Supreme Court New South Wales Medium Neutral Citation: Kirkman v Minister Administering the Crown Lands Act (No. 3) [2021] NSWSC 730 Hearing dates: Decided on the papers. Date of orders: 5 July 2021 Decision date: 05 July 2021 Jurisdiction: Equity Before: Slattery J Decision: Application for judicial review dismissed. Submissions invited in relation to an appropriate order for costs. Catchwords: ADMINISTRATIVE LAW – the applicant seeks judicial review of a 2017 decision made by the Minister Administering the Crown Lands Act 1989, the first respondent – the Court published a judgment on 30 October 2020 resolving a number of issues raised by the plaintiff – the Court invited further submissions from the Minister and submissions in reply from the applicant on two outstanding issues – the first issue being whether the applicant and second defendant's enclosure permits remained in conflict over a disputed portion of Crown road at the time of the 2017 decision – and if the enclosure permits are in conflict, whether that conflict requires resolution – the second issue being whether the Crown road is now enclosed, such that the enclosure permits can be lawfully cancelled. Legislation Cited: Crown Lands Act 1989, ss 67(1)(c), 67(1)(d) Roads Act 1993, Part 4, Division 2, s 37 Uniform Civil Procedure Rules 2005, r 6.11 Cases Cited: Kirkman v Minister Administering the Crown Lands Act [2019] NSWSC 1683 Kirkman v Minister Administering the Crown Lands Act (No. 2) [2020] NSWSC 1494 Kirkman v Minister Administering the Crown Lands Act 1989 [2016] NSWSC 1876 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Category: Consequential orders Parties: Plaintiff: Jennifer Kirkman First Defendant: Minister Administering the Crown Lands Act Second Defendant: Geoffrey Robert Wood & Jan Margaret Wood Representation: Counsel: Plaintiff: S. Berveling Solicitors: Plaintiff: Gregory Robert Moin, Moin Morris Schaefer Pty Ltd First and Second Defendants: Submitting Appearance File Number(s): 2018/344647 Publication restriction: No Judgment 1. This is the Court's third judgment in this application for judicial review. Ms Jennifer Kirkman, the plaintiff, seeks review of a 30 August 2017 decision made by the Minister for Lands and Forestry ("the Minister"). The 2017 decision had two limbs: (1) to close a section of a Crown road and to sell off different portions of the Crown road to two neighbouring landholders, Ms Kirkman and the second defendants, Mr and Mrs Woods; and (2) to decline Ms Kirkman's application for an easement over land between her land and a nearby public road, Gostyck Road. 2. The Court's first judgment made directions for the Minister to put on submissions, clarifying the documents relied upon to make the 2017 decision: Kirkman v Minister Administering the Crown Lands Act [2019] NSWSC 1683. The Court's second judgment decided most of the issues between the parties and made directions for further submissions from both parties on two outstanding issues: Kirkman v Minister Administering the Crown Lands Act (No. 2) [2020] NSWSC 1494 (the "principal judgment"). This judgment should be read with the Court's previous two judgments. Events, matters and persons are referred to in the same way in both judgments. 3. Those two outstanding issues about the 2017 decision are: (1) whether a conflict presently exists between the two enclosure permits issued on 1 May 2017 over the disputed portion of the Crown road, and if so, whether that conflict can continue or whether it requires resolution (see the principal judgment at [117]); and, (2) whether the Minister's delegate could have been satisfied on the evidence that the disputed portion of the Crown road is "no longer enclosed" by either property, so as to enable the enclosure permits to be cancelled under Crown Lands Act 1989, s 67(1)(d), which was the statutory basis that the decision-maker invoked for the decision (see the principal judgment at [119] – [120]). 4. The first of these issues is described in these reasons as "the Conflicting Enclosure Permits Issue". The second of these issues is described in these reasons as "the Enclosure of the Crown Road Issue". For convenience these reasons deal with these issues in reverse order. 5. Due to Covid-19 protocols, these two remaining issues were dealt with on the papers. On 2 December 2020, the Minister's submissions were filed. On 3 December 2020, Ms Kirkman's submissions were filed, but they did not directly reply to the Minister's submissions. On 4 February 2021, my Associate wrote to the parties to request that Ms Kirkman's submissions be revised to directly respond to the Minister's contentions. Ms Kirkman's revised submissions were received on 1 March 2021. 6. Ms Kirkman is represented by Mr S. Beverling of counsel, instructed by Mr G. Moin of Moin Morris Schaefer. At the commencement of these proceedings, both the Minister and the Woods filed submitting appearances under Uniform Civil Procedure Rules 2005 ("UCPR"), r 6.11. The Amended 2017 Decision – 8 November 2017 1. The Minister's written submissions filed after the principal judgment pursuant to the Court's directions, clarified the relevance of an amendment that was made to the 2017 decision by the Minister's delegate on 8 November 2017, a little over two months after the original decision, ("the amended 2017 decision"). The Court's principal judgment did not consider the amended 2017 decision, which is relevant to analysis of both the Enclosure of the Crown Road Issue and the Conflicting Enclosure Permits issue. So the elements of the amended 2017 decision are described here first. 