Administrative law - Certiorari and mandamus - Appeal to a magistrate against the grant of an application for a permit for a fish farm - The Fisheries Act 1959, s19 - Upon what grounds may a person object to the grant of the application? - Nature and scope of the appellate jurisdiction to a magistrate considered - Held that standing to object conferred by s18(2)(d) and (3)(b) did not delimit grounds of objection - Discretion not exercised against the prosecutor - Order absolute.

Solicitors for respondent: Dobson Mitchell and Allport

UNDERWOOD J Aquaculture is a relatively new industry in Tasmania. Significant development has only occurred in the last six years. Recognising a need to exercise control over this development, the legislature enacted substantial amendments to the Fisheries Act in 1982 to regulate the conduct of fish farming. Mr and Mrs Cameron are experienced fish farmers. They operate a number of farms at Dunalley and in the Eaglehawk Neck area. On 20 April 1989 Mr and Mrs Cameron, as trustees of the Cameron Trust made an application to the Minister for Fisheries, as is required by the Fisheries Act 1959, to establish a marine farm on seventy-two hectares at Halfway Bluff, Preymadena, to farm oysters, mussels and scallops on long lines. Objections to the proposal were considered by the Minister. He granted the application but there were appeals to a magistrate. The prosecutor was one of the appellants. The appeals failed. As there is a statutory prohibition against further appeal, the prosecutor seeks a writ of certiorari quashing the magistrate's decision and a writ of mandamus ordering the appeals to be heard in accordance with law. The grounds are in essence, that the learned magistrate misconstrued the statutory provisions that gave him jurisdiction and he thereby constructively failed to exercise his jurisdiction.

2. The Fisheries Act 1959, s13, prohibits marine farming without a lease, re-seeding lease or permit and a marine farm licence. Section 3(1) defines marine farm and marine farming. Basically, marine farming is growing and harvesting fish or marine plants and a marine farm is an area of State fishing waters used for that purpose and includes all the structures, rafts and buoys used in connection with the marine farm.

3. The Minister has the power to grant a lease, a re-seeding lease or permit (s19) and the holder of any one of them may apply to the Director of Fisheries for a marine farm licence (s23F).

4. A lease, re-seeding lease or permit may be granted for up to twenty years and may be renewed for a like period (s21). Each of them may be issued subject to such conditions and restrictions as the Minister determines. Leases, re-seeding leases and permits may be surrendered (s23), cancelled (s23B(1)) or the terms varied (s23B(2)). A marine farm licence only lasts twelve months (s23I) but may be renewed (s23J). Also, it may be surrendered (s23K), varied (s23M(2)) or cancelled (s23M(1)).

5. In essence, the Minister decides whether a marine farm may be established and the basic conditions governing its establishment and operation. Detailed control over the conduct of the farm thereafter lies in the hands of the Director of Fisheries through the system of annual licence grant. Decisions by both the Minister and the Director are subject to a right of appeal to a magistrate.

6. The rights to the sea bed and the sea water that attach to a lease, a re-seeding lease and a permit are different in each case (s15):

(i) a lease confers on the holder exclusive possession of

the area of sea bed comprised in the lease and the waters

above it (s15(1));

(ii) a re-seeding lease confers on the holder exclusive

possession of the area of the sea bed comprised in the lease

for the purpose of culture and harvest of fish specified in

the marine farm licence. Rather curiously, a re-seeding

lease prohibits any activity in the waters above that

interferes with the culture of the specified fish (s15(1A));

(iii) a permit confers exclusive occupation of the waters

specified in the permit (s15(2)).

7. Regardless of the right sought by the application, the Minister has a discretion to grant a lease, a re-seeding lease or a permit (s15(3)).

