EVANS, Kim (Secretary of the Department of Primary Industries, Water & Environment),

Statutes - Acts of Parliament - Interpretation - Particular words and phrases - Specific interpretations - "Shack site" - Whether "Crown land on which a shack is erected" includes entirety of Crown reservation or is confined to immediate environs of shack - Crown Lands (Shack Sites) Act 1997, s11.

Administrative Law - Judicial review legislation - Judicial Review Act 2000 - Grounds for review of decision - Improper exercise of power - Relevant and irrelevant considerations.

Judicial Review Act 2000 (Tas), s17.

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985 - [1986] HCA 40; 1986) 162 CLR 24, referred to.

Judgment Number: [2002] TASSC 117

1 These two matters were heard together and involve challenges to certain determinations of the Secretary of the Department of Primary Industry, Water and Environment ("the Secretary") and to rulings in respect of appeals against the determinations by the Shack Sites Commissioner ("the Commissioner") made pursuant to the Crown Lands (Shack Sites) Act 1997 ("the Act"). The lands affected are certain shack sites on a coastal strip of Crown land ("the Crown reservation") at Ansons Bay and the applicant/prosecutor in each matter ("Tasman Quest") is the owner of certain freehold lands, some of which have a common boundary with the Crown reservation. Two of these properties are subdivided lots (lots 77 and 81) containing 1,589 square metres and 4,203 square metres respectively and are distant 54 metres from each other. The balance of the land which has a common boundary with the Crown reservation contains approximately 230 hectares and lies to the north east of lots 77 and 81. Its south western extremity is distant some 2½ kilometres in a direct line from lot 77, the nearer of the two to it, but the length of the unbroken Crown reservation winding along the foreshore between the same two points would be well over 4 kilometres in my estimation.

2 The Crown reservation extends along the foreshore of Ansons Bay for many kilometres. On that part of it extending between the south western corner of lot 81 and the eastern boundary of the 230 hectare balance, some 94 shacks have been erected and have been subject to a determination by the Commissioner. Six of them lie immediately adjacent to the last-mentioned land. The remainder lie dotted along the Crown reservation in a general south westerly direction, with the closest of them being distant no less than 126 metres from lot 77. Well over half of the 94 shacks would be erected at a distance of at least 1 kilometre from any of the three lots owned by Tasman Quest.

3 Under the Act, s4(1), the Secretary of the Department was required to carry out an assessment of each of the 94 shack sites on the Crown reservation to which I have referred and to make one of the following determinations:

(a) that the existing lease or license 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 site should be sold to the existing lessee or licensee.

In respect of the 94 sites, he determined that the shacks on 13 thereof should be removed, while the balance should be sold to the existing licensees of each respective site.

4 Under the Act, s8, the Governor may appoint a person to be the Shack Sites Commissioner and under s9, the Commissioner's function is to hear and determine appeals under Pt 4. This provides a right of appeal to certain persons and is expressed in these terms:

"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;

5 On 3 October 2001, two directors of Tasman Quest purported to lodge an appeal on the company's behalf against all the determinations of the Secretary to sell to existing lessees or licensees the shack sites at Ansons Bay. In the notice of appeal they claimed to be, or to represent, a person to whom the Act, s11(1), applied and circled as the applicable category "(b) a person who holds an estate in fee simple or and [sic] equity of redemption in adjoining land or a person who is the lessee or licensee of an adjoining shack site". On the printed form of notice of appeal, there is a space for the identification of the shack site in question and the appellant is asked to fill in "the Secretary's identification number of the shack site" and "the address of the shack site". In the first case, the appellants wrote "all shack sites" and in the second, "Ansons Bay foreshore". On 27 November 2001, the Commissioner wrote to the directors advising as follows:

" A preliminary matter to be determined is the validity of the appeals that have been lodged.

Your notice was lodged under s11(1)(c) of the Act as 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'.

Your appeal notice purported to appeal against 'all shack sites'. All shack sites includes determinations that require certain shacks to be removed and clearly not all the shacks are adjoining your property such that you can claim an adjoining interest.

