Wilson v Lord Howe Island Board - [2019] NSWSC 724 - NSWSC 2019 case summary — Zoe

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Wilson v Lord Howe Island Board

[2019] NSWSC 724

Supreme Court of NSW|2019-06-06|Before: Ward CJ

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-06-06

Before

Ward CJ

Catchwords

[2017] NSWCA 263 Coleman v Powel (2004) 220 CLR 1
[2004] HCA 39 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
(2000) 48 NSWLR 498 Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited (2008) 73 NSWLR 653
[2008] NSWCA 206 Lazarus v Independent Commission Against Corruption [2017] NSWCA 37

Source

Original judgment source is linked above.

Catchwords

[2017] NSWCA 263 Coleman v Powel (2004) 220 CLR 1[2004] HCA 39 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135(2000) 48 NSWLR 498 Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited (2008) 73 NSWLR 653[2008] NSWCA 206 Lazarus v Independent Commission Against Corruption [2017] NSWCA 37

Judgment (34 paragraphs)

[1]

Background

The background to the present dispute is summarised below and is drawn to a large extent from the unchallenged evidence of Mr Andrew Walsh, the Project Manager employed by the Board who is responsible for delivery of the REP.

[2]

Lord Howe Island

The Lord Howe Island Group is located 587 km east of Port Macquarie and 780 km north-east of Sydney; and forms part of New South Wales (being vested in the Crown). It comprises the main island (Lord Howe Island) and 28 smaller islets and rocks. Only the main island is inhabited. The main island comprises an area of approximately 14.55km², of which some 3.98km is the low-lying inhabited part of the island; the remainder of the island comprising forested hills and mountains (see Mr Walsh's affidavit affirmed 4 June 2019 at [10]). It is 12 km long, 1.0-2.8 km wide and formed in the shape of a crescent, with a coral reef enclosing a lagoon on the western side. The two-dimensional area of Lord Howe Island, according to the Board, is 1,603 ha; its three-dimensional area is approximately 2,135 ha (Mr Walsh's affidavit at [11]). The plaintiff puts those figures at 1,573 ha and approximately 2,100 ha, respectively (see the amended statement of claim). The only relevance to the difference in this regard is that the plaintiff's calculation of the maximum permitted tonnage of product to be dispersed turns on an arithmetical calculation based on the total area of land in question (to which I turn in due course).

[4]

Lord Howe Island Rodent Eradication Project

The objective of the REP, as its name suggests, is to eradicate rodents (both rats - the black or "ship" rat (Rattus rattus) - and house mice (Mus musculus)) from the Lord Howe Island Group by the use of a particular rodenticide (Brodifacoum). The rodents were accidentally introduced to Lord Howe Island in the late 1800s (mice) and early 1900s (rats) (see Mr Walsh's affidavit at [15]). Predation by rodents on islands, particularly the ship rat, is listed as a Key Threatening Process at both Commonwealth and State level under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and the Threatened Species Conservation Act 1995 (NSW). Many threatened species on Lord Howe Island have rodent predation formally listed as a key threatening process in their listing determinations under both those pieces of legislation (see Mr Walsh's affidavit at [15]), including various critically endangered species of snail, the Lord Howe Island Woodfeeding Cockroach and the Little Mountain Palm.
Since the 1920s, various methods of rodent control have been attempted on Lord Howe Island, including a previous rodent baiting program conducted by the Board as well as the private efforts of Islanders (Mr Walsh's affidavit at [18]-[21]).
Since at least 2001, the Board has been examining methods of eradicating (rather than simply controlling the number of) rodents from Lord Howe Island (Mr Walsh's affidavit at [24]), the Board having formed the view that the existing rodent control programme did not adequately protect the Lord Howe Island Group's native flora and fauna and was not a long term solution to managing the numbers of rodents to a level that would not threaten native plants and animals (Mr Walsh's affidavit at [24]). This led to the formulation of the REP.
A key aspect of rodent eradication is that every rodent must have access to a lethal dose of bait at approximately the same time across the whole of the island (Mr Walsh's affidavit at [23]). Exhibited to Mr Walsh's affidavit is a Human Health Risk Assessment (HHRA) for the REP prepared in July 2017 which notes that resistance to the rodenticide had been raised as a concern and that resistance will be an issue should the ongoing control programme continue (see Exhibit 5).
The REP has been the subject of planning and consultation since 2001 as well as the subject of various trial studies (see Mr Walsh's affidavit from [24]-[30]), which led to a survey of local residents in 2009 (see Mr Walsh's affidavit at [31]) and the development of a draft REP in 2009, which was then the subject of peer review by various organisations and others (see Mr Walsh's affidavit at [32]). Mr Walsh has deposed that the REP has been subject to several external expert peer and technical reviews, as well as scrutiny from a range of regulatory agencies at Commonwealth and State level (see Mr Walsh's affidavit at [9]). The REP was also the subject of a plebiscite or community poll of the residents of Lord Howe Island in 2015 (Mr Walsh's affidavit at [37]-[38]). The Board notes that the eradication programme had the support, in that community poll, of a majority of residents (52%) (although there was also a large proportion of residents (48%) who supported the continuation and expansion of the current control baiting programme).
Exhibited to Mr Walsh's affidavit is a 2017 Conservation Outlook Assessment for Lord Howe Island, undertaken by the International Union for Conservation of Nature (which Mr Walsh explains is recognised within the World Heritage Conservation as the technical Advisory Board of the World Heritage Committee on natural World Heritage sites), which assessed rodents as amongst the highest ongoing risks to the biodiversity values of the site (Exhibit 5); noted the introduced rodents as having "significant impacts on the values of the site" (Exhibit 5); stated that overall the values of the site are "significantly threatened by [inter alia] rodents" (Exhibit 5) and concluded that it was crucial that invasive species eradication projects continue and are successfully implemented (see Mr Walsh's affidavit at [16]; Exhibit 5).
Three HHRA studies have been conducted in relation to the REP (see Mr Walsh's affidavit at [36], [40]-[41]), including the 2017 study referred to at [18] above. Other studies conducted have been: an economic evaluation of the project commissioned in 2016 (Mr Walsh's affidavit at [42]); a study as to the feasibility of captive management of Lord Howe Island Woodhens and Currawongs, which led to the development of the Captive Management Progress in conjunction with Taronga Zoo in 2013 (Mr Walsh's affidavit at [43]); and separate studies in relation to both birds and fish (see Mr Walsh's affidavit at [44]-[45]).
Mr Walsh has deposed that the Board has received funding from the New South Wales Government's Environment Trust and the Australian Government's Caring for Our Country programme of $10.6 million (most of which funding has already been committed) to implement the REP in full (Mr Walsh's affidavit at [110]-[111]), with additional expenditure of $500,000 expected by the end of June 2019. Mr Walsh has further deposed (at [115]ff) to the likely effect of delay on the REP and of a failure to complete the eradication programme that has now been commenced, opining (at [118]) that if an injunction (as sought by the plaintiff) were to be granted the REP would become financially non-viable.
Mr Walsh has also deposed to the number of permits, approvals and licences sought and obtained from Commonwealth and State regulators in relation to the project (see [46]ff).
Pausing here, I note that the claim, as pleaded, related to only two such permits: the Permit (obtained under the AGVET Code, the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 (Cth)) and a Marine Parks Permit (obtained from NSW Department of Primary Industries under the Marine Estate Management (Management Rules) Regulation 1999 (NSW) and the Marine Estate Management Regulation 2017 (NSW)). However, there is no longer an issue as to compliance with the Marine Parks Permit. The present dispute is thus confined to interpretation of the Permit obtained under the AGVET Code. Such a permit is necessary as the REP involves the use of a Schedule 6 Poison under the Standard for the Uniform Scheduling of Medicines and Poisons No. 24 (Poisons Standard June 2019) (the previous standard being No. 23 (Poisons Standard February 2019)) made under paragraph 52D(2)(b) of the Therapeutic Goods Act 1989 (Cth).
The Board first applied for a permit from the APVMA for the proposed use of the poison on 19 April 2016 (the first date of proposed use there being stated to be 1 June 2017). Relevantly (for the purposes of the tonnage issue), the application form stated the following, in response to a section seeking information as to the estimated or proposed scale of use: The proposed one off eradication will be at a nominal treatment rate of 12kg of Pestoff 20R pellet bait/hectare on the first application; to be followed by a second application of 8kg of bait/hectare approximately 14-21 days after, weather permitting, for a total nominal treatment rate of 20kg/ha averaged over the island. The island is 1455 ha in the 2D view and approximately 2100 ha in the 3D view. A maximum of 42 tonnes would be used.
The meaning of "nominal" in that context was not explained, but on a fair reading might be thought to convey the nominated usage rate (or proposed usage rate) rather than some kind of warranty as to the ultimate actual usage rate, particular given later references that indicate that the maximum tonnage there expressed was an estimation (see below at [29], for example).
The application method was described as follows: Aerial dispersal of bait over most of the Lord Howe Island Group. Dispersal by hand around dwellings. Placement of bait into either bait trays (and these trays put into buildings in locations such as ceiling spaces, under floors), or into bait stations. Application methods are detailed in Part 7.
Part 6 of the application ("Work Health and Safety"), consistently with the above, included (at 6-1.3): The proposed treatment rate will be a nominal treatment of 12kg of Pestoff 20R pellet bait/hectare on the first application; to be followed by a second application of 8kg of bait/hectare approximately 14-21 days after, weather permitting, for a total nominal treatment rate of 20kg/ha averaged over the island. and continued: To achieve the nominal treatment rate across the island, it is expected that the maximum bait used would be 42 tonnes of Pestoff 20R pellets containing 0.02g/kg (20ppm) Brodifacoum. This amount considers operational flexibility, contingency and differences in vegetation and topography across the island (i.e. the 3-Dimensional area of LHI is approximately 2,100 ha taking into account its rugged topography). Therefore the maximum total amount of Brodifacoum used over the entire island is in the order of 840g which equates to ~ 0.40g/ha.
Pausing here, the application form (at 6-13) clearly uses the language of approximation ("in the order of") and "equates to ~….".
The application form also noted how aerial baiting would be conducted, including that: The bait will be dispersed using a purpose built spreader bucket … slung below a helicopter. A rotating disc throws the bait 360° consisitently [sic] to 35 m (note outlier pellets maybe thrown to 45 m), enabling a swathe of up to 70 m to be baited in a single pass. Overlapping each 50% swathe will ensure that there are no gaps in the distribution of baits … Application rates are adjusted to account for the 50% overlap (i.e. for the first drop 6kg/ha on each swathe wih 50% overlap will be applied to achieve a 12kg/ha application rate). Each bait drop will take approximately two days to complete dependant [sic] on weather.
A permit was initially obtained from the APVMA on 24 August 2018 (Exhibit 5, Doc 1). Relevantly, that version of the permit included condition 14: Tamper proof bait stations must be adequately covered when used in the open air to prevent access by birds.
There was also a reference to tamper proof bait stations in condition 18 (which provides that "[t]amper proof bait stations, but NOT bait trays, may be used within the 30 m buffer zone").
I interpose here to note (as the Board has noted in its submissions) that, prior to the Administrative Appeals Tribunal (AAT) decision, there was communication with the APVMA as to the adequacy of the lid of the Globe Pest Solutions Bait Station for the purposes of compliance with the original condition 14 (the original permit having been issued prior to the selection of the Globe Pest Solutions Bait Stations). After the Board selected those bait stations, Mr Walsh emailed Mr Peter MacLeod (Director, Minor Use, Registration and Management at the APVMA), providing images of the bait stations that had been selected and seeking confirmation as to whether the lid of those bait stations "would meet the 'covered' intent of condition 14" (see Exhibit 5, pp 796-797), to which Mr MacLeod responded by email on 13 November 2018, agreeing that it would (Exhibit 5, p 796). (The Board says that the fact that the APVMA does not appear to share the plaintiff's view as to non-compliance with condition 20 is a matter that goes to the exercise of the Court's discretion. The plaintiff says, and I tend to agree, that the view expressed by Mr MacLeod in this regard is irrelevant.)
The APVMA's decision to issue a permit to the Board was challenged in proceedings brought in the AAT by the Lord Howe Island First Peoples Association (see Lord Howe Island First Peoples Association and Australian Pesticides & Veterinary Medicines Authority [2019] AATA 748) (the AAT decision). Both the APVMA and the Board were respondents in those proceedings. (There is no evidence that the present plaintiff is or was a member of the said Association; and Senior Counsel for the plaintiff informed me that his instructions were that she is not - see T 31.25; an issue only of relevance insofar as it means that it cannot be inferred that the plaintiff by reason of membership of the Association was on notice of any information gained by the Association in the course of the AAT proceedings.)
It is relevant to note that the jurisdiction of the AAT is limited to a review of the imposition of conditions on the grant of such a permit; rather than the decision to grant the permit itself (see s 167 of the AGVET Code) (as recognised by the Deputy President of the AAT in his reasons on that application - see at [4]; and see National Registration Authority v Barnett (1998) 83 FCR 222, which recognised that s 167 preserves a jurisdiction of the AAT to review a decision to impose conditions upon registration, but omits any jurisdiction to review a decision to register unconditionally).
Following the AAT decision (to which I will return shortly), the conditions of the permit were amended and an amended permit (the Permit) was issued on 9 May 2019 (Exhibit 5, Doc 2). I consider below ([55]ff) the relevant conditions of the Permit. Suffice it here to note that the Permit, as issued following the AAT decision, has the following features (as did the initial version of the permit), as required by the AGVET Code: it bears a permit number (PER85459) (see ss 114(2), (4)(a)); it states the chemical product in respect of which it is issued (Pestoff Rodent Bait 20R) and the active constituent (0.02g/kg brodifacoum) (see s 114(4)(c)); it identifies the persons authorised by the Permit and what they are authorised to do (relevantly, stating that it authorises the permit holder (the Board) and its employees, contractors and persons under its direction) to possess and use the product and to distribute and apply the product (by hand or aerially) - see condition 6 (see s 114(4)(d)); it states the conditions of the permit (see s 114(4)(e)) (see further below); and it states the duration of the permit (i.e., that it is in force from 24 August 2018 until 31 August 2020) (see s 115(2)).
The Board points out that the conditions imposed by the APVMA were not conditions proposed in the Board's application for the permit; rather, they were conditions initially imposed by the APVMA and then varied pursuant to the administrative review conducted by the AAT under the jurisdiction conferred by s 167(1)(m) of the AGVET Code. That said, in the Deputy President's reasons, to which I will shortly turn, it is noted (at [14]) that the respondents (i.e., the Board and APVMA) had agreed upon a series of amendments to the permit "which are to be made so as to update its terms to take account of a number of changes made to the rodent eradication program since the permit was first issued" and a copy of the permit altered as agreed by the respondents was attached to the AAT reasons. Those agreed amendments were themselves subject to alteration by the Deputy President before the Permit was finally issued in May 2019.
Further, I note that the AAT decision records (see at [18]) that the applicant (not the present plaintiff) was directed to indicate which particular numbered conditions of the initial permit it sought to make the subject of the review; what variation, if any, it sought to those conditions; and the basis upon which it submitted that such variation or variations should be made. At [19], the Deputy President noted that, while not resiling from the wider submission it desired to embrace, the applicant had filed a set of particular submissions which it desired to vary or delete and had, in submissions in reply, narrowed the nature of its attack to particular conditions. Relevantly, the matters finally pressed by the applicant in the AAT proceedings do not appear to have included matters the subject of contention in the present proceedings (other than a request that the bait station be defined as that comprised within a particular exhibit in the proceedings (see [20] and in particular 20 of the AAT reasons). (The relevance of this, in the Board's submission, is that the AAT decision must be understood in the context of what was "in play", i.e., what was there argued and decided, noting that the applicant in the AAT proceeding had not sought the addition of a requirement in condition 20 that bait stations be covered with a wooden cover (or any form of additional cover) - see T 42.22ff.)
The Permit (which is in force from 24 August 2018 until 31 August 2020) applies as a law of NSW by virtue of s 5 of the Agricultural and Veterinary Chemicals (New South Wales) Act 1994 (NSW).
In its final form, the Permit authorises (subject to certain conditions and "CRITICAL USE CONDITIONS") the application of a rat poison known as Pestoff Rodent Bait 20R, a product which contains 0.02 g/kg brodifacoum as its only active constituent. Brodifacoum is an anticoagulant. It is a cumulative poison, being stored in fatty tissue, the liver and kidneys. The plaintiff submits that it is highly toxic to mammals, birds and fish. The Board cavils with this insofar as the Board says the evidence establishes that, for humans, it is not an "acute poison" (see T 47.39); and that even a small child would need to consume a lot of the poison for it to have an acute effect and even then it is readily treatable (see T 46-47, reference being made to the report of an expert toxicologist, Dr DeMott, at [32]ff - see below at [177]ff).
I will explain the proposed manner of application under the REP of the Pestoff poison in more detail in due course. Suffice it here to note that the REP will involve the use of cereal-based bait pellets of the Pestoff 20R poison. The Pestoff pellets are cylindrical, with a diameter of 10 mm, and green in colour.
It is also relevant here to note that the antidote to the active ingredient in the Pestoff pellets is Vitamin K1, of which the Board has ensured there is an ample quantity on Lord Howe Island; and that the green colouring of the pellets makes it likely that it will be obvious if humans (particularly, children) have come into contact with the pellets. There was evidence in the proceedings before me (to which I will return in due course) to the effect that a small child would need to consume a large amount of the pellets before there was any grave effect on his or her health (see the report of Dr DeMott, the expert toxicologist from Ramboll, the organisation which prepared the third HHRA study; referred to at [177]ff below).
The REP provides for the distribution of the Pestoff 20R pellets through three means: by aerial (helicopter) broadcast; by hand broadcast; and by the placement of bait stations (both external and internal). Mr Walsh has explained in some detail in his affidavit the methodology to be employed. Relevantly, it may be summarised as follows.
Aerial broadcast of bait (which will encompass the highest distribution of the pellets) will be undertaken in two stages. The first application is planned to commence as soon after 1 June 2019 as the weather on the Island permits and is planned to take four to five days, which may not be consecutive (see Mr Walsh's affidavit at [81]). As at 4 June 2019, when Mr Walsh affirmed his affidavit (and, indeed, as at 6 June 2019, when the hearing took place), the first aerial baiting application had not commenced. Mr Walsh's evidence was that the then weather forecast for Lord Howe Island meant that it was unlikely that the first aerial baiting application would commence before 7 June 2019 (unless the weather improved) (Mr Walsh's affidavit at [82]ff). The second aerial baiting application is proposed to take place 14-21 days after the conclusion of the first application, weather permitting (Mr Walsh's affidavit at [86]-[87]). (Although there was some suggestion in the plaintiff's oral submissions that the materials indicated there might be a third application of the poison, Senior Counsel for the Board confirmed that his instructions are that there are only to be two aerial applications of the poison and, as I understand it, the Board accepts that only two such applications are authorised by the Permit.)
Mr Walsh has deposed that it is critical for the success of the REP that a second application of bait occurs in all areas of the Island, in order to supply a dose of bait to any juvenile rodent which might have emerged from the nest following the breakdown of the first application of bait (Mr Walsh's affidavit at [88]).
Mr Walsh has deposed that the target rate of bait coverage for the first aerial and hand baiting application is 12kg/ha (involving distribution of approximately 32 tonnes of bait) (see Mr Walsh's affidavit at [84]-[85]); and the target rate for the second aerial baiting application is 8kg/ha (Mr Walsh's affidavit at [87]).
Hand broadcasting in limited areas is anticipated to occur at the same time as the aerial broadcast (Mr Walsh's affidavit at [83]).
As to the bait stations, approximately 18,000 external bait stations have been placed in the settlement area. The bait stations were placed there in April 2019 on a 10 metre x 10 metre grid in outdoor areas of the settlement (without bait in order for the rodents to become familiar with them). The placement of bait in the bait stations only commenced on 22 May 2019 (after, it would seem, the plaintiff had carried out her attempts to pick up the bait stations, which she relies upon as demonstrating that they are not secured). It is anticipated that the baiting of bait stations will conclude by approximately 31 October 2019. Some pre-baited internal bait stations are being placed inside dwellings (see Mr Walsh's affidavit at [61]-[63]).
Bait stations are to be serviced every 7-10 days by the ground baiting team, which consists of 67 people. This involves replenishing the stations with bait, checking the bait stations are locked and secured to the ground, and searching for and removal of any loose pellets or rodent carcasses (Mr Walsh's affidavit at [65]). Bait that has spoiled (for example, by getting wet) may be replaced (and in that sense the maximum tonnage issue is misleading, since not all bait pellets deployed will ultimately be consumed, by rodents or otherwise). The initial amount in each external bait station is 40 pellets, reducing progressively in subsequent weeks (see Mr Walsh's affidavit at [66]-[67]).
Where bait stations are used in paddocks with livestock present, a wooden A-frame cover is placed over each bait station to prevent damage to, and interference with, bait stations (Mr Walsh's affidavit at [68] and see Conditions 33 and 37 of the Permit). (The concern in this regard, as I understand it, is mainly as to the trampling of the plastic bait stations by cattle.)
Mr Walsh has also deposed to the daily briefings being given for the ground baiting team (see [69]-[70]) and the change in methodology for securing bait stations on leasehold properties where there are children under 5 years and in all common recreation areas ([77]), which is relevant to the second aspect of the external bait stations issue about which I say further below. Mr Walsh has also deposed to there being a special protocol for use of outdoor bait stations at the school and adjacent oval; and in recreation areas ([80]). There have also been special project management plans developed for all households where there are children or household pets.

