Cape York Land Council Aboriginal Corp v Boyland & Anor [2000] QCA 202

SUPREME COURT OF QUEENSLAND CITATION: Cape York Land Council Aboriginal Corp v Boyland & Anor [2000] QCA 202 PARTIES: GORDON CHARLIE (first applicant) CAPE YORK LAND COUNCIL ABORIGINAL CORPORATION (second applicant/appellant) v DESMOND EARNEST BOYLAND, EXECUTIVE DIRECTOR (CONSERVATION), QUEENSLAND DEPARTMENT OF ENVIRONMENT (first respondent/first respondent) CLYNDER PTY LTD ACN 009 857 425 (second respondent/second respondent) FILE NO/S: Appeal No 7688 of 1999 SC No 6 of 1997 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Cairns DELIVERED ON: 30 May 2000 DELIVERED AT: Brisbane HEARING DATE: 15 May 2000 JUDGES: Davies JA, Douglas and Holmes JJ Judgment of the Court ORDER: Appeal allowed. Orders made below set aside and, in lieu, orders made quashing the decision of the first respondent made on 11 February 1997 and referring the matter back to the director to decide the application in accordance with the principle stated herein. Order that the appellant have its costs of the proceedings at first instance and in this Court against each of the respondents. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY – GROUNDS FOR REVIEW OF DECISION – ERROR OF LAW – appellant in original action sought a statutory order of review in respect of a decision made by first respondent to approve an application by second respondent to construct -- 1 of 8 -- 2 certain buildings on Lizard Island – where first respondent made decision based upon advice received from Crown Solicitor – where advice stated approval of application to construct buildings could not be reasonably withheld if the second respondent established that the construction of the improvements were bona fide for the purposes of the sub- lease – whether advice given by Crown Solicitor incorrectly stated the question to be asked – whether the correct question was whether the application should be granted having regard primarily to the cardinal principle – whether asking the correct question would have resulted in a different answer National Parks and Wildlife Act 1975, s 25, s 33, s 34, s 35, s 51 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied Craig v South Australia (1995) 184 CLR 163, applied COUNSEL: S J Keim for appellant G J Gibson QC with S A McLeod for first respondent P J Flanagan for second respondent SOLICITORS: Miller Harris (Cairns) for appellant Crown Solicitor for first respondent Corrs Chambers Westgarth for second respondent [1] THE COURT: This is an appeal from an order by a Supreme Court judge refusing both a declaration of invalidity of a decision of the first respondent made on 11 February 1997 and an order that that decision be quashed. The application was made pursuant to the Judicial Review Act 1991. The decision was one granting an application for approval of the construction of buildings on land subleased by the second respondent on Lizard Island. [2] Lizard Island is and was at all relevant times a National Park. Nevertheless land on the island, part of which the second respondent now holds on a sublease, had been leased to Lizard Island Pty Ltd on 1 October 1975 for a term of 75 years subject to a condition that development of tourist accommodation buildings and recreation facilities be undertaken of a value of not less than $500,000 and that a tourist resort be conducted on the leased land. The sublease of part of that land was granted to the second respondent on 1 June 1983. [3] Two relevant conditions of that sublease were: "14(a) ... The Sub-lessee covenants with the Sub-lessor that it shall perform and observe all the Lessee's covenants and stipulations and whether expressed or implied in the said Special Lease 39507 to the extent that such covenants and stipulations have application to the demised premises the subject of this Sub-lease. (b) The Lessee shall use the demised premises for tourist and recreation facilities only and before constructing any building or -- 2 of 8 -- 3 other fixed improvements thereon shall obtain all necessary permits required by law therefor and in particular the permit of the Director of National Parks and Wildlife Services." [4] The lease and sublease were at all material times subject to the provisions of the National Parks and Wildlife Act 1975,1 relevant provisions of which were as follows: "25. Principle of management of National Parks. The cardinal principle to be observed in the management of National Parks shall be the permanent preservation, to the greatest possible extent, of their natural condition and the Director shall exercise his powers under this Act in such manner as appears to him most appropriate to achieve this objective." "33. Power to grant special leases and permits. (1) With the consent of the Director and subject to such conditions for the preservation and protection of the National Park as the Director thinks fit to recommend, special leases in respect of any land within any National Park other than land declared as a primitive area or a scientific area may be granted under sections 198 and 203 of the Land Act 1962-1981 and for the purpose of this subsection such land shall be deemed to be land reserved and set apart for public purposes, and the provisions of that Act so far as they are not inconsistent with so much of this Act as relates to National Parks shall apply and extend to all such special leases accordingly: Provided that no such lease