Neilson v Secretary, Department of Planning & Environment - [2023] NSWLEC 32 - NSWLEC 2023 case summary — Zoe

NSWNSWLEC

Neilson v Secretary, Department of Planning & Environment

[2023] NSWLEC 32

Land and Environment Court (NSW)|2023-03-01|Before: Pain J

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2023-03-01

Before

Pain J

Catchwords

[1998] HCA 28 R v Secretary of State for the Home Department, Ex Parte Phansopkar [1976] QB 606 Re O'Reilly
ex parte Australena Investments Pty Ltd (1983) 58 ALJR 36 Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485

Source

Original judgment source is linked above.

Catchwords

[1998] HCA 28 R v Secretary of State for the Home Department, Ex Parte Phansopkar [1976] QB 606 Re O'Reillyex parte Australena Investments Pty Ltd (1983) 58 ALJR 36 Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485

Judgment (55 paragraphs)

[1]

Solicitors: Pogson Cronin Kerr Solicitors & Notary (Applicant) Crown Solicitors Office (Respondent) File Number(s): 2022/18446

[2]

JUDGMENT Legislation Issues Chronology Evidence Evidence Book Applicant's evidence Respondent's evidence Mr He's evidence Ms Issaverdis' evidence Engineering evidence Summary of what the parties agreed in light of engineering evidence Plan of Management 2011 Fire Trail and Fire Management Evidence FAFT Fire Trail Standards Fire Management Strategy NPWS Internal Category 9 documents Applicant's submissions Issue 1: effect of Plan of Management 2011 (PoM). Duty owed Thoroughfare Pt 6 of PoM does not apply to Pt 5 duties If Pt 6 does apply to Pt 5 Issue 2, 3: 4WD/ 2WD Standard 4WD includes 4WD vehicle and trailer Meaning of all weather 2WD and 4WD Southern end of Cowdroys Road not a management trail Issue 5: unreasonable delay Respondent's submissions Issue 1: effect of Plan of Management 2011 (PoM) Duty owed Thoroughfare Pt 6 does apply to Pt 5 Issue 5: unreasonable delay Issues 2, 3: 4WD/2WD Standard A 4WD standard does not include 4WD vehicle towing a trailer Meaning of all weather 2WD and 4WD Southern end of Cowdroys Road a management trail Consideration Issue 1 Construction of s 81 NPW Act Construction of POM broadly Application of Pt 6 POM references to oyster growing Timing Construction of POM specific terms Thoroughfare Meaning of 'all weather 2WD standard' and 'all weather 4WD standard' (Issues 2, 3) No requirement in PoM to accommodate towing a boat trailer Conclusion on Issue 1 No unreasonable delay (discretionary application of limited funding) (Issue 5) Cowdroys Road beyond Gate 4 a management trail 4WD access available on Lagoon Trail and Cowdroys Road Conclusion Costs ORDERS

[3]

JUDGMENT

The Applicant Mr Neilson seeks declarations and consequential orders directed to ensuring access for a 4WD vehicle towing a boat trailer in Mimosa Rocks National Park (the Park) to an oyster lease that he holds in Nelson Lagoon. The Park is on the south coast of NSW. The National Parks and Wildlife Service (NPWS) are delegated day to day management of the Park by the Respondent. Mimosa Rocks Plan of Management (the PoM) which the Applicant is seeking to enforce was finalised in 2011. The Applicant is relying on s 81 of the National Parks and Wildlife Act 1974 (NSW) (NPW Act).
The Applicant is the holder of oyster lease OL 86/061 issued by the State of New South Wales (Department of Primary Industries) located in Nelson Lagoon which is outside the boundaries of the Park.
The further amended summons filed in chambers on 3 March 2023 states: The Applicant seeks the following declarations: 1. A declaration that the Respondent is obliged to maintain that part of Cowdroys Road within the Park and leading to Oyster Lease OL 86/061 marked "Cowdroys Road end of Commercial Accessibility" to "Cowdroys Road end" as shown on the plan attached to this Summons and marked Annexure "A" to a 4WD standard (such that a 4WD vehicle can travel to and from the mean high water mark at the end of Cowdroys Road in both wet and dry conditions). 2. A declaration that the Respondent is obliged to maintain that part of Lagoon Trail (also known as Nelson Creek Trail) within the Park and leading to Oyster Lease OL 86/061 marked "Lagoon Trail start no access" to "Lagoon Trail end no access" as shown on the plan attached to this Summons and marked Annexure "A" to a 2WD standard (such that a 2WD vehicle can travel to and from the mean high water mark at the end of Lagoon Trail in both wet and dry conditions). 3. A declaration that the Respondent is currently in breach of its obligations identified in prayers 1-2 above, by reason of Cowdroys Road not being at the standard identified and further described in prayer 2 and Lagoon Trail not being at the standard identified and further described in prayer 3, specifically by reason of not having done the following work required to achieve those standards: (a) in respect of Lagoon Trail: (i) reducing the height, and easing the grade, of the cross bank nearest to the northern end of Lagoon Trail so that the grade is no more than 15 degrees; (ii) re-grading Lagoon Trail over a length of 30 metres to the new car park at the end of Lagoon Trail; and (iii) removing the logs that impede access to the mean high water mark at the end of Lagoon Trail; and (b) in respect of Cowdroys Road: (i) ensuring the grade at CH800 on the plan attached and marked Annexure "B" is no more than 15 degrees; (ii) reducing the height of the cross bank at CH1400 on the plan attached and marked Annexure "B" so the grade of the cross bank is no more than 15 degrees; (iii) re-grading the road from CH1400 to CH1642 on the plan attached and marked Annexure "B" so that the grade is no more than 15 degrees; and (iv) placing a gravel surface over the road from CH200 to CH1400 on the plan attached and marked Annexure "B". The Applicant seeks the following orders: 5. The Respondent do such work and take such steps as are necessary to upgrade that part of Lagoon Trail (also known as Nelson Creek Trail) as shown on the plan attached to this Summons and marked Annexure "A" to a 2WD standard within 28 days (to the mean high water mark). The works to comprise: (a) reducing the height, and easing the grade, of the cross bank nearest to the northern end of Lagoon Trail so that the grade is no more than 15 degrees; (b) re-grading Lagoon Trail over a length of 30 metres to the new car park at the end of Lagoon Trail; and (c) removing the logs that impede access to the mean high water mark at the end of Lagoon Trail. 6. The Respondent do such work and take such steps as are necessary to upgrade that part of Cowdroys Road as shown on the plan attached to this Summons and marked Annexure "A" to a 4WD standard within 28 days (to the mean high water mark). The works to comprise: (a) ensuring the grade at CH800 shown on the plan attached and marked "Annexure "B" is no more than 15 degrees; (b) reducing the height of the cross bank at CH1400 on the plan attached and marked Annexure "B" so the grade of the cross bank is no more than 15 degrees; (c) re-grading the road from CH1400 to CH1642 on the plan attached and marked Annexure "B" so that the grade is no more than 15 degrees; and (d) placing a gravel surface over the road from CH200 to CH1400 on the plan attached and marked Annexure "B". 7. Such further or other Orders as the Court sees fit. 8. The Respondent pay the Applicant's costs of the proceedings.
The plans referred to in the further amended summons were an annotated google earth map identifying the part of Cowdroys Road and Lagoon Trail with no commercial accessibility (Annexure "A") and a plan of Cowdroys Road management trail identifying steep sections of road (Annexure "B").
At issue is the maintenance of two roads in whole or part in the Park. In the evidence the northern section of Cowdroys Road is from Gillards Road to the Rodley Access Track. No relief is sought by the Applicant in relation to this part of Cowdroys Road. The part of Cowdroys Road the subject of the Applicant's application is the southern section. The evidence refers to the southern section in two parts being (1) below Rodley Access Trail to Gate 4 a distance of a bit less than 1288.14m and (2) the road/trail beyond Gate 4 of 114.78m (see below in [12]). The whole of Lagoon Trail of 1749.78m is the subject of the amended summons. For clarity Cowdroys Road ends close to the Applicant's oyster lease in Nelson Lagoon. Lagoon Trail is some distance upstream from the Applicant's oyster lease. It ends where he considers it is feasible to launch a boat which can then access the oyster lease.

[4]

Legislation

The relevant provisions of the NPW Act state: Part 1 Preliminary … 2A Objects of Act (1) The objects of this Act are as follows - (a) the conservation of nature, including, but not limited to, the conservation of - (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, and (iii) landforms of significance, including geological features and processes, and (iv) landscapes and natural features of significance including wilderness and wild rivers, … (d) providing for the management of land reserved under this Act in accordance with the management principles applicable for each type of reservation. (2) The objects of this Act are to be achieved by applying the principles of ecologically sustainable development. (3) In carrying out functions under this Act, the Minister, the Secretary and the Service are to give effect to the following - (a) the objects of this Act, (b) the public interest in the protection of the values for which land is reserved under this Act and the appropriate management of those lands. … Part 5 Plans of management … 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. … Part 15 Criminal and other proceedings … Division 2 General provisions … 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 seeking relief is said to be s 20(2)(b) of the Land and Environment Court Act 1979 (NSW) (LEC Act). This section was submitted to underpin the relief sought by way of mandamus. To the extent that the issue of standing may arise in relation to reliance on s 20(2)(b) the Respondent did not contest that the Applicant has sufficient personal interest to satisfy common law standing. Alternatively, the Applicant also stated that he was relying on the open standing provision in s 193 of the NPW Act.

