the Appellant's costs of the appeal.
For the reasons given, I would decline to grant the relief sought. Even if I were to conclude all other issues in favour of the appellant, however, I would nevertheless refuse to grant the relief sought. This is for the following reasons: 1. First, there was no evidence about what was actually required in financial, engineering or regulatory terms to be done to comply with the appellant's claimed entitlement to boat access via the National Park to Nelson Lagoon. There was, accordingly, no evidence of the work required, the regulatory approvals to be obtained or the cost of complying with the relief sought. In the exercise of the discretion to grant relief, I would not make an order in the face of such uncertainty about what that order required. 2. Secondly, there was no evidence that it was possible to launch a boat from the end of Lagoon Trail or Cowdroys Road without constructing separate boat launch facilities. On the basis of the photographic evidence, it is clear that the banks of Nelson Lagoon are already seriously eroded. The NPWS has placed logs at the end of the road and on the banks to try and prevent further erosion. The relief sought is likely to contribute to the destruction of the existing banks of Nelson Lagoon. I would not, as a matter of discretion, make an order having the effect of destroying the banks of Nelson Lagoon to permit commercial access to an oyster lease lying outside the boundary of the National Park. 3. Thirdly, there was no evidence about what consents, if any, need be obtained to do what turned out to be necessary in complying with the relief sought. Given the delay and complexity and ultimate refusal of regulatory approval that beset plans to construct a new lagoon access trail leading from the western spur of Lagoon Trail together with a boat launching facility, it is not possible to conclude, in the absence of evidence, that doing what the appellant seeks would be lawful at all, let alone within what the appellant asserts is a "reasonable time". 4. Fourthly, as I have said, I have a fundamental difficulty with the relief sought. On any view, the Plan of Management does not contemplate, much less require, that boat access be provided to commercial operators to access commercial oyster licences lying outside the National Park. I would not grant relief requiring the respondent to spend public money to build roads and boat launch facilities permitting boat access to Nelson Lagoon, in priority to any other expenditure necessary for the maintenance of the more than 890 national parks in New South Wales so that the appellant can access his commercial oyster farming operation outside the boundary of the National Park. To do so would be antithetical to the proper role of the Court on judicial review.

[43]

Conclusion and orders

For the foregoing reasons I propose the following orders: 1. Appeal dismissed. 2. Appellant to pay the respondent's costs.
WHITE JA: The circumstances giving rise to this appeal are set out in the reasons for judgment of Payne JA, which I have had the advantage of reading in draft. These reasons assume a familiarity with his Honour's reasons. On the view I take, some further factual matters are relevant. The appellant, Mr Ian Stuart Neilson, is the holder of an oyster lease in the Nelson Lagoon. The lagoon is surrounded by the Mimosa Rocks National Park. Up to about February 2010, Mr Neilson was able to obtain access to his oyster lease using access roads in the National Park. He deposed that in about February 2010 the access roads were rendered non-trafficable by significant rain events and use of those roads by a Canberra 4WD club.
He deposed that in April 2010 he was informed by an "Area Manager" of National Parks and Wildlife Service ("NPWS"), a Mr Stephen Deck, that Mr Deck could approve the cost of repair works to the roads because that was covered in the Plan of Management.
Mr Neilson deposed that in January 2011 he started repairing Cowdroys Road with a bobcat but was asked to stop by a person who identified himself as "Mick" who was NPWS's leading hand at the NPWS Tanja depot. He was told by Mick that NPWS would fix the road. He deposed that, between 2011 and 2017, he made several hundred phone calls to a Ms Kathryn Brown (the NPWS Area Manager) and to other NPWS officers about obtaining access to his lease either from Cowdroys Road or Lagoon Trail.
More than a decade after the 2010 rains, Mr Neilson still has no access to his oyster lease. The question of practical significance on this appeal is whether he can compel the NPWS to provide him with such access. Ward P and Payne JA conclude that he cannot. I agree, but for different reasons.