[6]

The Permit

As noted earlier, the Permit was issued pursuant to s 112(2) of the AGVET Code. That section falls within Part 7 of the Code. Pursuant to s 109 of the AGVET Code, the term "permit" for the purposes of Pt 7 is defined as follows: permit means a permit, in respect of an active constituent for a proposed or existing chemical product, or in respect of a chemical product, to do or omit to do any thing stated in the permit the doing of which, or the omission to do which, would, apart from the permit, be: (a) an offence against section 74, 75, 76, 77, 78, 79, 79B, 80, 81, 84, 85, 86, 87 or 91 or subsection 121(4A) or (5A); or (b) an offence against an eligible law of this jurisdiction; or (c) a contravention of a civil penalty provision mentioned in section 74, 75, 76, 77, 78, 79, 79B, 80, 81, 84, 85, 86, 87 or 91 or a contravention of the civil penalty provision set out in subsection 121(4) or (5).
The effect of a permit issued under Part 7 of the AGVET Code is that it authorises a person to whom it applies to do (or omit to do) something that is otherwise prohibited by the Pesticides Act 1999 (NSW) (Pesticides Act), so long as the person does so in accordance with the conditions of the permit (see s 116(1) AGVET Code; s 6 Pesticides Act). This is of relevance in circumstances where it is obviously important for persons involved in the dispersal of the product, as part of the REP, to understand what is, and what is not, authorised by the Permit (lest they be said to commit a criminal offence by applying the product otherwise than in accordance with the conditions of the Permit).
Under the AGVET Code, permits are issued by the APVMA, whether on an application by a prospective permit holder (s 112) or on the APVMA's own initiative (s 112A). Permits may be unconditional, or subject to any conditions that the APVMA thinks appropriate (s 114(3)). Permits may be suspended or cancelled by the APVMA in various circumstances (ss 118, 119, 119A, 119B).
Permits issued by the APVMA are accessible on the APVMA's public permits database (see Mr Walsh's affidavit at [6]) "as located via https://portal.apvma.gov.au/permits", in accordance with ss 113, 114(5).
Turning then to the relevant conditions of the Permit as it is now in force, I note the following.
Under the heading "CONDITIONS OF USE" and sub-heading "Directions for Use", there appears condition 8, which comprises a table including a column headed "Product Application Method, Rate and Frequency" as follows: Aerial (helicopter) broadcast 12 kg product/ha on initial broadcast, to be followed by a second application of 8 kg product/ha, approximately 7-21 days after, weather permitting, for a total 20 kg product/ha. Aerial broadcast is to be undertaken only in the locations specified at [9] below. Hand broadcast and outside bait stations around settlement area and baiting within dwellings: Product to be dispersed by hand and/or placed into bait stations in accordance with [17]-[21] below. The first hand broadcast is to be undertaken at a rate of 12 kg product/ha, and the second hand broadcast at a rate of 8 kg product/ha. The second hand broadcast must not be undertaken for a minimum period of 7 days following the first distribution. Bait stations are to be placed on a 10m x 10m grid. Within dwellings: product to be dispersed in accordance with [17] and [22]-[24] below.
Condition 9, which appears in the following section headed "CRITICAL USE CONDITIONS" and the sub-heading "Aerial (helicopter) broadcast" specifies the only areas where the product may be distributed aerially (being the Permanent Park Preserve [sic]; uninhabited Crown Reserve bordering the Permanent Park Reserve; and on Special Leases bordering the Permanent Park Reserve where livestock have been removed. Conditions 10-16 follow as to the aerial broadcast of the product, including condition 13 which provides that: 13. A maximum of two (2) applications to be undertaken, in accordance with the Directions for Use (above).
The critical use conditions then contain a section headed "Hand Broadcast and Bait Stations in and around settlement area", from which (and by reference to the table in condition 8 and to condition 18 referred to below) it is clear that there is a distinction between hand broadcasting and the placement of bait stations. There are two sub-headings in this section of the critical use conditions: "Property Management Plans" and "Outdoor areas of the settlement area". Under the first, appears condition 17 which in effect provides that unless there is a Property Management Plan in place for a dwelling only bait stations on a 10m x 10m grid will be used. Under the second, are conditions 18-21 (those presently in issue being conditions 19-21).
Condition 18 deals with distribution of the product by hand broadcast and provides that this is only to occur in the areas there specified.
Conditions 19-21 deal with the use of bait stations (by reference to the header, in outdoor areas of the settlement area), as follows: 19. In areas where bait stations are to be used outside, the product may only be distributed via Globe Pest Solutions Rodent Bait Stations. 20. Bait stations must be adequately covered when used in the open air to prevent access to bait by birds. 21. Bait stations must be locked and secured to the ground when installed, unless prevented by impervious ground conditions.
The Permit then goes on to deal with placement of product within dwellings (conditions 22-25) and other matters. Under the heading "ADDITIONAL CONDITIONS", there are sections dealing, inter alia, with supply of product in containers (including the requirement that there must be attached to the container a label identical in content to Attachment 1 and that use of the product must be in accordance with instructions contained on its label - see conditions 30 and 31) and with livestock and poultry (including the requirement that "Bait station covers secured at ground-level must be applied to any bait stations used around the herd" - see condition 37). Pausing here, it is in order to comply with this last condition that the wooden A frames (or wooden roofs to which the plaintiff refers in her affidavit) are being deployed.
There are then sections of the Permit that deal with exposure and risk management (including the requirements for implementation of an education programme (condition 43) and for an adequate supply of the antidote (Vitamin K1 (condition 49)); for the following of all aspects of a specified risk mitigation plan (see conditions 53ff); for notification, record keeping and other conditions (conditions 57ff); and for additional safety directions and first aid directions (conditions 60ff).

