(a) Must the Council upon receipt of an acquisition notice under cl 19(1) of the LEP, form an opinion by resolution specifically directed to the question of whether or not the need to acquire the land, the subject of the notice, has yet been created by residential development in the vicinity?
110 Although the appellant's primary submission (which if answered in its favour is sufficient to dispose of the appeal) was that as the opinion referred to in cl 19(3) was not formed within a reasonable time of the receipt by the Council of the first notice, the Council's obligation to acquire the land had at the expiration of that time crystallised or become unconditional, there is a precedent issue as to the nature of the opinion called for by that provision. The appellant submitted, and the primary judge found, that the Council was required to form an opinion upon the receipt of the notice within a reasonable time in that it could not rely upon its adoption of draft local environmental plans, contribution plans or other policy documents from which it could be gleaned that the Council had no need and no wish to acquire the land the subject of the notice for the purpose for which it was zoned (in the present case) as open space.
111 The Council submitted by way of Notice of Contention that his Honour erred in his construction of cl 19(3) (at [75]) that upon receipt of a notice to acquire under cl 19(1), the Council must undertake an enquiry into the need to acquire the land the subject of the notice and form an opinion as to whether any such need had yet been created by residential development in the vicinity. It submitted that the subject matter of cl 19(3) was not the specific land which was the subject of the notice under cl 19(1) but any or all land within the 6(c) zone. The opinion contemplated by cl 19(3) was not about any particular land but the need for open space generated by local development. It is not the land but the need which was the subject of the opinion. Accordingly, opinions formed by the Council in respect of the need for local open space generated by residential development formed at various times, whether before or after the receipt of the notice, such as in revising the zoning of land the subject of a cl 19(1) notice or in the preparation of s.94 contribution plans, were operative opinions for the purposes of cl 19(3).
112 It was thus submitted that as the purpose of reserving to Council the timing of acquisition was to ensure the control of the provision of open space in an orderly way, the opinion to which cl 19(3) related would usually be formed in the context of planning for open space provisions such as in contribution plans, new draft local environmental plans and the like. Accordingly, the provision envisaged or included a determination of need that had already been made when the notice was served.
113 The Council's submission went so far as to assert that the express subjection of cl 19(2) to subclause (3) suggested that the service of a notice of acquisition was premature unless and until the Council had decided that the locality required additional open space unless a hardship case had been made out. Certainly, so it was submitted, each notice was ineffective until the Council had formed the necessary opinion under cl 19(3) absent a positive opinion on the issue of hardship. It was further submitted that his Honour had implied that the opinion referred to in cl 19(3) must be formed within a reasonable time and that this was the product of his construction that what was referred to as a fresh needs opinion must be made upon service of the notice.
114 But even if the opinion was required to be formed within a reasonable time, its expiry must be assessed in a planning context which required the identification of the relevant open space, the relevant vicinity, the residential development in that vicinity and the need, if any, for that open space. This, it was submitted, would involve the collection of data of various types in order to enable a recommendation to be made to the Council as to whether the relevant need for the acquisition of the land, the subject of the notice, had yet been created. In other words, so the submission went, the opinion to which cl 19(3) related could not be driven by the timing of the notice but the intrinsic difficulty of and the factors relevant to the determination of the question of need in a planning context.
115 In any event, it was submitted that the primary judge made no finding in terms that the needs opinion was not formed within a reasonable time. His finding in [100] that the delay on the Council's part after July 2004 was unreasonable was made in the context of the hardship issue. Therefore, he had made no finding as to whether the needs opinion required by cl 19(3) was not formed within a reasonable time.
116 In my opinion the respondent's submissions should be rejected. Although what is a reasonable time will depend upon the particular circumstances of each case, I find it impossible to construe cl 19(3) or, for that matter cl 19(4), upon the basis that the opinions to which they refer can be formed by the Council at any time after receipt of a notice pursuant to cl 19(1) and that it is irrelevant how long the formation of those opinions is delayed.
117 My reasons for that conclusion are as follows. First, cl 19(1) empowers an owner of land within the relevant zones to give notice in writing requiring the relevant authority (in this case the Council) to acquire land within those zones at any time. Subject only to subclause (3) and an immaterial exception, cl 19(2) obliges the authority on receipt of the notice to acquire the land the subject of that notice.
