North Coast Environment Council -V- National Parks And Wildlife Service & Ors [1999] NSWLEC 1

2. The substantive proceedings seek a declaration that the general licence referred to above ("the licence") is invalid, as well as injunctive relief in terms substantially the same as the interlocutory relief which is sought.

The proceedings concern a colony of flying foxes occupying a rainforest reserve in the vicinity of Maclean High School. The colony has used the rainforest reserve for about 100 years, although the number of species present at any time varies. According to the evidence of Dr K A Parry-Jones, an ecologist specialising in the study of flying foxes, the colony is made up of three species - the Grey-Headed Flying Fox, the Little Red Flying Fox, and the Black Flying Fox. The Black Flying Fox is listed as a vulnerable species in sch 2 of the Threatened Species Conservation Act 1995 ("the TSC Act"), and the other two species are protected fauna within the meaning of s 5 of the NPWS Act.

The licence was issued under s 120(1)(a) of the NPWS Act subject to conditions. It authorised the licensee to harm the flying foxes where the harm occurs as a result of activities, called "disturbance activities", which were described in the original form of the licence as follows:

"The Licensee intends to carry out disturbance activities with the object of causing flying foxes in the vicinity of Maclean High School to move away from the school. The disturbance activities are to be confined to the creation of noise (from scare guns, whips, drums etc) and smoke. Disturbance activities will only take place when the numbers of flying foxes have built up to levels which have historically affected the Maclean High School community - that is 15,000 animals, or more. Disturbance activities will not take place if there are less than 15,000 flying foxes in the colony in the vicinity of the school."

On 12 January 1999, the licence was varied in certain respects, the most significant of which was the deletion of the last two sentences of the paragraph quoted above, that is, deletion of the base figure of 15,000 animals. The grounds of challenge

The grounds of challenge are based upon the statutory provisions relevant to the issue of the licence. Section 120(1)(a) provides that a general licence may be issued by an authorised officer authorising a person to harm protected fauna for various specified purposes. Section 91(1) of the TSC Act permits the Director-General to grant a licence authorising a person to take action that is likely to result in one of a number of specified consequences, including "harm to a threatened species".

Section 91(2) of the TSC Act provides as follows:

"(2) A general licence under section 120 of the National Parks and Wildlife Act 1974 may be issued only for a purpose referred to in subsection (1): for scientific purposes, or for the welfare of an animal, or if there is a threat to life or property."

As enunciated by Mrs Kelly, appearing for the applicant, the applicant challenges the validity of the licence upon four grounds, namely:

1. The matters set out in s 91(2) are jurisdictional facts, which depend upon it being established objectively that one or more of the matters specified in subss (a), (b) and (c) pertain. In other words, the exercise of the power to grant the licence depends upon the existence of certain facts, to be determined by reference to objective criteria. When the licence was granted, and when it was varied, there was insufficient evidence to establish the existence of those facts;

2. In reaching the decision to grant the licence, the authorised officer took into account an irrelevant consideration, namely, the political benefit to be gained in an election year by relevant government ministers resolving the issue by removing the flying foxes in order to meet the wishes of some members of the local community;

3. In reaching the decision to grant the licence, the authorised officer failed to take into account a relevant consideration, namely, the fact that disturbance activities were likely to fail in their objective of removing the colony;

4. The decision to grant the licence was manifestly unreasonable having regard to the fact that there has never been a successful removal of a flying fox colony as a consequence of disturbance activities.

In addition to this challenge to the validity of the licence, the applicant also asserted a further ground of challenge, namely, a breach of condition 8 of the licence conditions. Condition 8 is in the following terms:

This Licence does not authorise the Licensee to enter any lands or carry out disturbance activities on any lands without the prior written consent of the property owner."

The applicant's case is that the registered proprietor of the rainforest reserve which the colony uses is the State of New South Wales, and it is administered by the Maclean Rainforest Reserve Trust. The latter organisation notified the applicant's solicitors on 19 January 1999 that it had not given its consent to the disturbance activities upon the rainforest reserve. Furthermore, Mrs Kelly submitted that it could be inferred from the evidence of Mr P J Cribb, acting principal legal office of the second respondent, that the consent of the State was also lacking, since Mr Cribb stated in para 8 of his affidavit that the disturbance activities would not be carried out "unless the prior written consent of the property owner has been obtained."

The Court's role in connection with an application for interlocutory relief is well-established. The Court is not concerned to decide the substantive case in favour of one party or another - that remains for the final hearing. Nor is it concerned with the merits of issuing a general licence - the class 4 application involves judicial review, which is confined to the Court ensuring that the grant of the licence was made within the relevant legal confines ( Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd and Ors (1986) 162 CLR 24).

