Scharer v State of New South Wales

Court of Appeal (NSW)|2001-09-11|Before: Stein JA, Hodgson JA, Santow J, Per Stein JA

CITATION : Scharer v State of New South Wales [2001] NSWCA 360 FILE NUMBER(S) : CA 40919/00 HEARING DATE(S) : 11 September 2001 JUDGMENT DATE : 10 October 2001

PARTIES : Geoffrey Francis Scharer - Claimant State of New South Wales - Opponent JUDGMENT OF : Stein JA at 1; Hodgson JA at 56; Davies AJA at 62

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT ED 4143/99 FILE NUMBER(S) : LOWER COURT Santow J JUDICIAL OFFICER :

COUNSEL : J M Ireland QC - Claimant B J Preston SC/M P Cleary - Opponent SOLICITORS : Eddy & Moloney, Paddington - Claimant Vivienne Ingram, Solicitor for the National Parks and Wildlife Service - Opponent CATCHWORDS : ENVIRONMENTAL LAW - s 153 National Parks and Wildlife Act - easement - deeming provision - PROCEDURE - jurisdiction - transfer of proceedings - Land and Environment Court - Supreme Court - whether a right conferred by planning or environmental law - whether damages claim within jurisdiction Land and Environment Court - declaratory, injunctive relief sought - whether damages issue ancillary - PROPERTY LAW - easement - transfer upon sale - REMEDIES - judicial review of administrative decisions - ADJR Act - whether damages a remedy in judicial review proceedings - D Administrative Decisions (Judicial Review) Act 1977 (Cth) Conveyancing Act 1919 Forestry Act 1916 LEGISLATION CITED : Land Acquisition (Just Terms Compensation) Act 1991 Land and Environment Court Act 1979 National Parks and Wildlife Act 1967 National Parks and Wildlife Act 1974 General Newspapers Pty Limited v Telstra Corporation (1993) 45 FCR 164 National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 CASES CITED: Nix and Dunn v Pittwater Council (1994) 84 LGERA 199 Packham v Minister for the Environment (1993) 31 NSWLR 65 Park Oh Ho v Minister for Immigration & Ethnic Affairs (1998) 81 ALR 288; (1989) 167 CLR 637 Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 DECISION : 1. Appeal dismissed with costs. 2. Orders 1 and 3 of Santow J confirmed. 3. Leave revoked.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40919/00 ED 4143/99 STEIN JA HODGSON JA DAVIES AJA

Wednesday, 10 October 2001 SCHARER v STATE OF NEW SOUTH WALES The appellant commenced proceedings in the Equity Division of the Supreme Court, claiming an enforceable right of way over an access road from his land, an in-holding, through the Nattai National Park. It was contended that the right of access was acquired by way of transfer when the appellant acquired the property in 1973. It was alleged that in 1998 the National Parks and Wildlife Service erected locked barriers on the access road, preventing the appellant from having free access to his land. The appellant sought declaratory, injunctive and pecuniary relief. The respondent sought an order that the proceedings be transferred to the Land and Environment Court. This motion was upheld by Santow J. The appellant seeks leave to appeal, and maintains that the Supreme Court has jurisdiction to determine the proceedings.

Per Stein JA (Hodgson JA agreeing):

When the lands became reserved as part of a National Park, s 153(3) of the National Parks and Wildlife Act 1974 (the Act) operated upon any pre-existing easement. Any such right of way that was in force prior to the reservation of the lands continued in force and by statutory fiction was deemed to have been granted under the Act.
The provisions of the Act governing easements are to be contrasted with those regarding leases and licences. Easements are not included in the list of 'existing interests'. The existence of s 153(3) and (4) negate any implication that easement can be read into 'authority' or 'authorisation' in s 39 of the Act.
The deeming fiction makes any pre-existing right of way an easement granted under the Act, but one which continues on its existing terms and conditions.
The deeming provision in s 153(3) of the Act changes the source of power for the easement from one arising at law or equity to one conferred by statute. It does not mean that the right holder cannot enforce it, merely that the enforcement of such right is by reason of s 20(2)(a) of the Land and Environment Court Act within the exclusive jurisdiction of the Land and Environment Court.
The deeming provision was deliberately included in s 153(3) and to construe the section in a manner which preserves the original source of the easement would be deny the provision any work. The legislature deliberately treated leases and easements in a different fashion.
The 'right' can now only be derived from s 153 of Act and not independently at law or equity.
The claim for damages is also part of the enforcement of the same right. The Land and Environment Court is not deprived of jurisdiction by National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573. Further, the damages issue is clearly ancillary to the existence of the right and its enforcement by declaratory or injunctive relief and can be addressed by the Land and Environment Court by virtue of s 16(1A) of the Land and Environment Court Act 1979.
Section 72 of the Land and Environment Court Act 1979 does not include a discretion by which a matter which involves issues with the exclusive jurisdiction of the Land and Environment Court and those within the jurisdiction of the Supreme Court can remain in the Supreme Court in the interests of expediency. Where a matter is within the exclusive jurisdiction of the Land and Environment Court then the Supreme Court will form the opinion that it 'could or should' have been commenced in the Land and Environment Court.

The argument that an easement or lease granted under the Act is a right conferred not by the Act but by the Minister pursuant to a power granted by the Act, thereby allowing an action for rent to be brought in the Supreme Court, must be considered in light of the principle that the power conferred upon the Minister by ss 151 and 153 of the Act can only be exercised for a purpose which promotes or is ancillary to the use of the land as a public park. The principle is relevant to questions concerning the validity and construction of purported grants. It is consistent with the purpose of the Land and Environment Court that such questions be determined by it. Therefore, rights and liabilities imposed by ss 151 or 153 are rights and obligations conferred by the Act, within the meaning of s 20(2)(a) of the Land and Environment Court Act.