[6]

Chronology

The parties have helpfully agreed the following chronology: Date Event 2010 (or earlier) Applicant holds Oyster Lease: Class 1 Aquaculture Lease OL86/061 2 Feb 2011 Mimosa Rocks Plan of Management adopted by Minister 31 Oct 2016 Oyster Lease renewed until 2031 by Applicant May 2017 On site meeting between Ian Neilson and Kathryn Brown May 2017 Works undertaken - see attached 'AGREED CHRONOLOGY ON WORKS' (below in [12]) 18 Mar 2018 Reedy Swamp (Tathra) fire commenced (extinguished 24 March 2018). 15 Aug 2018 Yankees Gap Fire commenced (contained on 27 September 2018) 15 May 2019 Land Management Deed between NPWS and Local Land Services 31 Aug 2019 NSW Government declares a natural disaster due to NSW Bushfire activity. Eurobodalla and Bega Valley Local Government Area included in declaration. 4 Oct 2019 Ranger Kathryn Brown holds meeting with Oyster Farmers, Area Manager Alan Henderson, Brett Evans Senior Field Supervisor and Fisheries Officer Matt Proctor to discuss proposed Local Land Service Grant works at Cowdroys and Nelsons Lagoon Trail. 15 Jan 2020 NSW Government declares a natural disaster due to NSW Storms and Flood activity. Eurobodalla and Bega Valley Local Government Area included in declaration. 24 Feb 2020 Ian Neilson proposes to Shellfish Committee (of which Department of Primary Industries is a member) relocation of Oyster Lease March 2020 Review of Environmental Factors prepared by NGH Environmental. 27 April 2020 Determination Notice for DPIE proponents was issued. Apr/May 2020 Works undertaken - see attached 'AGREED CHRONOLOGY ON WORKS' (below in [12]) 15 May 2020 Department of Primary Industries denies request from Ian Neilson to relocate Oyster Lease 25 July 2020 NSW Government declares a natural disaster due to NSW Storms and Flood activity. Eurobodalla and Bega Valley Local Government Area included in declaration. 5 August 2020 NSW Government declares a natural disaster due to NSW Storms and Flood activity. Eurobodalla and Bega Valley Local Government Area included in declaration. 20 October 2020 NSW Government declares a natural disaster due to NSW Storms and Flood activity. Eurobodalla and Bega Valley Local Government Area included in declaration. 26 December 2020 NSW Government declares a natural disaster due to NSW Storms activity. Eurobodalla Local and Bega Valley Government Area included in declaration. 18 February 2021 NPWS executed a Variation to Land Management Funding Agreement. 10 March 2021 NSW Government declares a natural disaster due to NSW Storms and Flood activity. Eurobodalla and Bega Valley Local Government Area included in declaration. 5 May 2021 NSW Government declares a natural disaster due to NSW Storms and Flood activity. Eurobodalla and Bega Valley Local Government Area included in declaration. 6 May 2021 NPWS executed a further Variation to Land Management Funding Agreement. Aug/Oct 2021 Works undertaken - see attached 'AGREED CHRONOLOGY ON WORKS' (below in [12]) 24 December 2021 NPWS were issued with an AHIP by Heritage NSW. 22 February 2022 NSW Government declares a natural disaster due to NSW Severe Weather and Flood activity. Eurobodalla and Bega Valley Local Government Area included in declaration. 25 March 2022 NPWS completed surface salvage in accordance with the AHIP. 7 Apr 2022 Inspection by Mr Neilson Apr 2022 Inspection by Mr Legler, engineer Apr/May 2022 Works undertaken - see attached 'AGREED CHRONOLOGY ON WORKS' (below in [12]) 6 July 2022 Inspection by Mr Wearne, engineer 30 Aug 2022 Inspection by Mr Legler 14 September 2022 NSW Government declares a natural disaster due to NSW Severe Weather and Flood activity. Eurobodalla and Bega Valley Local Government Area included in declaration.

[7]

The PoM for the Park adopted in 2011 replaced a 1998 PoM for the Park.
The parties have also agreed the following chronology of works undertaken by the Respondent in the period 2017 to May 2022. Some of the works identified relate to the northern end of Cowdroys Road in relation to which no relief is sought (third row below). Asset / Equipment Date Description Vendor Work done Work planned, but not done Cowdroys Road (part of road unknown) 15-18 May 2017 Opex Road maintenance works cowdroys Rd : veg management, road maintenance Contractor - AW Dummett $4,890.00 1232663 Cowdroys -d - to Beach North end1 11 Feb 2015 Gravel Road Maintenance2Y $3,204.32 1,343.76m 1 Jun 2016 Resheet Road6Y $14,306.20 17 Apr 2020 Sheeting and drainage reinstatement. As (Purchase order text: Cowdroys road as per quote) JOHN EVANS EARTHMOVING PTY LTD $69,090.91 4 May 2020 Assist Contractor Upgrade of road internal $26,204.50 26 May 2020 Install Gate Cowdroys rd internal $1,181.60 10 Aug 2021 Repair 4x4 damage to road internal $3,698.56 31 Aug 2021 OPEX Road Maintenance Cowdroys Rd JOHN EVANS EARTHMOVING PTY LTD $10,608.47 21 Oct 2021 Flood 21. CRA for flood recovery Road wo (Purchase order text: Environmental Assessment) SC WALKER & CO PTY LTD $2,577.69 1232664 Cowdroys -d - 4WD - 01 16 May 2016 Natural Road Maintenance4Y $1,869.84 178.61m 1232604 Cowdroys Ro-d - 4WD - 02 1 May 2022 FAFT CAPEX - CONSTRUCTION - 01 - MIMOSA JOHN EVANS EARTHMOVING PTY LTD $137,215.52 1,288.14m 1272988 Cowdroys Rd - Mgmt 114.29m 1233069 Lagoon FT 29 Jan 2017 Natural Road Maintenance4Y $1,028.84 1,749.78m 31 May 2021 OPEX Maintenance Lagoon Trail JOHN EVANS EARTHMOVING PTY LTD $3,000.00 25 Oct 2021 Flood 21. CRA for flood recovery Road wo (Purchase order text: Environmental Assessment) SC WALKER & CO PTY LTD $2,160.00 11 Apr 2022 OPEX 21 -LLS trail rehab maintenance woo (Purchase order text: Repair track surface and JOHN EVANS EARTHMOVING PTY LTD $27,540.39 drainage) 11 Apr 2022 Lagoon Trail Rehab works various, per order 3145896 $20,095.86

[9]

Evidence Book

The six-volume evidence book was tendered containing documents, affidavits and exhibits relied on by both the Applicant and the Respondent (Ex A). The documents included: 1. Briefing notes and email correspondence related to the local land services (LLS) grant and land management deed for road rebuilding adjacent to Nelson Lagoon in the 2019-2020 financial year; 2. The borrowing conditions signed in 2020 for the holder of a key issued by NPWS; 3. Email correspondence and a revised contractor quote for works on Cowdroys Road and or Lagoon Trail; 4. Internal NPWS email correspondence from April and May 2020 about the 2019-2020 operational expenditure budget for fire trails and the need for an Aboriginal Heritage Impact Permit (AHIP) for works on Lagoon Trail; 5. Email correspondence and forms regarding the availability of LLS grant funding in the 2020-2021 financial year; 6. Email correspondence between the Applicant and NPWS in September 2021 about commercial access to the oyster lease; 7. A Crown land management licence, project documents and email correspondence regarding erosion control and revegetation works to be undertaken in partnership between LLS and NPWS on the shoreline of Nelson Lagoon in 2021; 8. Email correspondence about works on Lagoon Trail being postponed in June 2021; 9. A map produced September 2021 titled Opex - ERC Cowdroys Road maintenance Mimosa Rocks NP'; 10. An Aboriginal cultural heritage assessment carried out in October 2021, an AHIP application form, the AHIP issued 24 December 2021 and a notice to commence works to the relevant heritage agency under the AHIP; 11. Email correspondence including spreadsheet and table attachments regarding the South Coast Branch track and trail priorities and the Eurobodalla roads and fire trails program in the 2020-2021 financial year; 12. A table detailing road closure alerts in the Park including the closure of Cowdroys Road from 9 December 2021 to 9 September 2022 due to wet weather; 13. Procurement documents for the direct engagement of John Evans Earthmoving Pty Ltd in 2022 for works on Cowdroys Road and/or Lagoon Trail; 14. Undated extracts from the NPWS asset management system, work order expenditure reporting, Opex trail tracker and financials for Lagoon Trail and Cowdroys Road; and 15. The NPWS Fire Management Strategy Mimosa Rocks National Park 2004 (Fire Management Strategy).