shall be granted with or subjected to any condition unless the Governor in Council is satisfied that the objects of this Division would not be thereby prejudiced or opposed." "34. Interfering with forest products on National Parks. (1) Notwithstanding anything to the contrary contained in any other Act, a person shall not interfere with any forest products on any National Park except under the authority of and in compliance in every respect with the requirements of a permit granted pursuant to this section by the Director." "35. Permits, etc. (1) Subject to this Act, the Director shall have power and authority to grant or make with any person, exclusively or in common with others, permits, leases or other authorities and agreements or contracts under and for the purposes of this Act and to extend any of the same from time to time and every permit, lease, other authority, agreement or contract shall be granted, made or extended subject to the payment by the permittee, lessee or the person to whom the authority is granted or with whom the agreement or contract is made, as the case may be, of such charges, rents, fees or other moneys and to such provisions, conditions and reservations as may be prescribed or, in so far as not prescribed, as the Director may determine: ... ." 1 Nature Conservation Act 1992 s 165, substituted 1994 No 42 s 49, expired 19 December 1994. -- 3 of 8 -- 4 "51. Unlawfully using National Park. (1) Any person who, except under the authority of and in compliance in every respect with a permit or other right or authority granted under this Act, or a lease, or other authority from the Crown, on any National Park – (a) ... ; (b) occupies, resides upon, or encloses any land or waters, or erects any hut or other structure whatsoever or grows crops upon any land, or clears or breaks up any land for cultivation or for any other purpose; or (c) ... ; (d) ...; shall be guilty of an offence which shall be deemed to be a park offence, against this Act." Forest products are defined to include all vegetable growth, aboriginal remains, artefacts or traces thereof and relics. [5] The approval granted was to construct certain buildings on the subleased land for the purpose of providing a tourist and recreational facility. The first respondent was asked to and provided a statement, pursuant to s 33 of the Judicial Review Act, containing the following reasons for his decision: (a) a request had been made by Clynder Pty Ltd for construction to be permitted pursuant to the requirements of cl 14(b) of the sublease; (b) legal advice was obtained to the effect that approval could not reasonably be withheld if Clynder Pty Ltd established that the construction improvements were bona fide for the purpose of the sublease; and (c) the request was determined to be in keeping with the purposes for which the lease and sublease were issued. Only the second and third of these can be properly characterized as reasons. [6] Before the learned primary judge and in this Court the appellant's argument centres on par (b) of those reasons. First, it submits that the first respondent concluded that the question which he had to decide was whether there was any reasonable basis for refusing the application and that, consequently, he should refuse the application only if some reasonable basis were shown for refusing it. This, it was submitted was the wrong question.2 The correct question, it was submitted, was whether the application should be granted having regard primarily to the cardinal principle stated in s 25, bearing in mind the purpose for which the lease and sublease were granted. [7] Secondly, it is submitted, as par (b) of the reasons for decision and the first respondent's other evidence show, the first respondent concluded that, once it was established that the construction proposed was for the purpose of tourist accommodation buildings and recreation facilities, approval could not reasonably be withheld. And it was submitted that this was to fail to take into account the most important consideration, the cardinal principle referred to in s 25. It was, in effect conceded by Mr Gibson QC for the first respondent that this was the effect of 2 Craig v South Australia (1995) 184 CLR 163 at 179. -- 4 of 8 -- 5 par (b) of the reasons for decision and that, if that truly represents the first respondent's reason, the decision must be quashed. However he submits that in par (b) the first respondent mis-stated his reason and that, on his reasons as explained in his affidavit and oral evidence, there was no error vitiating the decision. [8] As appears from par (b) of the reasons for decision the first respondent sought and relied on legal advice from the Crown Solicitor as to the appropriate questions which he should consider and as to the legal aspects of the answers to those questions. In the principal letter of advice from the Crown Solicitor, dated 5 January 1995, the relevant question was stated in the following way: "Can permission to construct this facility be reasonably withheld by the Director, National Parks and Wildlife on the grounds that ... the development scenario is not, in his opinion, in keeping with the cardinal principle of the National Parks management as contained in s 25 of the National Parks and Wildlife Act ... ?" That question was then answered in the letter in the following way: "On the basis of your instructions as set out in your letter, the answer to your