[7]

AAT proceedings

As noted above, the final version of the Permit followed the administrative review carried out by the Deputy President of the AAT. As the reasoning of the Deputy President occupied some prominence in the plaintiff's submissions as to the proper construction of the Permit, it is helpful to refer in further detail to those proceedings (and to a letter of 3 June 2019 from the AAT Registrar in response to a request for clarification or amendment of the reasons) before turning to the issues now before me.
I have already noted the nature of the proceedings in the AAT and the process that was followed as to the identification by the applicant in those proceedings of the matters it finally wished to press in relation to the variations it sought in respect of particular conditions of the Permit (which did not include the matters now in contention in relation to the bait stations or the proposed tonnage of bait to be distributed).
The Deputy President (at [23] noted the interests sought to be vindicated by the applicant (concerns about the risk to human health, ecological concerns about the birds, wildlife and fish in freshwater creeks, and the surrounding ocean waters, and concerns about the effect of the eradication upon tourism and the business of local fishermen and restaurants selling local fish).
The Deputy President noted that one circumstance of the present case was that close concern ought to be given to conditions which protect humans from injury to their health (see [25]), having regard to the particular provisions of the AGVET Code requiring the Board to be satisfied that safety criteria, efficiency criteria and trading criteria are met.
From [32], the Deputy President proceeded to discuss what he described as "the alterations proposed by the applicant, in the context of the concerns which the applicant desires to address" rather than, in the first instance, concentrating on particular drafting matters that might arise (see [31]), and in doing so the Deputy President said he would mention matters that had occurred to him arising from a consideration of the evidence called in the case.
Under the heading "Dangers to Human Health", the Deputy President first considered the position of water tanks (see [34]-[36]) and then proceeded to consider the possibility of removal of pellets from bait stations or distributed by hand broadcast near dwellings or elsewhere in the settlement area by small children, and especially very small children - there addressing the risk that children walking within the settlement area might encounter loose pellets by the roads or footpaths or 30 metres from dwellings or near the lagoon "distributed not within bait stations but by hand broadcast or in some places by helicopter" (at [37]-[38]).
The Deputy President then turned to the use of the bait stations, stating at [39]-[40]: 39. The applicant originally sought a change of language from that used in the existing permit in relation to the bait stations themselves. Having heard the respondent's evidence, the applicant changed its attitude on the matter, and no longer pressed for a different kind of bait station to be utilised. Reference was made to Mr Walsh's evidence at T 438, which, with respect, appears to me to be clear enough. The intention is to raise the pellets within bait stations with coffee cup lids to reduce the likelihood of pellets being washed out of the bait station in the event of rain water entering. The existing conditions now describe the bait station to be used so as to accord with exhibit 21 before me. 40. The bait stations are to be locked and securely pegged to the ground and also covered with wooden roofs. That will make access by small children much more difficult than otherwise might have been the case. A child cannot pick up such a bait station and shake it, for example. Reaching pellets inside may be possible, and this is a particular risk which should be mentioned to parents, both tourists and locals.
Pausing here, it seems to me apparent, from the context in which [40] appears, that what the Deputy President was there doing was setting out his understanding of the evidence as to the proposed use of the bait stations, just as he did in the preceding paragraph when referring to the intention to raise the pellets within bait stations; I (as the plaintiff contends) paraphrasing what he considered the conditions (as ultimately imposed) would require. At this stage of the reasons, it is clear that the Deputy President was doing no more than what was indicated at [31] would be done, namely: discussing the alterations to the Permit proposed by the applicant in the context of the concerns the applicant desired to address (as well as matters that had occurred to the Deputy President); and not concentrating on the drafting of the conditions themselves (and therefore not paraphrasing conditions the drafting of which he was not yet there purporting to address).
I make this point because of the emphasis that the plaintiff places on [40] of the Deputy President's reasons. I do not consider that this paragraphs of the reasons bears the weight sought to be attributed to it by the plaintiff (in effect, as amending the condition itself) nor does it in my opinion helpfully inform the construction of condition 20 (or, for that matter, condition 21). Cases are, as the Board notes, only authorities for what they decide (see Coleman v Powel (2004) 220 CLR 1; [2004] HCA 39 per McHugh J (cited in Lazarus v Independent Commission Against Corruption [2017] NSWCA 37; 341 ALR 483 at [87]; All Seasons Air Pty Ltd v Regal Consulting Services [2017] NSWCA 289 at [45]). By analogy, the AAT decision must relevantly be understood as a determination only of what was there in issue.
It would certainly seem that the Deputy President understood the evidence before him to be that (at least in general) the bait stations would be "also covered with wooden roofs", which the Deputy President noted as being so as to make it much more difficult for a child to have access to the pellets by making it impossible for a child to pick up the bait station and shake it. However, the requirement for an additional cover (be it wooden or otherwise) was not made explicit in the Permit in relation to bait stations other than those to be placed in the vicinity of livestock (and in that context the concern was clearly that of livestock not children).
Moreover, it is clear that the context in which these comments were made by the Deputy President was as to the risk that small children might have access to the bait inside bait stations not to the risk to small birds. The risk to birdlife was addressed (at [49]ff of the AAT decision) but there in the context of the risk of the aerial drop of pellets or the eating by birds of contaminated rodents or fish, not in the context of the bait stations as such. Relevantly, the Deputy President accepted that the consequence of loss of some of the birdlife on the island (from the helicopter drop of pellets or eating of contaminated rodents or fish) could not be avoided, since conditions "cannot be formulated which would save all of the birds endangered by the eradication especially in the forested areas, while adhering to the main object of the eradication program itself" (see at [49]).
The later reference in the AAT decision to covering bait stations with a wooden roof (see at [52]) makes clear that there the Deputy President was referring to the use of bait stations in areas used for crops and dairy and other cattle; and was considering the purpose of the wooden roofs to be to prevent access by cattle to the bait stations (as noted earlier, presumably by trampling the plastic stations and thus exposing the bait pellets).
The Deputy President ultimately accepted the Board's submissions as to the draft amendments to the then existing conditions of the permit (with a variation that the Deputy President considered necessary in order to stress the vigilance required by parents in respect of children - but in that regard this vigilance was seen as requiring supervision of small children at all times - see at [56]-[57]).
After the decision, and the issue of the Permit in its current form, the solicitor acting for the applicant in the AAT proceedings (and now acting for the plaintiff in these proceedings) communicated to the Registrar of the AAT (by two letters each dated 29 May 2019) identifying a perceived inconsistency between [40] of the reasons for decision and the direction given by the Tribunal; and requesting an amendment to the direction under the equivalent of the slip rule (s 43AA(3)(b)).
I have already extracted [40] of the reasons. The actual direction made in the AAT decision was as follows: The decision under review is set aside and in substitution the Tribunal directs that the condition of the permit be altered so as to be consistent with the document attached to the Tribunal's reasons and to conform with paragraph 57 of those reasons.
Paragraph 57 of the Deputy President's reasons, which followed his express acceptance of the submissions of the Board as to the draft amendments (with the one exception referred to above - see [76]), was to set out the additional variations to conditions (being conditions 1(a)-(c) and 2). There was no further variation there made to the conditions that are now conditions 19-21 of the Permit.
The response from the Registrar of the AAT, by letter dated 3 June 2019, to the requested amendment (having referred the matter to the Deputy President) was, relevantly, as follows: The correspondence with the Registrar on the topic of an application for a direction under s. 43AA of the Administrative Appeals Tribunal Act 1975 (Cth) has been drawn to the attention of the Deputy President. Such a direction may be made when there is an obvious error in the text of the decision or in the reasons for decision. There appear to be two possible differences between the remarks made in paragraph 40 of the reasons for decision and conditions 20 and 21 of the permit as issued. Paragraph 40 was as follows: [Paragraph 40 was there set out] Condition 20 states that the bait stations are to be "adequately covered" and paragraph 40 says that they will be "covered with wooden roofs". There is no apparent inconsistency between those two uses of language, even though one is more general than the other. Condition 21 states that the bait stations must be "secured to the ground" and paragraph 40 of the reasons states that they will be "securely pegged to the ground". Again, it does not appear that the language of the permit is inconsistent with the description of what is proposed in paragraph 40, although it is somewhat more particular than the language of condition 21. In those circumstances the Tribunal declines to make a direction under s.43AA to alter the text of the decision of the Tribunal dated 18 April 2019. The Tribunal notes that the Board has submitted its opposition to the application of the applicant under s.43AA that paragraph 40 of the reasons contains an error of fact. That matter is perhaps not for the Tribunal to comment upon, save to note that the Tribunal is not satisfied that the evidence did not justify what is stated in paragraph 40.
The plaintiff submits that the correspondence from the AAT makes plain that the Deputy President saw no inconsistency between conditions 20 and 21 of the Permit on the one hand and what was said at [40] of the AAT decision on the other and, hence, the plaintiff argues that the content and application of conditions 20 and 21 are informed by [40] (in other words, that the AAT has spelled out in [40] the manner in which conditions 20 and 21 must be met). The Board rejects such a proposition. I will consider this in due course.

[8]

The present proceedings

At this point it is relevant to note the way in which the issues were raised on the pleadings.
By amended statement of claim filed pursuant to leave given by me on 31 May 2019, the plaintiff, relevantly, pleads the following as conditions of the Permit: the "Directions for Use condition" (see [12] of the amended statement of claim; that setting a portion of the table in condition 8 of the Permit, but omitting, among other things, the part dealing with bait stations); the "maximum product condition" (see [13] of the amended statement of claim; set out below); and the "external bait stations conditions" (setting out conditions 19-21 of the Permit at [14] of the amended statement of claim) but then going on, at [15] of the amended statement of claim, to allege that the external bait station conditions "were amended or added to by force or effect of" the AAT decision "requiring that the bait stations be securely pegged to the ground also be covered with wooden roofs" (and particularising this allegation by reference to [40] of the AAT reasons for decision).
As to the maximum product condition, it is alleged at [13] of the amended statement of claim that: Consistent with the APVMA application for a permit providing for a maximum use of 42 tonnes of Pestoff, the APVMA Permit, through its conditions, including the Directions for Use condition, permits a maximum use of 42 tonnes of Pestoff (the maximum product condition).
The amended statement of claim then pleads various contraventions of those alleged conditions (some prospective and some, it would seem, retrospective): at [27]-[30] of the amended statement of claim, contravention of the maximum product condition by the Board "[i]n proceeding to disperse 58.3 tonnes of Pestoff, or alternatively an unlimited quantity of Pestoff in excess of 42 tonnes" (something clearly prospective since the dispersal is not yet complete); at [31]-[34] of the amended statement of claim, contravention of the external bait station conditions (by: not covering the bait stations as required by condition 20; not securing the bait stations to the ground as required by condition 21 "or securely pegged to the ground as required by and through the decision of the AAT"; and not covering the bait stations with wooden roofs "as required by and through the decision of the AAT").
Although the amended statement of claim also pleads a contravention both of the so-called "Attachment 1 label condition" relating to the Permit and of the insurance conditions under the Marine Parks Permit, neither of those matters was pressed at the hearing.
At [40] of the amended statement of claim, it is alleged that, in the premises, the Board is in breach of its duty in respect of the conduct of the REP (relevantly, particularised by reference to the breach of the APVMA "and in acting contrary to law").
As to the relief claimed, the plaintiff did not press the claim for declaratory relief in prayers 1 and 3; and did not press for the orders in prayer 12 and 13.
The balance of the relief claimed is for:

a declaration that the Board is limited to using a maximum of 42 tonnes of Pestoff for the purposes of the REP (prayer 2);
orders (in the nature of mandatory injunctions), requiring the Board to fulfil its duty to comply with conditions 20 and 21 of the Permit (prayers 4 and 6 respectively), by providing cover to the bait stations in accordance with condition 20 and securing the bait stations to the ground in accordance with condition 21, respectively; further or in the alternative that the Board fulfil its duty to comply with conditions 20 and 21 of the Permit "as amended or added to by force or effect of the AAT decision by requiring that the bait stations be covered with wooden roofs and be securely pegged to the ground (prayer 8); that the Board fulfil its duty to comply with the Permit by using a maximum of 42 tonnes of Pestoff for the purpose of the REP (prayer 11); and
orders in the nature of negative or prohibitive injunctions, to restrain the Board from: proceeding with the REP otherwise than: in compliance with condition 20 of the Permit (prayer 5), condition 21 of the Permit (prayer 7), conditions 20 and 21 of the Permit "as amended or added to by force or effect of" the AAT decision (prayer 9); or otherwise than by using a maximum of 42 tonnes of Pestoff for the purposes of the REP (prayer 11).

By its amended defence, among other things, the Board: does not admit that it owes a duty to the plaintiff in respect of any of the matters pleaded (see 2 of the amended defence); responds to various of the factual allegations (including pleading that the Pestoff 20R contains a green indicator dye which stains lips and mouth if consumed by humans - see 7(iv) of the amended defence); responds to the alleged health risk (see 7 of the amended defence and to the steps taken to minimise the risk to humans, domestic animals and native wildlife - see 7-(e) of the amended defence); admits the conditions pleaded at [12] and [14], though setting out the relevant Directions for Use condition in full; denies the condition pleaded at [13] or that the amendment or addition to the external bait station conditions was as pleaded by the plaintiff at [15]; admits that it has an operational plan in relation to the REP and that it provides for a maximum use of 58.2 tonnes of Pestoff rodent bait to be dispersed but otherwise denies [27] and [28] of the amended statement of claim; admits that it has informed the plaintiff that its position is that there is no restriction on the total tonnage that may be dispersed under the Permit (see 29 of the amended defence); denies the relevant breaches; and says, in response to the relief claimed, that injunctive relief would not be ordered on any or all of the grounds set out at 43-(h) of the amended defence (the discretionary grounds).
The discretionary grounds pleaded in the amended defence are: that the Board intends at all times to comply with its obligations under the Permit as properly construed; that the breaches alleged are "merely technical in nature"; that it is highly unlikely that there would be any harm to the environment of Lord Howe Island or the inhabitants arising out of any of the alleged breaches; that the plaintiff has not suffered any hardship; that the Board will suffer significant detriment if it is required to halt the REP; that there will be significant harm to the environment of Lord Howe Island if the REP is halted; and that the plaintiff has delayed in bringing these proceedings (for the reasons set out in the amended defence).