8. A person who wants to start a marine farm must apply to the Minister for a lease, re-seeding lease or a permit (s16(1)). Before making a decision on the application, the Minister must advertise particulars of the application in a newspaper. In addition, in the case of a lease or re-seeding lease, the Minister must send a copy of the application to the Minister for Health and seek any suggested conditions or restrictions (s17(1)(a)). Presumably, his or her interest is in the maintenance of appropriate health criteria for the farm produce. In the case of a permit, the Minister is obliged to notify the relevant marine board and seek advice about whether the proposed raft or structure will constitute a hazard to navigation (s17(1)(b)). Section 18 is central to the resolution of this matter. It provides rights of objection to the Minister against the grant of the application. It reads:

"18 - (1) Any person specified in subsection (2) who wishes

to object to the granting of an application for a lease, or

re-seeding lease or any person specified in subsection (3)

who wishes to object to the granting of an application for a

permit, may, at any time before the expiration of a period

of 28 days after the notice relating to the application is

published in accordance with section 17, lodge with the

Minister an objection in writing to the granting of the

application.

(2) The following persons but no other person may object to

the granting of an application for a lease: -

(a) the marine board having jurisdiction over the area to be

leased;

(b) the council of the municipality adjacent to the area to

be leased;

(c) a person owning or occupying land adjoining the area to

be leased;

(d) a person who claims that his use of the waters in the

area to be leased will be adversely affected by the granting

of the application.

(3) The following persons but no other person may object to

the granting of an application for a permit or re-seeding

lease: -

(a) the marine board having jurisdiction over the waters to

which the application relates;

(b) a person who claims that his livelihood or use of the

waters to which the application relates will be adversely

affected by the granting of the application.

(4) An objection lodged under subsection (1) shall not be

considered by the Minister unless -

(a) it specifies the ground for the objection; and

(b) the person making the objection has, before the

expiration of the period referred to in subsection (1),

served on the applicant a copy of the objection."

9. Under s19, the Minister's discretion to grant or refuse an application is completely unfettered, except as provided in subs(4) namely, in the case of a permit where the marine board advises that the proposed raft or structure will be a hazard to navigation, he must refuse the application. Further, the Minister's discretion to impose conditions and restrictions is also unfettered by statute (s20(1)).

10. If the application is refused, the Minister must inform the applicant of that fact and give reasons (s19(2)). If it is granted, he must advise all objectors accordingly (s19(3)).

11. An applicant is given a right of appeal against a refusal to grant the application, against the imposition of a condition or restriction and against the refusal to renew a lease, a re-seeding lease or a permit. The holder of a lease, re-seeding lease or permit also has a right of appeal against a cancellation or variation thereof (s23C(1)). In the case of the grant of a lease, re-seeding lease or permit, any person who lodged an objection "may appeal ... against the granting of an application" (s23C(2)). All appeals are to a magistrate.

12. Section 23C(3)-(5) inclusive, prescribeS the requirements for the institution of a valid appeal. No ground of appeal needs to be set out in the notice of appeal. Subsection (6) provides that on the hearing of the appeal, the Minister, the applicant and an objector have a right to be heard. Others may be given leave to be heard. Subsections (8) and (11) are significant. The former relates to the jurisdiction of the magistrate and the latter the affect of his or her order. They provide:

"(8) At the hearing of an appeal under this section, the

magistrate, unless he dismisses the appeal, may quash the

decision of the Minister and direct the Minister to take

such action as the magistrate considers necessary in the

matter to which the appeal relates.

...

(11) The Minister shall comply with any directions given to

him under subsection (8)."

13. There is no right of objection against the grant of a marine farm licence but, in relation to such a licence, the same rights of appeal are given a holder or applicant as are given the holder of or applicant for a lease, re-seeding lease or permit (s23N(1)). The jurisdiction of the magistrate and the affect of his decision on an appeal relating to a marine farm licence is expressed in the same terms as those concerning an appeal relating to a lease, a re-seeding lease and a permit. Every appeal to a magistrate is final (sS23C(12) and 23N(8)).

14. The preceding survey of the statutory provisions reveals:

1 The Minister's discretion is completely unfettered unless

there is a hazard to navigation. No doubt, concerns such as

pollution, noise, unsightliness, traffic density, economic

viability and so on may, if appropriate in any case, be

taken into account by the Minister in the exercise of his

discretion.

2 No doubt, in many cases, taking into account matters of

that sort will result in the imposition of conditions and

restrictions. Indeed, in the instant case, cls2(p) and (r)

of the permit are examples of this. By them the holders of

the permit covenant that:

"(p) the Marine Farmer shall not or suffer to be done on the

said area anything which may be or become a nuisance to the

Minister or to the neighbourhood.

