Kirkman v Minister Administering the Crown Lands Act 1989 [2016] NSWSC 1876

Supreme Court New South Wales

Medium Neutral Citation: Kirkman v Minister Administering the Crown Lands Act 1989 [2016] NSWSC 1876 Hearing dates: 15 December 2016 Decision date: 20 December 2016 Jurisdiction: Equity Before: Stevenson J Decision: Minister's decision affected by jurisdictional error and to be set aside Catchwords: ADMINISTRATIVE LAW – jurisdictional error – decision by Minister to close a Crown road and sell it to the plaintiff's neighbour – whether Minister's delegate took into account an irrelevant consideration being a purported alteration to the plaintiff's enclosure permit over the road – where common ground that such alteration was a nullity – whether plaintiff also denied procedural fairness Legislation Cited: Crown Lands Act 1989 (NSW) Dividing Fences Act 1991 (NSW) Roads Act 1993 (NSW) Category: Principal judgment Parties: Jennifer Anne Kirkman (Plaintiff) Minister Administering the Crown Lands Act 1989 (First Defendant) Geoffrey Wood (Second Defendant) Representation: Counsel: T To (Plaintiff) J S Emmett (First Defendant)

Solicitors: Garland Hawthorn Brahe (Plaintiff) Crown Solicitor's Office (First Defendant) File Number(s): SC 2014/367954

Judgment 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. 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. 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.