[10]

Applicant's evidence

The Applicant affirmed an affidavit dated 29 June 2022. He holds Class 1 Aquaculture Lease OL86/061 acquired on 18 January 2010. This was originally granted in December 2000 by then Minister for Mineral Resources and Fisheries. On 31 October 2016 the lease was renewed until 2031 by then Minister for Primary Industries. He has been unable to access and maintain the oyster lease on Nelson Lagoon since February 2010. Failure to access the lease incurs a financial loss of $480,000 for the Applicant per annum. The Applicant alerted NPWS to the road condition in early 2010 and has since had extensive communications including several hundred phone call attempts between 2011 and 2017 with NPWS officers about access on Cowdroys Road and Lagoon Trail as well as communications with the NSW Shellfish Committee and Department of Primary Industries. He deposed that NPWS officers in some communications indicated they were working to repair access on the roads. NPWS undertook some works as set out in the agreed chronology of works above in [12]. The Applicant deposed the works did not provide all weather 4WD vehicle and trailer access along Cowdroys Road and all weather 2WD access along Lagoon Trail.
The affidavit exhibits a USB storing photographs and video footage (Ex ISN9) tendered with a map and a document describing the footage (Ex B). In his affidavit the Applicant described the photo and video footage (Ex B) of the driving experience along Cowdroys Road and Lagoon Trail on 11 March 2022 and 7 April 2022. In the video footage he could not reach the inlet on Lagoon Trail in a 4WD and could not travel along all Cowdroys Road in a 4WD vehicle towing a trailer. He went off the road to navigate parts of Cowdroys Road. The Applicant described a NPWS sign located on Cowdroys Road stating "dry weather only" captured in the video footage.
Minutes dated 14 February 2020 for an "oyster farmer access meeting" for the Park held on 4 October 2019 were annexed to the Applicant's affidavit. Meeting attendees included the Applicant, a local oyster farmer and representatives from NPWS and LLS. During examination in chief the Applicant confirmed he prepared the minutes which were endorsed by another local oyster farmer at the meeting. In cross-examination the Applicant acknowledged that NPWS and LLS did not endorse the minutes in Ex 1 described below in [21].
In cross-examination the Applicant stated he had sent a query to a NPWS officer about obtaining an access licence from NPWS to secure his access to the lease. When acquiring the lease on 18 January 2010 he did not have regard to the 1998 PoM (replaced by the current PoM) and could not recall the terms of the lease guaranteeing him access to the oyster farm. The 1998 PoM is annexed to the Applicant's affidavit. The Applicant stated he cannot drive along Cowdroys Road when the road is wet in his 4WD vehicle with or without a trailer. He can only drive his 4WD vehicle on Cowdroys Road in dry weather. Asked whether he has attempted to drive along Cowdroys Road in wet weather, the Applicant replied he had not because it is too dangerous. The road works completed in May 2022 on Cowdroys Road were not carried out on the southern section of Cowdroys Road. When questioned about whether his complaint is that he couldn't traverse parts of Cowdroys Road with a trailer, the Applicant responded "No, my complaint is, like, for 13 years, I haven't been able to farm my oyster lease." When asked whether he can service the oyster lease other than by boat, the Applicant said he could not as he requires a boat to farm his oyster lease. A boat enables the Applicant to move stock at a commercial level and run a commercially viable business.
The Applicant tendered the following exhibits: 1. A NPWS document titled 'NPWS Fixed Assets Community of Practice' dated 17 May 2022 setting out priority principles for maintenance works under a flood recovery program. This document was a PowerPoint the Applicant called on the Respondent to produce during the cross-examination of Mr He (Ex C); and 2. A bundle of documents related to works carried out by John Evans Earthmoving Pty Ltd in May 2022 as well as a request for tender issued in 2021 called for by the Applicant during the cross-examination of Ms Issaverdis (Ex D). The following documents were in the bundle: 1. A request for quotation issued March 2021 for the preparation of a review of environmental factors and an Aboriginal cultural heritage assessment for the Eurobodalla and Mimosa Rocks fire access and fire trail programs; 2. An internal NPWS email dated 3 April 2022 detailing project management tasks for 'FAFT CAPEX on grounds works' on Cowdroys Road in financial year 2021-2022 including the procurement of a contractor; 3. The request for tender documents sent to John Evans Earthmoving Pty Ltd in April 2022 outlining works to be carried out on Cowdroys Road for contract 2307. The map attached identifies works on the northern section of Cowdroys Road [no relief sought]; 4. The request for tender schedules for contract 2307 signed by John Evans Earthmoving Pty Ltd on 2 May 2022 offering a contract price of $140,000 to carry out the work; 5. An undated 'Self-Serve RFQ Evaluation Plan' form to identify the preferred contractor. The document summarises the procurement details for contract 2307 noting direct negotiations with John Evans Earthmoving Pty Ltd had been approved; 6. A purchase order for 'PROC2307 - Cowdroys construction works' totalling $145,000 to be carried out by John Evans Earthmoving Pty Ltd dated 3 May 2022; and 7. A letter of award dated 3 May 2022 for the 'FAFT CAPEX Cowdroys Road Mimosa Rocks NP' contract 2307 accepting the contract price offered by John Evans Earthmoving Pty Ltd.

[12]

Mr He's evidence

Mr He Acting Manager Operational Infrastructure Asset and Infrastructure Branch NPWS who affirmed an affidavit dated 15 August 2022 had strategic responsibility for roads and fire trails. Dedicated operational and capital funding is available to maintain strategic and tactical roads identified in a Fire Access and Fire Trail (FAFT) plan for financial years 2019-2020 to 2029-2030. FAFT operational funding is used to maintain existing roads and trails in the FAFT network while the capital funding is used to upgrade or build new trails in the FAFT network.
During the FAFT planning process a bush fire management committee or the Rural Fire Service (RFS) Commissioner identifies tactical and strategic fire trails. The committee is made up of RFS, NPWS, local government, local Aboriginal land councils and land managers. The FAFT plan is then finalised by RFS. Tactical fire trails need to remain open to support the prevention and suppression of fire. Strategic fire trails are of significant value in the suppression or management of a fire within the landscape. Part of Cowdroys Road [northern section, no relief sought] is designated as strategic in the draft FAFT plan for the Park dated 2020 (below in [54]).
Roads and trails not identified as strategic and tactical in the FAFT network have no dedicated operational or capital funding. The NPWS recurrent operational fund is used for the maintenance of other roads and trails. The maintenance of other road and trails compete for recurrent operational funding against other program outcomes including planning assessments, fire management, pest and weed control, Aboriginal and shared heritage, and visitor services.
NPWS may opportunistically apply for funds from external sources. These sources may include Commonwealth, State or local government agencies, non-government organisations or private individuals.
Mr He set out priority principles that guide maintenance of the FAFT network by NPWS. The priority principles are: a. Eliminating public risk, including response to fires, floods and other natural disasters. b. Maintaining safe, open and accessible roads for public access to communities (for example, where a NPWS road or trail is used for access to small remote townships). c. Maintaining safe, open and accessible roads for visitor facilities to re-establish community economic benefit. d. Maintaining open and accessible roads for essential NPWS management functions.
He understands the principles are used more generally by operational branches to prioritise maintenance of roads and trails. Operational branches use the PWG Roads Manual published in May 2011 (Roads Manual) to assess road conditions and maintenance requirements. The branches also assess priorities against budgetary constraints and operational capabilities considering the costs of planning, assessment and management of works and any required approvals. Dedicated and untied funding is shared amongst eight operational branches in NPWS including the South Coast Branch that oversees the Park.
In cross-examination Mr He was asked the source of the priority principles he referred to in his affidavit. Mr He stated the principles came from existing documents. He could not point to an exact document. He stated the principles have been communicated to the whole of NPWS on multiple occasions including a PowerPoint presentation (Ex C). When asked about an email he sent stating "Cowdroys trail fire importance is essential", Mr He replied he was quoting characteristics in the asset management system. Based on that email he agreed maintenance of Cowdroys Road is consistent with the priority principles. Mr He agreed that maintaining roads to the NSW Rural Fire Service Fire Trail Standards 2016 (Fire Trail Standards)would help eliminate public risk, including in response to fires. Asked whether he disagrees with the proposition that the whole of Cowdroys Road is in the FAFT network, he does disagree based on the information in the draft FAFT plan. Asked whether he was sure the whole of Cowdroys Road is in the FAFT network, he stated "I'm not sure." In re-examination in chief Mr He stated he would identify the part of Cowdroys Road between Rodley Access Track and Gillards Road [northern section] as part of the FAFT network. Based on the draft FAFT plan Mr He stated Lagoon trail is not part of the FAFT network.