(r) the Marine Farmer shall ensure that noise from

operations associated with any marine farming undertaken

within the area to which the permit relates complies with

any directive from the Director of Sea Fisheries who shall

take advice from the Director of Environmental Control."

3 The Act is silent with respect to the nature of the appeal

to a magistrate. In Ex parte Australian Sporting Car Club

Ltd; re Dash and Anor (1947) 47 SR(NSW) 283, Jordan CJ (with

whose reasons for judgment the other members of the court

agreed) said at 283: "The word 'appeal' may be used in two

connections. It may refer to an appeal from one judicial

tribunal to another; such an appeal may be an appeal stricto

sensu or an appeal by way of rehearing, in which latter case

the jurisdiction exercised by the appellant tribunal is in

part original; or the word may refer to an appeal from an

executive authority to some other executive authority or to

a court. If such appeal is to a court, the jurisdiction

which it exercises is not appellate but original; Federal

Commissioner of Taxation v Munroe [1926] HCA 58; (1926) 38 CLR 153 at 181;

McGaughey v Commissioner of Stamp Duties (1945) 46 SR(NSW)

192 at 207."

15. See also Builders' Licensing Board v Sperway Constructions (Sydney) Pty Ltd and Anor [1976] HCA 62; (1976) 135 CLR 616; Turnbull v New South Wales Medical Board (1976) 2 NSWLR 281. The word "appeal" has no fixed meaning. It is "a term loosely employed to denote a number of different litigious processes which have few unifying characteristics" per Glass JA in Turnbull's case (supra) at 297. The nature and scope of the jurisdiction of any tribunal charged with statutory authority to hear and determine an appeal, depends upon the intention of the legislature in each case. See Clarke and Walker Pty Ltd v Secretary Department of Industrial Relations and Anor (1985) 3 NSWLR 685; Builders' Licensing Board v Sperway Constructions Pty Ltd (supra). These matters were considered by the Full Court of this Court in Sandy Bay Developments Pty Ltd v Loring and Anor 1/1991. As in the case of the Fisheries Act, s23C, the Local Government Act, s733C prescribes neither the nature nor the scope of the functions of the appeal tribunal. As is the case in appeals to a magistrate under the Fisheries Act where, in effect, the decision of the magistrate becomes the decision of the Minister, the decision of the Planning Appeal Board becomes the decision of the council under the Local Government Act. The reasoning of the Full Court in Loring's case is apposite to the appeal provisions of the Fisheries Act. The hearing before the magistrate is a hearing de novo, but this does not mean that in every case the magistrate is necessarily required to canvas every issue the Minister canvassed. It will be sufficient if the magistrate canvasses those matters properly put before him or her by the objectors and any other matter that he or she considers relevant to enable there to be a proper review of the Minister's decision in the light of the matters that the objectors were entitled to require the magistrate to take into account. In this sense, the magistrate exercises the same discretion as the Minister.

16. The learned magistrate appears to have taken a similar view of the nature and scope of his jurisdiction when he said:

"The appeal process set out in s23(c) (sic) does not allow a

complete rehearing, that is a rerun of the application from

the initial filing of the initiating application to the

granting of the permit. It only allows for a decision to be

made relevant to the objections made pursuant to s18."

17. Identification of the matters that a magistrate is obliged to take into account in the proper exercise of the statutory jurisdiction, was the subject of dispute on the return of the order nisi. For the prosecutor it was submitted that a magistrate was required to take into account any matter relevant to the impact the proposed farm may have, including general environmental affect, that a person who had objected to the Minister and subsequently appealed against his decision, wished to put forward. The learned magistrate took a different view. He concluded that in the case of each appellant the only question was whether, in the words of s18C(3)(b), the appellant's "livelihood or the use of the waters to which the application relates will be adversely affected by the granting of the application." Counsel for Mr and Mrs Cameron submitted that this approach was the correct one. The learned magistrate said:

"The clear intention of the Act , I believe, is to give the

Minister wide powers when determining whether to grant or

refuse any application. It limits the rights of those who

may object both as to who may object and the grounds of

those objections and limits the powers of the magistrate

when dealing with an appeal. For example, an objector

cannot object to the viability of the proposed development

and could not do so now".