Per Davies AJA (dissenting):

The terms of the Land and Environment Court Act appear to be wide enough to empower the Court to award damages where the jurisdiction of the Court encompasses such a claim.
The words of s 20(2)(a) of the Land and Environment Court Act reflect the concept behind the definition of a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies as found in s 3. In determining whether s 3 of the Administrative Decisions (Judicial Review) Act applies the crucial issue is whether the enactment under which a decision has been made played a relevant part in affecting or effecting rights or obligations. The words 'conferred or imposed by' in s 20(2) convey the same concept and the section is concerned principally with proceedings in the nature of judicial review proceedings. National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 per Kirby P at 586 applied.
Proceedings seeking judicial review of administrative decisions do not ordinarily encompass a claim for damages. There have been no cases under the Administrative Decisions (Judicial Review) Act in which damages have been awarded.
Section 153(3) of the National Parks and Wildlife Act specifically provides that an easement 'shall continue in force'. The deeming provision gives no further or additional force to the easement. The easement is not a new creation dependent upon the force and effect of the statute. The intent of the legislation was that existing interests would continue in force and the concluding words of s 153(3) merely subjects the easement to the future exercise of powers under the National Parks and Wildlife Act.

Orders:

Appeal dismissed with costs.
Orders 1 and 3 of Santow J confirmed.
Leave granted in order 2 of Santow J set aside.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40919/00 ED 4143/99 STEIN JA HODGSON JA DAVIES AJA

Wednesday, 10 October 2001 SCHARER v STATE OF NEW SOUTH WALES Judgment 1 STEIN JA: Introduction 2 This case concerns the extent of the exclusive jurisdiction vested in the Land and Environment Court. 3 The appellant, Geoffrey Francis Scharer, commenced proceedings in the Equity Division of the Supreme Court. In his Statement of Claim dated 26 June 2000 Mr Scharer claimed to have an enforceable right of way over an access road through the Nattai National Park from his land, which is an in-holding. The property had been acquired by the appellant in 1973 from a Mr Miller. It was alleged that, at the time of conveyance, Mr Miller had an enforceable right against the Crown to use the access road and that the appellant had acquired that right on transfer. The Statement of Claim alleged that in 1998 the National Parks and Wildlife Service erected barriers over the access road, with locked gates which prevented the appellant having free access to his land. This, so it was alleged, constituted a trespass which caused the appellant to suffer damage. 4 Leaving aside costs, the following orders were sought: A. A DECLARATION that the plaintiff is entitled to a perpetual and general right of way for the benefit of himself, his executors, administrators, assigns, successors in title, tenants, sub-tenants, occupants, licensees and al other persons entitled to use or go from the plaintiff's land identified in paragraph 1 of this statement of claim over that part of Crown land, being the track marked in yellow on the Composite Map which comprises Exhibit EBM-1 to the affidavit of Eric Bly Miller filed in these proceedings. B. AN ORDER that the defendant be restrained by itself its servants or agents from obstructing the said right of way. C. AN ORDER that the defendant within seven days furnish the plaintiff with a key to the locks securing the two gates constructed across the said right of way. D. AN ORDER that it be referred to the Master to enquire into and to certify the damages suffered by the plaintiff as a consequence of the actions of the defendant in obstructing the said right of way and an order that the defendant pay to the plaintiff within 14 days the sum so certified. 5 The respondent moved the Court seeking an order that the proceedings be transferred to the Land and Environment Court pursuant to s 72 of the Land and Environment Court Act 1979 (the LEC Act). 6 The motion was upheld by Santow J on 25 October 2000 who ordered that the proceedings be so transferred. 7 With the leave of the Court, granted at the hearing, the appellant maintains that his Honour was in error and that the Supreme Court has jurisdiction to hear and determine the proceedings. The judgment of Santow J 8 Central to Santow J's decision was s 153(3) of the National Parks and Wildlife Act 1974 (the NPW Act). It provides as follows: (3) Any easement or right of way over lands in a national park, historic site, state recreation area or regional park reserved under this Act, which was in force immediately before the lands were reserved as, or as part of, the park, site or area, as the case may be, shall continue in force and shall be deemed to have been granted under this section. [emphasis added] 9 His Honour had already set forth s 153(1) of the NPW Act, which gives the Minister the power to grant easements or rights of way through national parks for the purpose of providing access. 10 His Honour said: 9. The effect of s153(1) of the National Parks and Wildlife Act would in the case of an actual Ministerial grant of a right-of-way, be clear enough. Depending as it does not on a deeming provision but on an actual grant of a right-of-way by the Minister, there could be no doubt that the privative provisions of s71 read with s20 of the Act would vest exclusive jurisdiction in the Land and Environment Court. 10. In those circumstances such a "right" would be "conferred" by a "planning or environment law" within s20(2)(a). It would be clearly capable of being made the subject of a declaration of right as well as enforcement of that right, leaving aside the question of damages, exclusively in the Land and Environment Court. 11 However, did the statutory fiction, deeming the grant to be made under the section, take it outside s 71 as defined by s 20(2)(a) and (c) of the LEC Act? His Honour found that it did not. 12 The appellant argued before Santow J that the Land and Environment Court had no power to award damages, relying on National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573, and that this was a strong countervailing consideration in any decision to transfer the matter to the Land and Environment Court. 13 Of this submission his Honour said: 15. While the apparent inability of the Land and Environment Court to award damages were it to have exclusive jurisdiction, is an argumentum ab inconventi, it is not to my mind the kind of ambiguity which would deprive the otherwise express words of their effect. Those express words I believe inescapably drive one to the conclusion that the expression "conferred" in s20(2) of the Act include the situation where a right is deemed to be conferred by a planning or environmental law, even if it be the case that the pre-existing right is not entirely subsumed by s153(3) but continues to exist also in some parallel or inchoate form. However, I prefer the view that the right is entirely subsumed, consistent with the mandatory language of s153(3) (" any easement or right of way" " shall be deemed to have been granted under this section" and the creation of the statutory fiction by the word 'deemed'). The opposite construction has its own problems including the deprivation of a specialist court of a matter which must be central to its expertise, namely the adjudication of rights-of-way in National Parks. It would create an anomalous situation between pre-existing rights-of-way which, on the Plaintiff's construction, were outside that exclusive jurisdiction. Also by a similar logic it would anomalously preserve from revocation or variation such pre-existing grants, notwithstanding s153(2) of the National Parks and Wildlife Act. 14 Finally, his Honour said that s 72 of the LEC Act gave him a discretion as to whether to transfer proceedings to the Land and Environment Court. Therefore, if his conclusion as to the exclusive jurisdiction of the Land and Environment Court over the proceedings was incorrect, he would exercise the discretion to transfer the proceedings.