[9]

Reliance by plaintiff on AAT reasons

Before turning to the construction of the particular conditions of the Permit, I note that the Board takes issue with the reliance placed by the plaintiff on [40] of the AAT decision, whether that be reliance by the plaintiff on an alleged breach constituted by failure to comply with [40] of the reasons or on the basis that the reasons inform the proper construction of conditions 20 and 21.
The Board notes that the decision of the AAT was made in the context of an administrative review of the conditions imposed under the Permit by the APMVA, which resulted in the APVMA Permit in its current form and that the relevant order of the Tribunal was as set out earlier in these reasons (see [81] above).
The Board refers to the particulars to [33] of the amended statement of claim and says that, insofar as there is an allegation that the failure to comply with the reasons of the AAT is a separate breach (as opposed to the plaintiff relying upon the reasons of the AAT merely as informing the content of conditions 20 and 21), what is here in issue is the proper construction of the conditions of the Permit, not the AAT's reasons (noting that a party can only "enforce" orders of a court or tribunal, not its reasons for decision). The Board points out that, to the extent that those paragraphs of the AAT's reasons contained errors of fact, the Board was unable to appeal against them, as appeals only lie on questions of law (referring to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth)); and that the application by the plaintiff for a correction to the orders of the AAT in accordance with the slip rule was refused.
The Board submits that, in circumstances where failure to comply with a condition of a permit is an offence (see s 116(3A) of the AGVET Code), it should not readily be found that there is a condition which does not emerge from the face of the Permit itself (such as, for example, an alleged condition that would require the Board to install wooden roofs over nearly 18,000 bait stations, especially when to require such roofs would create a delay of several months to the REP, referring to Mr Walsh's affidavit at [112]).
I will return to the reliance sought to be placed by the plaintiff on [40] of the reasons in the AAT decision (see [114] below), when addressing the proper construction of conditions 20 and 21. Suffice it here to note that I do not accept that [40] of the reasons imposes some separate or stand-alone condition (not otherwise stated in the Permit) with which the Board as permit-holder (or any other person authorised to act in accordance with the Permit) would be bound as a matter of law to comply.
The AGVET Code makes clear that a permit must contain the conditions with which (at pain of commission of a criminal offence) a person authorised to act in accordance with the permit must comply. There is nothing in the AGVET Code, nor was I taken to any authority to permit such a finding, that requires a person authorised to act in accordance with a permit issued under the Code separately to comply with the reasons for the imposition of the permit conditions let alone that the conditions of a permit (which have the force of law) can be expanded or supplemented by such reasons.
In the amended statement of claim, the formulation adopted by the plaintiff (see for example at [15]) was to plead that conditions "were amended or added to by force or effect of" the AAT decision. Insofar as that is a reference to the reasons for the decision then the Board's complaint that the plaintiff is seeking to rely on the reasons as having the force of a permit condition seems to me to be well-based. However, in oral submissions Senior Counsel for the plaintiff disavowed any reliance on the reasons of the Deputy President as being the decision itself (see T 13.28) and simply argued that the reasons are a permissible aid to construction of the Permit. I consider that submission later in these reasons.

[10]

Issues in the proceedings

By the time of the (expedited) hearing before me, the issues in the proceedings had been narrowed to: first, the proper construction of conditions 20 and 21 of the Permit (the external bait stations issue), which has two aspects; second, whether, on its proper construction, the Permit allows the use of a maximum 42 tonnes of the Pestoff pellets (the tonnage issue); and, third, whether, if the proposed means of implementation of the REP would contravene the Permit in one or more of those respects, injunctive relief as sought by the plaintiff should be granted as a matter of discretion.
As adverted to above, certain of the declaratory relief sought in the amended statement of claim was not ultimately pressed (including the declarations sought in prayers 1 and 3). In that regard, the plaintiff accepted that the making of declarations of that kind would amount to a declaration in civil proceedings of criminal conduct (it being a criminal offence to apply the poison otherwise than as permitted by the Permit). Hence, the terms in which some of the issues were identified by the plaintiff are not particularly apt (see, for example, issue 1, which was prefaced by the words "[d]o the bait stations that have been deployed by the Board contravene conditions 20 and 21 of the APVMA Permit, in that …"). I have therefore reworded the issues to limit consideration to the proper construction of what is permitted or required by the Permit; not whether there has been (to date) a breach of the Permit. The Board accepts, in this regard, that there is no difficulty with the making of a declaration as to prospective conduct.
Further, given that the plaintiff no longer presses for a declaration as to conduct that would amount to a criminal offence, and there is now no issue raised as to the Marine Park Permit, the issue that had been raised by the Board as to the plaintiff's standing to seek the declaratory relief in prayers 3, 12 and 13(b) of the amended statement of claim now does not arise; and hence it is not necessary to consider the submissions made by the parties on the question of standing.
As further explained in oral submissions by Senior Counsel for the plaintiff, the issues raised as to the construction of the Permit (the first and second issues as I have referred to them above) are as follows (and I will deal with them in this order): 1. in relation to condition 20: 1. whether as a matter of construction the bait stations must be covered by more than the lid of the bait station in order to comply with the requirement that the bait stations be "adequately covered" when used in the open air to prevent access to bait by birds; and 2. whether (even if there is no requirement for any further covering other than the lid of the bait station itself) the bait stations are adequate to prevent access to bait by birds; 1. in relation to condition 21, what is meant by "secured to the ground", i.e., whether the proposed means of securing the bait stations in some areas of the settlement without covering those stations with a wooden roof or some similar additional cover; (and perhaps also, although this was not clear on the pleading, without adopting the crossed-over method of affixation now to be used in certain areas) would comply with condition 21; and 2. whether, on its proper construction, the Permit permits only the use of a maximum of 42 tonnes of the Pestoff pellets.
The alleged contravention of Condition 30 of the Permit, as pleaded at [39A]-[39C] of the amended statement of claim (which related to labelling on buckets from which the hand broadcasting of bait was to be carried out), is now no longer an issue (the plaintiff accepting that, in the circumstances set out in the affidavit of Mr Walsh at [129]-[133], this issue has been addressed by the Board), save for its relevance to the question of discretion as to whether relief should be granted following the determination of the other issues (and in respect of the ultimate issue of costs of the proceedings).

[11]

Evidence

The plaintiff relies on an affidavit affirmed 22 May 2019 of her solicitor, Mr Vrisakis, which mainly attaches various communications with the Board's solicitor and the relevant Permit; her affidavit sworn 29 May 2019 deposing to the matters referred to earlier (and to her testing of the security of the pegging of the bait stations - see at [12]-[13], in which she says that she was able easily to pick up 20 bait stations in various locations on the Island "with little resistance from the pegs in the Bait Stations into the ground"); and an affidavit sworn 29 May 2019 of another Islander, Mr Stuart Henry King, deposing to having witnessed on two occasions a four year old girl "lift one of the bait stations pegged to the ground completely off the ground without any apparent effort" and, on numerous occasions jump up and down on bait stations, dislodging them from the ground and then shaking them (see at [10]-[11]).
The Board relevantly relies on the following affidavit evidence: Mr Walsh's evidence as to the project generally, the plaintiff's complaints about external bait stations and labelling, and discretionary factors against the granting of relief; an affidavit of Ms Helen Sims affirmed 22 May 2019, the solicitor with carriage of the proceeding, going to various discretionary factors against the granting of relief; an expert report dated 3 June 2019 of a mechanical engineer, Mr David Lyons explaining the force required to remove an external bait station when secured in various ways; an expert report dated 4 June 2019 of Dr Terence O'Dwyer, an avian ecologist (the O'Dwyer Report), explaining the risks of the REP to bird species on Lord Howe Island and the capacity of birds on Lord Howe Island to access the external bait stations; an expert report dated 4 June 2019 of Dr Robert DeMott, a toxicologist (the DeMott Report), explaining the potential human health risks and their management related to the implementation of the REP. Where relevant, I will summarise that evidence when considering the issues raised in these proceedings. In the interests of time, I will not separately summarise all of that evidence in these reasons.
The Board also relied (though this is no longer relevant, given that the insurance issue has fallen away) on an affidavit affirmed 4 June 2019 of Mr John van Gaalen, the Manager, Business and Corporate Services, employed by the Board, who deposed to various matters going to the Board's insurance cover. It is not necessary to consider that evidence.

[14]

Plaintiff's submissions

The plaintiff's first argument as to the construction of condition 20 in this regard is that condition 20 would be entirely otiose if the lid of the Globe Pest Solutions bait station was of itself sufficient to constitute an adequate cover to prevent access to bait by birds; and therefore that condition 20 mandates a cover additional to the mere lid of the Globe Pest Solutions bait stations. The plaintiff says that, unless the condition contemplates something additional to that which is intrinsically part of the Global Pest Solutions rodent bait station (referred to in condition 19), there would be little or no point in referring in a separate condition to a requirement that it be adequately covered. Given that condition 21 requires that the bait stations must be locked when installed, the plaintiff says that one cannot regard the locking of the lid as providing the additional work for condition 20 to do and submits that condition 20 contemplates some cover additional to the lidded bait station with the lid locked (T 13.6).
The plaintiff's second argument is that the language of condition 20 of itself indicates that the cover is something over and above the bait station itself (see T 12.8ff). The plaintiff further says that [40] of the reasons paraphrases what the Deputy President thought would be required by the conditions (in this regard, that there be a wooden roof covering the bait stations) (see T 15.3); and that this is confirmed by the response to the application made to the AAT in relation to the perceived inconsistency between what was said at [40] of the reasons and what was said in condition 20.
The plaintiff further submits that the APVMA's view as to what would satisfy the requirement of the condition in this regard, conveyed at a time prior to the AAT decision, is of no significance (see T 15.38; T 17.11) (here, responding to the submission by the Board as to the communications with the APVMA as to the adequacy of the lid as a cover for the bait stations, to which I have referred earlier).

[16]