118 Second, in the case of land within zone 6(c), the Council's obligation to acquire the land the subject of the notice is made subject only to subclause (3). In other words, there is a conditional obligation upon the Council to acquire the land that it can avoid only by fulfilling that obligation.
119 Third, the effect of subclause (3) is to relieve the Council from the obligation under cl 19(2) of acquiring land the subject of a notice within zone 6(c) if, in its opinion,
"the need for the open space has not yet been created by residential development in the vicinity". (Emphasis added)
120 Fourth, subclause (3) has no operation even if the opinion referred to therein is formed and the Council must acquire the land pursuant to subclause (2) where it is of the opinion that the owner of the land will suffer hardship if the land is not acquired within a reasonable time. The reference to a "within a reasonable time" must be to the receipt of the notice. That being so, it is clear that the Council is required to form the relevant opinion referred to in subclause (4) within a reasonable time of the receipt of the notice. Otherwise, the purpose of subclause (4) in obliging the Council to acquire land within zone 6(c) where the owner will suffer hardship if the land is not so acquired would be set at nought.
121 Fifth, the critical word in subclause (3) is "yet". That word provides a connection between the formation of the opinion and the receipt by Council of the notice to acquire. In other words, the Council is not required to acquire land within zone 6(c) if, in its opinion, the need for the open space, being the land the subject of the notice, has not "yet" been created; that is, at the time that the notice is received.
122 Sixth, it is for this reason that the proper construction of subclause (3) requires the opinion to be formed within a reasonable time of the receipt of the notice. Otherwise it would be open to the Council to form the opinion that there was no need created at the time that it formed its opinion which may, as in this case, be 18 months after the receipt of the notice in circumstances where there was such a need at the time the notice was received but which had since lapsed.
123 Seventh, the primary source of the Council's obligation to acquire land the subject of a notice given pursuant to cl 19(1) remains cl 19(2). Subclause (3) directs attention to whether, at the time the notice is received, there is then a need to acquire the land created by residential development in the vicinity. Such a requirement can only be fulfilled if, upon receipt of the notice, the Council forms the relevant opinion with respect to the particular land the subject of the notice. Whether or not at the time the notice is received a need for the open space has been created can only be determined at the time, or within a reasonable time, of receipt.
124 Eighth, accordingly it follows that not only must the opinion be formed within a reasonable time, it must also be a specific opinion formed after receipt of the notice and relating expressly to whether a need for the acquisition of that open space has then been created by residential development in the vicinity.
125 I would therefore reject the respondent's submissions that such an opinion can be formed prior to the receipt of the notice or that such an opinion can be formed by reference to general planning and other policy documents of general application.
126 I turn now to the question of whether a reasonable time had elapsed between 9 December 2003 and the formation of the relevant opinion by the Council on 27 June 2005. I would accede to the Council's submission that his Honour's finding (at [100]) that delay on the part of the Council after July 2004 was unreasonable was directed to the expiration of a reasonable time within which the Council was required to form an opinion with respect to the hardship issue. The reference to July 2004 is probably based upon the last communication of information relating to that issue by the appellant to the Council under cover of Mr Ferris' letter of 27 July 2004.
127 But even if that was not so, there can be no doubt in my opinion that a reasonable time for Council to have formed the opinion required by cl 19(3) if it was to avoid the obligation to acquire the land had well and truly expired by July 2004. In fact, in my opinion, the reasonable time expired well before that date. In this regard, the evidence did not support the conclusion that the delay between 9 December 2003 and 27 June 2005 was for a considered reason as distinct from being in consequence of neglect or oversight: Bidjara v Indigenous Land Corporation (2001) 106 FCR 203 at 208 [20]-[21].
128 If, as the Council submitted, it had already formed the opinion that no need had yet been created by residential development in the vicinity for the acquisition of the land prior to the receipt of the notice, then a reasonable time within which to form the opinion required by cl 19(3) would have expired within months of 9 December 2003 when the first notice was received. At the very latest, a reasonable time would have expired when the 2004 LEP was gazetted in March 2004 when the land was rezoned.
