Kirkman v Minister Administering the Crown Lands Act 1989

1. [1]

   The plaintiff, Ms Jennifer Kirkman, seeks judicial review of a decision made on 13 August 2014 by the first defendant, the Minister Administering the Crown Lands Act 1989 (NSW) (the “CL Act”), not to sell to her a portion of an unmade Crown road adjoining her property (“The Glen” at Uralla) and in respect of which she was the holder of an enclosure permit pursuant to s 61 of the CL Act.

2. [2]

   Ms Kirkman also challenges a corresponding decision made by the Minister on 14 November 2014 under s 34 of the Roads Act 1993 (NSW) to sell that portion of the Crown road to her neighbour, the second defendant, Mr Geoffrey Wood. It is common ground that resolution of the first question will resolve the second.

3. [3]

   Ms Kirkman claims that the Minister, by his delegate, took into account an irrelevant consideration when making his decision (namely the purported “Permit Decision” that I describe below) and did not afford Ms Kirkman procedural fairness.

The Crown road

1. [4]

   The Crown road abuts the southern boundary of The Glen and, to the east, passes between two properties owned by Mr Wood. The configuration of the Crown road, The Glen, and Mr Wood’s properties is depicted in the attached plan [Plan Annexure (536 KB, pdf)]. The Glen comprises the blocks marked “DP 755846 558 and 500”. Mr Wood’s property is the hatched triangular property marked as “DP 817891” and the hatched property to the south of the Crown road. The Crown road lies in a roughly east-west direction. The shaded portion of the Crown road is that part the subject of Ms Kirkman’s enclosure permit. The portion of the Crown road that the Minister has purported to sell to Mr Wood is marked with a “{”. It is that part of the Crown road that runs for approximately 121 metres to the west of the eastern boundary between The Glen and Mr Wood’s property (shown as DP 817891). I will refer to this as the “Disputed Portion”.

2. [5]

   Ms Kirkman’s enclosure permit has been in existence since 1954 and was transferred to her pursuant to s 64 of the CL Act after she purchased The Glen in 1999.

3. [6]

   At all relevant times, Mr Wood has had an enclosure permit over that part of the Crown road that abuts his properties.

4. [7]

   Although he is obviously affected by Ms Kirkman’s application, Mr Wood has entered a submitting appearance.

Background

1. [8]

   In 2007 Ms Kirkman applied to the Minister to close and sell to her that part of the Crown road the subject of her enclosure permit. Mr Wood made a corresponding application in 2012.

2. [9]

   On or about 28 November 2008, the Minister purported to alter the terms of Ms Kirkman’s enclosure permit, and the terms of Mr Wood’s enclosure permit, by excluding the Disputed Portion from Ms Kirkman’s enclosure permit and adding it to Mr Wood’s enclosure permit. The parties referred to this purported decision as the “Permit Decision”.

3. [10]

   The Minister now accepts that the Permit Decision was infected by jurisdictional error and was a nullity.

4. [11]

   Ms Kirkman became aware of the purported Permit Decision on 4 December 2013, when the relevant Department wrote to her about proposed road closures in the locality and invited her to apply to purchase that part of the Crown road as adjoins The Glen.

5. [12]

   In that letter the Department said:

6. [13]

   On 30 January 2014, the Department wrote to Ms Kirkman’s solicitors as follows:

7. [14]

   The reference to the existing fencing in that letter was a reference to a fence that then existed on and over the Crown road. The fence was in place when Ms Kirkman bought The Glen in 1999 and for many years before then. I will refer to it as the “old fence”.

8. [15]

   The old fence ran from west to east roughly along the southern boundary of the Crown road but, at a point at or near to the western end of the Disputed Portion “doglegged” to the north and then ran east roughly along the northern boundary of the Crown land (being the southern boundary of the easternmost part of The Glen).

9. [16]

   Thus, the old fence, for practical purposes, fenced off from The Glen that part of the Crown road as comprised the Disputed Portion notwithstanding the fact that the Disputed Portion was included in the land the subject of Ms Kirkman’s enclosure permit.

10. [17]

    In around May 2014 Ms Kirkman obtained a survey which showed the alignment of the old fence.

11. [18]

    Between May and June 2014 she caused a new post and electric wire fence to be erected precisely on the southern boundary of the Crown road (consistently with that survey). I will refer to this as the “new fence”.

12. [19]

    On 4 June 2014 the Department wrote to Ms Kirkman’s solicitors stating that a site inspection had revealed the pending construction of the new fence and continued:

13. [20]

    Plainly, this letter was written on the assumption that the purported Permit Decision was valid.