[44]

Condition of the roads

A map taken from Google Earth with Mr Neilson's annotations showing Lagoon Trail and Cowdroys Road in relation to Mr Neilson's oyster lease is reproduced as Annexure A to these reasons. The red cross on the Lagoon Trail marks the point at which Mr Neilson is unable to travel further along that trail because the trail is blocked as it approaches the bank of the lagoon. The cross marked black on Cowdroys Road marks a point at which Mr Neilson is unable to travel further south in his 4WD vehicle with a boat trailer attached. This is about one kilometre before the end of the road. Without a boat trailer attached to his 4WD vehicle, Mr Neilson can travel on the last one kilometre in dry conditions to the end of the road. He needs to leave the road near where Cowdroys Road goes close to the water's edge as marked by a blue cross . Mr Neilson deposed that there is a 2 metre drop from the end of Cowdroys Road to the water. This is at the point marked P1.
The boundary of the Mimosa National Park is at the mean high water mark of the lagoon. No submissions were made as to where the mean high water mark of the lagoon lies in relation to the current end of the management trail that Mr Neilson contends forms part of Cowdroys Road.
A photograph of the end of the trail on Cowdroys Road, taken by Mr Legler, an engineer and expert witness called by Mr Neilson, appears below.
Mr Legler opined that Cowdroys Road, taking that to extend to the end of the management trail, is not to 4WD all-weather standard because of the steepness of descents at the end of the trail. It is also not accessible by a 4WD vehicle with a trailer carrying a boat because a trailer could not pass over the rollover drains on the steeper sections of the road without the trailer coming into contact with the road's surface. Also, because of the steepness of the road, a 4WD vehicle towing a loaded boat trailer would not be able to generate enough traction to climb the hill.
The evidence of Mr Wearne, an engineer and expert witness called by NPWS was to the same effect. Up to a turning area adjacent to the locked gate, Cowdroys Road was of a standard suitable for 4WD vehicles. After that the steep gradient of the management trail made access to the lagoon by a 4WD vehicle with a boat trailer impracticable. Mr Wearne also had concerns about the safety of a 4WD vehicle navigating the steep gradients, with or without a trailer. Mr Wearne also said that the eroded condition of the shoreline was not conducive to boat trailer access and any temporary works to provide ramped access to the sand on the shore would be susceptible to erosion.

[45]

Mr Neilson's further efforts to obtain access to his oyster lease

In April 2019, Mr Neilson wrote to the NSW Shellfish Committee. So far as appears from the evidence, this is a committee which includes representatives of the Minister for Primary Industries and oyster farmers or persons representing their interests. Mr Neilson stated: "I myself have been an oyster farm owner in Nelsons Lagoon for the past eight years and in this time have not had any access by either road or waterway even though there are six boat ramps in the area of my lease 86/061. Large sections of Cowdroys Road have had no maintenance over the past 17 years subsequently making the road unusable. To date I have attended four onsite meetings with National Parks area managers Steven Decker and Kath Brown as well as countless phone calls trying to resolve this access issue. All onsite meetings and phone calls answered met with the same response that they were in the process of implementing the road and boat ramp maintenance and they would be completed ASAP. Eight years on and nothing has been implemented. I also on one occasion had a meeting with council members on site to which they also agreed to help implement the upgrades and maintenance on behalf of National Parks nothing happened. I have also offered to implement the road maintenance and upgrade at my own cost including siltation sediment traps, wash out upgrades, crown and armouring of the road and ramp just to be able to gain access. All responses were met with refusal. … So I am asking if the Shellfish Committee could please 1. Contact National Parks and Fisheries to find out why for 8 years they haven't provided the agreed maintenance to the road and on the boat ramp to access the oyster leases. 2. Take it upon yourselves as our farming representatives to assure these maintenance and upgrade issues are implemented."
On 17 May 2019, a representative of the Department of Primary Industries wrote to Mr Neilson in response to his letter stating: "Discussions with the National Parks and Wildlife Service (NPWS) indicate that they have lodged a funding application for works and intend to build the project into their works program for this coming financial year."

