PARTIES: TASMAN QUEST PTY LTD (ACN 006 046 457)

EVANS, Kim (SECRETARY OF THE DEPARTMENT OF PRIMARY INDUSTRIES, WATER & ENVIRONMENT)

NOLAN, Robin (IN HIS CAPACITY AS SHACK SITES COMMISSIONER)

TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Real Property - Crown lands - Tasmania - Shack sites - Determinations that shack sites should be sold to existing licensees - Matters required to be taken into account - Right of appeal by adjoining owner.

Crown Lands (Shack Sites) Act 1997 (Tas), ss6(1)(g), 11(1)(b).

Judgment Number: [2003] TASSC 110

ROBIN NOLAN (IN HIS CAPACITY AS SHACK SITES COMMISSIONER)

ROBIN NOLAN (IN HIS CAPACITY AS SHACK SITES COMMISSIONER)

1 I agree with the reasons expressed by Blow J for concluding that both appeals should be dismissed.

ROBIN NOLAN (IN HIS CAPACITY AS SHACK SITES COMMISSIONER)

2 I have had the opportunity of reading in draft form the reasons for judgment of Blow J and agree with his reasoning. In my opinion, the appeals ought be dismissed.

ROBIN NOLAN (IN HIS CAPACITY AS SHACK SITES COMMISSIONER)

3 These two appeals concern a large number of shacks erected on Crown land on the foreshore at Ansons Bay, and determinations and proceedings relating to those shacks pursuant to the Crown Lands (Shack Sites) Act 1997 ("the Act").

4 The building and use of shacks on Crown land, for recreational purposes, has been a significant part of the Tasmanian way of life for many years. Parliament decided to legislate in relation to the long-term status and tenure of shack sites on Crown land in 1997. The Act is administered by the Department of Primary Industry, Water and Environment. Under the Act, s4(1), the Secretary of that department was required to carry out an assessment of each shack site to which the Act applied and, in relation to each such site, to make one of three possible determinations:

"(a) that the existing lease or licence for the shack site should be replaced with a long-term lease;

(b) that the shack on the shack site should be removed and the land revert to the use of the Crown;

(c) that the shack sites should be sold to the existing lessee or licensee."

5 The effect of a determination by the Secretary was to authorise the Minister to take the action recommended by the Secretary: ss16(1), 20, 25(1). Under s11(1), certain persons have the right to appeal against a s4(1) determination made by the Secretary. Under s12, such appeals are heard and determined by the Shack Sites Commissioner ("the Commissioner").

6 The appellant owns three properties at Ansons Bay: one comprising about 230ha, and two much smaller lots. All three properties have frontages onto Crown land on the foreshore. On or about 12 September 2001, the Secretary made a series of determinations in relation to 94 shack sites on the foreshore of Ansons Bay. In 13 cases, he determined that the shacks should be removed and the land revert to the use of the Crown. In each of the other cases, he determined that the shack site should be sold to the existing licensee. The appellant was aggrieved by the determinations, and applied for relief in the nature of certiorari pursuant to the Supreme Court Rules 2000, r627(2)(a). On 22 April 2002 I made a general order that the Secretary show cause why his determinations should not be quashed, upon various grounds. On 17 December 2002 Cox CJ discharged that general order. The first of these two appeals, No FCA 4/2003, is from that order of Cox CJ.

7 The appellant also appealed, or purported to appeal, to the Commissioner against the Secretary's determinations. In fact the two directors of the appellant lodged two notices of appeal with the Commissioner - one against all his determinations that shack sites at Ansons Bay should be sold to existing licensees, and one relating only to those shack sites (six of them) which lie between the appellant's 230ha property and the waters of Ansons Bay. On 25 February 2002, the Commissioner held a directions hearing in relation to a number of appeals concerning sites at Ansons Bay. The appellant claimed to be entitled to appeal to the Commissioner in respect of all the foreshore shack sites at Ansons Bay pursuant to the Act, s11(1)(b), which confers such a right of appeal upon "a person who holds an estate in fee simple, or an equity of redemption, in adjoining land ...". In response to a request for a formal written ruling about the appellant's right of appeal as an owner of adjoining land, the Commissioner gave a ruling to the effect that only the owner of land that connected with or abutted a shack site could appeal as an adjoining owner, and that no such right of appeal existed if the would-be appellant's land was separated from a shack site by a road or open space. The appellant was aggrieved by that ruling, and instituted proceedings under the Judicial Review Act 2000 seeking an order of review in respect of that ruling. Cox CJ refused that application, taking the view that the Commissioner's ruling was correct. That order is challenged in the second of these appeals, No FCA 5/2003.