[13]

Ms Issaverdis' evidence

Ms Issaverdis Manager Eurobodalla Area South Coast Branch NPWS affirmed an affidavit dated 19 August 2022. The South Coast Branch implements the PoM as part of its annual program of works covering approximately 789,800ha of national parks and conservation areas. Works planned are subject to resourcing and special requirements from the Minister. The PoM does not expressly prioritise road and trail maintenance.
Eurobodalla is one of 4 operating areas in the South Coast Branch. The Eurobodalla area has 12 national parks, reserves and conservation areas to manage. The Eurobodalla area was allocated a $990,000 operational expenditure budget in the 2021-2022 financial year and granted an additional $500,000 in tied funding for roads. In the 2021-2022 financial year the Eurobodalla operating area spent $600,249 on roads and trail maintenance using $100,000 from its operational expenditure budget. Operational expenditure is allocated based on identified priorities in the PoM and for projects including parks, walking tracks, conservation, compliance operations, staff training and equipment, water assets, camping and hard roofed accommodation, fire management and hazard reduction burning, planning assessment, pest and weed control, signage and visitor safety, Aboriginal and shared heritage, and visitor services.
The FAFT network identifies roads and trails of significance for bushfire management. The FAFT network is managed in accordance with the Fire Trail Standards. The draft FAFT plan identifies the northern section of Cowdroys Road between Gillards and Rodley Track [no relief sought] as a tactical category 1 road maintained in accordance with the Fire Trail Standards. Lagoon Trail is of low strategic or tactical importance and it is not included within the draft FAFT network document dated 2020 (below in [54]).
An extract of a spreadsheet for the 'NPWS operational funded road prioritisation' for the 2021-2022 financial year annexed to Ms Issaverdis' affidavit dated 19 August 2022 identified Cowdroys Road and Lagoon Trail as low importance. The document sets out reasons for a road's classification as primary, secondary, minor or low importance. Cowdroys Road has no residential holdings, no visitor facility use and only a portion is part of the FAFT network. Lagoon Trail has no visitor facility infrastructure and is a low priority trail with low usage. It is a dead end trail and so logistically problematic for a fire advantage.
The Roads Manual is used by NPWS to prioritise the maintenance of important roads in the NPWS road network based on a road's classification and condition. A matrix in the Roads Manual is used to classify a road as primary, secondary, minor or low importance with the NPWS road network. NPWS then further prioritises road maintenance using the priority principles set out in Mr He's evidence above in [26].
In accordance with the Roads Manual Cowdroys Road is classified as a minor, unsealed, natural surface road. The NPWS Asset Management System identifies Cowdroys Road as a 4WD public access track. The portion of Cowdroys Road beyond Gate 4 is identified as a management track. Lagoon Trail is classified as a low importance, unsealed, natural surface road. The NPWS asset management system identifies the Lagoon Trail as a 4WD natural, unsealed, management track.
Cowdroys Road and Lagoon Trail should be scheduled for maintenance every 36 months in accordance with the Roads Manual.
Ms Issaverdis detailed the road upgrades and related approvals and agreements set out in the chronology above in [10], [12]. The relevant documents were annexed to Ms Issaverdis' affidavit. In 2019 NPWS entered into a Land Management Deed to carry out maintenance works to roads and trails. Under the Deed LLS was responsible for delivering on-ground water quality enhancement works including bank protection and track upgrades on Cowdroys Road and Lagoon Trail.
In approximately May 2022, NPWS engaged the contracting services of John Evans Earthmoving Pty Ltd to conduct upgrades to Cowdroys Road and Lagoon Trail. NPWS also completed some rehabilitation works on Lagoon Trail from approximately 13 June until 30 June 2022.
Gate 4 has been installed where Cowdroys Road terminates and the management track begins limiting public vehicular access. The Applicant has a key to unlock Gate 4 and access the management track.
A copy of the Applicant's oyster lease issued in 2016 was annexed to Ms Issaverdis' affidavit.
Ms Issaverdis affirmed another affidavit dated 27 January 2023 clarifying evidence given in the affidavit dated 19 August 2022. She specified the South Coast Branch had access to $5.2 million in untied operational expenditure in the 2021-2022 financial year that was shared amongst the four operating areas.
In cross-examination, Ms Issaverdis was asked about the source of the priority principles, also above in Mr He's affidavit above in [26] that she described in her affidavit dated 19 August 2022. The priority principles were derived from principles described in the Roads Manual in consultation with her team. Based on the similarities with the affidavit of Mr He dated 15 August 2022 she states the priority principles must be included in some documentation but could not refer to a document.
Ms Issaverdis was cross-examined on the condition and classification of Cowdroys Road and Lagoon Trail. The PoM 1998 identified trails to be upgraded to a 2WD standard over time subject to priorities. When asked about the asset management system recording Lagoon Trail as a 4WD trail, she stated the system can be updated now that works have improved the standard of Lagoon Trail. Ms Issaverdis agrees Cowdroys Road and Lagoon Trail would have a higher classification in accordance with the Roads Manual if they were community vested under the Office of Environment and Heritage, however she states this assumption would lead to very few roads being classified low. She agreed that an extract of the asset management system indicates that at least part of Cowdroys Road is secondary contrary to her written affidavit.
Ms Issaverdis was cross-examined on works and funding for road maintenance on Cowdroys Road and Lagoon Trail. She stated the Land Management Deed was not related to the works carried out by John Evans Earthmoving Pty Ltd in May 2022 (see above in [1]). Ms Issaverdis approved and authorised the engagement of John Evans Earthmoving Pty Ltd through a process of direct negotiation. She disagreed with the proposition that the decision to carry out works was made at the time of the direct negotiation in April 2022 as an earlier request for tender was sent out in 2021. FAFT capital funding was expended for works carried out by John Evans Earthmoving Pty Ltd in May 2022 that totalled $137,215.52. Shown a planning document for the Eurobodalla 2020-2021 roads and fire trail program that estimated $80,000 of capital expenditure would be spent on FAFT upgrades in the Park and Monga National Park, Ms Issaverdis agrees it does not foreshadow the cost of works carried out by John Evans Earthmoving Pty Ltd and explains the document is an initial planning document.
Ms Issaverdis agreed with the proposition that the management trail beyond Gate 4 is part of Cowdroys Road and was classified a management trail by NPWS. She could not verify that the southern part of Cowdroys Road was an 'other cat 9' road on the draft FAFT plan. She agrees Cowdroys Road and Lagoon Trail are identified as a category 9 trail or suitable for a category 9 vehicle to traverse in other NPWS records being an Opex trail tracker spreadsheet for Cowdroys Road and an asset management system extract for Lagoon Trail (see below in [56]). In re-examination, she explained an 'other cat 9' trail on the draft FAFT plan is not part of the FAFT network. 'Other cat 9' means a category 9 vehicle could traverse the road.

[14]

Engineering evidence

Mr Legler civil engineer affirmed an affidavit dated 14 June 2022 attaching a road condition assessment report on Cowdroys Road and Lagoon Trail dated 29 May 2022. Mr Legler inspected Cowdroys Road and Lagoon Trail on 28 April 2022 and photographed the road condition. In his assessment Mr Legler analysed whether a 4WD vehicle towing a boat trailer could traverse Cowdroys Road and Lagoon Trail. He assumed 'all weather 4WD access' in the PoM meant compliance with the Fire Trail Standards for a category 9 fire trail. The Fire Trail Standards require the maximum longitudinal grade of a category 9 fire trail be no more than 15 degrees. In his assessment the southern section of Cowdroys Road did not comply with the grading requirements for category 9 fire trails identified in the Fire Trail Standards. He further deposed a 4WD vehicle towing a trailer could not navigate the steep grading on Cowdroys Road management trail.
Mr Legler assumed 'all weather 2WD access' is a formed gravel road 3 metres wide with a 2 to 5% cross fall to facilitate drainage based on documents pertaining to the construction and maintenance of fire trails and other tracks. The documents referenced are Construction Access Roads, General Construction Practice published by Catchment & Creeks Pty Ltd in May 2010 and Austroads Guide to Road Design Part 3 - Geometric Road Design. The road grade should be less than 10 degrees for 2WD access. Lagoon Trail has not been maintained to a 2WD standard. He recommended horizontal and vertical realignment to provide all weather 2WD access on Lagoon Trail and all weather access for a 4WD towing a trailer on Cowdroys Road.
Mr Legler affirmed another affidavit dated 5 September 2022. He undertook an inspection on 30 August 2022 after NPWS had road maintenance activities carried out on Lagoon Trail and Cowdroys Road. He deposed Lagoon Trail is not fully accessible for all-weather 2WD vehicles as the incline to the carpark may not be trafficable in wet weather. Road maintenance undertaken had not improved the grading of Cowdroys Road to comply with the Fire Trail Standards.
Mr Wearne civil engineer affirmed an affidavit dated 11 August 2022 responding to the expert report of Mr Legler dated 29 May 2022. He completed a road condition assessment of Cowdroys Road and Lagoon Trail dated 11 August 2022. Mr Wearne inspected the road on 6 July 2022 in the middle of the day. His assessment was based on a 4WD vehicle (no trailer) traversing the road. Maintenance and improvement works were in progress at the time of the inspection on portions of Cowdroys Road. He observed the section from the Rodley Access track to Gate 4 was suitable for dry weather 2WD and all weather 4WD access. As Mr Legler addressed the prospect of a 4WD vehicle towing a boat trailer to access the oyster lease, Mr Wearne observed the section of Cowdroys Road beyond Gate 4 was not suitable for a 4WD vehicle towing a trailer. In his opinion 4WD vehicle access is possible on the management trail with care on account of the steep gradient. The foreshore of Nelson Lagoon is eroded and not conducive to boat trailer access.
Maintenance and improvement works appear to have been carried out on the full length of Lagoon Trail. Log barriers were installed preventing vehicle access to the foreshore of Nelson Lagoon for launching a boat. He deposed Lagoon Trail was suitable for all weather 4WD vehicle access with most of the track accessible to a 2WD vehicle. Mr Wearne considered the Fire Trail Standards provided a reasonable guide to assess 4WD vehicle access.
He reviewed the Applicant's video and photo footage depicting the state of the road on 11 March 2022 and 7 April 2022 (Ex B). The footage pre-dated the maintenance works carried out and in progress at the time of Mr Wearne's inspection. He observed the condition of Cowdroys Road management trail beyond Gate 4 was essentially the same condition in the footage as he witnessed. The Rodley Access Track to Gate 4 and all Lagoon Trail were in an inferior condition in the footage compared to the time of his inspection.