[46]

Review of Environmental Factors - March 2020

By a report dated March 2020, NGH Environmental Pty Ltd carried out a Review of Environmental Factors for NPWS in relation to work proposed on Lagoon Trail and Cowdroys Road. The report was commissioned some time before 3 June 2019 . This review shows what work NPWS then proposed for Lagoon Trail and Cowdroys Road. The review was required by s 5.5 of the Environmental Planning and Assessment Act 1979 (NSW). The work proposed on Lagoon Trail included installing erosion control devices such as coir logs, matting or weed free straw bales at the eastern end of the track adjacent to the lagoon, and the construction of a new access trail from the existing Lagoon Trail westward to an existing natural boat ramp. It was noted that the latter work would require an amendment to the Plan of Management . Referring to the eastern area the reviewer stated: "ACTIVITY 3 - EASTERN USE AREA The eastern use area is estimated to have regular visitation and is noted as being a recreational fishing haven by DPI (Fisheries). The works proposed would facilitate improved access for fishing and a proposed future small vessel (e.g. canoe) facilities. The foreshore of Nelsons Lagoon in the eastern use area has been eroded over a long period of time with a variety of causal factors such as; inappropriate land-based visitor access, flooding / water erosion, wave action due to boat use. Toe bank protection works are required to remediate the area and to minimise erosion of the bank in future." (Blue 380)
The proposed works then in contemplation included improving access tracks to 4WD all-weather standard, not to a 2WD all-weather standard.
The proposed works also included work on Cowdroys Road to improve existing tracks to a 4WD all-weather standard. The proposed works also included: "Activity 4 - Southern end improvements • Toe bank protection works including erosion and sediment controls (Figure 4-10). Placement of coir logs and/or timber logs and gabion rock along toe of bank and Mangrove planting behind logs on bank (Figure 4-5). • Installation of a ramp for boat access by oyster farmer (Figure 4-10). Preparation for boat ramp installation using appropriate size machinery and plant specific to the works required. Preparation of the shore side footing for the new boat ramp with appropriate size machinery and plant specific to the works required. The existing footprint (an any associated in-situ materials) within Nelsons Lagoon from old boat ramp would be re-used / purposing of the [sic] to construct new boat ramp."

[47]

NPWS's advice in 2020

On 28 February 2020, NPWS informed Mr Neilson (amongst others) that works had been scheduled to commence on Cowdroys Road and Lagoon Trail in the near future. NPWS stated that the works would "…improve access and water management along Cowdroys Road and Lagoon Trail adjacent to Nelson Lagoon". The email stated: "We have scheduled work to start on 27th April after the school holidays, with the aim to have it completed by 30 June 2020 as in the original project plan - weather permitting. NPWS and South East Local Land Services appreciates the frustration some stakeholders feel about the delay in work beginning. The initial delay was because of increasingly severe drought conditions through winter and spring 2019. We decided to delay earthworks to avoid an unacceptable risk of silt impacting water quality in the Nelson Lagoon. This silt would have come from buildust created by the earthworks and increased vehicle movements on soils with a negligible moisture content."
On 26 March 2020, the chair of the NSW Shellfish Committee, Associate Professor Shauna Murray, advised Mr Neilson as follows: "I can inform you that in regard to your concerns regarding the lack of adequate road access for oyster farmers at Nelson Lagoon to enable road access to oyster leases at Nelson Lagoon, NSW National Parks and Wildlife Service has informed Shellfish Committee that roadworks to provide boat access to Nelson Lagoon for estuary users is scheduled for completion by the end of June 2020."
This evidence of the advice given by NPWS to the Shellfish Committee was hearsay. But the letter was admitted without objection.