There are two questions which arise when deciding whether to grant interlocutory relief. The first is whether there is a serious question to be tried. The second is the balance of convenience, that is, whether the consequences of refusing interlocutory relief are outweighed by the consequences of granting it (see, for example, State of Queensland v Australian Telecommunications Commission (1985) 59 ALR 243).

The principal basis for the respondents' resistance to the grant of interlocutory relief was their contention that, on the evidence presently before the Court, the applicant has not shown that there is a serious question to be tried. That contention was outlined by Mr Preston, on behalf of the first respondent, (whose arguments were adopted by Mr Griffiths, for the second and third respondents). I briefly outline Mr Preston's submissions on this point in the following paragraphs.

In Mr Preston's submission, the provisions of s 91(2) of the TSC Act do not amount to jurisdictional facts. They are, rather, matters to be taken into account by the authorised officer in making a decision to grant a general licence for any of the purposes specified in s 91(1). The decision to grant a general licence under s 120 of the NPWS Act depends upon the authorised officer forming his own opinion as to the relevant matters, and once it can be shown that the officer took into account the relevant matters, the weight to be attributed to them is a matter for him. Hence, in Mr Preston's submission, the applicant's challenge on this ground lacks any probability of success, and does not support a serious question to be tried.

Mr Preston further contended that, even if the provisions of s 91(2) were jurisdictional facts, the evidence presently available to the Court could not lead the Court to the conclusion that the relevant matters did not pertain. The material upon which the authorised officer relied included a briefing note, in which the matters arising under s 91(2) were expressly adverted to, and findings were made in relation to them. The conclusion of the briefing note was that there were threats to the welfare of the flying foxes arising from the threats to exterminate the colony by direct community action, and that there were threats to life and property, arising out of concerns for the psychological and physiological well-being of pupils at the school, and threats to the rainforest from destruction by the flying foxes.

Next, Mr Preston contended that the reference in the briefing note to "political imperatives" of certain named ministers was, first, not one of the bases for the grant of the licence, but, secondly, even if it was taken into account, it was legitimate to do so, because it was an advertence to government policy or ministerial representations. Hence, the applicant could not have any chance of success in establishing that an irrelevant consideration was taken into account, and therefore there was no serious question to be tried on this ground of challenge.

Thirdly, Mr Preston submitted that the question of the efficacy of the disturbance activities in achieving the objective of removing the flying foxes could not be said to be a consideration which the authorised officer was bound to take into account in making a decision to grant a general licence under the NPWS Act. He further submitted that, even if it was a relevant consideration, reference to the briefing note shows that the authorised officer did consider the effectiveness of the proposed disturbance activities, and noted that there was no guarantee that attempts to relocate the colony by that means would be successful. Hence the challenge on this ground did not raise a serious question to be tried.

Fourthly, Mr Preston submitted that the evidence presently before the Court was insufficient to establish a ground of manifest unreasonableness, and no serious question arises out of this ground.

Finally, Mr Preston contended that condition 8 of the licence did not impose a requirement upon the licensee to obtain the consent of any property owner. Rather, in Mr Preston's submission, it is merely an advisory condition, notifying the licensee that the licence did not authorise any activities upon any land. Again, no serious question arises on this ground, because, upon this construction of the condition, lack of consent does not constitute a breach of the licence.

I am satisfied that there is a serious question to be tried, arising out of at least some of the grounds for the applicant's challenge.

As to the first ground, it is not to my mind patently obvious that s 91(2) merely sets out various factors to be taken into account. Even a cursory examination of s 91(2) casts doubt on that assertion, because it refers to the issue of a general licence only where the specified circumstances exist, and because the language, at least in subcl (c), seems to be couched in terms of a condition precedent. But the true construction of s 91(2) depends upon an examination of its scope and context in the light of the TSC Act as a whole, and having regard to the powers conferred in respect to general licences under the NPWS Act. That is a task which the Court is not required to embark upon at present. It is sufficient if the construction and effect of s 91(2) is not entirely clear and raises questions for determination. In my opinion, this ground of challenge does raise a serious question to be tried.

Furthermore, I am not persuaded, on the evidence presently available, that the applicant has no probability of success even if s 91(2) were to be interpreted in accordance with the jurisdictional fact doctrine. It is sufficient if I merely note two matters to show that the evidence is more evenly poised than Mr Preston and Mr Griffiths submitted. First, I note the letter sent by the first respondent to the secretary of the Maclean Rainforest Trust on 8 January 1998, in which, amongst other things, the first respondent stated that it would not be prepared to issue a licence for the purpose of disturbing the flying fox colony. Secondly, there was evidence from the Department of Health that the flying fox colony did not pose a health threat to the school community (as shown by its letter to the school dated 20 March 1997 and by the conversation between a department officer and Mr C D Norton, of the applicant's solicitors). It is possible therefore that the applicant might succeed in showing that the objective criteria in s 91(2)(a)(b) and (c) did not exist. Accordingly, I consider that there is a serious question raised for determination on this evidence.