[16]

Plan of Management 2011

Parts of the PoM are extracted below: 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 (refer Figure 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 High Priority Plan Reference … 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

[27]

Meaning of all weather 2WD and 4WD

The terms 'All weather 2WD standard' and 'All weather 4WD standard' are not defined in the PoM. The terms could have either an ordinary meaning or a technical meaning. Neither road complies with the standards applying an ordinary or technical meaning.
Under the ordinary meaning two wheel drive or four wheel drive vehicles must be able to traverse the roads in both wet and dry conditions. Without a trailer, a 4WD vehicle can traverse the full length of Cowdroys Roads in dry conditions. The last 100m cannot be safely traversed in wet conditions and cannot be traversed at all with a boat trailer. The Applicant's evidence is that it is not possible to safely traverse the full length of Cowdroys Road in a 4WD vehicle with or without a trailer in wet conditions. Both Mr Legler and Mr Wearne's expert reports support this.
Lagoon Trail is not traversable for its full length (to mean high water mark) in a 4WD vehicle (and is required to be at an all weather 2WD standard). NPWS' concession that Lagoon Trail cannot be traversed in a 2WD in wet weather below in [125] highlights Lagoon Trail has not been maintained to an 'all weather 2WD standard.'
The terms 'All weather 2WD standard' and 'All weather 4WD standard' are in part technical terms, on which expert evidence is admissible: Ex parte MacKaness & Avery Pty Ltd; Re Royce (1943) 43 SR (NSW) 239 (Ex parte MacKaness) at 244, Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389. Mr Wearne agreed with Mr Legler that the Fire Trail Standards is an appropriate guide for standards of access for 4WD vehicles.
The technical documents are referred to by all experts and also the Respondent's lay evidence, and are references common to the place in question, which are consistent with the undefined technical reference in the PoM, and which expound rather than contradict it (see Jordan CJ in Ex parte MacKaness at [244]). Both experts agree on the meaning of the 'All Weather 4WD standard' to the extent that it requires reference to the Fire Trail Standards. The provisions of the PoM and its expressions 'All Weather 4WD standard' and 'All Weather 2WD standard' would be construed as 'always speaking' (see Bushfire Survivors for Climate Action Inc v Environment Protection Authority [2021] NSWLEC 92 (Bushfire Survivors) at [65]-[66]) making it appropriate to refer to current technical standards as both experts do. Alternatively, if these terms do not have a technical meaning informed by the Fire Trail Standards, then the evidence as to non-compliance with that document nevertheless assists the Court in drawing a reasonable inference that the PoM standards are breached.
The experts have agreed on the condition of Cowdroys Road and Lagoon Trail as outlined above in [51]-[52].
Ms Issaverdis explained that a Category 9 trail means that it must be possible for a 4WD to traverse the road for a strategic fire reason or fire-fighting purposes. Lagoon Trail and Cowdroys Road are Category 9 fire trails based on the 'FAFT Opex trails tracker EUROBODALLA', an extract from the Respondent's asset management system and table 9 of the Fire Management Strategy referred to by the PoM. The Roads Manual states that the maximum grade of a Category 9 fire trail must not be more than 15 degrees. The 15 degree maximum Fire Trail Standards is that which allows Category 9 vehicle access, and a Category 9 vehicle is a 4WD. As Cowdroys Road and Lagoon Trail are Category 9 trails, the Fire Trail Standards apply.
The roads have been closed over various periods, including 9 December 2021 to 9 September 2022 due to wet weather. Periodic closures above in [14(12)] and signage on Cowdroys Roads for dry weather access only above in [16] gives rise to the inference that the road is not managed and maintained at the 'All Weather 4WD' standard required by cl 5.3.1 item 10.

[29]

Issue 5: unreasonable delay

The following cases CMA19 v Minister for Home Affairs [2020] FCA 736 at [206]; Koon Wing Lau v Calwell (1949) 80 CLR 533 at 574.1; R v Secretary of State for the Home Department, Ex Parte Phansopkar [1976] QB 606 at 625 were cited, to support the submission that the assessment of 'reasonableness' (or otherwise) depends on all of the facts, including facts external to the decision-maker.
In this proceeding, the Applicant has suffered and continues to suffer significant hardship as a consequence of the Respondent's delay spanning more than a decade. The Applicant's uncontested evidence is that he has not had access to his oyster lease since about February 2010 and has suffered and continues to suffer a significant and growing financial loss as a consequence. The Applicant submits it is appropriate and necessary to take this hardship into account in determining whether or not the Respondent's delay has been unreasonable.
The case law suggests that the Applicant must show delay that has not been adequately explained, whereupon the persuasive onus shifts to the Respondent to explain or justify that delay. However, while the case law requires an explanation from the Respondent in order to avoid an inference of unreasonable delay, it does not suggest that the Respondent is entitled to justify this delay by factors limited to its own administrative practices.
AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424; [2019] FCAFC 27 concerned an application for an order for mandamus to direct the Minister to determine a visa application. In considering whether there was unreasonable delay, Besanko, White and Thawley JJ stated at [59]: 59. …As to onus, it was for the appellant to show that there was unreasonable delay affecting the jurisdiction to make the decision. If the appellant established a delay which called for explanation, then the persuasive onus might shift to the Minister to establish what that explanation was.
A number of migration/citizenship cases where the minister was found to have unreasonably delayed were cited: AQM18 v Minister for Immigration and Border Protection at [59]; BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [26]-[27]; Karda v Minister for Immigration and Ethnic Affairs [1995] FCA 1132 at [8]; Oliveira v The Attorney General (Antigua and Barbuda) [2016] UKPC 24 at 43.
The Applicant submits that the explanations given for delay by the Respondent, and the evidence as to its internal processes, and priority principles are similarly 'blithe and untenable', and evidence a delay that cannot be said to be reasonable. The Applicant's counsel provided a table of what he said were 'inconsistencies' in the Respondent's evidence on the prioritisation of funding and maintenance of the two roads. The mere existence of multiple priorities does not reasonably justify the delay since 2011 in putting these two roads into their required standard. This is particularly so as the core of the priority principles underlying the asserted approach of the Respondent has not been demonstrated to have a substantial basis, notwithstanding a call for documents recording them.
Priority principles above in [26] are not documented. They are recorded in relevantly the same terms in each of the Respondent's lay affidavits - possibly referred to in a PowerPoint presentation but not produced by Mr He when requested. Ms Issaverdis gave inconsistent evidence on the source of the priority principles set out in her affidavit - from the Roads Manual firstly and then from another document that she could not identify. In summary, there is no sound basis for those priority principles. Ms Issaverdis' affidavit refers to the 'NPWS operational funded road prioritisation' spreadsheet described above in [32] as showing road prioritisation. On its face this does not reflect the priorities in the purported priority principles set out in identical terms in Ms Issaverdis' affidavit and Mr He's affidavit. The 'NPWS operational funded road prioritisation' spreadsheet includes prioritisation comments such as 'priority due to private property access' and 'provides only access to private properties' for other roads. The notion that access to private property might be a reason for priority is not reflected in the prioritisation system referred to by Ms Issaverdis and Mr He and yet clearly is something that is given priority.
The Applicant says that the works undertaken in May 2022 on Cowdroys Road are responsive to this proceeding (see agreed chronology of works above in [12]). The $137,215.52 arose from an ad hoc direct negotiation process and was not related to grant funding or pre-planned at all. The response to the call document in Ex D supports the Applicant's analysis by not linking this expenditure with any pre-planning or prior grant leaving the Court with the inference that these works were done either without explanation or were connected with this proceeding. The Court would draw the common sense inference, but either inference assists the Applicant. Rather it is designated as FAFT yet occurred on a part of Cowdroys Road that the Respondent's witness said was not part of the FAFT network. The fact that the Respondent continues to maintain that the May 2022 works were planned and funded in advance, as part of some sort of defensible prioritisation process, in the face of evidence that clearly shows this to not be the case, highlights the Respondent's dogged and continuing unreasonableness, and the importance of the Court making the orders sought by the Applicant. There is no attempt to explain these works by reference to the priority principles identified in Ms Issaverdis' affidavit.
The recent works by John Evans Earthmoving Pty Ltd in May 2022 confirm that there was funding available. There has just been a decision or series of decisions or non-decisions by the Respondent that has resulted cumulatively in unreasonable delay. The Applicant understands that there are other roads and matters to attend to in the Park and Eurobodalla operating area. This is accepted but does not render the 12 year delay in managing and maintaining these roads to the specified standard reasonable. The Respondent correctly does not contend that there is a lack of resources available to do the work, that the works were not done was the result of prioritisation and allocation decisions within a budget sufficient to do the work, as demonstrated by the recent expenditure on Cowdroys Road.