[48]

2022 Tender for work on Cowdroys Road

A tender for works on Cowdroys Road was awarded to a private contractor for a price of $145,000 on 25 May 2022. The work for which the tender was awarded was for the upgrading of existing fire and vehicle access tracks . This did not include the track at the southern end of Cowdroys Road.

[49]

Inferences as to NPWS's decisions

It is evident from NPWS's commissioning of NGH Environmental Pty Ltd's Review of Environmental Factors that at some point before July 2019, NPWS determined not to upgrade Lagoon Trail to a 2WD all-weather standard and to close access to the lagoon from the eastern end of the track for boats larger than a kayak or canoe. It is also evident from the tender issued for works on Cowdroys Road that between March 2020 when NGH Environmental Pty Ltd's Review of Environmental Factors was issued, and May 2022, when the tender was issued, NPWS must have decided not to pursue the previously proposed "Activity 4" for the works at the southern end of Cowdroys Road.
NPWS gave no evidence as to when, how or why those decisions were made.
Ms Issaverdis and Mr He for NPWS gave evidence, in very similar terms, as to how the allocation of funding for road and trail management was allocated. Their evidence is summarised in the reasons of Payne JA at [8]-[14]. Neither explained why the funding described in the letter from the Department of Primary Industries to Mr Neilson of 17 May 2019, or that described in the email from the Chair of the NSW Shellfish Committee to Mr Neilson of 26 March 2020 was not available.
Ms Issaverdis deposed that in the 2021-22 financial year Eurobodalla operating area received $500,000 in tied funding for roads and an additional $100,000 was allocated for roads from an operational expenditure budget of $990,000. All of that money was spent . Neither Ms Issaverdis nor Mr He said whether funding for the proposed Activity 4 on the southern end of Cowdroys Road had been sought but not approved, or whether it had not been sought. Their evidence was in generalities.
An agreed chronology of works undertaken to Cowdroys Road in 2020 includes that between 17 April and 26 May 2020 over $100,000 was spent on "sheeting and drainage reinstatement" and "assist contractor upgrade of road". This money was not spent on the management trail at the southern end of Cowdroys Road to allow Mr Neilson access to the lagoon.

[50]

Substantive relief sought

The substantive relief sought by Mr Neilson was as follows: "3 … order that: a. The Respondent do such work and take such steps as are necessary to upgrade Lagoon Trail to an all weather 2WD standard within 28 days. The works to comprise: i. reducing the height, and easing the grade, of the cross bank nearest to the northern end of Lagoon Trail to a maximum of 15 degrees; ii. regrading the road over a length of 30 metres to the new car park; and iii. removing the logs that impede access to the mean high water mark at the end of Lagoon Trail. b. The Respondent do such work and take such steps as are necessary to upgrade Cowdroys Road to an all weather 4WD standard within 28 days. The works to comprise: i. ensuring the grade at CH800 is not greater than 15 degrees; ii. reducing the height of the cross bank at CH1400 so it is no greater than 15 degrees; iii. regrading so that the grade from CH1400 to CH 1642 is no more than 15 degrees; is not greater than 15 degrees; and iv. placing a gravel surface over the road from CH200 to CH1400. …"

[51]

The Legislation

Section 81 of the National Parks and Wildlife Act 1974 (NSW) ("NPW Act") relevantly provides: "81 Operations under plan of management (1) Where the Minister has adopted a plan of management for a national park, historic site, nature reserve, karst conservation reserve, Aboriginal area or wildlife refuge, it shall, subject to subsections (5) and (6), be carried out and given effect to by the Secretary. … (4) Subject to subsection (4A), despite anything in this or another Act or in an instrument made under this or another Act, if the Minister has adopted a plan of management under this Part, no operations may be undertaken in relation to the lands to which the plan relates unless the operations are in accordance with the plan."
Section 193 relevantly provides: "193 Restraint etc of breaches of Act or regulations (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. ... (4) In this section, breach includes a threatened or apprehended breach."