Submissions on appeal 15 Senior Counsel for the appellant submitted that the deeming provision in s 153(3) of the NPW Act did not mean that the asserted easement was within s 20(2) of the LEC Act. He submitted that it was not a claim to enforce a right conferred or imposed by a planning and environmental law. Further, the claim for damages was not within the jurisdiction of the Land and Environment Court and, accordingly, the proceedings was not one which could or should have been commenced in that Court. 16 The respondent submitted that the alleged right of way is deemed to have been granted under the NPW Act (s 153(3)). The respondent noted that the appellant seeks declaratory, injunctive and pecuniary relief in relation to the alleged right of way. The NPW Act is a planning and environmental law for the purposes of s 20(2) of the LEC Act (see s 20(3)). By reason of ss 20(2) (a) and (c) and 71 of the LEC Act, the jurisdiction to enforce or make declarations in relation to any right of way conferred by a planning and environmental law is exclusive to the Land and Environment Court. 17 The respondent does not concede that the Land and Environment Court lacks the power to award damages in this case. On its behalf, Mr Preston SC also points to s 16(1A) of the LEC Act, not referred to before Santow J. Even if the Land and Environment Court lacks jurisdiction to award damages, the respondent argues that Santow J was correct to transfer the proceedings since the claim for damages was entirely dependant on and subsidiary to establishing the right of way and that is a matter within the exclusive jurisdiction of the Land and Environment Court. Finally, the respondent relies upon the independent basis for his Honour's orders, as a matter of discretion.

The Legislation 18 The starting point is s 71 of the LEC Act, which relevantly provides that proceedings of the kind referred to in s 20(1)(e) may not be commenced or entertained in the Supreme Court. 19 Section 20(1)(e) refers to proceedings referred to in s 20(2). This provision relevantly provides: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law, … … (c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, … 20 Section 20(3) lists 'planning and environmental' laws. The list includes the NPW Act. 21 Section 72 provides for the transfer of proceedings from the Supreme Court to the Land and Environment Court. It is in the following terms: Where the Supreme Court is of opinion that any proceedings commenced or purporting to have been commenced in the Supreme Court could or should have been commenced in the Court, the Supreme Court may, on the application of any party or, of its own motion, order that those proceedings be transferred to the Court. 22 Turning to the NPW Act, I have already set out s 153(3) but is important to reproduce the whole of the provision. Section 153, to be found within Part 12, provides: 153 Easements (1) The Minister may upon such terms and conditions as the Minister thinks fit grant for joint or several use easements or rights of way through, upon or in a national park, historic site, state recreation area, regional park, nature reserve, state game reserve or karst conservation reserve for the purpose of providing access to any ara included in any lease or licence within the park, site, area or reserve, or for the construction of pipelines, or for the erection of standards, posts, wires and appliances for the conveyance or transmission of electricity, or for any other purpose deemed necessary. (2) The Minister may from time to time revoke or vary any grant under this section. (3) Any easement or right of way over lands in a national park, historic site, state recreation area or regional park reserved under this Act, which was in force immediately before the lands were reserved as, or as part of, the park, site or area, as the case may be, shall continue in force and shall be deemed to have been granted under this section. (4) Any easement or right of way over lands in a nature reserve, state game reserve or karst conservation reserve dedicated under this Act, which was in force immediately before the land was dedicated as, or as part of, the nature reserve, state game reserve or karst conservation reserve shall continue in force and shall be deemed to have been granted under this section.