[30]

Duty owed

The Minister adopted the PoM 2011 pursuant to Pt 5 of the NPW Act on 2 February 2011. It is not disputed that the Park is a 'national park' for the purpose of s 81(1) of the NPW Act.
Section 81(1) of the NPW Act includes the word 'shall' which in its ordinary meaning is a word of obligation and has been held, subject to the context in which the word appears, to prima facie impose an obligation to exercise a function: Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655 at 690, 698. It is accepted that that is the case here.
The words 'be carried out and given effect to' have not been the subject of judicial consideration. It is submitted that this phrase is a composite one that collectively means to implement, undertake or deliver.
The Respondent accepts that it has a duty to carry out and give effect to the PoM by operation of s 81 of the NPW Act. The dispute between the parties is whether the PoM positively obliges the Respondent to manage and maintain part of Cowdroys Road and/or Lagoon Trail - the PoM setting the parameters or scope of the duty imposed in this case by s 81(1) of the NPW Act. The Respondent says that there is no such obligation under the PoM.
The purpose of the PoM is to provide a 'framework of objectives, policies and actions to guide the long-term management of [the Park]'. The 2011 PoM replaced a previous PoM that applied to the National Park made in 1998. The PoM acknowledges that it is a legal document and that once the Minister for the Environment has adopted it, no operation may be undertaken within the Park except in accordance with the PoM. This statement replicates the terms of s 81(4) of the NPW Act.
The PoM sets out in Pt 3 a 'Management Framework'. That framework is then applied through a number of national and state-wide strategies and policies. The PoM also provides at clause 3.2 that: Park management must also be consistent with the statewide policies adopted by the New South Wales 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.
Part 5 of the PoM sets out 'Management Policies and Actions'. In setting out the management policies and actions, the PoM addresses matters of natural heritage, cultural heritage, and public use. It is Pt 5.3 relating to public use that the Applicant relies upon in the Amended Summons to try to establish an obligation on the Respondent to maintain and manage Cowdroys Road and/or Lagoon Trail to a particular standard. In cl 5.3.1 Recreational and Tourism Activities the PoM identifies that: Car based site seeing opportunities are available along the park road network which consists of: • All Weather 2WD roads; • Dry Weather 2WD roads; and • All Weather 2WD roads.
This part of the PoM then identifies 'Key Issues and Opportunities' in respect of the recreational and tourism matters that have otherwise been discussed in cl 5.3.1. The PoM goes on to set out 'Desired Outcomes'. In this regard the desired outcome for Recreational and Tourism Activities is said to be as follows: The role of the park in providing a 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.
The Respondent says that on a proper construction of the PoM the policies and actions contained in the PoM are designed and intended to ultimately achieve the desired outcome that has been identified in respect of a particular matter. In respect of recreational and tourism activities, two of the policies and actions are items 9 and 10 of s 5.3.1 of the PoM (above in [53]).
It is submitted that, notwithstanding the use of different language in the clause in the PoM, there is no material difference between the word 'manage' and 'maintained'. The Macquarie Dictionary (online edition) defines 'manage' relevantly as 'to bring about; succeed in accomplishing…to take charge or care of'. The word 'maintain' is defined relevantly as 'to keep in existence or continuance; preserve; retain…to keep in due condition, operation, or force'. Both words are verbs that require something to be put or kept (depending on the context).
It is evident from the terms of the PoM that while it is 'desired' that certain park management operations and activities will be completed to manage the National Park, there is no positive obligation on the Respondent to meet or achieve all desired outcomes of the PoM at all times. The PoM imposes no particular timeframes on the achievement of any particular outcomes contemplated in the PoM. To the extent that internal policies of the NPWS, such as the PWG Roads Manual, set out guideline timeframes they are just that: guidelines - not requirements.
The Applicant's complaint is that he has not had access for the entirety of Cowdroys Road and Lagoon Trail for his vehicle and boat trailer for a substantial period of time. It is evident from the material that has been put before the Court in respect of the Applicant's interactions with the NPWS and other bodies that the works on those particular roads have been the subject of planning and discussion as well as funding applications over a number of years. It is also to be observed that the PoM is a document designed to be in place for a long time. In Pt 5.8 the PoM is to be reviewed approximately 10 years from adoption and that it will remain in force until such time that a new plan is adopted by the Minister. The PoM has already been in operation for 12 years.
It is the Respondent's submission that the PoM, on its terms, provides the Respondent (and by extension the NPWS for whom the Respondent is responsible) a discretion regarding the manner of implementation of the PoM. This is evident from Pt 6 of the PoM which addresses 'Plan Implementation.' In other words, the duty itself can contain an inbuilt discretion that will inform the scope of the duty itself.
His Honour Preston CJ observed at [52] in Bushfire Survivors that a further control that prevents abuse of any discretion to perform a duty relates to administrative competence. The very fact that the duty in s 81(1) of the NPW Act is imposed upon the Respondent (much like the duty imposed on the EPA in Bushfire Survivors) indicates a discernible legislative intention that the discretion to perform the duty is less likely to be abused if it is exercised by a public authority who has relevant expertise, in this case in park management.
His Honour states at [54]: 54. To these controls deriving from the statutory construction of the statutory provision imposing the duty may be added the usual implied limitations on the exercise of a statutory discretion. These include those identified by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118; [1976] HCA 24: "In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the Courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the Courts will interfere if the decision reached by the authority appears so unreasonable that no unreasonable authority could properly have arrived at it."

[34]

A 4WD standard does not include 4WD vehicle towing a trailer

As the Respondent understands it, the Applicant submits that on a proper construction of the PoM, the concept of an All Weather 4WD standard ought be extended to include a 4WD vehicle towing a boat trailer. The Applicant seeks to infer the requirement for trailer towing capacity by reference to item 47 found in cl 5.3.1 of the PoM. Item 47 provides: Develop and implement a site plan for a carpark and boat launching facility terminus at the eastern end of the Lagoon Trail with relevant agencies and interested users.
Further it is understood that the PoM's acknowledgement of the existence of oyster leases in Nelson Lagoon and that those oyster leases are accessed via the National Park is another basis for the Applicant saying that 4WD access includes the ability to tow a boat.
Such a submission ought to be rejected for five reasons: 1. such a construction does not adopt a plain reading of the phrase 'All Weather 4WD standard'; 2. the PoM does not contemplate the construction of a boat launching facility at the end of Lagoon Trail but rather provides for future planning of such a facility at item 47 in cl 5.3.1; 3. the PoM does not specify any particular boat access points to Nelsons Lagoon; 4. the discussion in respect of oyster leases and the access provided through the National Park to them is couched in terms of those vehicle access arrangements being formalised by way of lease or licence or other formal agreement; and 5. the last section of Cowdroys Road beyond Gate 4 is a management track under the PoM and does not provide access to the public.
As was appropriately conceded by the Applicant during cross examination, he did not understand either of the oyster leases that he has held in Nelson Lagoon (the original one acquired around 2010, and the renewed lease in 2016) to have guaranteed that he would be provided with access to those leased areas. As was made plain during his cross examination, the reason that the Applicant requires boat access to his oyster lease is to enable commercial farming from that lease. He indicated that he could, in the absence of boat access, continue to tend the lease by checking boundaries and catching oysters.
Accordingly, the existence of the oyster lease, which exists outside of the Park and under the regulation of the Department of Primary Industries, is not a determinative factor as to how the PoM ought to be construed. In fact, cl 5.3.3 of the PoM contemplates that something more is required for access to the oyster leases when it is included in the 'Policies and Actions' in respect of these 'Other Uses' to ensure all operations and authorised uses in the National Park are covered by a lease, licence or other formal agreement.
Rather, it is submitted that the context in which the standards of 'All Weather 4WD' and 'All Weather 2WD' arises is in respect of public recreation, not commercial oyster farming. Contrary to what the Applicant says, this indicates that boat access is not contemplated. It is submitted that nothing in the PoM envisages the public being given boat access to Nelson Lagoon. The fact that historically boat access has been obtained via informal boat ramps does not make it a requirement of the PoM for boat access to be so provided. The Court ought to accept that 4WD and 2WD standard only refers to a single vehicle without anything being towed.