18. If the earlier analysis of the nature, scope and function of an appeal is correct, it follows that the magistrate is required to consider the same matters that the Minister was required by the Act, s19(1)(b), to consider before determining the application. They are the "objections lodged in accordance with s18", limited in the case of the magistrate, to those that are before him on the appeal. Whether an objection has been lodged in accordance with that section will depend in part, upon the nature of the application made to the Minister. Standing to object, conferred by s18(1), (2) and (3), is defined by reference to the application. Of course, any one can object to the Minister. Statutory authority is not required for that. It is an incident of democracy. However, the Minister is only required to consider those objections that were lodged in accordance with s18. The categories of persons whose objections the Minister is required to consider are those set out in s18(2)(a)-(d) in the case of "objection to the granting of an application for a lease" and those set out in s18(3)(a) and (b) in the case of "objection to the granting of an application for a permit or re-seeding lease." Thus, standing to object is determined by the nature of the application to the Minister. Neither the application nor the objections were among the material before me on the return of the order nisi, but it appears from the reasons of the learned magistrate that he may have thought that standing was determined by reference to the interest granted on the application and not the interest applied for in the first place. It is necessary to look at some of the factual material that was before this Court.

19. The learned magistrate found that the application to the Minister was "for a lease or permit" although "(t)he form in its body had the word 'permit' deleted". Consequently, the Minister was required to consider objections lodged within the prescribed time by persons described in s18(2) and (3), and the learned magistrate was required to determine an appeal by any such persons.

20. The application was advertised in the Mercury newspaper on 5 May 1990 and thirty-seven objections were received. They were based on residential land use, tourism, environmental impact and so on. The material before me is insufficient to identify the standing of any of those objectors. There followed a period during which negotiations took place between the objectors, the applicants and officers of the Department of Primary Industry. In result, the applicants agreed to change the area to which the application related and the new area was advertised in the Mercury newspaper on 26 January 1991. According to a report from the secretary of the Department of Primary Industry to the Minister dated 26 April 1991 which is annexed to the reasons for judgment of the learned magistrate, twenty objections were received following this advertisement, ten of which were from previous objectors. With respect to this report the learned magistrate said that it "sets out basically the history of the application leading to the approval and sets out the Department's views." The report refers in some detail to three of the objectors namely, Dr Margaret Scott, Mr Robert Walter and Ms Penny Wissler. With respect to these three, the secretary said that they claimed a threat to their livelihood resulting from the proposal. The Secretary said that the first, Dr Margaret Scott was a writer whose residence overlooked the proposed farm from a distance of approximately two kilometres. With respect to the others the secretary wrote this:

"The other objectors, Mr Robert Walter and Ms Penny Wissler

have owned the land adjoining the proposal for 11 years.

Their livelihood is earned from conducting mediation

retreats ... workshops involve the observation of complete

silence for much of the time ... their dwellings are located

approximately 100 metres from the shore adjacent to the

proposal at the northern end of Deer Point ... Their

objection is based on the detrimental impact of noise from

the operation of the marine farm and the visual impact of

the farm. The movement of boats to and from the site are of

particular concern to the objectors. ... Due to the nature

of their occupation, the proposed marine farm would have a

major impact on the livelihood of Mr Walter and Ms Wissler

and the objection is likely to have validity in the case of

an appeal. ... My recommendation aims to reduce the impact

of the proposal in those terms and addresses the specific

concerns together with the general concerns raised by the

other objectors."

21. There follow recommendations concerning the imposition of conditions on the grant of "the application". The Minister granted a marine permit subject to a number of conditions. Eleven of the objectors appealed to a magistrate against the granting of the application. They included Dr Scott, Mr Walter and Ms Wissler as well as the prosecutor, Mr Ridler.