2. A disadvantage of the Minister filing a submitting appearance in these proceedings and not being represented at the hearing, is that it has taken additional time for the Court to appreciate all the features of the Minister's decision-making in this case. Appreciating the significance of the amended 2017 decision is an example of this. 3. The amended 2017 decision was made based on new information coming to the attention of the Minister's delegate after the 30 August 2017 decision and it altered the basis for the Minister's decision from Crown Lands Act, s 67(1)(d) to s 67(1)(c). In the 2017 decision the decision-maker had expressly based the 2017 decision on the power conferred by Crown Lands Act, s 67(1)(d), by stating: "As the road described under Enclosure Permit 16493 has ceased to be enclosed, it will be recommended that EP 16493 be cancelled, as per Section 67(1)(d) of the Crown Lands Act 1989" 1. The recommendation to cancel EP 16493 was recommendation 1 leading to the 2017 decision. And the recommendation to cancel EP 16608 was recommendation 7 for the 2017 decision. The principal judgment does not set out the delegate's seven recommendations flowing from the 2017 decision. But relevantly recommendation 4 was for the closure of the road, recommendation 5 was for the reservation of the closed road for disposal by sale and recommendation 6 was for the sale of the areas, including the disputed portions, as defined by option 3 respectively to the Woods, for $3,062 and to Ms Kirkman for $3,719. 2. By late October 2017 the Minister's delegate had received information causing her to doubt that the requirements of Crown Lands Act, s 67(1)(d) could be met for cancellation of Ms Kirkman's enclosure permit, because the new fence erected by Ms Kirkman in 2014 enclosed the disputed area. This was exactly the concern that the Court had raised in its principal judgment (at [119] and [120]): "[119] In her affidavit Ms Kirkman questions the statement made in the Comments section of the 2017 decision, "[b]oth landholders and Department field inspections have confirmed that the subject Crown road is no longer enclosed within either property". The Court does not understand this part of the reasoning to the decision. It is a mandatory consideration directly required by Crown Lands Act, s 67(1)(d) for the decision-maker to determine whether or not the Crown road is still enclosed before the enclosure permit can be cancelled. Indeed, it is the only clear mandatory requirement for the delegate to have jurisdiction to make such a decision. The Crown Lands Act directly requires this determination to be made before permit cancellation can occur. [120] But leaving aside the field inspections, Ms Kirkman says that it is not true to say that the disputed area of the Crown road is "no longer enclosed". And there is substantial evidence, including the 2014 survey plan reproduced earlier in these reasons, suggesting that Ms Kirkman is correct and that Crown Road is still enclosed within her property by the electric fence she constructed in 2014. The Court does not yet see on what basis the delegate could have been satisfied that this mandatory requirement for decision-making under this legislation was met. The Court would be assisted by submissions from the Minister on this subject." 1. The amended 2017 decision appears in the Department's files immediately following the 2017 decision. The full text of recommendation 8 for the making of the amended 2017 decision is as follows: "Amendment – Enclosure Permit Cancellation and/or Variation The submission above recommended that EP 16493 be cancelled on the basis that the road is no longer enclosed (as advised by both adjoining landholders). Rodney O'Brien, Group Leader Property Management, Armidale Lands, has since advised that Ms Kirkman has had fencing contractors on site. It is acknowledged that Ms Kirkman holds EP 16493 which permits her to erect fencing in this area. As such, it is possible that the road may be enclosed (in part or whole) at any time until any part of the road may be closed. Therefore it is now recommended that both EP 16493 and EP 16608 remain current until the road closure(s) are finalised. Recommendation 8. Enclosure Permits 16493 and 16608 be cancelled upon closure of the road, or varied accordingly if part of the road remains open." 1. Recommendation 8 was prepared by the Senior Business Centre Officer at Grafton on 30 October 2017 and was approved by two supervisory personnel at the Grafton Business Centre on 31 October. It was finally approved by the same decision-maker as for the earlier 2017 decision, the Manager of the Business Centre in Newcastle, on 8 November. 2. It is clear from this course of decision-making that the Minister's delegate was not satisfied that by 31 October 2017 the statutory precondition for the operation of Crown Lands Act, s 67(1)(d) had been met, which led to recommendation 8, the text of which in substance adopted the words of s 67(1)(c): that both enclosure permits EP 16493 and 16608 should be cancelled by the Minister "upon closure of the road", or "varied accordingly if part of the road remains open". It was unnecessary for the Minister's delegate to expressly identify s 67(1)(c) as the new basis this decision, when the changed basis is so clear. This change meant that it was unnecessary for the Minister to ascertain the state of enclosure of the Crown road, including the disputed portion, before cancelling or varying the two enclosure permits. 3. The amendment made only a limited change to the 2017 decision, in relation to the basis for cancellation of the enclosure permits. It did not alter the fundamental recommendations of the 2017 decision to close and sell the Crown road. Indeed, the cancellation of enclosure permits that was contemplated by the amended 2017 decision would only occur after the road closure authorised by the original 2017 decision. 