Appeal FCA 4/2003 - availability of a remedy

8 When the Secretary made his determinations on 12 September 2001, this Court was still able to grant writs of certiorari. That was before the commencement of the Judicial Review Act 2000. It commenced on 1 December 2001. It reformed administrative law in this State. Section 43 thereof provides that various prerogative writs, including certiorari, are no longer to be issued by this Court. By virtue of s17(3) thereof, orders of review made under that Act are not available in relation to decisions made before its commencement. That means that anyone aggrieved by a decision made before 1 December 2001 may neither seek relief under the Judicial Review Act nor obtain an order granting certiorari. It seems likely that Parliament did not consider what remedies should be available to such individuals. Under the Supreme Court Rules 2000, r627(2)(a), the Court or a judge "instead of ordering that a writ of certiorari issue, may order that the relevant judgment, order, conviction or other determination be quashed". There is nothing in the Judicial Review Act to suggest that Parliament wished litigants aggrieved by decisions made before 1 December 2001 to be totally deprived of remedies. It follows that orders under r627(2)(a) are still available to quash such decisions, though writs of certiorari are not.

9 Counsel for the Attorney-General submitted that r627(2)(a) became ultra vires upon the commencement of the Judicial Review Act. He pointed out that that Act amended the Supreme Court Civil Procedure Act 1932 by repealing PtVII thereof, which contained provisions as to prerogative writs. That submission was misconceived, since the Court's jurisdiction to grant relief in the nature of certiorari was conferred by the Australian Courts Act 1828 (Imp), ss3 and 11, which remain in force. Those sections read as follows:

"3 Supreme Courts to be courts of record with civil and criminal jurisdiction - The said courts respectively shall be courts of record, and shall have cognisance of all pleas, civil, criminal, or mixed, and jurisdiction in all cases whatsoever, as fully and amply, to all intents and purposes, in New South Wales and Van Diemen's Land respectively, and all and every the islands and territories which now are or hereafter may be subject to or dependent upon the respective Governments thereof, as His Majesty's courts of King's Bench, Common Pleas, and Exchequer, at Westminster, or either of them, lawfully have or hath in England; and the said courts respectively shall also be at all times courts of Oyer and Terminer and Gaol Delivery in and for New South Wales and Van Diemen's Land, and the dependencies thereof respectively; and the said judges so appointed shall have and exercise such and the like jurisdiction and authority in New South Wales and Van Diemen's Land, and the dependencies thereof respectively, as the judges of the courts of King's Bench, Common Pleas, and Exchequer, in England, or any of them, lawfully have and exercise, and as shall be necessary for carrying into effect the several jurisdictions, powers, and authorities committed to the said courts respectively.

11 Supreme Courts to be courts of equity - The said Supreme Courts respectively shall be courts of equity in New South Wales and Van Diemen's Land, and the dependencies thereof respectively, and shall have power and authority to administer justice, and to do, exercise, and perform all such acts, matters, and things necessary for the due execution of such equitable jurisdiction, as the Lord High Chancellor of Great Britain can or lawfully may within the realm of England, and all such acts, matters, and things as can or may be done by the said Lord High Chancellor within the realm of England, in the exercise of the common law jurisdiction to him belonging."

In 1828 writs of certiorari were available both in the common law courts and in Chancery, and had been for centuries. Since the 1828 Act remains in force, the jurisdiction to grant relief in the nature of certiorari under r627(2)(a) has survived the commencement of the Judicial Review Act.

10 This appeal involves only one ground. It reads as follows:

"1 The learned primary judge erred in law in failing to find that the Secretary was obliged to take into account relevant considerations viz:

(i) Requirements for subdivision of the Break O'Day Planning Scheme

(ii) The operation of Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 in respect of approval of plans of subdivision.

(iii) Section 31 (3) (a) and (c) of the Strata Titles Act 1998."

11 This ground raises the question of the proper interpretation of the Act, s6(1), which reads as follows:

"6 - (1) In carrying out an assessment and making a determination under section 4 the Secretary -

(a) must have regard to the conversion criteria; and

(b) must consult with the lessee or licensee of the shack site; and

(c) must, if the shack site is on dedicated Crown land, consult with the Portfolio Minister; and

(d) must consult with the responsible council; and

(e) must consult with the Aboriginal community of Tasmania through the Office of Aboriginal Affairs; and

(f) may consult with such of the following as the Secretary considers appropriate in the circumstances:

(iii) the Director of National Parks and Wildlife; and

(i) the State Coastal Policy or any other policy that the Secretary considers relevant in the circumstances; and

(ii) any enactments, planning schemes or other matters that the Secretary considers relevant in the circumstances."