Dr O'Dwyer's report

It is relevant here to note that Dr O'Dwyer was asked to answer the following questions: Question 1: Whether there is an unacceptable level of risk to any population of bird species on Lord Howe Island due to the Rodent Eradication Project ("REP") Question 2: Where Globe Pest Solutions Rodent Bait Station is used in the open air (an external bait station) with a closed lid, how likely is it that any bird or Lord Howe Island would be able to access the bait contained in the bait station? Question 3: Do you consider the closed lid of an external bait station to be an adequate cover to prevent access to the bait inside a bait station by birds? Question 4: Having regard to the photographs of the bait station supplied, do you think the addition of a wooden cover to an external bait station would affect the likelihood that any birds would be able to access the baits contained in an external bait station? Question 5: In light of the captive management strategy, impact monitoring and other risk mitigation strategies being implemented on LHI as part of the REP, do you think the addition of wooden covers on each external bait station is likely to provide any additional, material reduction in the risks posed to birds under the REP?
Dr O'Dwyer summarised his conclusions as to questions 1-3, relevantly, as follows (in his report at [8]ff): 8. As to Question 1, in my opinion, the REP does not pose an unacceptable population level risk to any non-target population of bird species on Lord Howe Island, factoring in the behaviour of those species, the size and method of deployment of the external bait stations, the Captive Management Program and other risk mitigation strategies being implemented on Lord Howe Island as part of the REP. 9. As to question 2, while some small species of birds may potentially be able to access the entrances to bait stations that are intended for rats and mice, as discussed further below, no significant population-level threats are expected to any species, due to either dietary incompatibilities or due to the small number of individuals that are expected to attempt to access bait. Otherwise, the size of most of the bird species on Lord Howe Island will prevent them from accessing the bait inside a bait station. If the entrance to the bait stations was reduced in size to eliminate access to small birds, rats and mice would also be excluded, which would defeat the purpose of deploying the bait stations. [my emphasis] 10. I am familiar with the particular bait stations chosen for use outdoors as part of the REP, the Globe Pest Solutions Rodent Bait Station. These bait stations have a hinged lid that may be closed and locked over the compartment in which bait is placed. As to Questions 2 and 3, in my opinion, Globe Pest Solutions Rodent bait stations, when deployed with the lid closed and locked, are adequately covered to prevent access to bait by most bird species on Lord Howe Island, particularly those that are likely to eat cereal pellets and forage for food around the settlement area. Where the lid is closed and locked, this prevents any birds from accessing the baits, except those birds which are small enough to fit inside the stations via the small entry and exit holes at the side of the stations. As set out below, endemic birds small enough to enter a bait station in this way are not likely to do so, as the bait is not a food source for them (golden whistlers and silvereyes).
The plaintiff emphasises that the reference to "most" bird species necessarily recognises that this will not be the case with "all" bird species (or all birds within a species).
As to particular species of birds, Dr O'Dwyer concluded in respect of the Lord Howe Island Woodhens and Currawongs (native birds endemic to Lord Howe Island), in respect of whom a Captive Management Program has been put in place as follows: 14. However, I am of the opinion that no unacceptable risk is posed by the REP to the Lord Howe Woodhen population because more than 85% of the woodhens on the Island have been captured and placed in captivity as part of the Captive Management Program. Even if the remaining Woodhens were to consume loose baits on the island and die as a result, the Captive Management Program ensures that there is unlikely to be a long term decrease in the Woodhen population. The eradication of rodents due to the REP is also likely to increase the population of terrestrial invertebrates on the island, and in turn, significantly increase the level of food available for Woodhens. … 16. As to Questions 2 and 3, the few remaining Woodhens in the settlement area where bait stations are located are prevented from entering bait stations due to their size. … 18. However, in my opinion, no significant risk is posed to the Lord Howe Currawong population as a result of the REP because approximately 50% of the Lord Howe Currawong population has been captured and placed in the Captive Management Program managed by Taronga Zoo. In the unlikely event that a large number of free-living Currawongs died of secondary poisoning, the captive population would be sufficient for the population to re-establish. Whilst holding currawongs in captivity may disrupt the currawongs' breeding cycle in the short-term, this will not have any long-term effect given the long life of the bird (in some cases, 20 years or more). … 20. As to Questions 2 and 3, even if the free-living Lord Howe Currawongs had a desire to eat bait from a bait station they are prevented from entering bait stations due to their size.
Dr O'Dwyer noted that other species of birds (for example the Golden Whistler and Silvereye) were unlikely to consume bait due to their diet [24], [28].
The species to which the plaintiff points as species that Dr O'Dwyer has recognised might gain access to the bird stations are the Buff-banded Rail, the Purple Swamphen and the Pacific Black Duck. In this regard, Dr O'Dwyer said: Buff-banded Rail 31. In my opinion, no unacceptable level of risk is posed to the Buff-banded rail population at a local level as a result of the REP due to its size. The use of bait stations in the settlement area will provide protection to approximately 25% of the population which resides in that area. As noted below, this precludes access to baits for all but small or juvenile birds of this species. 32. Buff-banded rails are at risk of consuming pellets in non-settlement areas where the bait is not deployed in bait stations. However, Buff-banded Rails are widespread in Australia -and the Pacific region, are a highly dispersive species and have been known to recolonise islands after baiting programs have taken place. Species numbers on Lord Howe Island have fluctuated over time. As noted in the RMP, at p. 27, the population of the buff-banded rail is likely to rapidly increase following any losses due to the implementation of the REP and/or new birds are likely to self-introduce to the island by migration. 33. As to Questions 2 and 3, while there is the potential for small/juvenile individuals of the Buff-banded Rail to place their head and neck into the bait station and gain access to bait, most individuals are unlikely or too large to do so. [my emphasis] Purple Swamphen 34. In my opinion, no unacceptable level of risk is posed to the Purple Swamphen population at a local level as a result of the REP. The population of the Purple Swamphen on Lord Howe Island is very small as compared with the total population of the bird, which is common throughout eastern and northern Australia. 35. The use of bait stations in the settlement area will also prevent access to the baits in a number of key habitat areas for the Purple Swamphen, due to their size. In addition to the impact monitoring and risk mitigation measures identified above, given the commonality of this bird to the region, it could be reintroduced to Lord Howe Island if the local population were to decline. Based on my experience and study, re-introductions are common and I see no reason that it could not be done with this and other LHI species. The RMP stipulates that if an island census conducted two years after baiting shows lower than 50% of the pre-baiting population estimates, and the population is not increasing, five breeding pairs sourced from another NSW island population will be reintroduced to the Island. 36. As to Questions 2 and 3, no unacceptable risk is posed to the Purple Swamphen from bait contained in bait stations as adults of this species are too large to enter the bait stations. While juveniles may be able to enter the bait stations it is unlikely that there will be significant juveniles present on the island during the baiting period (i.e. winter). [my emphasis] Pacific Black Duck 43. No unacceptable risk is posed to the population of the Pacific Black Duck as a result of the REP due to their size and usual diet. [my emphasis] 44. This species eats predominantly seeds of aquatic plants by dabbling in water and only occasionally eats on land in wet grassy areas. 45. Pacific Black Ducks are irregular visitors to LHI and the numbers fluctuate greatly at any one time. To the extent that any are present on the Island during the REP, they are part of a very large regional population. Therefore, they are highly likely to recolonise the Island if the local population were to decline as a result of the REP. The RMP stipulates that if an island census conducted two years after baiting shows lower than 50% of the pre-baiting population estimates, and the population is not increasing, five breeding pairs sourced from a NSW island population will be reintroduced to the Island. 46. As to Questions 2 and 3, this species is unlikely to enter bait stations to consume bait, in light of their diet, identified above. Moreover, adults of the species are prevented from entering bait stations due to their size. While a juvenile Pacific Black Duck could enter a bait station, the species is generally a spring breeder, and thus juveniles are not expected to be present on the island during the baiting period (i.e., winter).
Pausing here, I note that the usual diet of the Pacific Black Duck does not seem to make it a candidate at risk of being attracted to the bait and I would thus have thought it would fall within the same category of bird as the Golden Whistler and Silvereye. Senior Counsel for the plaintiff seemed prepared to accept that, of the three species identified above, the plaintiff's argument was weakest in relation to the Pacific Black Duck (see T 20.18). Nevertheless, the plaintiff's argument still holds for the buff-banded rail and the purple swamphen, namely, that the size of those birds makes it conceivable that small or juvenile birds of those species could reach bait inside the bait stations and there is either no statement in the O'Dwyer Report that the bait would be an unattractive source of food, or the bird's diet would not exclude cereal.
Dr O'Dwyer concluded in answer to questions 4 and 5 as follows: Questions 4 and 5 47. I have observed the wooden A-frame covers that have been used to protect a limited number of the bait stations being used for the REP. Adding such wooden A-frame covers over the bait stations would make NO difference to the accessibility of bait stations to birds or provide a material reduction in the risks posed to birds under the REP. 48. The purpose of wooden A-frame covers that have been added to a limited number of bait stations is to prevent bait stations being crushed by livestock while still allowing access to bait by rodents. In the event that a species of bird or juvenile bird is small enough to enter the bait station, such a bird would also be able to fit under the wooden A-frame cover. The wooden A-frame cover would provide no additional disincentive to entering the bait station. 49. It is difficult to conceive of a cover over the Globe Pest Solutions bait stations that would still allow access to the bait by rodents but prevent access to the inside of the stations by small birds.
At T 19.10, there appeared to be a suggestion by Senior Counsel for the plaintiff that a cover over and above the bait station itself would prevent the Buff-banded Rail from getting its head and neck into the bait station because such a cover would create more distance between one of the access holes and the bait station (i.e., some sort of perimeter). If so, Dr O'Dwyer's conclusion at [49] would tell against acceptance of such a proposition. However, in later submissions this did not appear to be what was suggested; rather, the plaintiff's contention is that it is not a matter for her to devise a suitable cover; rather, it is for the Board to comply with the condition - and the condition is absolute. (That, of course, begs the question as to what is the proper construction of the condition in this regard.)

[18]

Board's submissions

In response to the plaintiff's contentions regarding the covering of bait stations, the Board submits as follows.
First, that condition 20 is not "entirely otiose" on the basis of condition 19 if the lid of the Globe Pest Solutions Rodent Bait Stations provides the "coverage" required by condition 20. It is submitted that the two conditions have overlapping work to do.
Second, that the condition should be construed purposively and in the context in which it appears (namely, a permit permitting the use of bait stations as one among several means of distributing Pestoff-20R to eradicate rats).
Third, that the drafting history of the Permit supports the Board's construction (and in this regard it is noted that the APVMA has confirmed its view that the condition is complied with by the closeable lid of the bait stations that are now in use).
The Board submits that there is no basis for imputing to the APVMA a deliberate intention to make a separate or additional provision for the "adequate coverage" of a bait station in condition 20, beyond that provided by the lid of the bait station. The Board says that condition 19 specifies the particular bait stations that must be used outside; but by itself, it does not require the lid to those stations to be closed or locked; whereas condition 20 requires that bait stations be adequately covered for the purpose of preventing access to bait by birds.
It is submitted that, if the bait station lid is closed, that will cover the chambers of the bait station (where the bait is placed) and prevents birds flying into the station. By that means, it is said that the purpose of condition 20 is achieved (noting that condition 21 further requires that the bait station be locked). The Board says that conditions 20 and 21 overlap with condition 19 but further specify the means by which the nominated bait station is to be deployed. It is noted that there is no suggestion in the plaintiff's evidence that bait stations have been left unclosed or unlocked around the Island.
The Board's first argument therefore, is that the cupped hinge mechanism of the bait station lid (when closed) couples with the requirement that the bait station be adequately covered i.e., that closing of the lid (to cover the bait) specifies something additional and meaningful, and consistent with the purpose specified in condition 20 - to prevent access by birds (T 38.45).
The Board's second argument is that condition 20 should be construed purposively.
The Board notes that the Permit was issued by the statutory authority charged with administering pesticides regulation. The Board submits that the Court should apply to the construction of the Permit, by analogy, the principle applied to development consents that "[i]nstruments such as consents and conditions of consent are to be construed, not as documents drafted with legal expertise, but to achieve practical results" (referring to Westfield Management Ltd v Perpetual Trustee Company [2006] NSWCA 245 (Westfield Management) at [36] and [40] per Hodgson JA (Tobias and Basten JJA agreeing)).
It is noted that the submission quoted and accepted in Westfield Management cited, inter alia, Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 933-4, where Lord Reid said of English building regulations (in remarks approved in Driscoll v J Scott Pty Ltd (1976) 50 ALJR 528 at 531 per Murphy J): They are addressed to practical people skilled in the particular trade or industry, and their primary purpose is to prevent accidents by prescribing appropriate precautions ... The regulations ... have often evolved by stages ... and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions such as might be appropriate in construing sections of an Act of Parliament.
The Board says that condition 20 is evidently concerned with preventing access to bait in bait stations by birds but should be construed practically, given that it also concerns bait stations which need to be able to be accessed by rats and mice in order to serve the purpose of rodent eradication (an argument of which kind the Deputy President seems clearly to have accepted - see the reasons at [49] - see [78] above). The bait stations that are required to be used (by condition 19) have two entry and exit points, so that rodents are encouraged to enter (Mr Walsh's affidavit at [52]).
The Board says that the plaintiff's contention that the bait stations permit access to bait by birds (see [24] of the plaintiff's submissions) is not in practical terms correct. It is said that the only means by which a bird could potentially access bait in the bait stations, when the lid is closed and locked, is if that bird is small enough to fit inside the bait station through the same entrance and exit holes that are used by rats and mice (referring to the O'Dwyer Report at [10]). It is noted that the only endemic birds on the Island small enough to enter a bait station this way (golden whistlers and silvereyes) are not likely to do so, as the (cereal) bait is not a food source for them (O'Dwyer Report at [10], [24], [28]); and that no other endemic birds (Lord Howe Woodhens and Currawongs) are prevented from entering bait stations through the entrance and exit holes due to their size (O'Dwyer Report at [16], [20]). (Pausing here, this submission does not accommodate the possibility of smaller birds being able to reach the bait by poking their head and neck through the holes.)
The Board thus argues that, due to either size of the birds, diet or both, adult non-endemic bird species identified as being at potential risk of Brodifacoum poisoning are unlikely to enter bait stations through the entrance and exit holes, and juveniles of relevant species are unlikely to be present on the Island during the baiting period (O'Dwyer Report at [33], [36], [39], [42], [46]).
Insofar as the plaintiff's submissions (see at [25]) imply that cover for bait stations is available that would prevent access to bait by birds, the Board refers to Dr O'Dwyer's evidence to the effect that the wooden A-frame covers (referred to in the AAT decision at [40]) would make no difference to the accessibility of bait stations to birds (O'Dwyer Report at [47]) and that Dr O'Dwyer, whose doctorate is in avian ecology, who has 15 years of experience in avian ecology and conservation and who has been involved in ecological research on the Island for more than 10 years, found it difficult to conceive of a cover to the Globe Pest Solutions bait stations that would allow access to the bait by rodents but prevent small birds accessing the inside of the station (O'Dwyer Report at [48]).
It is submitted that condition 20 should also be construed in the context of the other conditions of the Permit which permit: hand broadcast of bait, including within the settlement area of the Island where bait stations will otherwise be used (providing a leaseholder has given consent: see condition 18); and aerial broadcast of bait, over the majority of the area of the Island (see condition 9 and Mr Walsh's affidavit at [10], [13]).
The Board recognises that, as a result of those conditions, there will inevitably be many loose pellets of bait scattered over the Island, including in those parts of the settlement area where leaseholders have permitted hand broadcast. It submits that it could not be suggested that condition 20 was directed to an overall purpose of preventing birds from accessing loose pellets of bait.
The Board says that adopting the above approach to the construction of condition 20 is consistent with the evolution of the Permit in stages, as a result of the AAT proceedings, noting that condition 20 of the Permit (issued in August 2018) was originally condition 14, and referred to "tamper proof bait stations"; and that the original form of the Permit did not specify the type of bait station permitted (there was no equivalent of condition 19).
It is noted that, during the AAT proceedings, the APVMA agreed to a number of amendments to the Permit to "take account of a number of changes made to the rodent eradication program since the permit was first issued" (see AAT Decision at [14]); including the insertion of condition 19, which the Board says reflected the fact that, by the time of the AAT hearing, the Globe Pest Solutions Rodent Bait Stations had been selected. It says that condition 19 provided greater clarity as to what bait stations were permitted than had the previous generic reference in the permit to "tamper-proof" bait stations; and that its addition should not be treated as affecting the construction of condition 20, or giving condition 20 greater work to do than the original condition 14.
Thus, the Board's third point is that conditions 19 and 20 are in substance new, and were drafted by the APVMA in agreement with the Board; and therefore that the adoption of an expressio unuis or "superfluity" approach to the construction of these conditions is not permissible.
As to the reliance placed by the plaintiff on [40] of the AAT decision, (apart from its submission that one implements orders not reasons), the Board argues that [40] was a passing reference to the evidence as to the intention to put out bait stations (and an elucidation of [39]). It is emphasised that [40] does not say that "all bait stations are to be covered by wooden roofs" and that nothing was directed to that effect in the Permit.
It is submitted that neither condition 20 nor condition 21 requires the use of a "wooden roof" over all bait stations by reference to [40] of the Tribunal's reasons, when that paragraph is read in context. It is noted that the AAT's reasons (at [52]) indicate that the Deputy President understood that "wooden roofs" would be used in special lease areas used for cattle, and were designed to prevent cattle accessing bait stations (which it is said is consistent with the evidence in the AAT proceedings, referring to Mr Walsh's affidavit at [121], [122]; Exhibit 5, p 942). The Board submits that, taking [40] and [52] of the AAT's reasons together, a clearly available reading of [40] is that it refers to some, but not all, of the bait stations being covered with "wooden roofs".
As to the second limb to the plaintiff's argument in relation to condition 20 (that the bait stations do not in fact prevent access to the bait by birds even if nothing more than the lid to the bait station is required), the Board's first complaint is that this was not pleaded (referring to [31] of the amended statement of claim and the particulars thereto). The Board says that the plaintiff should not now be permitted to raise such an allegation.
The Board complains that there is nothing in the pleading to allege breach of the condition on the basis that the bait stations do not prevent access to bait by birds (or, in Senior Counsel for the Board's words, that they do not "fulfil a separate purposive perfectionist requirement of preventing access to bait by birds", i.e., that every single one of the bait stations does not prevent access to bait by birds). Senior Counsel for the Board complains that this is not the case that the Board has come here to meet and says that, if that had been pleaded, it may well have been the subject of further evidence by Mr O'Dwyer about the various options to be considered and whether or not they would have achieved the overall purpose.
Pausing there, in reply submissions Senior Counsel for the plaintiff did not argue that this aspect of the alleged contravention had been pleaded as such, in effect conceding that it had not, but maintained that it had arisen on the evidence (pointing to the fact that the Board had adduced the report of Dr O'Dwyer on which this submission was based) and the submissions filed by the Board. In particular, reference is made to the summary of Dr O'Dwyer's evidence in the Board's submissions and to Dr O'Dwyer's report as to the various species that he recognises can still get access to the bait in the bait stations (and might regard it as a potential source of food according to their natural diet). Thus, it is said that the issue was raised by the Board and that it has therefore consented to a widening of the issues beyond those that the plaintiff has pleaded ("and the fact that [the plaintiff's] pleading did not expressly particularise this matter is neither here nor there"). The plaintiff argues that the hearing has been conducted on the basis of this being a factual issue and says there is no merit in the pleading point now taken. The plaintiff emphasises that Dr O'Dwyer's evidence demonstrates, as a matter of fact, that the cover in the bait stations is not adequate to prevent access to birds.
On that issue, Senior Counsel for the Board argues that this matter was prepared for hearing as a matter of urgency ('breakneck speed"), noting that it was commenced on 17 May 2019 and that Dr O'Dwyer was instructed to provide his report on 3 June 2019; his report was filed on 4 June 2019; the plaintiff's submissions were served at 12pm on 5 June 2019 and the Board's submissions were provided at 8am on the day of the hearing (6 June 2019). It is said (and I agree) that, against that background, "to suggest that some great subtlety should be read into [the Board's] submissions" in this regard is not a fair reading of the events. In particular, insofar as the plaintiff's argument on this issue was that one might seek to cover up the bait station to limit birds sticking their heads into the exit/entry holes, it is said that that is something Dr O'Dwyer's evidence did not address, could have addressed and (it might be inferred) would have addressed had this issue been pleaded.