4. The Minister's submissions point out, correctly in the Court's view, that giving effect to the original 2017 decision to close the road (recommendation 4) would have independently enlivened the operation of Crown Lands Act, s 67(1)(c), whether or not s 67(1)(d) was satisfied. In that sense the amended 2017 decision may have been unnecessary. Limits of the amendment should be noted. (1) The Enclosure of the Crown Road Issue 1. The above analysis of the amended 2017 decision resolves the Enclosure of the Crown Road Issue, as it was raised by the Court in its principal judgment at [119] – [120]. In her submissions at the time of the principal judgment Ms Kirkman was challenging statements of fact preceding the 2017 decision: that the disputed area of the Crown road is "no longer enclosed". She was submitting that the Minister's delegate had failed to take into account a relevant (indeed, mandatory) consideration, namely the Crown Lands Act, s 67(1)(d) requirement that the disputed portion had ceased to be enclosed. But it is now clear that the Minister's delegate made the decision on the basis of Crown Lands Act, s 67(1)(c), which did not require that consideration to be taken into account. 2. But Ms Kirkman's supplementary submissions after the principal judgment reformulate her contention that the Minister failed to take into account relevant considerations on the Enclosure of the Crown Road Issue. She submits: (1) that the amended 2017 decision fails to refer to the state of the fencing over the Crown road, as evidenced in a survey undertaken in 2018; and (2) that the amended 2017 decision changes the sequence of actions required by statute. Each of these will be dealt with in turn. Neither submission is persuasive. 3. Ms Kirkman's submission (1) is unpersuasive for at least three reasons. First, as was explained in the principal judgment, the ground of judicial review of failing to take into account relevant considerations may only be made out if the decision-maker has failed to take into account a consideration which the decision-maker was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 66 ALR 299; [1986] HCA 40 at 39, per Mason J ("Peko Wallsend"). And a decision maker under s 67(1)(c) is not required to consider the state of the fencing in the area of an enclosure permit proposed for cancellation. 4. Second, the decision-making process leading to the amended 2017 decision cannot be criticised on the basis it did not refer to a survey that came into existence only the following year, on 4 December 2018. A decision can only ordinarily be criticised for failing to take into account relevant considerations about matters that existed at the time of the decision. 5. Third, the amended 2017 decision did refer to the state of the fencing. This is evident from the following statements made in the amended 2017 decision: that the decision-maker has since 30 August 2017 been "advised that Ms Kirkman has had fencing contractors on site"; that Ms Kirkman's enclosure permit "permits her to erect fencing in this area"; and, that "it is possible that the road may be enclosed (in part or whole) at any time until any part of the road may be closed". Together these statements show the decision-makers knowledge that fencing was likely to enclose the disputed portion in Ms Kirkman's favour. That is why the legal basis of the decision was changed. 6. Ms Kirkman's submission (2) - that the amended 2017 decision changed the sequence of events required by statute - is not persuasive as a ground of challenge to the amended 2017 decision. It is convenient to examine how Ms Kirkman put this submission. Her written submissions on this subject put this argument in the following way: "…the Plaintiff submits as follows: a. The decision made 30 August 2017 provided relevantly for the following order of actions in relation to the roads. 1. Cancellation of enclosure permit 16493; 2. Closure of the Crown road south of lots 558 & 500 DP 755846 and within and south of Lot 1 DP 817891; 3. Disposal of the former public roads to an adjoining owner; and 4. Cancellation of enclosure permit 16608. b. The decision made 31 October 2017 in effect changed the order of actions in relation to the roads, to the following order: 1. Closure of the Crown roads; and thereafter 2. Cancellation of the enclosure permits; and 3. Disposal of the roads to an adjoining owner. c. Within that change of order of actions, the decision made 31 October 2017 apprehended (at an appropriate time in the future) the utilisation of s. 67(1)(c) as the applicable mandatory consideration before an enclosure permit could be cancelled, rather than s. 67(1)(d). However, such cancellation would need to await the closure of the road the subject of the enclosure permit. 12. Whilst the proposed course of action set out in the 31 October 2017 decision might resolve the limitation to the cancellation of an enclosure permit set out in section 67 of the Crown Lands Act 1989, and might acknowledge an appropriate chronological order of events in order to be permissible pursuant to the Act, it did not resolve: a. the failure to take into consideration the May 2017 enclosure permits or the existing fencing arrangements; nor b. the taking into consideration of an irrelevant matter namely the incomplete and thus incorrect history." 1. As to Ms Kirkman's written submission in 12(a), these reasons have already dealt with the alleged failure to take into consideration the existing fencing arrangements: to the extent required they were in fact taken into account. And these submissions deal below, under the heading the Conflicting Enclosure Permits issue, with the claim of an alleged failure to take into account what her submissions call "the May 2017 enclosure permits". 