12 Mr Estcourt QC, for the appellant, submitted that the word "may" in s6(1)(g) means "must". He submitted that the policy and purpose of the legislation required the Secretary to take into account such relevant and important considerations as the requirements of the Break O'Day Planning Scheme 1996, the Local Government (Building and Miscellaneous Provisions) Act 1993, Pt3, and the Strata Titles Act 1998, s31(3)(a) and (c). Cox CJ held that, because of the word "may" in s6(1)(g), the Secretary was not obliged to have regard to such matters, but had a discretion to have regard to them.

13 Plainly it is significant that s6(1)(a), (b), (c), (d) and (e) set out things that the Secretary "must" do when carrying out an assessment and making a determination under s4, whereas s6(1)(f) and (g) set out things that the Secretary "may" do in that context. Mr Estcourt QC submitted that when a legislative provision specifies that some matters must be considered and that others may be considered, it does not follow that the decision-maker is always free to ignore the matters in the latter category.

14 In relation to the planning scheme and enactments referred to in the ground of appeal, the Secretary's discretion was "unconfined by the terms of the statute", in the words of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40. In such circumstances, the Court must find that the decision-maker was bound to take a particular matter into account if the subject matter, scope and purpose of the legislation give rise to such an implication. Further, when legislation provides that a decision-maker "may" have regard to certain matters, there will sometimes be cases when such matters are of such relevance that ignoring them will result in a decision that is impeachable because of manifest unreasonableness in the Wednesbury sense: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (supra) at 41.

15 When it was originally enacted, the Act did not include s6(1)(g). That paragraph was inserted, and given retrospective effect, by the Crown Lands (Shack Sites) Amendment Act 2002. Counsel for the Attorney-General relied on the second reading speech relating to the 2002 Act, pursuant to the Acts Interpretation Act 1931, s8B(1). In that speech, the Minister for Primary Industries, Water and Environment said the following (Hansard, House of Assembly, 19 June 2002, 34):

"The Crown Land [sic] (Shack Sites )Act 1997 was passed by Parliament with wide support to provide the means for determining the long-term tenure of crown land shack sites once and for all for those shack owners. The act provides a window of opportunity for dealing with this very important issue, ensuring that shacks on crown land will become environmentally and culturally sustainable into the future while providing certainty to the Tasmanian shack-owning community.

It is unfortunate that the Parliament's clear intention in providing that opportunity and certainty is now under threat by a legal challenge to the interpretation of the act. It is also unfortunate that this challenge comes at a time when the shacks sites project is nearing completion.

The Government believes it is inappropriate in this instance to leave the interpretation of legislation to the court when Parliament's intention regarding that interpretation was clear and unequivocal. Hence the purpose of this bill is to enable Parliament to clarify its intention in passing the original Crown Land [sic] (Shack Sites )Act 1997.

During the introduction of the original Crown Lands (Shack Sites) Bill 1997 the minister responsible at the time, Mr Peter Hodgman, stated the following:

'The State coastal policy and the Land Use Planning and Approvals Act 1993 and part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 will be suspended from operation while these sites are being determined.'

The doubts removal amendment bill that I put before you today simply reinforces this clear and unambiguous intention.

The legal challenge that I referred to earlier is an attempt to force the determination of crown land shack sites back underneath the umbrella of the Resource Management and Planning System of Tasmania. This legal action, sponsored by a private individual, is obviously contrary to the original intention of the Parliament and we would be very remiss if we did not introduce these doubts removal amendments to ensure that the intention of Parliament is not undermined.

If this doubts removal legislation is unsuccessful, a costly and prolonged legal battle will ensue that would delay the shack sites assessment program beyond its statutory conversion period, which ends on 20 November 2002. This would lead to even more uncertainty and anxiety for shack owners. Should the outcome of the legal action not confirm Parliament's original intention, there would be significant implications for both past decisions and future actions for the shack sites project. Such a result would reopen the uncertainty and concern of shack owners about the future of their shacks.

Mr Speaker, I consider the appropriate action for this Parliament to take is to reinforce Parliament's previous intention through these proposed amendments. This amendment bill proposes five changes to the original act that aim to remove any doubt as to the intention and ultimate implementation of the act:

2 An amendment that clarifies that the Crown Lands (Shack Sites) Act 1997 and its conversion criteria are the only legal instruments that the secretary must take into account when making a determination under the act;

16 It is apparent from that speech that, in introducing s6(1)(g), Parliament did not intend that the Secretary would ever be obliged to have regard to any enactment or planning scheme, but intended to make it clear that he would always have a discretion either to have regard to such instruments or to ignore them. This is not a situation where the subject-matter, scope and purpose of the legislation can ever give rise to an implication that the Secretary was obliged to take an enactment or a planning scheme into account. In the light of the second reading speech, one cannot say that any of the Secretary's determinations in relation to shack sites at Ansons Bay was manifestly unreasonable in the Wednesbury sense. The learned primary judge was right to refuse relief. This appeal must be dismissed.