Consideration 23 What is the nature of the 'right' that the appellant sought to enforce in the proceedings? It seems from the Statement of Claim, and the appellant's submissions, that it is in the nature of an equitable easement or a right to pass over land, which is alleged to have arisen prior to the gazettal of the Nattai National Park in 1991. 24 When the lands became reserved as part of the national park, s 153(3) of the NPW Act operated upon any pre-existing easement. In short, s 153(3) provides that any easement or right of way over lands in the park which was in force immediately before the lands were reserved as part of the park, 'shall continue in force'. However, the clause does not stop there but continues and says that any such right 'shall be deemed to have been granted under section'. See also ss (4) which is in like terms. That is, that it is deemed to be an easement granted by the Minister under s 153(1), ie. a fresh easement, although one not granted on such terms and conditions as the Minister thinks fit but rather continuing on the original terms and conditions. 25 Therefore, a pre-existing easement is saved and continued but, by the statutory fiction of the deeming provision, it becomes an easement granted under the NPW Act. 26 The provisions in s 153 regarding easements is to be contrasted with the provisions regarding leases and licences. New leases and licences may be granted by the Minister over lands within national parks under ss 151 and 151A. There is no equivalent provision to ss 153(3) within these provisions. The position of existing leases, licences and other prescribed 'existing interests' is dealt with by s 39 within Part 4 of the Act. The list of 'existing interests' includes leases and licences but, importantly, not easements. Nor can easements be read into the words 'authority' or 'authorisation' in s 39. The existence of s 153(3) and (4) is against any such implication, even if it were available on the wording, which I do not in any event accept. 27 Section 39(2) provides that the reservation of lands as part of a national park does not effect the terms or conditions of any existing lease, licence, permit, authority or occupancy. These interests are not deemed to have been granted under the NPW Act and, as I have said, this situation must be contrasted with s 153(3) and (4) regarding easements. The distinction must have been a deliberate one chosen by the legislature. 28 Indeed, it was a central aspect of the predecessor of the NPW Act 1974. Section 31(3) of the National Parks and Wildlife Act 1967 is framed in almost identical terms. 29 In the 2nd Reading Speech for the 1967 Act the Minister stated that: The Minister will be empowered, also, to grant revocable easements or rights of way in a national park, State park, historic site or nature reserve for any purpose deemed necessary. Any existing easement or right of way will be deemed to have been granted by the Minister and will continue in full force and effect unless subsequently revoked. [Hansard V65 1 December 1966] 30 The Minister also said: The rights of the holder of an existing authority, permit, lease, licence or occupancy within a national park, State park or historic site will not be affected by the provisions of the bill during the current term of that authority, permit, lease, licence or occupancy. 31 This provision was carried over into the current legislation. 32 Part 5 of the NPW Act concerns Plans of Management in national parks. Plans of management must be prepared for each national park (s 72). Section 81A provides that Part 5 has effect in respect of a national park that is the subject, inter alia, of an easement granted under Part 12 (s 153). This means that easements granted under s 153(1), or deemed to be granted by reason of s 153(3), will be considered and included in a plan of management. 33 Assuming that the appellant can establish the existence of the easement at the time of reservation of the national park in 1991, the question is whether he is seeking to enforce any right conferred or imposed by the NPW Act. Obviously, the original easement was not a right conferred by the NPW Act. Upon the reservation of the park the easement was 'continued in force' but was deemed to have been granted under s 153 of the NPW Act. This deeming fiction makes it an easement under the NPW Act, but one, however, which continues on its existing terms and not subject to such terms and conditions which the Minister sees fit to impose upon the granting a new easement under s 153(1). Nonetheless, it is still an easement granted (by virtue of the deeming provision) under the legislation. As such, it is a right conferred by the NPW Act and within s 20(2)(a) of the LEC Act. 34 As I have said, easements are to be contrasted with other existing interests, such as leases or licences, which are expressly preserved by the NPW Act and not deemed to have been granted under the legislation. This means, for example, that if a lessee is in default of rent under an existing lease, the lessee may be sued for such in the Supreme Court and the Land and Environment Court does not have jurisdiction to entertain such an issue. The lease is a separate instrument created under the general law and not under (or deemed to be under) the NPW Act. 35 It was submitted during argument that if a new lease was granted by the Minister under s 151 of the NPW Act, would this mean that the LEC would have exclusive jurisdiction to determine a claim for non-payment of rent? I do not think that the question needs to be answered in order to determine the matter here at issue. Nevertheless, if the answer is 'yes', so be it. If that is seen to be inconvenient, the parliament may consider an amendment. 36 As Gleeson CJ said in Nix and Dunn v Pittwater Council (1994) 84 LGERA 199 at 203: As was pointed out in National Parks & Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; 71 LGRA 286, because the Land and Environment Court was set up as a specialist tribunal to exercise a limited statutory jurisdiction, it is inevitable that cases will arise from time to time in which a matter that falls within the jurisdiction of the court will be part only of a wider dispute or series of disputes. This may, on occasion, result in multiplicity of proceedings, but there is nothing unusual about it. It is the price to be paid for what are seen as the advantages of having such tribunals. 37 The legislature had to devise a system to deal with a myriad of existing interests in land which became reserved for a national park. It was important for the future management of a park, and to the holders of those interests, that the legislation provide for what was to happen to those existing interests upon reservation of a new park. Almost all of the interests existing at the time of the gazettal of a new national park are dealt with in Part 4. These include existing interests under mining law (s 41) and under the Forestry Act 1916 (s 42). Section 39(1) defined 'existing interest' as meaning an authority, authorisation, permit, lease, licence or occupancy. Subsection (2) provides that the terms and conditions of any such existing interest were not affected by the reservation. However, no such interest may be renewed or extended except with the approval of the Minister (ss (3)). 38 Part 5 of the Act deals with plans of management for national parks and includes s 81A, which expressly includes any lease or licence granted under Part 12 (ie. new leases or licences) within a management plan. The section also includes any 'easement granted under Part 12'. The only source of grant of an easement under the Act is s 153(1). 39 Part 12 is headed 'Lease, licences, easements, etc'. Sections 151 and 151A concern the grant of leases within national parks. Section 151(1)(f) provides for the grant of licences to occupy or use lands within a national park. Section 152(1) concerns the grant of trade or business licences within a national park. Section 152(3) relates to the grant of franchises by the Minister. Subsection (4) contains a deeming provision whereby a franchise that is in force immediately before the reservation of a national park is deemed to have been granted by the Minister under the section. 40 Then follows s 153 relating to easements, as already set forth. Leaving aside s 81A (the inclusion of easements in plans of management) this is the only provision which deals with pre-existing easements and the grant of new ones. 41 What is the effect of the deeming provision in s 153(3) of the NPW Act? In my view, the respondent's submission is correct. Subsection (3) changes the source of power for the grant or existence of the easement from one arising at law or equity to one conferred by the statute. It is a transmogrification. The origin or source of the easement is changed or transformed. This does not mean that the person having the benefit of the easement cannot enforce it. To the contrary, it merely means that the enforcement of the right, by dint of the deeming, is caught by s 20(2)(a) of the LEC Act. Its enforcement is within the exclusive jurisdiction of the Land and Environment Court under s 71 of LEC Act. 42 To construe s 153(3) in a manner which preserves the original source denies any work to the words 'shall be deemed to have been granted under this section'. They were words which were clearly deliberately included. Section 153(3) does two things. It continues an existing easement or right of way but it also deems such easement to have been granted under s 153. This is a very different and deliberate treatment by the legislature between existing leases or licences and easements. Such a choice is unsurprising given the different nature of the interests. 43 In my opinion, the fact that the appellant will have to prove the original source of the right of way, in law and equity, in order to seek to enforce it, does not mean that the Land and Environment Court is deprived of exclusive jurisdiction. That proof is merely on the way to proving the continuation of the easement under the NPW Act. Once in s 153(3), it is apparent that the easement is deemed to have been granted under the legislation. The deeming, as I have said, transforms the source by the fiction, to one granted by the Minister under s 153. The policy behind s 153 is obvious when it comes to pre-existing easements as opposed to other pre-existing interests, which are dealt with in a quite different fashion. 44 Put simply, the 'right' can now only be derived from s 153 of the NPW Act and not independently at law or equity. 45 I have already set out the relief sought by the appellant in his Statement of Claim. The declaration sought comes directly within the terms of s 20(2)(c) and the restraining and mandatory injunctions within s 20(2)(a) of the LEC Act. They are plainly seeking to enforce a right conferred by a planning or environmental law.