2. As to Ms Kirkman's written submission in 12(b), this is a submission that the decision-maker took into account irrelevant considerations, namely "the incomplete and thus incorrect history". This submission merely inverts what Ms Kirkman more aptly put in her previous submission as failing to take into account relevant considerations. Putting the same submission in this way is no more persuasive than that submission. And it fails to address the substance of the amended 2017 decision, in which the delegate took into account Ms Kirkman had brought fencing contractors in an undertaken fencing consistent with her erecting a new electric fence enclosing the portion of the Crown road that she claimed. A Matter for Clarification 1. Before commencing the next issue, the principal judgment's use of the expression the "disputed portion", or the "disputed area" needs clarification. In the principal judgment, the area of the Crown Road contested between Ms Kirkman and the Woods in relation to both the 2014 and 2017 decisions is marked on the figure in [13] of the principal judgment with "}" and is defined in [17] as "the disputed area". 2. In contrast, the 2017 decision refers to Roads 2 – 4 as being "the area under dispute". And the 2017 decision seek to deal in Outcome 3 with the whole of that "area under dispute". Roads 2 – 4 are described as being "the area under dispute" in the 2017 decision because the Department's records show that it had prior to the 2017 decision received expressions of interest from both Ms Kirkman then the Woods in respect of the areas covered by Roads 2 – 4. 3. But it is evident from a reading of paragraphs [64] and [70] of the principal judgment what the Court had called "the disputed portion" wholly overlaps with Road 3 and Road 4, which are land south of Lot 500. But the disputed portion does not overlap with Road 2. (2) The Conflicting Enclosure Permits Issue 1. In its principal judgment at [112] – [117], the Court raised the issue whether the new enclosure permits issued by letter on 1 May 2017 (although each permit is dated 4 May 2017) to Ms Kirkman and the Woods, continued to be in conflict and whether that conflict required resolution in the 2017 decision. This issue emerged from an argument that Ms Kirkman advanced in support of her contention that the decision-maker had failed to take into account relevant considerations. 2. The argument and the difficulty which the Court encountered with resolving it was summarised in the principal judgment, at [112] and [113]: [112] Third, Ms Kirkman submits that there has been no production of any version of the Woods' enclosure permit until one dated 1 May 2017, after Stevenson J's 2016 decision and before the 2017 decision was issued to the Woods. Ms Kirkman received an amended one herself the same day. Ms Kirkman submits that because the covering letter from the Department forwarding the 1 May 2017 enclosure permit (EP16608) to the Woods says "your enclosure permit has been varied to show the lots and area as shown on your original enclosure permit" (emphasis added) that an enquiry should have been undertaken to ascertain what was shown on the original enclosure permit. In that sense the delegate is said to have failed to take into account relevant considerations. [113] But the enclosure permit dated 1 May 2017 with this letter to the Woods is a self-contained document issued under the Crown Lands Act, which looks valid on its face. Mrs Kirkman says that it does not accurately describe the disputed portion of the Crown Road. Her submission appears to be correct. The Woods 1 May 2017 enclosure permit refers in the text of Schedule 1, only to "Crown roads within and south of Lot 1 DP817891, being the road is highlighted on the attached diagram schedule six comprising an area of about 1.795ha." This is not a reference to the Crown Road directly south of Lot 500. This reference is to be contrasted with the enclosure permit issued the same day to Ms Kirkman, which does clearly refer to the disputed area. 1. Ms Kirkman's argument was that in making the 2017 decision the decision-maker had failed to take into account relevant considerations, because earlier versions of the Woods' enclosure permit (EP 16608) were not available and the only one which was available, dated 1 May 2017, appeared to subtract the whole disputed portion from the Woods' enclosure permit in a manner consistent with the simultaneous issue of an amended enclosure permit (EP 16493) favouring Ms Kirkman with the disputed portion. Ms Kirkman's contention of a failure to take into account relevant considerations was in substance a complaint of a failure by the decision-maker to take account of what had apparently been decided on 1 May 2017 and a failure to ascertain what really had been on the Woods' original enclosure permit (EP 16608). 2. The Conflicting Enclosure Permits issue arose because it appeared that some intermediate decision had been made on 1 May 2017 that could be interpreted in one of two ways. What had happened on 1 May 2017 could perhaps either have already resolved a prior conflict between the enclosure permits, or it could be evidence that there never had been a conflict. Both these possibilities raised the spectre that the 2017 decision may perhaps have been made on a false basis, an argument which was taken up in Ms Kirkman's further submissions. 