It is my view that the notice of appeal should identify the specific shack site by the identification number given in the Secretary's determination and satisfy the requirements of 'adjoining'.

It is my assessment you have not lodged valid appeals.

The Secretary has reviewed the definition of 'adjoining' and a formal notice of determination has been sent to owners that are now considered to be adjoining. If you have been served a notice of determination, then a new appeal notice, for each adjoining shack, should be submitted to my office."

The directors also filed a notice of appeal purporting to relate to the six shack sites immediately adjacent to the balance of the land.

6 On 25 February 2002, the Commissioner held a directions hearing in respect of a number of appeals and was asked by counsel for Tasman Quest to make a formal ruling in writing about Tasman Quest's right of appeal as an owner of adjoining land. The Commissioner ruled that:

"The reference to shack site in S11 is a shack site for the purpose of the determination, that is a shack site that is 'fixed by survey which land constitutes the shack site' as referred to in S4(2). For property to 'adjoin' a shack site for the purposes of the Act, it must connect with or abut the shack site. Land therefore will not adjoin a shack site if separated by a road, open space etc."

Tasman Quest's application against the Commissioner seeks to invoke the remedial provisions of the Judicial Review Act 2000 ("JRA"), s17, upon the ground that the Commissioner erred in law and:

"... that on a proper construction and interpretation of s11 of the Crown Lands (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 a given area are situate has a right of appeal in respect of every decision by the Secretary."

7 Assuming, without deciding, that the decision in question is one made on 25 February 2002 rather than on 27 November 2001 (for the JRA did not commence until 1 December 2001), Tasman Quest still needs the indulgence of an extension of time under JRA, s23(1)(b) as the application was not made until April 2002. Mr Neasey for the respondent, however, does not oppose the making of such an order if the Commissioner did err and the JRA applies to the ruling.

8 The Act, s11, gives a right of appeal in respect of a determination relating to an individual shack site. Each shack site requires a determination, and "shack site" is defined by s3(1) as meaning "the Crown land on which a shack is erected". "Shack", in turn, is defined as meaning "a dwelling that is erected on land under a lease or licence, from the Crown or a State instrumentality, expressed to be for shack purposes and includes any related lawfully erected structures or dismountable improvements, other than jetties, boatsheds and slipways". Mr Estcourt QC for Tasman Quest argues that the Crown land on which each of the shacks the subject of a challenged determination is erected is the Crown reservation extending along the Ansons Bay foreshore and that any person holding an estate in fee simple or an equity of redemption in adjoining land has a right of appeal. Section 3(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."

Each of Tasman Quest's three parcels of land has a common boundary with the Crown reservation.

9 The interpretation urged upon me would mean that if the Crown reservation extended for many miles up and down the coast from the part of Ansons Bay in question (as I understand it does), the owner of land adjoining the Crown reservation many miles away from any shack would have a right of appeal notwithstanding that the common boundary was so far distant that any interest in the fate of the shack site would be hard to discern, whereas there would be no right of appeal by a land owner who shared no common boundary with a shack site but whose land was only a short distance from it and so proximate as to be injuriously affected by the determination in question.

10 In Taylor v Gibbon; Gibbon v Taylor [2000] TASSC 145; (2000) 9 Tas R 301, I had occasion to consider the meaning of the phrase "site which bears signs of the activities" of the Aboriginal people as used in the Aboriginal Relics Act 1975. At 309, I said:

"The word 'site' is an ordinary English word meaning place or position of some specified thing. It draws colour and extent from the thing specified. Hence the site of a fortified town may be identified by the remains of its fortifications and may not include things outside those fortifications. Here Parliament is not dealing with any location such as a city or building to which fixed limits may be ascribed. It is dealing with a geographic location which is determined by reference to signs of the activities of a nomadic people."

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 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. The extension of time is accordingly an exercise in futility and it seems appropriate to refuse it. However, as Mr Neasey seemed content to argue the substantive issue on the merits, the better course may be to grant the extension but to dismiss the application. I will give the parties the opportunity to make further submissions about the appropriate disposition of Tasman Quest's application under the JRA against the Commissioner.