17 This appeal was also brought upon a single ground. It reads as follows:

"1 That the learned primary judge erred in failing to find that on a proper construction and interpretation of ss11 of the Crown Land [sic] (Shack Sites) Act a person who holds an estate in fee simple in land adjoining the parcel or parcels of Crown land on which all of the shack sites in the given area are situate has a right of appeal in respect of every decision made by the Secretary."

18 The classes of persons permitted to appeal against a determination of the Secretary under the Act are listed in s11(1) thereof. That subsection reads as follows:

"11 - (1) When the Secretary makes a determination in respect of a shack site under section 4(1), any or all of the following parties may appeal against the determination in accordance with this Part:

(a) the person who is the lessee or licensee of the shack site;

(b) a person who holds an estate in fee simple, or an equity of redemption, in adjoining land or a person who is the lessee or licensee of an adjoining shack site;

The appellant, not being the lessee or licensee of any shack site, could only appeal if it were a person who held "an estate in fee simple, or an equity of redemption, in adjoining land".

19 The evidence before the learned primary judge was that six shacks lay between the appellant's 230ha property and the shore; that the other shack sites to which the Secretary's determinations related were at locations along the foreshore over several kilometres to the south-west of those six sites; and that all the sites were on an uninterrupted strip of Crown land lying between freehold land and the waters of Ansons Bay.

20 The Act, s3, contains the following, somewhat unhelpful, definition:

"'shack site' means the Crown land on which a shack is erected".

21 Relying on that definition, Mr Estcourt QC argued that the appellant's lands adjoin the "Crown reserve" on which all the shacks are erected. However there was no evidence that the strip of Crown land in question had been formally reserved in any way, nor that it had identifiable boundaries (other than the high water mark, the low water mark, and the boundaries of freehold land on the landward side of it). Since the hearing of this appeal, we have been advised that the appellant and the Attorney-General have agreed that the Crown land upon which all the relevant shack sites are sited is, and always has been, unalienated Crown land. The Act, s3(2), provides:

"(2) For the purposes of this Act, 2 parcels of land are taken to adjoin each other only if they have a common boundary."

In my view, in the absence of any evidence that the strip of Crown land had identifiable boundaries other than its landward and seaward boundaries, there was no evidence that it constituted a parcel of land.

22 The reasons of the learned Chief Justice in relation to the interpretation of s11(1)(b) concluded as follows:

"In the present context, Parliament is dealing with a location to which fixed limits may be ascribed. In the first place, the site must have an existing shack erected upon it and in the second place, it must be accepted that other shacks may adjoin it as the lessee or licensee of an adjoining shack site is specifically given a right of appeal. Hence the Crown land upon which any given shack is erected which constitutes a shack site, the subject of a determination, must be different from the Crown land upon which some other shack is erected and which, sharing a common boundary with the first, constitutes an adjoining shack site, the licensee or lessee of which has the right of appeal. Furthermore, the Secretary is empowered by the Act, s4(2), for the purposes of making the determination, to fix by survey which land constitutes the shack site. This clearly contemplates that a shack site may be fixed by survey and thus be separate from other shack sites likewise fixed by survey and from other parts of the Crown reservation upon which no shack is erected. A shack site the subject of a determination does not comprise the whole of the Crown land upon portion of which the shack is erected but only that particular portion. Its content would include the shack and related structures and the immediately surrounding land in fact occupied by the licensee to the exclusion of others. Where the Secretary does fix the land by survey, the site is the land so surveyed. In my view, there is no substance in the contention that Tasman Quest is an adjoining owner of [sic] any shack site the subject of a determination save in respect of the six sites which lie immediately adjacent to the 230 hectare parcel. The Commissioner's ruling was correct and no order to review should be made."

23 I agree. Parliament must have intended the word "adjoining" in s11(1)(b) to mean "adjoining the shack site in respect of which the determination was made". In the definition of "shack site", Parliament must have intended "the Crown land on which a shack is erected" to refer only to the land on and around a shack, capable of being transferred to an existing licensee or lessee pursuant to the Act, rather than any uninterrupted strip or expanse of Crown land on which a shack happened to be located. It would be absurd to think of the foreshore at Ansons Bay as comprising a single shack site with 94 shacks erected on it, rather than 94 shack sites.