22. If, as appears to be the case from the report of the Secretary, two of the appellants had standing as owners and/or occupiers of "land adjoining the area to be leased," on any interpretation of the legislation, such objectors/appellants should not have been confined to the issue of whether their "livelihood or use of the waters to which the application relates will be adversely affected by the granting of the application." The limited nature of the material before me does not permit me to determine that any objector/appellant was the owner/occupier of land adjoining the area to be leased as described in the application. Even if there were objectors/appellants who owned or occupied adjoining land, there remains the question of what grounds of objection the Minister, and consequently the magistrate, were required to consider in accordance with s19(b) in the case of the former, and s23C(8) in the case of the latter.

23. The learned magistrate held that in each case he was only required to consider whether, the livelihood of an appellant or his or her use of the waters will be adversely affected by the grant of a permit. In his reasons for judgment the learned magistrate referred to a decision by Magistrate Hannon (as he then was), a decision by the Chief Magistrate and an article by former Magistrate Hannon published in Environmental and Planning Law Journal (1988) vol 5, 283 at 287 et seq all to the same effect. With great respect to those who hold the contrary view, I have reached the conclusion that the opinions expressed in those judgments and that article are in error. In Gould and Ors v The Minister and Anor Hannon, 10 May 1984, the learned magistrate (as he then was) referred at 3 to the distinction between the persons who could object to the grant of an application for a lease and those who could object to the grant of an application for a permit and said:

"In my opinion Section 18(3) not only restricts the class of

persons who may object to the granting of an application for

a permit but also limits the grounds upon which such

objection must be based. Not only must an objector claim

that his livelihood or use of the waters will be adversely

affected if the permit is granted, he must establish

affirmatively that the granting of the application will have

that adverse affect"

24. No reasoning accompanied the above statement. On 15 May 1987, the Chief Magistrate handed down his decisions in Melrose v The Minister and Cole and Anor v the Minister. In both cases the learned magistrate said at 3:

" It is my view that Section 18(3), by its terms, restricts

the class of persons who may object to the granting of an

application for a permit. I am fortified in my views by the

decision of Magistrate M A Hannon in Gould and Ors v The

Minister and Anor." (There follows a passage from the judgment

in Gould part of which is quoted above)

25. The former Magistrate Hannon wrote in the Environmental and Planning Law Journal (supra) at 288:

"The two noticeable groups who may object to the granting of

a lease but not a permit are the municipal council and

owners or occupiers of land adjoining the lease area. The

reason for this distinction is not immediately apparent."

26. With respect to the learned author, I think the difference is apparent from the provisions of s15(3) which provide that, without limiting the Minister's discretion, if the application relates to shallow waters under which substantial use of the sea bed will be made, a lease is the appropriate instrument. Where the application relates to deeper waters and it is intended to conduct the farm from rafts or similar floating structures, a permit is the appropriate instrument to be granted. In short, although the Minister has a discretion, a lease will be granted if the farm is to be close in shore and conducted from stakes, piers and the like, driven into the sea bed and a permit will be granted if the operation is to be conducted some distance from the shore, in deeper water, from floating rafts and the like. In both cases, the proposed operation may be a legitimate concern of the relevant marine board and a person who claims that his or her use of the water will be adversely affected by the grant of either a lease, a re-seeding lease or a permit. However, the interests of the local municipality and a person owning or occupying adjoining land are likely to be affected only in the case of an operation proposed to be conducted close to shore using structures built on the sea bed.

27. No express words limit the matters that a qualified objector can urge upon the Minister, nor is there any reason to infer such a limit. Prescription of qualification may have been thought necessary to exclude the exhortations of environmental associations and others not having an immediate tangible proximate interest in the proposed development, but there is no statutory warrant for concluding that qualification for objection also delimits the grounds of objection. Such construction would be meaningless in the case of a marine board, municipal council and person owning or occupying adjoining land.