Damages 46 This leaves for consideration the claim for damages sought in order D. In this respect, I am unable to see why it cannot be concluded that it is also part of the enforcement of the same right. Thus the Land and Environment Court would have jurisdiction. It is not deprived of jurisdiction by reason of the majority decision in Stables Perisher. The ratio of that decision (Gleeson CJ and Meagher JA) is that the Land and Environment Court does not have jurisdiction to hear a claim in tort for general damages, see 580G - 581A. In Stables the main claim in the proceedings was in negligence for general damages (see 575B-C). 47 Further, the introductory words in s 20(2) that the Land and Environment Court has the 'same civil jurisdiction as the Supreme Court would, but for section 71' must be given cognisance. If it were not for the LEC Act, the Supreme Court would undoubtedly have jurisdiction to make all of the orders sought, including damages. 48 There is a further reason why the Land and Environment Court could entertain the subject damages claim. The enactment of s 16(1A) of the LEC was the legislative response to Stables Perisher. This provides: The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. 49 Assuming for the moment that the Land and Environment Court does not have the power in these proceedings to award damages as part of the relief available to enforce the right, it seems to me that s 16(1A) fills the void. Damages are plainly ancillary to the matters which fall within jurisdiction; the existence of the right and its enforcement by injunctive orders or declaratory relief. 50 Nothing in Nix persuades me from this conclusion. Nix was decided in the Land and Environment Court as a matter of discretion, which the Court of Appeal held was open to the trial judge. In obiter Gleeson CJ indicated that the claim based in nuisance sought to be filed as a cross-claim in the Land and Environment Court, could not reasonably be regarded as ancillary. That conclusion is understandable when one examines the facts involved in Nix. They are a far cry from the present situation. 51 Here the damages issue can plainly be seen as 'ancillary', or, to use the words of Gleeson CJ, as 'incidental', 'accessory' or 'auxiliary', (Nix at 205). In NTL Australia Pty Ltd v Minister for Land and Water Conservation [2001] 112 LGERA 403 at 411-413 Pearlman J comprehensively refers to the authorities on the provision. 52 It follows, in my opinion, that Santow J was correct to transfer the proceedings to the Land and Environment Court. His Honour did not need to reserve leave to the appellant to apply (in the Supreme Court) to deal with any outstanding claim for damages following adjudication in the Land and Environment Court. This was unnecessary and, on one view, not available to him.