first question is that the permission may not be withheld unless the use proposed is totally inconsistent with the purpose of the sub-lease." [9] That advice was confirmed in subsequent advices of 10 March and 8 May 1995 in the following terms respectively: " Even though the Director has a discretion under clause 14(b) in my opinion that discretion would have to be exercised reasonably in the circumstances: by taking into account all the relevant considerations, including the purpose of the Head Lease and Sublease. In other words, the discretion must be exercised having regard to the purpose of the Head Lease and Sublease and could not be unreasonably withheld so as to frustrate the purpose of the Head Lease and Sublease. As mentioned in my earlier advice it is not sufficient that the proposed works are inconsistent with the cardinal principle of park management because the cardinal principle has already been compromised by the granting of the Head Lease and Sublease." " In line with earlier Crown law advices dated 5 January 1995 and 10 March 1995, so long as Clynder Pty Ltd can establish that the construction of the improvements are bona fide for the purpose of the sub-lease, namely for 'tourist and recreation facilities' then the Chief Executive could not unreasonably withhold his approval to the construction and removal of trees and forest products so as to frustrate the purpose of the lease." [10] Paragraph (b) of the reasons appears to suggest that the first respondent accepted this advice and, having concluded, as is common ground, that the proposed construction was for tourist and recreation facilities, consequently concluded, in effect, that he was bound to grant the approval. What is clear from those advices is that the adviser considered, wrongly in our opinion, that the relevant question was whether permission to construct the proposed buildings could be reasonably withheld and that the answer to that question was that it could not if the -- 5 of 8 -- 6 construction was bona fide for the purpose of the sublease. And the reason why the Crown Solicitor reached that conclusion appears to be that he thought that, in order to withhold his permission pursuant to cl 14(b) the director had to be satisfied both that the construction was not consistent with the purpose of the sublease and that it unduly interfered with the cardinal principle. In the letter of advice of 5 January 1995 he said: " Before the Director may reasonably withhold consent, he must be satisfied that the proposed work are inconsistent with the purpose of the sub-lease for example because it is unlikely that the works if approved, will be consistently used for the purpose of 'tourist and recreation facilities only'. It is not sufficient that the works are merely inconsistent with the cardinal principle because the cardinal principle has already been compromised by the grant of the lease. A decision by the Director to refuse consent in this case should be based on a combination of the cardinal principle of park management and an assertion that the construction of the dwelling house is inconsistent with the purpose of the head-lease and sub- lease in the circumstances. In this context the importance of the construction site to the surrounding environment and the likely impact of the works and use thereof on the surrounding environment are relevant considerations, but not the only ones. The decision must be taken in the light of the fact that the lease has been granted for the purpose of the construction of tourist and recreational facilities and this necessarily contemplates the construction of dwellings." [11] To similar effect is the advice quoted above from the letter of 10 March 1995. Although what is said in these passages is not entirely clear it is consistent with the interpretation we have placed on it and it appears to have been the interpretation which the director placed on it for when taken to the second paragraph from the letter of advice of 5 January 1995, quoted in [10], he agreed that he understood that to mean that he had to have two reasons to refuse in combination, one being the cardinal principle and the other an assertion that the construction of the dwelling was inconsistent with the purpose of both the head lease and the sublease. [12] The advices given by the Crown Solicitor to the director were therefore wrong in three respects; they wrongly stated the question which he had to consider, they advised him that he could withhold permission only if the use proposed was inconsistent with the purpose of the sublease and, as the reason for that last conclusion, they advised him that he could not withhold his permission unless he was satisfied both that the proposed construction was not bona fide for the purpose of the sublease and that it was inconsistent with the cardinal principle. It follows that in our opinion the learned primary judge erred in his conclusion that the advices given were correct. [13] Notwithstanding par (b) of the reasons for refusal and the first respondent's agreement with the proposition that he understood the advice from the Crown Solicitor to mean that he had to have two reasons to refuse in combination, one the cardinal principle and the other that the proposed construction was inconsistent with the purpose of the sublease, Mr Gibson QC nevertheless contended that the first respondent was not misled by these advices and exercised his discretion upon