The evidence on the question as to whether an irrelevant consideration was taken into account is not all one way, as the respondents assert. The briefing note refers to the fact that the Minister for the Environment, the Minister for Education, the Minister for Regional Development and the local member requested the implementation of a plan to remove the colony. The briefing note describes this as a case where "… the Government has clearly promised the animals would be moved and that the Government agencies would co-operatively do this". It may be that these references merely indicate, as the respondents assert, that the decision-maker was considering the existence of some government policy, which would be a legitimate consideration (see, for example, The King v Mahoney, ex p Johnson (1931) 46 CLR 131). But Mrs Kelly referred to the history of the attitude of the National Parks and Wildlife Service to the matter, which amounted to a change of direction from at first stating that no licence would be issued, then issuing a licence but one which was confined to activities when the population exceeded 15, 000 flying foxes, and finally issuing a licence unfettered except as to a protocol for the minimisation of harm. These matters, when taken with the references to the input of the particular Ministers, could lead, so Mrs Kelly contended, to an inference that the matter taken into account was some governmental directive or a political outcome which those Ministers required, which may, in some circumstances, not be a consideration relevant to the issue of a general licence under s 120 of the NPWS Act. I consider that it is not beyond probability that an irrelevant consideration was taken into account, and that this also raises a serious question to be tried.

I can deal shortly with all the other grounds of challenge. I do not think that any serious question arises out of the allegation that the decision-maker failed to take into account a relevant consideration, namely, the efficacy of the disturbance activities. I have considerable doubt that that is a relevant matter that the authorised officer is bound to take into account, but even if it was relevant, it was taken into account, as the briefing note indicates. As to manifest unreasonableness, there is no evidence before the Court at this stage that the applicant would have any probability of success on this ground.

As to the allegation of breach of condition 8 of the licence, I am inclined to the view that the respondents' interpretation is correct, and that the condition does not amount to a condition precedent requiring property owners' consents. The proper interpretation is of course a question for determination in the substantive proceedings, but I am not persuaded at this stage that it has any chance of success as a challenge to the carrying out of the activities authorised by the licence.

For the foregoing reasons, I am of the opinion that there are serious questions to be tried on at least the first two grounds of challenge. That leads to the question of whether the balance of convenience favours the grant of the interlocutory relief.

The applicant points to the fact that the flying fox colony has used this area for about 100 years. There is no sound reason, so the applicant contends, for the disturbance activities to be carried out immediately. Furthermore, the evidence of Dr Parry-Jones is that the disturbance activities will cause trauma to the flying foxes, especially non-flying young. For those reasons, the applicant urges the Court to preserve the status quo until the challenge to the validity of the licence is determined.

The evidence of the respondents, as set out in the affidavit of Mr Cribb, is that the first phase of stage 1 of the proposed programme is scheduled for 7 pm on 21 January 1999, and that date is designed to achieve an objective of initial dispersal of the flying foxes prior to commencement of the 1999 school year. There is no other evidence from the respondents as to any factor which would dictate urgent action in removal of the colony. There is evidence that the colony does not pose a health threat, although the respondents place some emphasis on the psychological impact of the activities of the flying foxes upon the students at the school. But the school has been in existence since 1961, and the mere assertion of psychological harm is not sufficient to require the disturbance activities to be commenced immediately.

I take into account in this connection the fact that the licence issued in October 1998, and this application for interlocutory relief was not made until 20 January 1999. This delay is to some extent reduced by the notice of action given to the respondents by the applicant's solicitors on 18 December 1998. I do not consider that the delay in taking action is such as to warrant refusal of interlocutory relief.

I also take into account that the usual undertaking as to damages has not been proffered on behalf of the applicant. This is a factor against the grant of interlocutory relief, but I consider that it is not a decisive factor. If the applicant fails in the substantive hearing, it is unlikely that the respondents will have incurred any damages; they will merely suffer a deferral of the disturbance activities.

Taking all these matters into account, I consider that the balance of convenience lies in favour of granting the interlocutory relief.

In accordance with the foregoing, I make the following orders:

1. Until further order, the second and third respondents, by themselves, their servants, agents and contractors be and they are hereby restrained from carrying out any activities with the object of causing flying foxes in the vicinity of Maclean High School to move away from the school.

2. Until further order, the second and third respondents, by themselves, their servants, agents or contractors, be and they are hereby restrained from carrying out any activities pursuant to General Licence No. GL:F378GD dated 29 October 1998 and varied by letter dated 12 January 1999, without the consent of the owner of the Maclean Rainforest Reserve.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 10 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.