3. This issue is approached by examining the Minister's submissions, which seek to place the Conflicting Enclosure Permits issue in context. Then the Court examines Ms Kirkman's submissions in reply to the Minister's submissions, in which she maintains specific criticisms of the 2017 decision and the 2017 amended decision on the basis that they take no account of whatever decision the Minister made on 1 May 2017 to resolve the conflict between the enclosure permits. Analysis of the Minister's Further Submissions 1. The Minister's further submission deals with the Conflicting Enclosure Permits issue by submitting that when the 2017 decision or the 2017 amended decision are properly analysed the issue does not arise at all. For the reasons which follow, the Court's analysis agrees with the Minister's further submissions. And Ms Kirkman's later reply to that analysis is not persuasive. 2. The Minister submits that the 2017 decision was not attempting to resolve questions of conflicting enclosure permits but to resolve conflicting historical claims to interests over the disputed portion. The Minister submits, "the officer was purporting to describe what she saw as the interests that each landholder had in relation to the disputed portion of road, arising from the historical overlap between [Ms Kirkman's] and [the Woods'] enclosure permits". 3. The Minister's submissions point to the following passage from the reasoning in the "Comments" section of the Officer's submission preceding the 2017 decision. This passage seeks to address the historical context of the dispute between the parties: "Over the majority of time that the subject Crown road has been held under enclosure permit (1931 to 2017), the owners of both adjoining properties have concurrently held permits and paid fees for the same road area. Text descriptions for permits held by both landholders have, at times, been amended in attempts to correct the conflict. These variations to the permits, however, were not consistently managed nor effectively communicated to both parties. In relation to fencing and enclosure permits, therefore, the two landholders are considered to have an equal interest in the subject road. For the reasons stated above, it will be recommended that current fencing be set aside as a consideration in determining the road closure and sale." 1. In the Court's view, this passage demonstrates two important relevant features, in formulating reasoning towards a decision on the various competing outcomes. It recommends that the actual state of current fencing in the disputed area can be ignored. And it acknowledges that in the past "both adjoining properties have concurrently held permits and paid fees for the same road area" the "descriptions for permits held by both landholders" to resolve the conflicting permits have not been consistently managed, so the reasoning for the decision would be approached on the basis "Ms Kirkman and the Woods will be considered to have an equal interest in the subject road". These two features support the Minister's submission: that the 2017 decision was attempting to resolve conflicting historical claims to interests over the disputed portion. 2. The Minister also points to the reasons advanced in the "Assessment" section of the Officer's submission preceding the delegate's decision, by which Outcome 3 was recommended. Outcome 3 was the closure of the Crown road and sale of specific and independent portions to Ms Kirkman and the Woods and is described as follows, by reference to the diagram depicting Roads 1 – 5 at [64] of the principal judgment: "Outcome 3 Close and sell the eastern half of road south of Lot 500 DP 755846 to Wood. Close and sell the western half of the road south of Lot 500 DP 755846 to Kirkman. Roads 1, 2 & 3 to Kirkman. Roads 4 & 5 to Wood." 1. The Minister's submissions also point out that in the "Assessment" section preceding the 2017 decision, the reasons given for recommending Outcome 3 were set out as follows: "Outcome 3 will be the recommended outcome, for the reasons below. At the time each landholder purchased their respective property, they each held enclosure permits over the road separating Lot 1 DP 817891 from Lots 558 and 500 DP755846. When Wood purchased his property on 15 July 1991, the road was held under permit to that property in accounts [redacted]. When Kirkman purchased her property on 5 July 1999, the road was held under permit to that property in account [redacted]. Both Wood and Kirkman have paid the enclosure permit fees from the time they have owned their respective properties. Through no fault of the landholders, the subject road has been described under permit to both properties for much of the time from 1954 until circa 2008 – 2012. When Department officers have amended permit descriptions, in an effort to correct the confliction, the landholders have not been equally involved or notified of the facts or reasons for the amendments. The enclosure (fencing) of the road prior to either party purchasing their adjoining property, as evidenced by survey on 27 April 1992, indicates that both properties had use of part of the road. Deposited Plan 817891 shows that the eastern half of road south of Lot 500 DP755846 was occupied by the southern property, now owned by Wood, and the western half of road south of Lot 500 was occupied by the northern property, now owned by Kirkman. There is no conclusive evidence to confirm how long this fencing had been in place; however, it was definitely established prior to either Wood or Kirkman purchasing their adjoining lands. This fencing remained in place until Kirkman removed it in response to the road closure process and conflict between the two landholders. Both landholders, therefore, have a valid expectation and interest in the closure and purchase of the road. A fair and reasonable approach is to offer each landholder a portion of the road rather than to offer the entire road to one party. This recommendation provides an outcome that reflects the use and occupation of the road by each property owner prior to their respective current ownership and prior to the dispute." 