[19]

Determination of pleading issue

Pausing to address this pleading issue at this point, there is no doubt that the matter was listed for hearing expeditiously and that both parties were required to prepare the case with uncommon speed (and did so, I should say, admirably in conformity with the overriding mandate provided by s 56 of the Civil Procedure Act 2005 (NSW).
At [31] of the amended statement of claim, under the heading "Contravention of the external bait stations conditions", the plaintiff alleges broadly that the Globe Pest Solutions Bait Stations that the Board has set out do not comply with condition 20 and are contrary to law. That allegation is particularised by the allegation that the bait stations prescribed by condition 19 have not been covered in any way as required by condition 20 (which the Board accepts would encompass a failure to cover them with a wooden roof or some other form of coverage but which turns on the question of cover).
Insofar as reference was there made to the recognition that there may be a departure from the pleadings where the parties have proceeded on such a basis, in Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Limited [2008] NSWCA 206, McDougall J implicitly recognised that in some circumstances the parties might, by their conduct of the case, acquiesce in the widening of the pleaded case. There, however, various of the counsel for the various defendants had repeatedly stated that they were responding to the plaintiff's pleaded case from which the plaintiff ought not be allowed to depart and his Honour noted that there could be no suggestion that any of the defendants who appeared during the hearing had acquiesced either expressly or by inference in any widening of the pleaded case against them.
On appeal, Ipp JA considered the authorities and principles relevant to whether a party would be allowed at trial to depart from its pleaded case, noting that: At trial, there may be a departure from the pleadings where adherence to them would be unjust or unfair. In Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279; 92 ALR 53; [1990] HCA 11 (Banque Commerciale) Mason CJ and Gaudron J said (at CLR 286-7; ALR 58-9): The function of pleadings is to state with sufficient clarity the case that must be met: In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. Ordinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted. It may be that, in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference. Dawson J (at CLR 293; ALR 63) quoted the following statement by Isaacs and Rich JJ in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) (1916) 22 CLR 490 at 517; [1916] HCA 81: But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest. And observed: (at CLR 296-7; ALR 66): But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. Special procedures apart, cases are determined on the evidence, not the pleadings.
Ipp JA went on later to consider the factors which would have weighed on the making of a discretionary decision whether to allow the plaintiffs to depart from their case as pleaded, including amongst those factors that the appellants, in opening their case, had asserted that they proposed to establish a case based on the "smoothing over" argument, that several parties had adduced evidence directly relevant to that argument, that there was much cross-examination on this evidence, the appellants in closing had presented lengthy submissions based on the smoothing over argument and that the respondents, generally, had responded in their closing submissions to the merits of that argument. His Honour then said: The principal factors contrary to such a decision included that the appellants had not, as required, pleaded the elements of the particular argument either expressly or impliedly. The respondents did not know that that evidence was being adduced in connection with the argument, that there was no agreement to amend and [relevantly for the present case], the respondents did not agree to or acquiesce in the appellants advancing that argument. His Honour considered that had the smoothing cover argument been pleaded, the case for the respondents may have been conducted in a different way. (My emphasis)
I am not persuaded that there was a conscious acceptance of, or acquiescence by the Board as to, any extension of the issues beyond those pleaded. I accept that it was the Board which determined the questions on which it sought expert opinion from Dr O'Dwyer and that those questions included reference to the adequacy of the cover to prevent access by birds, but that was in the context where the Board was clearly seeking to raise discretionary issues in relation to the pleaded claim for relief, and where there was no pleading of any contravention by reference to the birds actually being able to gain access to the bait stations.
Had the issue simply been as to the construction of condition 20 (i.e., does it on its proper construction require, for there to be compliance therewith, that as a matter of fact it be impossible for a bird to gain access to the bait in the bait station) I would not have had a concern as to that construction being raised for the first time in the course of oral argument (since it could have been addressed without further evidence - as indeed it was as I will come to shortly). However, I accept the Board's submission that it is difficult to conceive that, had there been an allegation of contravention based on this particular construction of condition 20, Dr O'Dwyer would not have been asked to address issues relating to this in a more focussed fashion.
I do not consider that the Board has, by adducing the evidence from Dr O'Dwyer (and by summarising that evidence in its submissions), acquiesced in a departure from the pleaded case and I accept the Board's submission that the plaintiff should not now be permitted to expand that pleaded case in circumstances where the Board has not had the opportunity to adduce evidence going to that issue.
That said, my conclusion on the pleading issue is not determinative of this aspect of the external bait stations issue because, even had I treated the pleaded case as having been consensually expanded, it would have failed in circumstances where I do not accept that, on the proper construction of condition 20, the Board (or any user of the product in accordance with the Permit) is obliged to ensure that no bird can gain access to any bait station at any time.
As I indicated in the course of submissions, I read the words "to prevent access to bait by birds" as indicating or specifying the purpose of the cover (necessary to determine the adequacy of the cover). I do not accept that such a construction renders the condition no more than aspirational (as was suggested for the plaintiff). Rather, I consider that such a construction is a practical reading of the condition, having regard to the fact that it is illogical to think that a bird as small as a rat or mouse could not possibly make its way through an exit or entry hole whatever the nature of the cover. True it is that if all that is contemplated is a bird being able to fit its head and neck through the hole then a cover that creates a greater distance to the bait (through the setting up of some kind of perimeter) would conceivably prevent such access; but that cannot address the position of a bird or juvenile bird that is as small as a rat or mouse for whom the bait station holes are designed to permit entry.
Senior Counsel for the Board submitted that if the case were to be expanded in that fashion then it would be necessary to read the condition as a whole, in a pragmatic sensible way, to mean "adequately covered to prevent access when used in the open air". There is much force to that argument.

[22]

Board's submissions

Insofar as the plaintiff has referred to the Oxford English Dictionary's definition of the transitive verb "to secure", the Board notes the caution sounded in various authorities as to the use to be made of dictionary definitions (referring to 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [81]); and says that all that emerges from the dictionary definition is that the term is one with a spectrum of possible meaning.
In context, the Board says that the term should be construed to mean that the bait stations must be sufficiently secured so as not to become loose by naturally occurring events. By contrast, the Board says that the term would not be construed, for example, so as to require the retention force to be sufficient to prevent intentional removal by a person (on the basis that this would require an impractical degree of securing, unlikely to have been intended for the thousands of bait stations being deployed).
Even if a more demanding view were adopted, the Board says that, on any reasonable understanding, the requirement is met; referring to Mr Walsh's evidence as to the steps which the Board is taking to secure the external bait stations. Mr Walsh has deposed that: most bait stations were originally secured with two metal pegs measuring 17.5 cm in length and 4mm in diameter (Mr Walsh's affidavit at [73]) (in the Board's submission, that is sufficient to describe the bait stations as "secured" for the purposes of condition 21); that, depending on ground conditions some bait stations have been screwed to stakes, wired to fence posts or weighed down with rocks (Mr Walsh's affidavit at [74]) (again, the Board submits that those bait stations are "secured" for the purposes of condition 21); that there are special protocols for the use of outdoor bait stations around the School and adjacent oval (Mr Walsh's affidavit at [80]).; and that longer metal pegs are now being employed in areas where children may be expected.
Contrary to [32] of the plaintiff's submissions, the Board says it has made neither an implicit nor explicit concession that the use of smaller tent pegs does not comply with condition 21. It submits that, to act cautiously by adopting a more conservative approach, especially in the face of litigation, is no concession. (I agree. I do not regard the Board's attempts to meet the concerns by the plaintiff as amounting to any concession of breach on its part.) The Board's position is that all the bait stations have been secured in a manner that complies with condition 21, and that at all times it intends to comply with all conditions in the APMVA Permit, properly construed.
As to the plaintiff's submission at [33] that there is an obvious real issue of safety for residents and tourists, and in particular of children of residents and tourists, underlying condition 21, the Board says three things in response.
First, that the words of condition 21 demonstrate that the issue of safety to humans is not the dominant purpose of the condition (since condition 21 provides that the bait stations must be secured to the ground "unless prevented by impervious ground conditions" - a factor that is independent of the risk that the bait station is in an area in which a child might pick it up).
Second, that, as from 22 May 2019 (the same date on which baiting of the bait stations commenced), Mr Walsh has directed the ground baiting crew to secure all outdoor bait stations with two of the long (34.5cm) metal pegs crossed over and hammered into the ground, on properties with children aged under five and in common recreation areas likely to be frequented by children (Mr Walsh's affidavit at [77]); and that the status of the metal pegs is checked at the weekly servicing of the bait stations (Mr Walsh's affidavit at [71], [78]) (noting that the plaintiff does not appear to contest that those stations are also "secured" for the purpose of condition 21); and the Board points to Mr Lyons' opinion. Mr Lyons has given the opinion that: the metal pegs used by the Board to secure bait stations provide for a retaining force on a bait station that increases based on the size of the peg, the number inserted, depth of insertion and whether two of the pegs are crossed over (Lyons Report at [14]); the pegging configuration can effectively reduce or mitigate the risk of a child removing a bait station (Lyons Report at [14]); in particular, the arrangement which Mr Walsh has directed be adopted for external bait stations placed in areas near children (being described as "Configuration 5" in the Lyons Report) has a retention force of 232.4 Newtons, or 23.69kg (Lyons Report at p 5), which is well in excess of the lifting force of a 4 year old child (Lyons Report at p 7) and says that this is consistent with the evidence of Mr Walsh, who has personally tested that arrangement and found that he had to exert considerable force to lift the station (Mr Walsh's affidavit at [76]).
Third, that the plaintiff does not adduce any evidence in support of the proposition that there is any issue of safety in relation to human health arising from the method by which the bait stations are secured.
The Board relies on the DeMott Report as demonstrating that the risks arising from consumption of baits from a bait station are minimal (and the three HHRA at Exhibit 5, commencing pp 89, 172 and 241 respectively).
Taking the example of a 15kg child, Dr DeMott opines that: ingesting a sufficient dose of brodifacoum expected to produce clinically observable effects would require a child to defeat the protective features of the bait stations and ingest the entire amount of baits from multiple devices (DeMott Report at [36]); a child would need to consume more than 5 pellets (being 10mm wide cylinders) to display any observable effects (DeMott Report at [44]); a child would need to consume approximately 45 pellets to require clinical intervention (DeMott Report at [57]); and for such a child, it would take of the order of ingesting 131 of the pellets to be likely to experience an acute affects dose (DeMott Report at [41]).
The bait stations were initially supplied with 40 pellets starting from 22 May 2019. By the date of the hearing, bait stations will either have 40, 20 or 10 pellets in them, depending on the date that they were first baited (Mr Walsh's affidavit at [67]). The initial amount of 40 pellets decreases to 20 pellets after the first week, 10 pellets after the second week, 6 pellets between weeks three and seven, and 5 pellets between weeks eight and fourteen (Mr Walsh's affidavit at [66]).
The Board says that the plaintiff's concerns about potential risks to human health have to be understood in the context that: the bait stations themselves were selected in response to community feedback, including on the basis that they have a separate chamber for bait at a 90 degree angle to the entry/exit points, so as to make it more difficult for a child to access them (Mr Walsh's affidavit at [52]); there is an extensive program of signage and community education directed at drawing the attention of all residents and all visitors to the island of the distribution of the rodenticide, and specifically warning parents that small children should be supervised at all times (Mr Walsh's affidavit at [90]-[105], esp [90]); in particular, there have been education sessions specifically provided for children on the Island (Mr Walsh's affidavit at [95]), and each property with small children has a personalised "property management plan" developed in consultation with parents/guardians (Mr Walsh's affidavit at [98]); the pellets contain green dye, so that "handling, mouthing or ingesting pellets will result in readily observable indications on the hands or face of a child" (DeMott Report at [38]).; and there is a ready and effective antidote in any case (DeMott Report at [32], [60]), with which the Island is well-stocked (Mr Walsh's affidavit at [97]).
Thus, it is submitted that the bait stations employed by the Board are "secured" for the purposes of condition 21 of the Permit.
Insofar as the capacity of the bait stations to be lifted by children is the matter upon which the plaintiff founds its claim for breach of the condition, and the plaintiff's written submissions do not mount any attack on the adequacy of the securing system which has been implemented since 22 May 2019 involving 2 of the long (34.5cm) metal pegs crossed over and hammered into the ground, the Board notes that this is the arrangement being adopted in areas which the Board has identified as likely to be frequented by children. In those circumstances, and taking account of what has been outlined with respect to the risks to health (and taking account also of the further discretionary factors addressed below), the Board says that, as a matter of discretion, no injunctive relief should be granted in relation to this alleged breach (even if such a breach be made out by the plaintiff).