Discretion 53 There remains the issue of whether s 72 of the LEC Act includes a discretion as found by Santow J. The respondent argues that it does and that it is a discretion to be exercised in the interests of expediency where a proceeding involves matters within the exclusive jurisdiction of the Land and Environment Court and matters which are within the jurisdiction of the Supreme Court. 54 I do not think that this construction is open or that there is any discretion in the Supreme Court under s 72. If a matter is within the exclusive jurisdiction of the Land and Environment Court by reason of s 71 and s 20(2), then the Supreme Court will form the opinion that the proceeding 'could or should' have been commenced in the Land and Environment Court. To this extent, I disagree with Santow J but it makes no difference to the result. 55 The appeal should be dismissed with costs and orders 1 and 3 of Santow J are confirmed. The leave granted in paragraph 2 should be set aside. 56 HODGSON JA: I agree with Stein JA. I would add just a few comments. 57 In my opinion, it is convenient to consider two questions relevant to the disposal of this case: (1) Would an easement granted by the Minister under s.153 of the National Parks & Wildlife Act be a "right … conferred by" the National Parks & Wildlife Act, within the meaning of s.20(2)(a) of the Land & Environment Court Act? (2) Is an easement continued by s.153(3) of the National Parks & Wildlife Act such a right? 58 It was argued in effect that an easement granted by the Minister under s.153 of the National Parks & Wildlife Act is a right conferred not by the Act, but by the Minister pursuant to a power granted by the Act. The same would apply, it was submitted, to a lease granted under s.151 of the Act, so that an action for rent under such a lease would not be enforcing a right conferred by the Act and so could be brought in the ordinary courts. 59 There is some force in that argument, but the argument must be considered in the light of the principle that the power conferred on the Minister under ss.151 and 153 can only be exercised for a purpose which promotes or is ancillary to the use of land as a public park: see Woollahra Municipal Council v. Minister for the Environment (1991) 23 NSWLR 710 and Packham v. Minister for the Environment (1993) 31 NSWLR 65. That principle is relevant to questions concerning the validity of any purported grant, the construction of any purported grant and the mode of enforcement of any rights created by such a purported grant. It is consistent with the purpose of the Land & Environment Court Act that questions of that nature be determined by the Land & Environment Court. Furthermore, it shows that the rights and obligations under such grants are dependent not on the authority of the Minister as some kind of agent for the owner of the land, but on the whole scheme created by the National Parks & Wildlife Act. Accordingly, I think the better view is that rights and liabilities arising under easements or leases granted by the Minister under s.153 or s.151 are rights and obligations conferred or imposed by the National Parks & Wildlife Act, within the meaning of s.22(2)(a) of the Land & Environment Court Act. 60 Turning to the second question which I identified, although s.153(3) makes it clear that the content of rights under an existing easement should continue as before, the basis of such rights is deemed to be a grant made under the Act, rather than the transactions or circumstances which originally gave rise to the rights. In my view, it must follow from that that all courts must treat rights of that kind in the same way as if they had been granted under the Act; and my answer to the first question means that all courts must treat such rights as being conferred by the Act so as to engage s.22(2)(a) of the Land & Environment Court Act. 61 For those reasons, in addition to those given by Stein JA, I agree with the orders that he proposes. 62 DAVIES AJA: This is an appeal by leave from an order made by Santow J on 25 October 2000 transferring proceedings from the Supreme Court to the Land and Environment Court ("the L&E Court"). 63 In the proceedings, Geoffrey Francis Scharer ("the appellant"), claimed that, in August 1973, he had acquired certain land previously owned by Eric Bly Miller. Prior to the time of the purchase, there had been constructed a dirt access road of approximately 25 kilometres in length over the surrounding Crown land. Mr Miller had sought and obtained permission to construct an access road through the Crown land to his property. He was granted permission to do so and it was represented to him that, if he constructed the access road, he would thereafter have access to his land via that road. 64 It was alleged that, at the time of the appellant's acquisition of the land, Mr Miller had an enforceable right against the Crown to use the access road and that the transfer of the land to the appellant was, by virtue of s 68 of the Conveyancing Act, 1919, effectual to pass to the appellant the right, title and interest which Mr Miller had to enforce against the Crown a right of way over the access road. 65 The appellant alleged that, in November 1998, after the proclamation of the Nattai National Park over an area which included the Crown land and the dirt access road of which I have spoken, the New South Wales National Parks and Wildlife Service erected barriers over the road with locked gates, which prevented the appellant having free access for entry to and exit from his land. The appellant claimed a declaration of an entitlement to a perpetual and general right of way, an order restraining obstruction of the right of way, an order that the appellant be furnished with a key to the locked gates and an order for damages for obstruction. Although the declaration was the first of the orders sought and although a finding of the appellant's entitlement to the right of way was necessary to his success, the practical orders sought were an injunction and damages. 66 Section 71 of the Land and Environment Court Act, 1979 ("the L&EC Act") relevantly provides that proceedings of the kind referred to in s 20(1)(e) may not be commenced or entertained in the Supreme Court. Section 20 refers to a range of proceedings under specified statutes, proceedings which appear, at least generally, to be proceedings in the nature of a review of an administrative decision or action. Thus, s 20(1)(cf) refers to proceedings under s 91H of the National Parks and Wildlife Act, 1974 ("the NPW Act"). That section provides for an appeal against the imposition of an interim protection order or any of its terms. Section 20(1)(cg) refers to s 176A of the NPW Act. That section permits a person to bring proceedings in the L&E Court for an order to remedy or restrain a breach of the NPW Act. 67 Section 20(1)(e) refers to a more general jurisdiction. It incorporates the provisions of s 20(2) which read:- "(2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract,

(b) to review, or command, the exercise of a function conferred or imposed by a planning or environmental law or a development contract,

(c) to make declarations of right in relation to any such right, obligation or duty or the exercise of any such function, and

(d) whether or not as provided by section 68 of the Supreme Court Act 1970 - to award damages for a breach of a development contract." (Emphasis Added) 68 In the fulfilment of its jurisdiction, the L&E Court has the following ancillary powers:- " 16 …