28. A marine board, by virtue of the Marine Act 1976, s15 has jurisdiction one nautical league seaward from low water mark. That section extends jurisdiction to include the waters beneath and beside any wharf controlled by a person other than the relevant marine board. Those facts, a qualification for making an objection to the Minister, are not a reason for not granting a lease, a re-seeding lease or a permit or for imposing some condition or restriction. The relevant board is entitled to urge upon the Minister any matter of objection that it considers relevant and cogent and which is within the scope of its powers and duties set out in the Marine Act, ss64 and 65. The same proposition applies to a relevant Municipal Council. In this case, standing to object is confined to applications for the grant of a lease. The Council may have a legitimate interest in a proposal which involves the construction of facilities on the sea bed close to the shore. Planning and environmental concerns may, in an appropriate case, give rise to legitimate grounds for objection. Similarly, in the case of an application for the grant of a lease, other than a re-seeding lease (which I infer, is generally unlikely to involve significant construction of fixtures to the sea bed) an adjoining land owner or occupier is given status to object obviously because the proposal may affect the use and enjoyment of their land. In all the cases so far mentioned, qualification for lodging an objection does not define the grounds of objection. In each such case the statute is silent with respect to this. Accordingly, there is no reason to restrict them. Obviously, the weight that will be attached to each ground urged, will depend on the proximate affect on the objector of the matter referred to in the ground. Is the position any different in the case of a person qualified to object by virtue of s18(2)(d) and (3)(b)? I think not.

29. Counsel referred to Stow v Mineral Holdings [1979] HCA 30; (1976-1977) 14 ALR 397. This case concerned the Mining Act 1929-1958 (Tas) and in particular, the statutory provisions relating to the grant of a special prospector's licence and an exploration licence. Sections 15A and 15B respectively empowered the Minister to grant a special prospector's licence and an exploration licence. Section 15C(3) gave a person who claimed any estate or interest in the relevant land a right to "object to the granting of the application". Subsection (4) provided that an objection "shall be heard and determined by the Warden". No grounds for objection were prescribed by the statute. The principal issue in the High Court was the meaning of "an estate or interest," but consideration was given to the nature of the hearing before the Warden. The majority, Stephen, Mason (as he then was) and Aickin JJ, concluded that it was not the Warden's task to decide whether or not the application ought to be granted. His jurisdiction was confined to determining whether or not the objector had an estate or interest in land as claimed. Counsel for Mr and Mrs Cameron submitted that the reasoning of the majority of the High Court in Stow's case was applicable to the relevant provisions in the Fisheries Act. I reject that submission. Central to the reasoning of the majority in Stow's case was the statutory scheme which gave the Minister the sole right to grant or refuse the licence sought. The Warden was not given any discretion with respect to the grant or refusal of the licence. Aickin J said at 418:

"There is, in my opinion, no doubt that (the Warden's)

function is not to make recommendations or express

non-binding comments. It is also clear that he is not

concerned with any question of discretion or the general

"merits" of the objection or of the application but only

with the legal basis of the application and the objections.

To take any other view is, in my opinion, to destroy the

statutory scheme and to make proceedings before the Warden

on objections to the grant of a special prospector's

licences or mining leases a solemn farce with no

significance whatever."

30. The Fisheries Act, s23C(8) evidences a statutory scheme quite different from that considered in Stow's case. Under the relevant provisions of the Fisheries Act the magistrate is clearly obliged to exercise precisely the same discretion as the Minister exercised in the first place with respect to the grant or refusal of the application and accordingly, is very much concerned with the general "merits" of the objection.

31. Section 18(4) provides that the Minister shall not consider any objection unless it "specifies the ground for objection." This subsection governs, without discrimination, all objections lodged by a person, marine board or council, qualified to object. It is open to the interpretation that "grounds for objection" is a reference to the bases tendered in opposition to the application being granted. However, as failure to specify the ground prevents the Minister considering the objection, I think it is likely that Parliament intended "grounds for objection" to refer to the qualification for lodging an objection.