[35]

Meaning of all weather 2WD and 4WD

It is the Respondent's position that 'All Weather 4WD standard' and 'All Weather 2WD standard' ought to be given their ordinary meaning having regard to the context in which they appear in the PoM. This accords with the orthodox approach to statutory construction. It is accepted that neither of the phrases in question are defined in the PoM.
The Court has been provided with a USB containing photographs and video footage prepared by the Applicant. The Court has also been provided with an aide memoire by the Applicant in relation to various matters that may be observed on the videos. There is one inescapable fact that is demonstrated by the videos prepared by the Applicant: the Applicant is able to drive his 4WD vehicle to the foreshore of Nelson Lagoon at the end of Cowdroys Road. The complaint is that he cannot tow a boat trailer down there.
To the extent that it has been suggested in either the evidence of Mr Legler on behalf of the Applicant and Mr Wearne for the Respondent, that the Fire Trail Standards ought to be applied in the interpretation of the PoM, such a suggestion ought be rejected. That is because the Fire Trail Standards post-date the PoM and are, by their nature, a document prepared by an agency for which the Respondent is not responsible. Accordingly, geometric standards provided in the Fire Trail Standards are not determinative of whether a road is capable of being traversed by a 2WD or 4WD vehicle.
In any event, attempts by the Applicant to import Fire Trail Standards onto Lagoon Trail and Cowdroys Road cannot be said to arise from the PoM. The northern section of Cowdroys Road from Gillards Road to the Rodley Access Track is identified under the FAFT as a tactical road (meaning its maintenance is not funded by the NPWS recurrent operational budget). The remainder of Cowdroys Road and the whole of Lagoon Trail are not identified as being part of the FAFT network. Despite cross examination on the draft FAFT network plan above in [54], the Court would not infer from that map that all other roads not otherwise coloured on the plan should be taken to be 'other cat 9' roads as suggested by the Applicant. They are simply not categorised for the purposes of the FAFT program. Any attempt to use internal NPWS references to establish either Cowdroys Road or Lagoon Trail as fire trails in an effort to import the RFS standards to apply to them is misguided. Neither road is classified as a fire trail under the PoM and that is the duty the Applicant seeks to review.
If the Court considers the PoM positively requires Lagoon Trail and/or Cowdroys Road to be maintained by NPWS (regardless of its decisions regarding the allocation of resources), the Respondent submits that they are to be maintained to allow: 1. A 2WD vehicle to travel to the car park on Lagoon Trail in all weather conditions in which the Park remains open; and 2. A 4WD vehicle to travel to Gate 4 on Cowdroys Road in all weather conditions in which the Park remains open.
In neither case is a vehicle required to be able to tow a boat trailer (or anything else).
If the Court considers that a positive obligation arises under the terms of the PoM to maintain the roads to the above standards, the Respondent accepts that some minor works described by Mr Wearne would be required to reduce the height of the cross bank and to ease the grade of the last 30m of the Lagoon Trail to the new car park. No works would be required on Cowdroys Road.

[40]

Construction of POM broadly

The Applicant submits that a separate duty is imposed on the Respondent to complete the actions in cl 5.3.1 items 9 and 10. The Respondent submits that the overall duty in s 81 does not mean that every possible action canvassed in the PoM gives rise to an individual positive duty to perform it. The Respondent disputes that the PoM imposes a positive duty to maintain Cowdroys Road (southern section) and Lagoon Trail at all times.
Turning to consider the POM more broadly, noting this must be read as a whole, all 86 pages of the PoM were not referred to by the parties and it is not extracted in its entirety above in [53]. The whole document provides a necessary context for considering the duty owed by the Respondent under s 81 of the NPW Act. As the Respondent submitted that includes its purpose of guiding the long-term management of the Park within the management framework in Pt 3 and beyond. The clauses of Pt 5 extracted above are focussed on references to Cowdroys Road and Lagoon Trail given the case mounted by the Applicant. I observe that Pt 5 headed Management Policies and Actions is 56 pages and identifies a large number of policies and actions in relation to a number of named roads, amongst many other actions directed to natural heritage, cultural heritage, public use, promotion and interpretation, management facilities and operations, boundaries and adjacent areas, research and monitoring, evaluation and reporting. No time frames are specified for the carrying out of actions.
In Pt 6 a large number of actions in Pt 5 are divided into prioritisation categories of low, medium and high priority. No time frames for the carrying out of the actions are specified. The actions the Applicant seeks to be carried out in cl 5.3.1 item 9 and item 10 are not referred to in Pt 6 in these categories. Pt 6 states the following: 'Note: Policies and those actions that are undertaken in the course of day to day park management duties are not necessarily listed below.' In other words the actions the Applicant is seeking to have carried out are not prioritised in Pt 6. The submission seemed to be made by the Applicant that day to day activities not prioritised in Pt 6 nevertheless have to be implemented regardless of any other prioritisation of actions in Pt 6. No express provision supports that submission. When Pt 5 and Pt 6 are considered together the fact that Pt 6 prioritises some actions and not others suggests the inference contended for by the Applicant cannot be correct.

[42]

POM references to oyster growing

The Applicant is seeking to rely on public access provisions in recreational and tourism activities in Pt 5.3 Public Use cl 5.3.1 to support a commercial activity. The Applicant emphasised references in the POM to oyster growing. In Pt 2.3 concerning the significance of the Park to protecting the water quality of Nelson Creek, the principal tributary of Nelson Lagoon which is an important oyster growing area extracted above in [53]. Apart from acknowledging that that activity occurs in Nelson Lagoon the text is simply that, a reference.
That activity is acknowledged in cl 5.3.3 Other Uses extracted above in [53]. Clause 5.3.3 states that 'none of these facilities or the vehicular access arrangements are currently covered by leases or licences.' The Desired Outcome identified is that agreements are in place with commercial aquaculture lessees and the Department of Lands that are designed to minimise impacts associated with their activities. Policies and Actions include ensuring that their activities are undertaken in ways that minimise impacts upon the values of the Park and the experiences of park users. There is no statutory construction basis when the POM is read as a whole to consider that Pt 5.3 Public Use cl 5.3.1 is informed by cl 5.3.3 Other Uses.
As the Respondent identified cl 5.3.3 Other Uses, Key Issues refers to the creation of access and use agreements with commercial anglers to minimise adverse effects of their operations on park values. The Desired Outcome is that agreements are in place for aquaculture lessees inter alia that are designed to minimise impacts associated with their activities. Actions include ensuring that such operations are covered by a lease, licence or other formal agreement. As stated elsewhere no timeframes to achieve such actions are identified.
That a future action is identified in cl 5.3.1 item 47 for the development and implementation of a site plan for a car park and boat launching facility terminus at the eastern end of the Lagoon Trail can be noted. That does not take the statutory construction task in support of the Applicant any further. I note that according to a plan in evidence that future action would appear to take place at a different location to the current carpark and turning circle at the end of Lagoon Trail in any event.
Recognition in the PoM that oyster lease holders use the Park for access does not translate to a duty to provide that access expressly or by inference from this section of the PoM. As already identified the oyster lease is not in the Park.

[46]

Meaning of 'all weather 2WD standard' and 'all weather 4WD standard' (Issues 2, 3)

The construction of all weather 2WD and 4WD access in cl 5.3.1 arises given the wording of item 10 (and is the subject of issues 2 and 3). Construction of these terms also gives rise to the consideration of whether towing a boat trailer must be accommodated under the PoM as the Applicant submitted.
At issue is what does 'all weather 4WD standard' and 'all weather 2WD standard' in cl 5.3.1 item 10 of the PoM mean because the Applicant argues that NPWS should have provided such access on the specified roads and has not. Once again this is a question of statutory construction to be considered in the context of the POM. No definition of these words is specified in the POM suggesting they should be given their ordinary meaning, rather than a technical meaning.
No statutory basis exists for inferring that the Fire Trail Standards which the engineering evidence of Mr Legler and Mr Wearne refer to, essentially giving the words a technical meaning. This must be the case particularly given that the Fire Trail Standards were made in 2016 several years after the POM so that these standards simply could not have been in contemplation in 2011 when the POM was made. That a duty is 'always speaking', as the Applicant submitted above in [76], does not mean at a detailed operational level that standards created after 2011 by a part of the NSW government separate to the NPWS must by inference apply in the absence of any relevant indicia that they do, applying usual statutory construction principles. That Mr Legler chose to refer to the Fire Trail Standards in lieu of anything else does not assist in the construction task, similarly for Mr Wearne. I therefore do not accept the Applicant's alternative argument that even if the Fire Trail Standards does not apply directly as it clearly does not, the quantitative figure of a maximum 15 degrees should be applied because the experts considered that was reasonable for accessing 4WD vehicle access. As the Respondent submitted 4WD vehicle access is possible on a road with a slope over 15 degrees.
Reliance on Ex parte MacKaness and Collector of Customs v Agfa-Gevaert Ltd above in [75] to submit the terms are technical on which expert evidence is admissible do not assist given the entirely different statutory context being considered in those cases compared to the circumstances before me.
The Applicant also asserted that Lagoon Trail and all of Cowdroys Road were fire trails. The utility of this submission is not clear in that the Applicant's primary case was relying on cl 5.3.1 items 9 and 10 concerning public access and the all weather 4WD and 2WD standard is being considered in that context. The only relevance seemed to be that identification as a fire trail meant certain standards had to apply, seeking to support a technical approach to the terms which I have rejected above in the context of the engineering evidence. I will consider the Applicant's submissions briefly to the extent I am able to understand them.
Clause 5.1.5 of the PoM deals with fire management and states that fire is to be managed in accordance with the Fire Management Strategy. In the evidence above in [54]-[57] fire management on roads was referenced in relation to the FAFT network, the Fire Trail Standards, the Fire Management Strategy, the NPWS asset management system and 'FAFT Opex Trails Tracker EUROBODALLA' spreadsheet.
That the northern section of Cowdroys Road is part of the FAFT network is not disputed. The Applicant also argued the southern section was part of the FAFT network. This was disputed by NPWS. The southern section of Cowdroys Road is not in the FAFT network. The map in evidence of the FAFT network above in [54] speaks for itself and Cowdroys Road and Lagoon trail are not identified as 'other cat 9'. They are essentially unclassified. Neither Ms Issaverdis nor Mr He agreed in oral evidence that the two roads were in the FAFT network. Roadworks on them are not therefore required to comply with any specified standards under the FAFT program.
Cowdroys Road and Lagoon Trail are identified as Category 9 roads in the Fire Management Strategy and the 'FAFT Opex Trails Tracker EUROBODALLA' spreadsheet. Lagoon Trail also has category 9 fire vehicle capacity in accordance with the NPWS asset management system. A Category 9 vehicle is a 4WD.
Accepting that there is some difference in different documents in the evidence concerning Cowdroys Road southern section and Lagoon Trail as fire trails does not aid in the construction of the expressions in issue as having a technical meaning. As the Respondent submits any attempt to use internal NPWS references to establish either Cowdroys Road or Lagoon Trail as fire trails in an effort to import the Fire Trail Standards to apply to them is misguided. Neither road is classified as a fire trail under Pt 5.5 item 4 of the PoM and that is the duty the Applicant seeks to review.
The words should be given their plain and ordinary meaning that a 4WD vehicle can use the road in wet and dry weather (all weather) and similarly for 2WD, as the Respondent submitted.