1. It can be inferred that because the Minister's delegate adopted Outcome 3, that she preferred the chain of reasoning leading to Outcome 3. In the Court's view this passage also supports the Minister's submission to this Court that the reasoning behind the 2017 decision was not attempting to resolve conflicting enclosure permits but to resolve conflicting interests over the disputed portion. And read closely, the reasoning applies not just to the conflicting interests of the current adjoining owners but to the competing claims of "use and occupation" of the disputed area as far back as 1954; as it is said to provide an "outcome that reflects the use and occupation of the road by each property owner prior to their respective current ownership and prior to the dispute". 2. As an aside, the passage also incidentally reveals how the mistake was made which required the Minister's delegate to make the amended 2017 decision. The passage refers to Ms Kirkman's removal of the old fencing, when the present dispute arose: "this fencing remained in place until Kirkman removed it in response to the road closure process." The decision-maker appears to have (incorrectly) initially worked on the basis that Ms Kirkman's removal of the old fencing had not resulted in its replacement by anything newer. In an earlier passage under the heading "Comments" in the Officer's submission it is stated, "both landholders and Department field inspections have confirmed that the subject Crown Road is no longer enclosed within either property". It was this error that was corrected by the amended 2017 decision. 3. Returning to the Minister's submission, in summary, the Minister submits that Ms Kirkman's contention - that the delegate failed to take into account relevant considerations by failing to ascertain what was on the Woods' original enclosure permit (EP 16608) – misapprehends the reasoning of the 2017 decision, which accepted that the text of the enclosure permits had been changed recently (2008 to 2012) in unsatisfactory ways that had not adequately involved both parties but nevertheless acknowledged the longer-term competing claims by both adjoining owners to an interest in the disputed portion still had to be resolved when the road was being closed. Because of that history, the resolution of that longer-term issue did not depend upon the precise recent text of the enclosure permits. 4. In the Court's view the Minister's analysis of the 2017 decision is correct. It follows in the Court's view that whether the delegate ascertained what was on the Woods' original enclosure permit (EP 16608) is not of great significance, nor is the text of the enclosure permits issued on 1 May 2017. 5. Moreover, it is not seriously in issue that Ms Kirkman and the Woods have claimed competing interests in the disputed area as a result of being issued with enclosure permits and paying enclosure permit fees in respect of overlapping enclosure permits that purported to enclose the disputed area for the benefit of each of Ms Kirkman and the Woods. As the Court explained in the principal judgment (at [116]) that has been the Department's long-held working assumption and was the basis for Ms Kirkman's challenge to the Departments issue of the invalid 2008 enclosure permit to the Woods. And the Court recognised in the principal judgment at [115] – [116], the delegate had material available that provided a proper basis to conclude that both Ms Kirkman and the Woods held conflicting enclosure permits prior to the 2008 decision. That material was set out in the Abstract for the 2017 decision and Table 2 under the heading "Status of the road and surrounding portions", which relevantly state: "Summary Statement – Enclosure Permits 1931 to 2013 The first enclosure permit relating to the subject road was granted to the southern adjoining property (Wood) in 1931. This permit described the road north of Portion 186, Parish Gostwyck. An enclosure permit over the same area was then granted to the northern adjoining property (Kirkman) in 1954. This permit described road south of Portions 558 & 500, Parish Uralla. The road was held under permit to both properties from 1954 until at least 2001. Adjustments were made to both permit descriptions at unconfirmed date/s between 2001 and 2013, with the subject road taken in and out of both descriptions on more than one occasion." Analysis of Ms Kirkman's Submissions in Reply 1. Ms Kirkman submits that in making the 2017 decision and the amended 2017 decision the Minister was bound to consider the Minister's issue of the enclosure permits on 1 May 2017. Ms Kirkman's submissions describe the issue of these enclosure permits as a new decision, which her submissions call "the 1 May decision". 2. She submits that the Minister's 2017 decision (and the amended 2017 decision): failed to take into account the 1 May 2017 decision, which had resolved any conflict between the enclosure permits; and instead, they proceeded upon the incorrect basis that there were still a conflict between the enclosure permits. 3. The first and short answer to this submission is the principle in Peko Wallsend. Crown Lands Act s67(1)(c) and (d) allows the cancellation of enclosure permits, authorising the enclosure of a road. There is no doubt that Ms Kirkman and the Woods each had enclosure permits authorising the enclosure of parts of this Crown road proposed for closure. Those permits were capable of being cancelled under this section. It was not a mandatory requirement of the exercise of the powers under s 67(1)(c) or (d) that the Department ascertain the precise extent of the conflict between two existing enclosure permits. 