(1A) The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. 22 The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided. 23 The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate." 69 The transfer of the proceedings to the L&E Court was sought by the respondent on the ground that the proceedings were proceedings to enforce a right, obligation or duty conferred or imposed by a planning or environmental law. The relevant law was said to be the NPW Act. I shall turn to this issue shortly. 70 For the moment, I wish to mention the point that, in his judgment, Santow J expressed doubt about the power of the L&E Court to award damages. That doubt was based upon the judgment of Gleeson CJ, Kirby P and Meagher JA in National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573, upon the judgment of Kirby P and Mahoney and Sheller JJA in Packham v Minister for the Environment (1993) 31 NSWLR 65, upon the lack of any jurisdiction to award damages contained in the areas of statutory jurisdiction conferred by ss 17, 18, 19 and 20 of the L&EC Act and upon the fact that s 20(2) of that Act confers specific power to award damages for breach of a development contract. 71 On this point, I should say that the terms of the L&EC Act appear to me to be wide enough to empower the L&E Court to award damages provided that the jurisdiction of the L&E Court encompasses a claim for damages. I see nothing in the L&EC Act which excludes an entitlement to award damages, where there is appropriate jurisdiction to do so. 72 However, the issue is whether the L&E Court does have jurisdiction under s 20(2) with respect to the appellant's claim. The fact that the appellant seeks damages as part of his relief is one indication that s 20(2) does not carry the meaning which the respondent attributes to it. 73 In National Parks and Wildlife Service v Stables Perisher Pty Ltd, Kirby P said, at p 586:- "It is clear from the structure of s 20(2) of the Land and Environment Court Act that par (a) and par (b) are designed to confer on the Court the same civil jurisdiction as the Supreme Court would otherwise enjoy, to make orders in the nature of the prerogative writs. Paragraph (c) confers the same jurisdiction in respect of declarations of right. Paragraph (d) confers a most limited jurisdiction to award damages. The juxtaposition of these paragraphs makes clear the purpose of Parliament. It was to confer a jurisdiction on the Land and Environment Court to award damages; but confined to a particular class of defined cases most narrowly expressed. " 74 The above discussion as to damages correlates with the view which Kirby P expressed. Proceedings seeking a prerogative writ or other judicial review of administrative decisions and actions do not ordinarily encompass a claim for damages. I know of no case where damages have been awarded in a claim brought under the Administrative Decisions (Judicial Review) Act, 1977 (Cth) ("the ADJR Act"). At first instance and on appeal in Park Oh Ho v Minister for Immigration and Ethnic Affairs (1988) 81 ALR 288, it was held that an award of damages was not a remedy in proceedings brought by way of judicial review and was not available under s 16 of the ADJR Act. This aspect of the decision was not challenged in the appeal before the High Court of Australia ((1989) 167 CLR 637). 75 The words "right, obligation or duty conferred or imposed by a planning or environmental law" in s 20(2)(a) appear to me to reflect the concept behind the words in the definition of a "decision to which this Act applies", in s 3 of the ADJR Act, which are:- "a decision of an administrative character made, proposed to be made, or required to be made, … under an enactment …" 76 A useful examination of the operation of s 3 may be seen in General Newspapers Pty Limited v Telstra Corporation (1993) 45 FCR 164 at 170-173, where Einfeld J and I discussed relevant authorities including Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Annetts v McCann (1990) 170 CLR 596, Glasson v Parkes Rural Distributions Pty Ltd (1984) 155 CLR 234, Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 and Australian National Airlines Commission v Newman (1987) 162 CLR 466 and said, inter alia, at pp 170 and 172-173:- "Paragraphs (a), (b), (c), (d) and (e) of s 3(2) describe events which, by force of an enactment, have an effect upon legal rights and obligations. Paragraph (f) concerns the case where goods have been seized under statutory power. In this context, par (g) does not refer to any act or thing whatever, but only to an act or thing of the general character described in the preceding paragraphs. It follows, therefore, that to be subject to review under the ADJR Act, an action or refusal to act must amount to an ultimate or operative determination which an enactment authorises or requires, and thereby gives it statutory effect.

The ADJR Act is thus concerned with decisions which, being authorised or required by an enactment, are given force or effect by the enactment or by a principle of law applicable to the enactment. Issues concerning the relevant factors to be taken into account, irrelevant factors which should not be taken into account, improper purposes, and the law to be applied will be matters to be decided having regard to the provisions of the enactment under which the decision is made, and the object and purposes of that enactment. There are two authorities which may point to the contrary, Australian Capital Territory Health Authority v Berkeley Cleaning Group Pty Ltd (1985) 7 FCR 575 and James Richardson Corporation Pty Ltd v Federal Airports Corporation (1992) 117 ALR 277. In our opinion, these authorities should not be followed in preference to Australian National University v Burns [(1982) 64 FLR 166] . In the Berkeley Cleaning case, Fox, McGregor and Spender JJ referred at 577 to s 3(2) of the ADJR Act par (g) of which 'speaks generally of 'act or thing' ". Their Honours went on to say that the making of a contract necessarily inferred a decision to make it and that in that case both the contract and the decision were made under an enactment, the Health Services Act 1985 (ACT). In the James Richardson case, Cooper J followed Berkeley Cleaning . Neither of those cases gave to the term 'decision' the meaning which, in our view, it carries, namely that of an ultimate or operative determination which has force and effect by virtue of an enactment. A contract entered into by a corporation under a general power to enter into contracts is not given force and effect by the empowering statute. The empowering statute merely confers capacity to contract, whilst the validity and effect of the contract is determined by the ordinary laws of contract." 77 The issue as to whether s 3 of the ADJR Act applies in a particular case may be difficult and, on occasions, the distinctions drawn have been fine. Many of the relevant cases are discussed in General Newspapers Pty Limited v Telstra Corporation at pp 170-173. See also Aronson and Dyer's Judicial Review of Administrative Action, 2nd Edition at pp 59-64. The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient. 78 In the context of s 20(2) of the L&EC Act, the words "conferred or imposed by a planning or environmental law" convey to me a similar concept, namely, that the subsection is looking at proceedings in which the operation of a planning or environmental law plays a part in the determination of the matter in issue. This is, of course, pre-eminently the case in judicial review proceedings brought in respect of matters arising under planning or environmental laws. 79 I agree with Kirby P and consider that s 20(2) is concerned, principally at least, with proceedings in the nature of judicial review proceedings. I consider that the words "conferred or imposed" look to issues in which the operation or effect of the relevant planning or environmental law plays a relevant part. 80 Thus, for example, while s 151(1)(a) of the NPW Act empowers the Minister to grant leases of land within a National Park for the erection thereon of accommodation hotels or accommodation houses and the provision thereon of facilities and amenities for tourists and visitors, I consider that, if the Minister grants such a lease and subsequently wishes to take proceedings for arrears of rent, those proceedings should be taken in the ordinary courts having jurisdiction over the recovery of rent. In those proceedings, the laws to be applied would be the ordinary laws governing leases. The planning or environmental law, the NPW Act, would have relevance only to the extent that it empowered the Minister to grant such a lease. The position would be different if the proceedings challenged the propriety and validity of the Minister's grant of the lease. In such event, an issue in question would be the Minister's power under the NPW Act and the proceedings would seek judicial review in respect of a right, obligation or duty conferred by or imposed by a planning or environmental law.