[52]

The Plan of Management

Relevant provisions of the plan are set out in the reasons of Payne JA at [28]. Mr Neilson relies upon s 5.3.1. This section is in a part headed "Management Policies and Actions". Section 5.1 is headed "Natural Heritage". Section 5.2 is headed "Cultural Heritage". Section 5.3 is headed "Public Use". Section 5.3.1 is headed "Recreational and Tourism Activities". In this section under the heading "Desired Outcome", the plan states: "The role of the park in providing nature-based tourism experiences is recognised, with an appropriate range of recreational opportunities being catered for consistent with the protection of the natural and cultural values of the park."
In s 5.3.1 under sub-headings "Policies and Actions" and "General", the plan provides that public vehicular access should be permitted along Cowdroys Road and Lagoon Trail, that Park roads should be managed to all-weather 2WD standard thoroughfares except for Cowdroys Road, which was to be maintained to all-weather 4WD standard (Items 9 and 10). This is not to imply that Lagoon Trail and Cowdroys Road were singled out for special attention. Other roads were also referred to.
The plan of management does not provide for the development of a boat launching facility terminus at the southern end of Cowdroys Road.
Section 5.3.3 of the Plan is headed "Other Uses". It states that the Desired Outcome of this part of the plan is that agreements be in place with aquaculture lessees, amongst others, that are designed to minimise the impacts of their activities. To achieve or advance that outcome the plan stated (under the heading "Policies and Actions") that operations should be covered by a lease, licence, or other formal agreement. Section 5.5.3 provides: "Oyster leases licensed by the Department of Primary Industries are located in the Nelson Lagoon area. Eight growing leases are present within Nelson Lagoon with an additional four leases situated in Nelson Creek (Clarkes Bay). Two catching leases exist at the mouth of the lagoon. All of these lessees have vehicular access through the park to their lease areas. Various materials associated with the Nelson Lagoon growing leases are located within the park, as is a loading ramp at Nelson Creek. None of these facilities or the vehicular access arrangements are currently covered by leases or licences."
By the time the plan was promulgated in 2011 this statement was out of date. Mr Neilson did not have vehicular access through the park to a point at which he could launch a boat to his lease area.

[53]

Matters not in issue

A question was raised during the hearing of the appeal whether, in cl 9 of the Plan of Management, "Cowdroys Road" included the management trail at the southern end of the road. This is not clear from the map attached to the plan. The primary judge found that it did (J [51]) and there is no notice of contention.
Mr Neilson did not contend that NPWS was in breach of item 47 of section 5.3.1 of the Plan of Management in not having developed a site plan at the eastern end of Lagoon Trail for a boat launching facility.

[54]

Interpretation of the Plan

Mr Lancaster SC, who appeared with Ms McKelvey for NPWS, submitted that the Plan of Management did not impose a statutory duty requiring the constant maintenance of the two roads that were the subject of the applicant's case. He submitted that the applicant's formulation of the Secretary's duty was too specific and that the Plan of Management should be read as stating an aspiration that maintenance of the Cowdroys Road and the Lagoon Trail to the standard specified would be achieved, but the Secretary could indefinitely defer taking any of the steps required to carry out the provision in section 5.3.1 referred to at [211] above. He submitted that this was not because the Secretary might be constrained indefinitely by budgetary considerations where other work of higher priority had to be attended to, but because the plan did not stipulate a time for achievement of the objective of upgrading Cowdroys Road and the Lagoon Trail to the specified standards, and also, because the Plan of Management required that the actions stipulated was expressly subject to "budget and policy", there could be a long-term deferral of the works. He submitted that: "The duty has not been refused to be performed…The Secretary is underway with the process of complying with the duty, on the evidence, subject to other priorities to which she is subject and [to which] regard [is] required to be had by the Plan of Management. Mandamus does not lie for this kind of alleged conduct…Mandamus…doesn't lie to stipulate how a discretion is to be exercised. We're in analogous territory here…"
He also submitted that the Secretary's duty was to give effect to the Plan of Management and there was no allegation that the Secretary was not giving effect to the Plan of Management. This was a reference to the carrying out of the Plan of Management as a whole. He submitted that mandamus could not lie unless each and every action specified in the Plan of Management was subject to a specific and separate duty.
Payne JA considers that the Secretary's obligation to "carry out" and "give effect to" a plan of management does not require that the Secretary carry out or give effect to every policy and action specified in the Plan of Management in a reasonable time or at all (at [46]).
I respectfully disagree. There is no doubt that the Plan of Management must be read as a whole and that the specific and general obligations of the Secretary to carry out and give effect to the plan are subject to the Secretary's discretion, particularly the discretion in Part 6 under the heading "Plan Implementation". In particular, implementation of the plan is subject to the determination of priorities determined "in the context of Branch and Regional strategic planning" and "subject to the availability of necessary staff and funds and to any special requirements of the Director-General or Minister".