[49]

No unreasonable delay (discretionary application of limited funding) (Issue 5)

The implementation of the PoM as a whole as required by s 81 is subject to the availability of staff and funding as specified in Pt 6. No timeframes are specified in the PoM for any policies and actions to be implemented. The issue of discretion in the performance of a duty was discussed by Preston CJ in Bushfire Survivors at [48]. His Honour observed that: 48. …The performance of a duty involves 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 a limited discretion as to when what and how the duty is to be performed.
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. I have not accepted that construction of the PoM above in [138]-[140]. In the alternative and accepting that the Respondent has a discretion in relation to prioritisation of actions subject to available funding and staffing, the Applicant argued that nevertheless there has been unreasonable delay in maintaining the two roads to the required standard in breach of the statutory duty in s 81, given the lengthy period he has not had adequate access to the oyster lease.
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.
Unreasonable delay is evidenced according to the Applicant by the Respondent not using the funding it has had over time to do the work required on Cowdroys Road southern section and Lagoon Trail to the necessary standards and 12 years is too long for that work not to have been done. The Applicant has to meet a high bar, namely that no Secretary in the position of the Secretary acting through the NPWS would have made the decisions on funding of road maintenance inter alia that have been made since 2011 in light of Pt 6 of the POM.
Much hearing time was spent considering evidence about how much NPWS did or did not spend over a 12 year period since 2011 on Cowdroys Road and Lagoon Trail during which period the Applicant has not had satisfactory access from his point of view to his oyster lease. The agreed works carried out on Cowdroys Road and Lagoon Trail in 2017 to May 2022 and their cost are set out above in [12]. The Applicant's affidavit evidence that very little was spent in the previous years from 2010 given the poor state of the roads he attests to is not disputed.
I will briefly refer to this evidence but note that given my finding at [138]-[140] that the statutory duty owed by the Respondent relates to implementation of the whole of the POM, which identifies numerous actions other than roads which require funding to achieve them, 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 POM summarised above in [53]. To make good an unreasonable delay case all of the POM implementation is relevant given the discretion identified in Pt 6 and would need to be considered. On this basis alone the Applicant cannot succeed on his unreasonable delay case focussed on funding of road maintenance work only.
As identified in the PoM Foreword and Pt 5.5, the Park is 5,804ha and has 30 kilometres of management trail. The length of other roads in the Park is otherwise unknown. The plans in evidence identify several roads. Prioritisation of spending on road maintenance and improvements was based on specified principles explained by Ms Issaverdis and Mr He in their affidavits.
The evidence of Ms Issaverdis and Mr He identified that NPWS does and may be able to obtain funding from several sources. As the Respondent submitted funding of NPWS activities is complicated. In the evidence reference is made to dedicated FAFT funding, recurrent NPWS operational funding and opportunistic sources from external sources as described by Mr He above in [22]-[25]. External sources include government agencies, non-government organisations or private individuals. The dedicated FAFT funding includes operational and capital expenditure for road and trail maintenance and upgrades. The recurrent operational fund is used to implement a wide range of management activities across NPWS making the allocation of funds competitive within NPWS.
A Land Management Deed secured funds for works on Cowdroys Road and Lagoon Trail from LLS in May 2019 as set out in the chronology above in [10]. FAFT expenditure was spent on the John Evans Earthmoving Pty Ltd works on Cowdroys Road totalling $137,215.52 from May 2022. The Respondent submitted the Land Management Deed indicated pre-planning of these works. LLS is mentioned in the description for works on Lagoon Trail in April 2022 carried out by John Evans Earthmoving Pty Ltd totalling $27,540.39 above in [12]. It is otherwise unclear what works in the chronology were funded under the Land Management Deed. As the Respondent submitted the agreed chronology of works is either incomplete or there may be a gap in the paperwork about spending and the source of funds. No legal consequence flows from this in relation to the issues I am considering.
The Applicant's counsel sought to impugn Ms Issarvedis' evidence about the application of funding for roads according to the specified principles identified in her affidavit above in [41], submitting the principles she identified were a recent invention prepared for this litigation lacking any source document as none was produced when a call was made for this in the course of the hearing. Similar submissions were made in relation to Mr He and the production of a document which became Ex C in answer to a call made in the course of the hearing. I do not need to resolve whether this criticism is justified given other failures in the Applicant's case. I observe that the priority principles set out full in full above in [26] appear orthodox and rational and the evidence of the two experienced officers was that they have been applied by the NPWS over a lengthy period.
Hearing time was spent exploring in cross-examination of Ms Issaverdis how the funding of $137,500 spent on Cowdroys Road in May 2022 came to occur through a notice for direct negotiation without any evidence of a tender being issued for this work. While there was a major focus on this circumstance by the Applicant I do not need to determine whether his counsel's characterisation of this spending as supporting the unreasonableness argument (and also to argue that the spending was responsive to this litigation which was said to be relevant to costs) given all the other reasons why the Applicant cannot succeed.
The Applicant submitted (incorrectly) that the Respondent did not assert there is a lack of resources available to do the work. The Applicant asserted there was sufficient budget to do the work needed on the two roads because $137,000 was spent in May 2022 on Cowdroys Road. No evidentiary basis exists to support these assertions. Apart from the assertion that a significant amount of money, $5.2 million in untied operational expenditure for the South Coast Branch identified in the affidavit of Ms Issaverdis dated 27 January 2023, was available in the 2021-2022 period inter alia 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 Nielson seeks.
I have addressed submissions made by the Applicant in relation to whether Cowdroys Road southern section and Lagoon Trail are fire trails, above in [160]-[162]. As I understand the Applicant's case this was also referred to in the present context. Once again the purpose of doing so in relation to unreasonable delay is not entirely clear. The Applicant appeared to rely on this evidence in the context of funding allocation. I infer that the Applicant considers there was a greater likelihood of funding for road maintenance being required to be made available if the roads in issue are fire trails. For the reasons given above in [163] neither is a fire trail under the PoM. Funding in this context does not appear relevant.
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.
The Applicant also submitted that his personal circumstances had to be considered as part of considering whether unreasonable delay had occurred, namely that he has foregone substantial income for many years as a result of not being able to carry out the commercial activity of oyster growing at the lease he has paid the NSW government to operate. Numerous cases were cited in support of this submission, identified above in [81]. The cases cited were largely migration and citizenship cases and addressed a markedly different statutory context and statutory duty to consider applications for visas/citizenship made by individuals. They are of little assistance in this case given the broad statutory duty I am considering, the absence of conferral of any right of access on the Applicant personally under the PoM and the manner in which oyster growing activities outside the Park are considered, as already addressed above in [141]-[145].
The oyster lease terms (the lease is attached to Mr Issaverdis' affidavit dated 19 August 2022) do not include any provision for access. As the Respondent submitted the Applicant again entered into the oyster lease in 2016 when road access in the Park was problematic. He assumed a commercial risk that access adequate to his needs would be made available. That he did so does not mean that the Respondent must provide him the access he considers he needs through the Park to carry out commercial oyster farming given the terms of the POM. In these circumstances, the Applicant's personal circumstances can have little weight.
The Applicant has not established unreasonable delay. Contrary to the Applicant's submission that he has done enough to establish unreasonable delay such that the persuasive onus shifts to NPWS to show why its actions have not given rise to unreasonable delay, he has not discharged his onus.

Neilson v Secretary, Department of Planning & Environment

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