4. It is not questioned in these proceedings that the Minister complied with Roads Act 1993, Part 4, Division 2, in closing this non-council public road. Nothing in that Division requires the Minister to investigate the extent of conflict between any enclosure permits over the non-council public road being closed. All the Minister is required to do under Roads Act, s 37, is to consider any submissions made before closing the non-council public road. The Minister has done this, resulting in the non-council public road upon closure being vested in the Crown under Roads Act, s 37. The Minister has now decided consequent upon vesting in the Crown to sell the former Road to adjoining owners. None of these powers require the Minister to consider the precise extent of any conflict in enclosure permits before the closure of the non-council public road. And as the Court explained in its principal judgment, it is not the function of the Court to review the merits of the Minister's decision. 5. But Ms Kirkman's submissions advanced other arguments which are dealt with below. But first, the making of the 1 May decision to issue non-conflicting enclosure permits should be briefly explained. The 1 May Decision 1. In 2016, Stevenson J delivered judgment in the associated proceedings: Kirkman v Minister Administering the Crown Lands Act 1989 [2016] NSWSC 1876. His Honour declared void two previous decisions made by the Minister in 2008 and 2014, which had amended the enclosure permits such that only the Woods (not Ms Kirkman) were granted an enclosure permit over the disputed portion. 2. Following this judgment, the Minister decided, in the 1 May decision to vary the enclosure permits for both Ms Kirkman and the Woods, to replace the permits which had been declared void, pending determination of the road closure applications. The Department communicated the 1 May decision in the following identical terms to Ms Kirkman and the Woods: "In accordance with the judgment, your road closure application is being reassessed by a senior manager in the Grafton office. In the meantime, you are enclosure permit has been varied to show the lots and areas as shown on your original enclosure permit. … The permit has been granted in your name as at the judgment dated 20 December 2016 as set out in the enclosed document that should be retained for your records." 1. The reference to the "Grafton office" was the transfer of decision-making to an office in the Department which had no connection with the 2008 permit decision. In the enclosed documents, Ms Kirkman's amended enclosure permit included the disputed portion but the Woods' did not. 2. The words "as shown on your original enclosure permit" appear to have been intended to mean the Department was reproducing the terms of the enclosure permit prior to the 2008 decision held to be void by Stevenson J. If that was what was intended, it was a mistake. There is ample evidence that this meaning was the opposite of what the Department, Ms Kirkman and the Woods had all believed to be the facts prior to 2008. And Ms Kirkman's removal of the old fencing, her replacement of it by the electric fence in 2014, and her case before Stevenson J challenging the 2008 permit decision were all based upon the opposite facts. 3. The absence of the disputed portion in the Woods' 1 May 2017 amended enclosure permit gives no rational basis to question whether, prior to the erroneous 2008 decision, the Woods had a valid enclosure permit over the disputed portion that conflicted with her own. The obvious inference is that the Department had made a mistake. 4. How did that mistake happen? One does not have to look far to see. In Stevenson J's judgment, the parties were ordered to bring in short minutes of order to give effect to his Honour's reasons. Those short minutes of order were entered on 2 February 2017 and were as follows: "1. I make declarations in accordance with pars 1, 2 and 3 of the letter from the Crown Solicitor's Office to Mr Stephen Martin dated 17 January 2017. 2. I make an order in accordance with par 4 of that document. ORDERS: 1. Declare that the decisions made by the first defendant in or about 2008 to: a. vary enclosure permit 16493, so as to exclude the area of Crown Road marked "{" in the annexure to the judgment ("the Road"); and b. vary enclosure permit 16608, so as to include the Road; are invalid and of no legal effect and quash those decisions. 2. Declare that the decision made by the first defendant on 13 August 2014 not to offer to sell the Road to the plaintiff is invalid and of no effect, and quash that decision. 3. Declare that the decision made by the first defendant on 14 November 2014 to offer to sell the Road to the second defendant is invalid and of no effect, and quash that decision. 4.The first defendant is to pay the plaintiff's costs of the proceedings, as agreed or assessed." 1. The Department amended the enclosure permits on 1 May "to comply with the court judgment". If someone within the Department had merely looked at declarations 1(a) and 1(b) made by Stevenson J, without closely examining the pre-2008 record, a not unnatural interpretation of the command of those declarations would be to reverse the 2008 permit decision as described in those declarations. To give effect to declaration 1(a), that would involve including "the Road" as defined in enclosure permit 16493. To give effect to declaration 1(b), that would involve excluding "the Road" as defined from permit 16608. That is just what the Department did, neatly eliminating the conflict. But returning to the enclosure permit terms which immediately preceded the 2008 permit decision required something slightly different: to give effect to declaration 1(b) would involve including "the Road" as defined in permit 16608, because that is how everyone understood the pre-2008 enclosure permit 16608 read. Ms Kirkman's Three Arguments 1. Ms Kirkman puts three arguments: 1. the Minister failed to adequately consider the 1 May decision by not reasoning why the 2017 decision departed from it; 2. the 2017 decision erroneously considered the enclosure permits to remain in conflict after the 1 May decision; and 3. the Minister should have considered Ms Kirkman's new fence in the 2017 decision. 