[55]

Discretionary Considerations

Prerogative relief by way of mandamus (or mandatory injunctive relief under s 193) is discretionary.
Mr Neilson's purpose in seeking the relief claimed is to obtain vehicular access to the edge of the lagoon, not only with his 4WD car, but with an attached trailer carrying a boat, so as to be able to launch the boat into the lagoon and tend to his oyster lease.
The blocking of access to the lagoon at the eastern end of Lagoon Trail was done for what appear to be good reasons that are consistent with what I infer to be the Branch's strategic planning for the prevention of degradation of the bank of the lagoon. Mr Neilson did not allege that NPWS was in breach of its obligation under item 47 to prepare a site plan for the installation of a boat launching facility at that point. The plan of management did not require NPWS to provide a boat launching facility at the eastern end of Lagoon Trail. It did not act unlawfully in placing a barrier at the end of the trail to prevent vehicular access to the water's edge.
An order for the upgrading of the Lagoon Trail from a 4WD to a 2WD standard would not advance Mr Neilson's interest unless he could also obtain access to the waters of the lagoon.
The relief sought related not only to the upgrading of the trail, but also to the removal of the coir logs. There is uncontradicted evidence that that would be damaging to the conservation of the bank. It is not a measure relevant to the relief that the trail be maintained to a 2WD standard. There would be no ground for making that order. Without it, the relief sought in relation to the Lagoon Trail would be inutile.
For these reasons, as a matter of discretion, I would refuse the relief sought in order 3(a) of the amended notice of appeal.
The Plan of Management does not require that Cowdroys Road be constructed to a standard that would enable a 4WD vehicle to traverse the road carrying a boat trailer. It neither requires nor permits the construction of a boat launching facility at the southern end of Cowdroys Road as had been proposed by NPWS in 2021. (That fact would have been a sufficient reason for NPWS's not seeking funding for the work described as proposed Activity 4 in the review of NGH Environmental Pty Ltd.)
Neither Mr Legler nor Mr Wearne expressed a view as to whether bringing the southern end of Cowdroys Road to an all-weather 4WD standard (which would require reducing the gradient) would thereby also enable the track to be traversed by a 4WD vehicle with a trailer and boat attached. Even if upgrading the track to all-weather 4WD standard would allow trailer and boat access to the end of the road, there is no evidence as to how the boat could be launched without modifications to the bank of the lagoon to provide a ramp. Thus there is no evidence that Mr Neilson would obtain any practical advantage if the management track at the southern end of Cowdroys Road were brought to a 4WD all-weather standard, but not to a standard that enabled a 4WD vehicle to traverse the track towing a boat trailer, and without modifications to the eroded bank to enable him to launch his boat. The NPWS had no obligation to carry out the latter works. Mr Neilson could not lawfully do the works himself.

[56]

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: 21 February 2024

Neilson v Secretary, Department of Planning and Environment

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (56 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (38)

Cited By (4)