11 I turn now to the general order addressed to the Secretary to show cause why an order should not be made quashing his determinations in respect of all the shack sites at Ansons Bay. When the order was made on 22 April 2002, the grounds specified were as follows:

"A That the conversion criteria issued by the then Minister of Environmental Land and Management on 30 June 1998 which the Secretary took into account in making his decisions (are) ultra vires section 5 of the Crown Lands (Shack Sites) Act 1997.

B That the Secretary failed to take into account relevant considerations viz:

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

(ii) the operation of Part 3 of the Local Government (Buildings and Miscellaneous Provisions) Act in respect of approval of plans of subdivision;

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

Ground A is no longer pursued because by doubts removal legislation in the form of the Crown Lands (Shack Sites) Amendment Act 2002, which received Royal Assent on 12 July 2002, the conversion criteria challenged as ultra vires the Act were retrospectively validated. Tasman Quest now seeks leave, which is unopposed, to add a further ground:

"C That the Secretary took into account irrelevant considerations viz those provisions of the Conversion Criteria which were formulated with regard to the State Coastal Policy an unlawful and invalid document."

12 The long title of the Act is "An Act to provide for determinations to be made in relation to the long term status and tenure of shack sites on Crown land and for related purposes". Before midnight on 20 November 2002, the Secretary was required to carry out an assessment of each shack site to which the Act applies and to make one of the three determinations I have previously mentioned (s4(1)).

13 By s5, it is enacted that the Minister must issue criteria to be applied by the Secretary in making shack site determinations. In formulating these criteria ("conversion criteria") the Minister:

"(a) must have regard to the State Coastal Policy and the objectives of the Resource Management and Planning System set out in Schedule 1 to the Land Use Planning and Approvals Act 1993; and

(i) have regard to such other policies and to such enactments and other matters as the Minister thinks fit; and

(ii) seek and have regard to such advice as the Minister thinks fit."

14 Section 6 deals with the factors relevant to assessment and determination by the Secretary. It provides 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.

(2) The Secretary must not make a determination under section 4(1)(a) or (c) in respect of a shack site unless the Secretary is satisfied that -

(a) waste water from the site can be effectively treated or disposed of; and

(b) the granting of a long-term lease for the shack site, or its sale, will not eliminate or restrict reasonable public access to, and use of, coastal foreshore or lake or river frontage."

When first enacted, subs(1) concluded with par(f), but the amending Act of 2002 inserted par(g) with retrospective effect.

" (1) When the Secretary makes a determination in relation to a shack site under section 4(1)(a) or (c), the Land Use Planning and Approvals Act 1993, Part 3 of the Local Government (Building and Miscellaneous Provisions) Act 1993 and the State Coastal Policy cease to apply to that shack site and to any related infrastructure land, as identified in the notice under section 4(3), until whichever of the following first occurs:

(b) a folio of the Register is created for the shack site.

(2) This section has effect notwithstanding any other enactment."

16 In respect of ground B, Mr Estcourt QC argues that the Secretary was obliged to take into account the requirements for a subdivision of the Break O'Day Planning Scheme, the operation of the Local Government (Buildings and Miscellaneous Provisions) Act 1993, Pt 3, and certain sections of the Strata Titles Act 1998. The Break O'Day Scheme places the majority of the shack sites in question in the Coastal and Resource Management Zone in respect of which residential use is a secondary rather than primary use. The Scheme imposes a considerable number of restrictions on the use and development of properties in that zone involving (inter alia) numerous environmental considerations in respect of the siting of buildings. It is accepted by counsel for the respondent, Mr Neasey, that but for the Act, subdivision of the shack sites in nearly all cases would not comply with the Scheme. Likewise, but for the Act, compliance with the other two Acts would not have been possible in most cases. Obviously, however, the provision in s7 suspending the operation of the Land Use Planning and Approvals Ac_t,_ the Local Government (Buildings and Miscellaneous Provisions) Act, Pt 3 and the State Coastal Policy in respect of a shack site when the Secretary makes a determination in respect of it to grant a long lease or to sell it to the licensee, shows that such determinations can be made, notwithstanding inability to comply with the requirements of a municipal planning scheme under the Land Use Planning and Approvals Act or those of the Local Government (Buildings and Miscellaneous Provisions) Act and the State Coastal Policy.