1. (1) Failure to give reasons for departing from the 1 May decision. Ms Kirkman argues the delegate only "made 3 references to the May 2017 decision but limited those references to the May 2017 decision merely having occurred" and did not explain why the delegate did not follow the 1 May decision. 2. Ms Kirkman identifies three references in the 2017 decision in the materials before the delegate. It is not necessary to identify them here. And Ms Kirkman is correct: the delegate does not directly give reasons for departing from the 1 May decision. 3. Departure from the 1 May decision did not call for reasons. The 1 May decision was not a decision on the merits and was merely an attempt to correct the Department's record pending the road closure. It was of no independent significance. And as the Court has already shown it was a misinterpretation of the Court's orders following Stevenson J's judgment. 4. (2) Erroneous consideration that the enclosure permits remained in conflict. Ms Kirkman next argues that the Officer's submissions before the delegate at the time of the 2017 decision make "specific reference to conflicting interests of the Plaintiff and the 2nd defendant", despite the 1 May decision having resolved the conflict. She further argues that one of the proposed (and dismissed) outcomes considered by the delegate, Outcome 1, in fact reflected a continuation of the 1 May decision yet was dismissed with no reference to the 1 May decision. 5. In the Assessment for the 2017 decision, Outcome 1 (by reference to the diagram at [64] of the principal judgment) was described as follows: "Outcome 1 Close and sell the entire road adjoining Kirkman's property to Kirkman. Roads 1, 2, 3 & 4 to Kirkman. Road 5 to Wood." 1. Later in the Assessment the decision to set aside Outcome 1 was outlined: "Table 2 – Summary of Possible Outcomes: Outcome Comments Recommendation 1 • Favoured Kirkman Set aside • Rejects Wood's interest in the disputed area … Outcomes 1, 2 & 5 are recommended to be set aside as they do not consider the expressed interests of both landholders…." 1. Ms Kirkman says this decision to set aside Outcome 1 failed to consider the status quo set by the 1 May decision, namely that only Ms Kirkman was acknowledged to hold a legal interest over the disputed portion. It is therefore argued that the corollary of the 1 May decision is that any reference to the Woods' "interests" over the disputed portion is essentially a misnomer. The Woods are said to have had no interest by virtue of the 1 May decision. 2. This argument is not persuasive for several reasons. First, the 1 May decision does not represent a conclusion on the merits that Ms Kirkman had a "legal interest" in the disputed portion. The 1 May decision was at best a mistaken attempt to give effect to the declarations following Stevenson J's judgment. 3. Second, the argument misapprehends the real basis of the 2017 decision, which for the purposes of sale after a road closure, was seeking to resolve competing claimed interests in the disputed area, which were indeed in conflict. 4. (3) Was the fence considered? Ms Kirkman submits that the Minister should have considered Ms Kirkman's new fence in its determination but that the Minister is "silent in relation to this". But as this judgment has already explained, the delegate expressly adverted to the issue of fencing and "recommended that current fencing be set aside as a consideration" and gave reasons for doing so. The reasons the delegate gave do not result in any invalidity in the 2017 decision. 5. But the electric fence was not a significant consideration in Ms Kirkman's favour. It is to be remembered that Ms Kirkman erected the new electric fence in 2014 in response to what she correctly claimed was an invalid 2008 permit decision of the Department. The Woods did not erect a new fence as they were under the misapprehension at that time that the 2008 and 2014 decisions were valid. Ms Kirkman's fence is merely evidence of her advancing her claim to the disputed area, a claim which is well understood by both sides and matched by the Woods' counterclaim. Her decision to erect a fence has no more significance than the Woods' decision to leave it there, based on their belief in the 2008 and 2014 decisions. 6. And the Minister is able to make a decision under s 67(1)(c) to cancel or vary the enclosure permits on "the road being closed or being dedicated as a public road", irrespective of whether the road ceases to be closed. Conclusions and Orders 1. For these reasons, Ms Kirkman is not entitled to any of the relief that she seeks. The other parties have put on submitting appearances and would not ordinarily be entitled to an order for costs except in respect of costs incurred prior to the filing of the submitting appearance. The Court invited the Minister to make submissions, which might be said to fall outside the submitting appearance. The Minister may wish to seek costs in respect of those submissions. But the Court will not make a costs order, unless either defendant applies for one within 14 days. 2. The Court makes the following orders: 1. The plaintiff's Summons is dismissed; 2. No order for costs will be made, unless either defendant files a motion seeking costs within 14 days, that is by Monday, 19 July 2021. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 July 2021