[24]

Plaintiff's submissions

The plaintiff accepts that there is no express statement in the Permit limiting the dispersal of product to a maximum of 42 tonnes. However, the plaintiff argues that this can be discerned from the Directions of Use condition (condition 8) read in light of the various statements made by the Board in the context of applications made in relation to the REP.
In this regard, the plaintiff points to the Board's 2016 application for the Permit, where there is a statement in respect of "scale of use" that "[a] maximum of 42 tonnes [of Pestoff pellet bait] would be used".
The plaintiff says that this amounts to an "effective declaration" by the Board of the use of a maximum of 42 tonnes of Pestoff in the REP and says that such a declaration is replete throughout all of the documentation from the Board to the residents and to all authorities from whom relevant permits were required (pointing in this regard to what was said in the Marine Parks Permit application to the effect that at the proposed application rate per hectare "a maximum of 42 tonnes of bait (containing 840 g of Brodifacoum) will be required to cover the total island group surface area of 2,100 ha").
The plaintiff points to the statements contained in the Board's APVMA application (Part 6: Work Health and Safety), to which I have referred above, and to the statements made as to the overlapping of swathes (to which I have also referred). It is said that it must be assumed that the Permit was issued on the basis of the material presented in the application for the Permit.
The plaintiff notes that under the Board's Operational Plan (labelled as draft but which I am informed is the latest plan that is in evidence) it proposes to distribute over the Island 58.2 tonnes of Pestoff rather than the 42 tonnes referred to in the application for the Permit and notes that this involves a 33.8% increase of Pestoff. (The plaintiff also points to the Board's amended defence in which it takes the position that the APVMA Permit provides no limit or restriction upon the Board as to the quantity of Pestoff that it may spread over Lord Howe Island in pursuit of the REP - see [29] of the amended statement of claim, to which there is the admission in 29 of the amended defence.)
The plaintiff emphasises that the conditions of the Permit require strict compliance (referring to condition 31 and Attachment 1) and says that the Board's Operational Plan, in accordance with which the Board has stated that it intends to proceed with the REP, provides for aerial broadcasting of Pestoff manifestly in excess of the approved rate of application prescribed in the Directions for Use in condition 8 in the Permit.
The manner in which the plaintiff calculates what it contends is the maximum permissible tonnage was explained in oral submissions in the following way.
Reference is made to the statements under the heading "Use and Application" in the application for the Permit (dated 9 November 2017 - the second application) to which I have earlier referred. The Permit itself, under the heading "Conditions of Use" and then "Directions for Use" contains the references to the aerial (helicopter) broadcast and hand broadcast - both of which speak of applications of 20kg/ha, followed by the reference to the bait stations (with no volume mentioned) and then at condition 13, a maximum of two applications to be undertaken in accordance with the directions for use.
The plaintiff acknowledges that there is no explicit reference in the Permit to a maximum of 42 tonnes. However, the plaintiff argues that it is implicit in the permit particularly when read with the application for the permit that there is such a maximum. The 42 tonnes is calculated on the basis that if there is 20kg of product per hectare and the island in a three dimensional format the island covers about 2,100ha that leads to 42,000kg or 42 tonnes. It is said that this is a limit to the cumulative methods of dispersal because the methods are in respect of different areas (the Board cavils with this and points to indications where there may be overlapping).
It is the plaintiff's submission that it is implicit that the quantity for the bait stations subject to this approval was 20kg of product per hectare (by reference to the two separate permit applications).
As to the second application (the current one at the time of the AAT proceedings that led to the final version of the Permit), the plaintiff notes that at p 79 in the description of scale of use there is reference to the total amount of 840kg and a maximum number of two applications (of 12 and 8kg per hectare respectively) noting that the application method includes bait stations. Accordingly, it is said that the bait stations were clearly contemplated as part of the application and the application was for use of a maximum of 42 tonnes.
Reference is made to the method of application. It is submitted that what is being approved is the application and the application has within it the maximum of 42 tonnes, that is, the same rate of 20kg per hectare being applicable to the bait stations as it is for the two means of broadcasts, aerial and by hand. As to the overlapping, it is noted that this is how the figure of 12kg is reached. It is noted that overlap was to ensure that there would be no gaps was something that was taken into account in reaching the total of 42 tonnes maximum of product. It is noted that there is a reference to a maximum 0.40g per hectare, which it is submitted would be a significant matter for the authority to consider from a health and safety perspective.
It is then noted that, at p 328, there is reference to a maximum of 58.2 tonnes and to two separate applications at the rate specified but the submission is that although there is now a reference to minimum application rates, the Permit does not permit those rates for aerial and hand broadcasts to be exceeded. In the plaintiff's submission they cannot exceed those rates or a combined total of 20kg per hectare when one takes into account the bait stations as well.
Insofar as there is reference to steep land above 50 degrees deflector and steep land above 70 degrees deflector and the baiting regime says "resow slopes ... exceeding 70 degrees", the plaintiff is concerned that what seems to be contemplated is a third application, a "re-sowing" after the two aerial broadcasts, and it is said that this is well outside the permit which only allows two applications in the directions for use.
Insofar as Mr Walsh has deposed at [48] to the anticipated length of aerial application of bait, the plaintiff says that there were always two aerial applications contemplated and they were designed to ensure that there would not be gaps. If the re-sowing (to address bait run off from steep sea cliffs) is intended to be an additional aerial treatment it is said that only two aerial applications have ever been approved. Further, the need for additional bait to fill any gaps discovered following an initial aerial application of bait, and bait run-off from steep sea cliffs such as were contemplated in the original application for the Permit.
As to the reference to a buffer for bait or a contingency amount of bait, the plaintiff accepts that the Permit is only concerned with the distribution of bait and there is no complaint as to the Board having in stock some extra stock of bait in case some of it spoils before being distributed but it is said that this does not justify distributing a greater amount of bait than has been approved.
As to the reference at [49] to a change in methodology (being the change to use bait stations only rather than hand broadcasts of bait in common public areas of the settlement) which was adopted at the Board's March 2018 meeting, the plaintiff says that this cannot explain the difference between 58.2 and 42 tonnes (since on the plaintiff's calculations that would only add 4.6 tonnes to the total - i.e., 173.4ha which are the subject of bait stations external and the total bait tonnes that are contemplated for the bait stations external is 8.1 tonnes - as a matter of simple arithmetic, the plaintiff says that the impact that has on the quantity is 173.4 x 20kg = 3.468 tonnes (which if subtracted from the 8.1 tonnes leaves about 4.6 tonnes and does not justify an increase of about a third from 42 tonnes to 58.2 tonnes).
The plaintiff says that it is not to the point that the Board obtained approval from APVMA for the importation of the larger tonnage; since that importation approval does not alter the conditions of the Permit - rather, the importation approval expressly states that imported Pestoff is to be dealt with under the conditions of the Permit.

[25]

Board's submissions

The Board says that there is no condition in the Permit that permits the Board to use only a maximum use of 42 tonnes of Pestoff 20R and that insofar as the plaintiff's claim depends on the contention that the Permit must be construed so as to include an implicit condition based on the Board's application for the permit, the Board says that there is no basis to imply into the Permit any conditions that do not appear on the face of the permit.
The Board points out that the Permit is issued under Part 7 of the AGVET Code and says that the legislative context makes it plain that the only conditions which exist in relation to a permit are those expressly stated in the permit.
Given the extent to which a "permit" is a creature of Part 7 of the AGVET Code, the Board says that there is no basis to infer a condition into a permit which is not stated on the face of the permit and that, given the potentially severe consequences of non-compliance with a condition imposed in a permit (see s 116(3A) and (3B)), there is good reason not to do so. (I agree.)
Even if a condition could be implied into the Permit, the Board says that there is no sufficient basis in fact here to imply a condition that restricts the Board to a maximum of 42 tonnes to be dispersed for the following reasons.
First, that such a condition would be inconsistent with another express condition of the Permit. It is noted that condition 8 governs the amount of Pestoff 20R to be used and it provides for: dispersal via aerial broadcasting in the amount of total of 20kg of Pestoff 20R per hectare; dispersal via hand broadcasting at a rate of 12kg of Pestoff 20R per hectare and the second hand broadcast at a rate of 8kg of Pestoff 20R per hectare; dispersal by outside bait stations with no maximum amount specified; and dispersal within dwellings (via a different kind of bait station or trays, per condition 22) with no maximum amount specified. It is said that where three of the four means of dispersal contemplated in condition 8 have no maximum amount of Pestoff 20R specified, condition 8 cannot specify a total amount of Pestoff 20R to be dispersed.
Second, that the Board's application for a permit does not restrict itself to dispersal of a maximum of 42 tonnes. It is submitted that it is readily apparent from the application that the figure of 42 tonnes was an expectation or estimation only. The Board points by way of example to the following: that the section of the application quoted by the plaintiff at [10] of the amended statement of claim is in response to the field in the application: "Estimated or proposed scale of use (area, tonnage, number of trees, number of animals, number of doses etc.)"; and to that section 6-1.3 ("Use and Application") extracted above at [29].
The Board says that in none of the sections of the application in which the 42 tonnes figure is mentioned did it commit itself to being limited to that figure.
Further it is said that, both before and after the APVMA issued the Board with the Permit, the Board made the APMVA aware of the fact that it was not seeking to limit itself to a figure of 42 tonnes of Pestoff 20R; and that the APVMA has not raised any complaint with the Board. It is said that the clearest demonstration of this is that the Board applied for and was granted an Import Consent by the APVMA for 58.2 tonnes of Pestoff 20. The Board submits that if the AMPVA had understood that there was a condition of a maximum of 42 tonnes of Pestoff 20R implied into the APVMA Permit, the APMVA would have declined to grant such an Import Consent.
Further, Mr Walsh notes that in documents submitted to the APVMA at a later stage of the approval process, such as the Risk Mitigation Plan 4.0, the Board made plain to the APVMA that it was proposing to increase the number of bait stations from 3,000 to 18,000 (see Mr Walsh's affidavit at [49]) and that the Board has been in extensive consultation with the APMVA and other relevant regulators during the implementation phase of the REP (Mr Walsh's affidavit at [106]-[109], Exhibit 5, pp 782-785, 796-800).
The Board submits that the absence of any concern on the part of the relevant regulators is a matter which strongly weighs against the Court implying into the Permit the condition contended for by the plaintiff (and that it is also a matter which strongly weighs against any relief being granted).
Third, the Board says that the assessment of risk and risk mitigation measures in relation to non-target species is not premised on how much bait is used (i.e. whether 42 tonnes or 58.2 tonnes of Pestoff 20R is dispersed) (see Mr Walsh's affidavit at [128] and the documents there cited). The Board says that this undermines the practical significance of this complaint.
Finally, insofar as the plaintiff at [48] makes the further allegation that the Board intends to breach condition 8 (defined in the amended statement of claim as the "Directions for Use condition"), the Board notes that that is not an allegation which has been pleaded (rather, that the allegation which was pleaded was a contravention of the "maximum product condition", not the "Directions for Use condition": see amended statement of claim at [13]; heading to [27]). The Board says that it is not now open for the plaintiff to argue a new (unpleaded) claim that the Board is in breach of the "Directions for Use condition" and that the Board could have adduced evidence to meet that claim. In any event, it is submitted that the plaintiff has not come close to proving that the Board's aerial broadcasting exceeds that prescribed in condition 8.