32. There is nothing on the face of the statute to indicate that persons who acquire standing by virtue of s18(2)(d) and (3)(b) are to be treated any differently from those who acquire standing by virtue of s18(2)(a)-(c) and 18(3)(a). Both are simply given an unqualified right to object. It is to be noted that the standing conferred by subs(3)(b) is wider than that conferred by subs(2)(d). In the case of the former, a claim of adverse affect on livelihood will confer standing even though such livelihood does not involve use of the waters that are the subject matter of the application. The reason for the distinction is hard to see even though it may be inferred that livelihood is less likely to be affected by a close inshore operation than by one that is conducted in deeper waters to which fishing boats may want access. If the learned magistrate's construction of the relevant provisions is correct, the word "claims" is otiose in the case of objectors qualified to object by subss(2)(d) and (3)(b). If Parliament's intention was that attributed to it by the learned magistrate, it is likely to have expressed it in words such as, "persons who may suffer an adverse affect on their livelihood or on their use of the waters may object on that ground," and thus distinguish objectors under those two paragraphs from all the others.

33. Having regard to the purpose of the relevant part of the Act, as appears from the words used and the subject matter, I conclude that standing, pursuant to subss(2)(d) and (3)(b), is conferred upon those persons who establish that they have a bona fide claim that they will suffer one or more of the prescribed affects if the application is granted. It is not necessary for such persons to establish that they will suffer such an affect if the application is granted in order to entitle them to be heard by the Minister and, in the case of an appeal, by the magistrate. Once standing is established or, in the words of s18(4), the ground for the objection is made out, the Minister, and consequently the magistrate is obliged to consider any relevant matter put forward against the granting of the application. There is nothing radical in this construction of the statutory provisions. Planning legislation has long recognised that the public has a legitimate interest in the development of land and has conferred on its members rights to be heard before approval is given for development. See for example, the Local Government Act, s733A et seq. The standing conferred by s733B of that Act is much wider than that conferred by the Fisheries Act.

34. On the material before me then, I conclude that the learned magistrate misconstrued the nature and scope of his jurisdiction, on the basis that he held that his inquiry was limited in the case of each appellant to the question of whether his or her livelihood or use of the waters would be adversely affected by the issue of a permit.

35. On behalf of Mr and Mrs Cameron it was submitted that even if there had been jurisdictional error, the court should exercise its discretion against the prosecutor and not make the order sought. The learned magistrate handed down his decision on 9 October 1992. The licence fees for the permit were paid on 2 March 1993 and the application for the order nisi was filed on 20 May 1993. On behalf of Mr and Mrs Cameron it was submitted that the delay in taking these proceedings and the expense they have incurred following the magistrate's decision in their favour, make it unjust to grant the relief sought.

36. There is no question in this case of the prosecutor acquiescing in the impugned decision. Five days after the decision was delivered, the prosecutor commenced an exchange of correspondence with the Minister for Primary Industry, the Minister for the Environment and the Ombudsman all in an attempt to stop the grant of a permit, to use his word, "administratively." The prosecutor explained that he took this course rather than commence these proceedings because he was concerned about incurring legal costs especially after being involved in a 30 day hearing before the learned magistrate. So this is not a case of acquiescence in the decision or "lying by" after the decision. See R v Magistrate's Court at Lilydale; ex parte Ciccone [1973] VicRp 10; (1973) VR 122 at 134.

37. Early this year, Mr and Mrs Cameron or their company, commenced the production of 3 million seed oysters for the new farm and before me it was claimed that the delay attendant on the grant of an order absolute would result in the loss of this asset worth a very considerable amount of money. However, the cross-examination of Mr Cameron leaves me satisfied that most, if not all, of these oysters can be developed on other farms operated by the Camerons, albeit at the risk of some short term over-crowding. Mr Cameron also claimed than not inconsiderable sums had been spent on the acquisition of ropes, buoys and other equipment for the new farm but I am satisfied that virtually all of this equipment can be used on other farms if necessary.

38. In summary, the order should be made absolute unless Mr and Mrs Cameron can show that, having regard to the events that have transpired between the magistrate's decision and the application for the order nisi, they will suffer unreasonable prejudice by the making of an order absolute. I appreciate that delay itself causes prejudice and no doubt in this case, great frustration. The other side of the coin is that the prosecutor is entitled to have his appeal heard in accordance with law and I have held that this was not done. I am not persuaded that the delay and attendant financial loss that the Camerons have suffered by reason of the delay in taking these proceedings is such that it warrants the exercise of the judicial discretion against the prosecutor.

39. The order nisi will be made absolute. I will hear Counsel with respect to its terms.