17 The Acts Interpretation Act 1931, s10A provides:

(a) the word 'must' is to be construed as being mandatory; and

(b) the words 'is to' and 'are to' are to be construed as being directory; and

(c) the word 'may' is to be construed as being discretionary or enabling, as the context requires.

(2) Subsection (1) applies only in respect of a provision of an Act if that provision is passed after the commencement of the Justice Legislation (Miscellaneous Amendments) Act 2000."

18 The Act, s6(1), when first enacted, used the word "must" in pars(a) - (e) and the word "may" in respect of par(f). The only matters to which it was provided that the Secretary must have regard were the conversion criteria. The amending Act of 2002 to which the Acts Interpretation Act 1931, s10A applies, provided that he may have regard to the State Coastal Policy and other policies and to other enactments and planning schemes. On the face of it, there is no obligation upon him to have regard to the instruments or enactments referred to in ground B and that regard to them by him was discretionary only. To the extent that there is any conflict between the conversion criteria and any scheme, enactment or policy, clearly he must have regard to the former and not have regard to the latter. But assuming that there is no inconsistency, he is not under an obligation to have regard to the latter, but has the power to do so in his discretion.

19 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985 - [1986] HCA 40; 1986) 162 CLR 24 at 39 - 40, Mason J (as he then was) said:

"The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. ... Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ... .

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. ... where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator."

20 I am of the view that the factors the Secretary was bound to consider in making his decision were those the Act expressly stated were the considerations to be taken into account, that is, the conversion criteria formulated by the Minister. Regard was had by him to the matters in the State Coastal Policy and the objectives of the Resource Management and Planning Scheme in formulating them and there is no complaint that the Secretary failed to have regard to these criteria. The contrast between the expressly stated factors to which regard must be had and those to which regard may be had clearly indicates that the former are an exhaustive list of the factors the Secretary is bound to consider in making his decision and his failure to have regard to factors he was not bound to have regard to does not justify interference by this Court.

21 Ground C was added in light of a decision by Crawford J in which he held that the State Coastal Policy was "ultra vires for uncertainty, or perhaps it is better expressed as being ultra vires because, as a consequence of the impossibility of understanding objectively what is encompassed by the expression 'coastal zone', the Policy is not a true exercise of the policy making power in the State Policies and Projects Act." (Richard G Bejah Insurance and Financial Services Pty Ltd v Manning & Ors [2002] TASSC 36 at par24.) The amending Act added to s5 of the Act, subs(4) and (5) to the following effect:

"(4) If the conversion criteria issued by the Minister have the same content as the model conversion criteria set out in Schedule 2A, the conversion criteria so issued are to be taken for all purposes as having been validly formulated under this section.

(5) For the purposes of subsection (4), 2 documents may be taken to have the same content despite -

(a) the absence, from one document, of a heading, introduction or note appearing in the other document; or

(b) any variation between them in punctuation or spelling; or

(c) minor variations between them in style or layout."

The model conversion criteria set out in Sch 2A are identical to the conversion criteria formulated by the Minister on 30 June 1998 and which was in force when the Secretary made his determinations. By virtue of the amending Act, the conversion criteria so issued must be taken for all purposes as having been validly formulated under s5. Some of the criteria are directly taken from the State Coastal Policy, but whether or not this document is invalid and whether or not some challenge prior to the amending Act might have exposed some defect in the formulation of those criteria, the amendment provides that they be taken for all purposes as having been validly formulated. Whatever their derivation, those are the criteria which the Secretary was obliged to have regard to. If having regard to them involves having regard coincidentally to an invalid State Coastal Policy, or some parts of it, that is beside the point. The Secretary was obliged by s6(1)(a) to have regard to them, there is no evidence that he failed to do so and the invalidity of the policy itself is irrelevant.

22 Neither remaining ground in the order to show cause has been made out and the order is discharged.