a -- 6 of 8 -- 7 correct basis. For that he relied on an affidavit sworn by the director and some passages in his oral evidence. In his affidavit the director said: "I did have regard to the 'cardinal principle' expressed in section 25 of the NPW Act, but considered that, consistent with Crown law advice with which I had been provided, the operation of that principle was to be assessed in light of the fact that the Land was then undeveloped in any way, and that the Sub-lease obliged Clynder to use the land for 'tourist and recreational facilities ... '. The legal advice obtained from Crown law was to the effect that provided the construction of the improvements were for 'tourist and recreation facilities only', approval could not be unreasonably withheld so as to frustrate the purpose of the lease. I considered that having regard to the contents of the material before me (which included material both in favour of and against approval of the application) it would be unreasonable to withhold approval as the design of the buildings was sympathetic to the natural environment; the size of the proposed development was comparatively small for a tourist facility; and in my opinion any adverse impact of the development on the natural environment and cultural heritage values of the Land and the Island was likely to be reasonably contained by the imposition of appropriate conditions." [14] Then in cross-examination the first respondent agreed that the advice which he had was that before he could reasonably withhold consent he had to be satisfied that the works were inconsistent with the purpose nominated in cl 14 of the sublease. He then agreed, as mentioned earlier that he had to have two reasons in combination, the cardinal principle and inconsistency with the purpose of the lease before he could refuse. Then, in re-examination, he was asked what he considered his role to be, having formed the view that it was for a tourist and recreational facility. His answer was: "Well, I believed that for a tourist and recreational facility it was probably about the most minimal impact that could possibly occur on a national – on a national park. The structure so built or was proposed to be built was of that nature." [15] Then came the following passage in re-examination: "In light of your conclusion that this or any proposed development was for tourist and recreational facilities, what discretion, if any, did you then consider you had to refuse approval? -- Well, the discretion I was looking at is to ensure there was relatively minimal impact on the park and I believed the proposal that was put forth satisfied that criteria. HIS HONOUR: Did you believe you had a discretion to refuse? -- I believed that I wasn't compelled to approve any building that came forth. To approve any development at all? -- Sorry, your Honour, is my understanding you --- You were asked by Mr Gibson a moment ago what discretion did you believe you had to refuse --- ? -- Yes. --- A proposal and you didn't quite answer his question, so I asked you again? -- Sorry, your Honour. I did believe that I had some -- 7 of 8 -- 8 discretion to refuse because the wording from the legal advice, if I recall correctly, was 'cannot be unreasonably withheld'. Now, if I had very sound reasons for refusing the proposed development, then I believe I was quite within my rights to do so." [16] In the light of those passages, the highest that the matter can be put for the respondents is that the first respondent accepted the advice given that the question was whether permission could be reasonably withheld; and that he believed that he could withhold permission only if very sound reasons for refusing it were shown. It seems plain from this, in our opinion, that the first respondent asked himself the wrong question. The correct question was what was the most appropriate way of achieving the objective of the permanent preservation, to the greatest possible extent, of the natural condition of the park having regard to all the circumstances including the existence of the sublease for tourist and recreation facilities; whether it was by refusing permission to construct the buildings or to grant it subject to conditions or, as seems most unlikely, to grant it unconditionally. Having asked himself the wrong question he appears to have answered it by concluding that, once it was established that the proposed construction was bona fide for tourist and recreational facilities, he could not reasonably refuse it or, perhaps, could only reasonably have refused it for very sound reasons. He did not attempt to say what very sound reasons might be and he seemed to think that, even if there had been an application for a 30 storey building on the land he would merely have had "reservations" about it. [17] It is plain that, if the first respondent has asked himself the right question he might have arrived at a different answer.3 It follows therefore that the appeal should be allowed, the orders made below set aside and, in lieu, orders made quashing the decision of the first respondent made on 11 February 1997 and referring the matter back to the director to decide the application in accordance with the principle stated above. [18] We would also order that the appellant have its costs of the proceedings at first instance and in this Court against each of the respondents. 3 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353, 384. -- 8 of 8 --