14. [21]

    On 8 August 2014 an officer of the Department, Ms Miao Wang prepared a submission in relation to Ms Kirkman’s application to purchase that part of the Crown road as was the subject of her enclosure permit.

15. [22]

    Under the heading “Comments” Ms Wang wrote:

16. [23]

    These comments were clearly also made on the assumption that the purported Permit Decision was valid, that Ms Kirkman’s enclosure permit no longer included the Disputed Portion and that the Disputed Portion was now within Mr Wood’s enclosure permit.

17. [24]

    The submission continued:

18. [25]

    The document concluded:

19. [26]

    On 13 August 2014, the Minister’s delegate, Ms Jamie Murray signed the submission as “approved”. Ms Murray did not add any reasons of her own at the time.

20. [27]

    On 14 August 2014 the Department wrote to Ms Kirkman notifying her of the decision.

21. [28]

    In the Statement of Reasons filed on behalf of the Minister in these proceedings on 23 February 2015, Ms Murray said that she considered Ms Wang’s submission of August 2014 and said:

Did the Minister’s delegate take into account an irrelevant consideration?

1. [29]

   It was common ground that as the purported Permit Decision was a nullity, it would not have been relevant for the Minister’s delegate to take it into account when making her decision.

2. [30]

   It follows that it would not have been relevant for the delegate to take into account the alleged fact that Ms Kirkman’s enclosure permit did not include the Disputed Portion.

3. [31]

   Mr To, who appeared for Ms Kirkman, submitted that, notwithstanding the Minister’s delegate’s statement that she “did not put any weight on the enclosure permits” when she made her decision, it is clear from her reference to the new fence being installed “without notice or consent” (that is, without notice to Mr Wood nor with his consent) that she did.

4. [32]

   That was especially clear, Mr To submitted, from the statements in Ms Wang’s submission (which Ms Murray approved without comment, which she said in the Statement of Reasons that she considered and which plainly formed the basis for her decision) that:

   1. (1)

      the new fence enclosed the land the subject of Mr Wood’s enclosure permit;

   2. (2)

      the new fence had, in that context, been erected “without notice or consent”; and

   3. (3)

      the new fence was “not a valid property boundary fence” (see the emphasised passages at [22] above).

5. [33]

   I agree.

6. [34]

   It is clear to me from Ms Wang’s language that her statement that the new fence had been erected “without notice or consent” was intended to convey that Ms Kirkman had erected the new fence without notice to Mr Wood and without his consent. It is also clear that Ms Wang was not intending to recite a neutral, historical fact. The reference to the new fence being erected “without notice or consent” is in the same sentence in which Ms Wang stated (wrongly, now that it is acknowledged that the Permit Decision is a nullity) that the new fence enclosed land within Mr Wood’s enclosure permit (and thus not in Ms Kirkman’s enclosure permit). That makes plain that Ms Wang assumed the validity of the Permit Decision, thus assumed the Disputed Portion was no longer within Ms Kirkman’s enclosure permit and placed reliance on that fact when making her recommendation.

7. [35]

   Ms Murray used the same language in the Statement of Reasons and must, I would infer, also have placed some reliance on the same matter.

8. [36]

   The result is that Ms Murray took into account an irrelevant consideration, namely a state of affairs that assumed the validity of the Permit Decision, when making her decision.

9. [37]

   It is common ground that, if that be the correct conclusion, the decision is attended by jurisdictional error and should be set aside.

10. [38]

    Having come to this conclusion, it is not necessary for me to address Mr To’s alternative submission, that Ms Kirkman was denied procedural fairness. However, I will deal with the submission, albeit briefly.

11. [39]

    Mr To submitted that the statement in the 4 December 2013 letter set out at [12] above should be read as a representation of a policy or practice generally adopted by the Minister in carrying out Crown road sales and that any proposed departure from same required that Ms Kirkman be afforded procedural fairness in the form of a right to be heard about the proposed departure.

12. [40]

    Assuming that what was said in the letter should be seen as a statement of the Minister’s policy or practice, it was followed in this case. The Minister did decide to sell the Disputed Portion to an adjoining landholder: Mr Wood. And, insofar as preference was not given to Ms Kirkman (who was only one of the two adjoining landholders) the Department’s position, and thus the Minister’s, was made clear in the letter of 4 June 2014 set out at [19] above.

13. [41]

    I would not have set aside the Minister’s decision on this basis.

Conclusion

1. [42]

   I invite counsel to bring in short minutes to give effect to these reasons.