81 In the light of the above discussion, I now turn to the precise issue in the present case. On a date which is not stated in the documents before the Court but which I assume was in 1998 or a little earlier, the Nattai National Park was proclaimed and became subject to the provisions of the NPW Act. Parliament did not intend that existing interests in the land would be abolished. No doubt, this was done to avoid an acquisition which would be subject to the Land Acquisition (Just Terms Compensation) Act, 1991. Section 39 of the NPW Act provides, inter alia:- " 39 (1) In this section, existing interest means any authority, authorisation, permit, lease, licence or occupancy.

(2) Except as provided in this Act, the reservation of lands as, or as part of, a national park or historic site does not affect: (a) the terms and conditions of any existing interest in respect of those lands from the Crown or the trustees, current and in force at the time of the reservation, or

(b) the use permitted of those lands under the interest.

(3) Subject to subsection (4), no such interest shall be renewed nor shall the term of any such interest be extended except with the approval of the Minister and subject to such conditions as the Minister determines." 82 In relation to easements, s 153 of the NPW Act provides, inter alia:- " 153 (1) The Minister may upon such terms and conditions as the Minister thinks fit grant for joint or several use easements or rights of way through, upon or in a national park, historic site, state recreation area, regional park, nature reserve, state game reserve or karst conservation reserve for the purpose of providing access to any area included in any lease or licence within the park, site, area or reserve, or for the construction of pipelines, or for the erection of standards, posts, wires and appliances for the conveyance or transmission of electricity, or for any other purpose deemed necessary.

(2) The Minister may from time to time revoke or vary any grant under this section.

(3) Any easement or right of way over lands in a national park, historic site, state recreation area or regional park reserved under this Act, which was in force immediately before the lands were reserved as, or as part of, the park, site or area, as the case may be, shall continue in force and shall be deemed to have been granted under this section." 83 The effect of these provisions is that, if the appellant establishes an easement, it will be an easement deemed to have been granted under s 153 and will be subject to the NPW Act. In particular, the easement will be subject to any plan of management. Section 81A of the NPW Act provides:- " 81A Without limiting the generality of this Part, this Part has effect:

(a) in respect of any part of a national park, historic site, nature reserve, state game reserve or karst conversation reserve that is the subject of a lease, licence or easement granted under Part 12, and (b) in respect of any part of a state recreation area or regional park that is the subject of a lease or licence granted under section 47GC or 47V or an easement granted under Part 12." 84 It should be specifically noted that s 153(3) provides that the easement "shall continue in force". My impression is that s 153(3) requires any pre-existing easement to be deemed to continue in force and to be deemed to have been validly granted by the Minister under s 153. My impression is also that s 153(2) applies and that the Minister may revoke or vary the easement. Perhaps the combined effect of a proclamation of a national park under the NPW Act and a later revocation of an existing easement would together constitute a compulsory acquisition of land. However, it is not necessary to consider this point. 85 Mr B J Preston SC, with whom Mr M Cleary of counsel appeared for the respondent, submitted that the effect of s 153(3) was to substitute a statutory easement for the pre-existing easement which took effect under the property laws of New South Wales. However, s 153(3) specifically provides that an easement shall continue in force. The deeming provision gives no further or additional force to the easement, rather it subjects the easement to the provisions of the NPW Act, the relevant provisions of which would appear to be s 81A and s 153(2). 86 I do not regard the appellant's easement, if he has one, as being a new creation dependent upon the force and effect of the statute. Such an interpretation would be inconsistent with the intent of the NPW Act as demonstrated by s 39 and by the words in s 153(3), "shall continue in force". The intent of the NPW Act is that existing interests will continue in force. The effect of the concluding words of s 153(3) is merely to subject the easement to the future exercise of powers under the NPW Act. 87 In this circumstance, it seems to me that the appellant is not seeking to enforce "any right, obligation or duty conferred or imposed by a planning or environmental law". The rights, obligations and duties which the appellant is seeking to enforce turn entirely upon the validity of the easement which Mr Miller obtained in his transactions with the appropriate authorities over the access road which ran through Crown land, the right to which easement if it existed was transferred to the appellant by the transfer in August 1973. It has not been suggested to date by the respondent that the right of way has been abolished or diminished by the operation of a relevant plan of management or that the closure of the road was an act done under statutory power. 88 Just as I consider that proceedings by the Minister seeking arrears of rent under a lease granted under s 151(1) would be brought in the ordinary courts and not in the L&E Court, so also I consider that proceedings in relation to an easement granted by the Minister under s 153(1) would be brought in the ordinary courts of the State unless a relevant issue was raised, such as an issue as to the propriety and validity of the Minister's grant of the easement having regard to his powers under the NPW Act or an issue as to the exercise or failure to exercise a statutory power. If such an issue was raised, proceedings brought by way of judicial review under s 20(2) of the L&EC Act would be appropriate. 89 As I consider that the appellant's easement is deemed by the NPW Act to have been granted by the Minister under that Act and as no issue in the proceedings concerns the Minister's powers under that Act, I am of the view that the proceedings are not of the type for which ss 20(1)(e) and 20(2) of the L&EC Act make provision. The current proceedings do not seek relief in the nature of judicial review. The proceedings seek relief under the ordinary laws of the land for obstruction of a right of way. 90 I would allow the appeal. I would set aside the orders below and I would substitute an order that the application for transfer be dismissed with costs. The respondent should pay the costs of this appeal.

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.

D Administrative Decisions (Judicial Review) Act 1977(Cth)

Health Services Act 1985(ACT)

(2001) 116 LGERA 217

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