[26]

Board's submissions

The Board submits that the majority of the plaintiff's complaints are technical in nature; that there are no material risks to public health or the environment from the alleged breaches; and that the plaintiff could not conceivably suffer any relevant loss from them. It complains that this proceeding has been brought very late in the day, when the baiting program has already commenced, and after considerable (sunk) expenditure. Further, it says that the alleged breaches are of legislation for which there are regulators, who are well appraised of the REP. Thus, it argues that declaratory or injunctive relief (whether in the terms sought by the plaintiff or at all) should not be granted even if there were to be a finding that breach(es) had been established.
The Board notes that the grant of injunctive and declaratory relief is discretionary (referring by way of example to Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [23]); and that the principles governing the exercise of the Court's discretion in analogous circumstances (such as in the context of breaches of development conditions imposed under the Environmental Planning and Assessment Act 1979 (NSW)) have been considered in various cases (citing Dobrohotoff v Bennic [2013] NSWLEC 61 at [81]-[85], in turn citing Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-341; ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82; Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228 at [149]).
The Board notes that, in that context, courts have considered factors including: the nature of the breach; whether the breach was more than merely technical in nature; the hardship and other matters personal to the plaintiff; the hardship and other matters personal to the defendant; and the harm to the environment generally caused by the unlawful conduct. It is submitted that in exercising its discretion to grant injunctive relief in this case, this Court can consider similar factors.
In addition to the matters referred to above, the Board also raises the following additional facts in respect of each of the plaintiff's claims for injunctive relief: that the REP has been in development since as early as 2001 (Mr Walsh's affidavit at [9], [24]-[45]); that the REP has been the subject of a plebiscite of the residents of Lord Howe Island (Mr Walsh's affidavit at [37]-[38]); that the REP has been subject to several external expert peer and technical reviews, as well as scrutiny from various regulatory agencies at Commonwealth and State level (Mr Walsh's affidavit at [9]); that the Commonwealth and State governments have provided $10.6 million in funds (Mr Walsh's affidavit at [110]), and hence it may be inferred that the REP enjoys the support of those governments; that there are regulators, apprised of the situation, that have otherwise not taken steps to restrain the practices of the Board or the conduct of the REP (Mr Walsh's affidavit at [106]-[109]); that the evidence indicates that there are no real risks to the environment or to human health arising from any of the breaches alleged by the plaintiff.
Conversely, it is said that the plaintiff's complaints fail to take any account of the risks to human health from not proceeding with the REP, where that would involve ongoing programs, presumptively indefinitely (including use of poisons) to deal with the Island's rodent problem (see Exhibit 5, pp 95-96, 314-315).
The Board says that the Board and the Lord Howe Island community generally will suffer significant detriment if it is required to halt the REP, in that: a key aspect of rodent eradication is that every rodent must get access to a lethal dose of bait at approximately the same time across the whole of the Island (Mr Walsh's affidavit at [23]); a risk in halting an eradication program part-way through is that rats may build resistance to poison, meaning that subsequent eradication programs may not be effective (Exhibit 5 p 229); that the Board has already committed most of the funds advanced by the State and Commonwealth governments and many of the costs incurred are non-refundable if cancelled or will incur substantial cancellation costs (Mr Walsh's affidavit at [111]); the REP must be undertaken in the seasonal window, which means that any decision which delays implementation of the project would therefore delay it by a year until winter 2020 (Mr Walsh's affidavit at [115]); a failure to implement the REP in 2019 would likely mean the end of the project (Mr Walsh's affidavit at [116]); and a failure to implement the REP will have a significant impact on the local economy, which Mr Walsh estimates to be in the order of $3.19 million (Mr Walsh's affidavit at [117]).
The Board says that a failure to eradicate rats will lead to ongoing pressures on: threatened species on Lord Howe Island (Mr Walsh's affidavit at [15]-[16]); various local businesses, including tourism businesses and the kentia palm industry (Mr Walsh's affidavit at [17], [42], [119], Exhibit 5, pp 388-389).
The Board says that the plaintiff has delayed in bringing these proceedings arguing, relevantly, that: the timeframes of the REP were a matter of public record since at least late March 2019 (Ms Sims' affidavit at [8]-[9]); and the initial installation of the bait stations commenced in mid-April 2019, so that any complaint about the adequacy by which they were secured to the ground should have been obvious to the plaintiff around that date.

[27]

Plaintiff's submissions

The plaintiff maintains that it is entitled to the making of declarations and orders as sought. Insofar as the Board places reliance on discretionary matters, the plaintiff submits that the paramount public interest is that the Board comply with the law, which involves complying with the conditions in the Permit in order to introduce this particular poison into the environment.
It is accepted that "no doubt" there are perceived benefits from the REP but that also there are undoubtedly risks. The plaintiff says that the APVMA is the authority charged with the task of balancing the risks and benefits in the REP; that its set of conditions represents the way in which there is a legally enforceable balancing of those risks and benefits; and that it is not for this Court to second‑guess the way in which that balance has been struck in the APVMA conditions (or to say that some of the conditions may be overly onerous or some may be misguided). It is submitted that any variation to the conditions is a matter for application to the APVMA and not by way of discretionary considerations before this Court.
As to delay, the plaintiff cavils with the implicit assumption that she is a member of the body which conducted the AAT proceedings (as already noted). It is submitted that in the absence of evidence that the plaintiff is a member of that body or a member of the executive of that body then there is no reason for attributing to the plaintiff any knowledge which may have been gained by the First Peoples Association in those proceedings.
It is noted that the actual decision of the AAT was made on 18 April 2009 but the Permit conditions were not finalised until 7 May 2019 and that these proceedings were commenced two weeks later on 22 May 2019. It is submitted that this does not involve any delay of any materiality and that there is no evidence of any prejudice which the Board has suffered by reason of any delay; in particular, that there is no evidence of what the Board would have done differently had the plaintiff commenced these proceedings earlier and it is unrealistic to think they could have been commenced earlier.

[28]

Determination

At the outset, I note that there is an issue in the present case as to the manner in which one approaches the question of construction of a document such as the Permit.
In essence, the Board submits that the question of construction should be approached by analogy with the manner in which a document such as a development consent would be construed.
The ordinary rules of construction and principles of interpretation apply to a development consent as with a statutory instrument (Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 (Ko-veda) at [97]-[99]; Secretary, Department of Planning and Environment v Leda Manorstead Pty Ltd (No 4) [2019] NSWLEC 58 (Leda); Sutherland Shire Council v Benedict Industries Pty Ltd (No 8) [2017] NSWLEC 4 (Benedict Industries)). A consent is to be construed according to its terms, having regard to its enduring nature (Leda; The Owners - Strata Plan No 4983 v Canny [2018] NSWCA 275 (Canny); Benedict Industries; Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263 (Bunderra)).
In that regard it is relevant to note that a development consent has an enduring nature because it is not personal to the proponent but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 (House of Peace) at [23]; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [4] and Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277; (1970) 19 LGRA 321 at 324). Thus, as a general rule, a development consent, being a public document operating for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it (Canny; Bunderra).
I have referred above to the submissions made by the Board by reference to what was said in Westfield Management. In Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2018] NSWCCA 202, Bathurst CJ accepted, as Leeming JA had pointed out in Bunderra at [56] (quoting Westfield Management at [36]), that "conditions of consent are to be construed not as documents drafted with legal expertise, but to achieve practical results" but stated that his Honour, was of the option that (at [35]): [N]evertheless, principles of statutory construction can be of assistance in construing a development consent. In particular, the development consent should be construed to produce a "harmonious" result and to "give meaning to every word" of its provisions: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70]-[71].
See also the principles of construction as summarised by Pepper J in Leda in this regard.
I consider that there is force to the Board's argument as to the approach to be adopted to construction of the Permit. Non-compliance with the conditions of a permit such as the Permit is a serious issue - a person distributing the product not in accordance with the conditions of the Permit is exposed to criminal liability. It is obviously important for persons distributing the product for the purposes of the REP to be able to satisfy themselves of what is required to be done (and what is prohibited) under the Permit. It is no doubt for that reason that permits such as this are publicly accessible.
In those circumstances it is apparent that one must be able to discern on the face of the Permit what conditions of use are imposed (and hence the requirement under the AGVET Code that a permit specify those conditions). I do not accept that a person using the product would be expected to trawl back through the application forms for the permit (even assuming they were publicly accessible) or the outcome of AAT proceedings (here , the AAT decision) to form a view as to whether a particular use is or is not permitted under the Permit. In that sense, there is an obvious analogy to the position of development consents. It seems to me that, as a general principal, permits such as the present ought to be construed without reference to the application(s) made for the permit or correspondence with the relevant authority as to use under the permit or any reasons for decision as to the variation of conditions of the Permit. Furthermore, I consider that it should be construed not as a document drafted with legal expertise, or as a statute would be construed, but purposively as a document intended to achieve practical results.
However, even if I am wrong in this I would still have reached the conclusions I have as to the proper construction of the relevant conditions and the Permit itself for the following reasons.

[29]

Determination as to proper construction of condition 20

Turning to condition 20, which forms part of a group of conditions relating to the use of external bait stations in outdoor areas of the settlement area, I accept that (construed in the context of condition 19, which immediately precedes it), it must be understood to refer to the particular brand of bait station identified in condition 19. That bait station comes with a hinged lid. However, I do not accept that it follows that the requirement that the bait station be "adequately covered" therefore should be construed as requiring that this means that it have an additional cover over the top of the lid itself.
I consider that the words "adequately covered to prevent access to bait by birds" have work to do and are not rendered otiose by reference to the fact that condition 19 specifies that the bait station be of a brand that comes with its own lid. That is because condition 19 specifies only the brand; whereas condition 20 in practical terms requires that the lid be closed in order adequately to cover the bait. Condition 21 does not compel a different conclusion in my opinion because the concept of the bait station being locked and secured to the ground when installed seems to me to encompass more than the lid being closed - rather, that the lid is locked (whether by use of the hinged locking mechanism so ably demonstrated in the course of oral submissions by Counsel or otherwise).
I do not consider that [40] of the AAT decision reasons should be taken into account in the construction of the Permit; but even if it were I am not satisfied that it relevantly informs the construction of condition 20 in circumstances where it is clear from the conditions of the Permit that where it was intended that there be a specific requirement for the bait station to have an additional cover this was specified.
Nor am I assisted by the correspondence from the AAT in relation to the application made by the plaintiff under the equivalent of the slip rule. There is no inconsistency between a general requirement that there be adequate cover and a specific requirement in relation to wooden roof covers, in the sense that the latter is one way in which the former may be effected; but there is no direction in the Permit expressly to require this in the case of all bait stations (and the Deputy President appears - from the decision conveyed that the operative direction not be amended - not to have accepted that there was an obvious error in not including this in the direction for the Permit conditions in the first place).
Thus, I am of the view that, on the ordinary meaning of the words "adequately covered", this is effected by the closing of the lid and there is no requirement for an additional cover (other than where expressly specified in relation to the grazing areas).
In relation to the second limb of the plaintiff's argument, as already indicated, I consider that it is not open to the plaintiff to expand the pleaded case in order to complain of a contravention in this regard but in any event I do not consider that the fact that some small birds might be able to gain access to the bait stations amounts to a breach of the condition. I read the words "to prevent access to bait by birds" as intended to explain the purpose of the requirement contained in condition 20 (by which one might test whether the cover is adequate); not as imposing a separate condition that in fact it be impossible for any bird to have access to bait contained in the bait station. To set such a condition would seem, on Dr O'Dwyer's evidence, to set a standard that could not conceivably be met whilst also permitting the very object of the baits (the eradication of rodents) to be achieved.
Thus, I find that on the proper construction of condition 20 there will be no breach if bait stations of the requisite brand are placed in the outdoor areas of the settlement area (other than the grazing paddocks) without additional cover over and above the bait station lid - provided that the lid is closed so that the bait is covered (and, in accordance with condition 21, the lid is locked in the sense that the hinge is clipped shut).

[32]

Discretionary considerations

Had I reached a different conclusion as to the external bait stations issue, I would not have exercised the discretion to grant the injunctive relief sought. That is because the public interest in compliance with the conditions must be balanced against: the public interest in the eradication of the rodents from the island (that will be inevitably prejudiced if the REP is delayed or cannot proceed, having regard among other things to the potential for the rats to develop resistance to the baits); the overwhelming evidence as to the lack of harm that will be suffered by humans from the baiting and the minimisation of harm to the bird population on the island; the time and effort that has gone into the preparation for and commencement of implementation of the REP (including the numerous studies from a variety of respected organisations as to the need for such a program in the interests of preservation of the significant wildlife values of the island) and (though this is the factor on which I place least weight) the fact of the considerable sunk cost that is likely to be wasted if the programme is not completed.
I do not accept that, had the issue arisen (which it does not), a decision not to grant injunctive relief would amount to usurpation of the role of the APVMA in balancing competing public interests in relation to the REP (as the plaintiff suggests). There is a distinction in my opinion between a refusal to grant relief in respect of a past breach (or, for that matter, a refusal to restrain particular conduct) and a variation of the Permit conditions.
The breaches in relation to the external bait stations, had they been made out, in relation to additional lid covers or the manner of securing of tent pegs would not in my view have been significant enough to warrant delay and disruption to the overall programme. Such a conclusion is no different to, say, a decision not to issue a mandatory injunction for the replacement of building work carried out in breach of a development consent or the like. There is in my opinion a clear distinction between exercising discretion not to grant relief in relation to a past breach and varying a condition in a permit that has prospective operation. Refusing to grant an injunction does not amount to the latter.
The fact that work has already commenced in relation to the baiting is a strong factor (having regard to the concerns as to the development of resistance by rodents to the poison) weighing against the grant of injunctive relief. Even had I been of the view that injunctive relief was warranted, I would not have granted injunctions in the terms sought. Furthermore, an injunction to require compliance with the law seems to me to be otiose - there is already an obligation to comply with the Permit (the relevant question being what that here requires); and an injunction to restrain breach of the Permit conditions as properly construed would need to be more precisely worded than as set out in the amended statement of claim - so that person(s) the subject of such injunctive relief would know precisely what was being restrained.
Had I formed the view that the tonnage condition was a condition of the Permit I would have been inclined to grant a negative injunction to restrain the dispersal of more than the maximum amount of product - on the basis that I am not persuaded that this would necessarily halt the REP and it would be sufficiently clear in its terms to meet the concerns stated above. (I would also have made it subject to any consent that might be granted by the APVMA to the variation of the conditions to permit the additional product.) However, that issue does not here arise as I am not satisfied that the Permit, as properly construed, imposes such a maximum tonnage condition.

Wilson v Lord Howe Island Board

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Legislation Cited (12)

Cases Cited (36)

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