129 Given that the present proceedings were brought in Class 4 of the Court's jurisdiction, the appeal from the primary judge is an all grounds appeal. All the evidence is documentary. If his Honour did not make the necessary finding in that the one he did make was directed to the formation of the opinion required by cl 19(4) rather than that required by cl 19(3), then it is open to this Court to make the necessary finding of fact being in as good a position to do so as the primary judge: Warren v Coombes (1979) 142 CLR 531 at 552.
130 What then is the legal consequence of the Council's failure to form the opinion required by cl 19(3) within a reasonable time? According to his Honour that did not render absolute or unconditional the Council's obligation to acquire the land but, rather, merely gave rise to an enforceable duty on the Council to form the opinion. In my view his Honour erred in so holding.
131 The respondent submitted that the construction of cl 19(3) could give rise to four possibilities. First, that any obligation to acquire the land could not survive the formation of the needs opinion within a reasonable time. Second, that there is no obligation to acquire unless and until the council has determined whether or not to form the needs opinion. Third, no obligation to acquire the land arises under cl 19(2) provided the needs opinion is formed under subclause (3) irrespective of the date upon which that opinion arises, however distant. Fourth, an obligation to acquire arises under cl 19(2) subject only to the needs opinion being formed under subclause (3) within a reasonable time. It is this last construction for which the appellant contends with the rider that once a reasonable time has expired, Council loses the right by subsequently forming the needs opinion to avoid the obligation under cl 19(2) to acquire the land. Although the first construction is clearly correct, acceptance of the fourth requires rejection of the second and third possibilities.
132 The Council submitted that the appellant's contention that the obligation to acquire arose once a reasonable time elapsed after receipt of the notice and, within that time, the Council had not formed a needs opinion, was contrary to the literal terms of cl 19(3). This was because once the needs opinion was formed, nothing in the LEP (including cl 19(2) and subject to c.19(4)) could compel acquisition. Accordingly, provided the Council formed a needs opinion before there was any order of the Court to acquire the land, no obligation to acquire arose.
133 The Council further submitted that if the temporal element in cl 19(2) governs the other subclauses, then the enquiry must be to ascertain whether, at the date of service of the notice, the Council held a needs opinion. Such a construction would enable the Council to rely on its various pre-notice planning decisions concerning the satisfaction of its open space needs without the necessity of acquiring the land.
134 Although cl 19(2) contains a temporal element in that it obliges the relevant authority to acquire the land the subject of the notice upon its receipt, that temporal element is subject to subclause (3) which provides an exception to the obligation of the Council to acquire the land on receipt of the notice if the needs opinion is formed.
135 There is nothing inconsistent with the temporal requirement of cl 19(2) in applying a different temporal requirement in subclause (3) with respect to the time within which the Council must, if it so determines, form the needs opinion. In other words, the obligation under cl 19(2) to acquire the land on receipt of the notice is suspended for a reasonable time within which the Council may, if it wishes, form the needs opinion. If it does, then the obligation to acquire under cl 19(2) is negated.
136 However, it must be observed that cl 19(3) does not place any obligation or duty upon the Council to form the needs opinion. Whether it does so or not is entirely a matter for it. The onus to form the opinion rests squarely on it. If it does form the opinion within a reasonable time of receipt of the notice, then it avoids the obligation under cl 19(2) to acquire the land. If it does not, then in my opinion what was a conditional obligation under cl 19(2) becomes unconditional: cf NSW Aboriginal Land Council v the Minister (1988) 14 NSWLR 685 at 694.
137 Nevertheless, the Council submitted that the only effect of the expiration of a reasonable time was to give rise to an obligation on its part to give proper consideration to the notice to acquire so that the only remedy was an order in the nature of mandamus which in the present case was never sought. If this be so, then it involves acceptance of the second possible construction of cl 19(3) referred to in [125] above. This is what the primary judge decided but, with respect, he was in error in doing so. This is because at no time, either upon receipt of the notice or upon the expiry of a reasonable time after receipt of the notice, was there an obligation under cl 19(3) on the part of the Council to form the needs opinion or a right in the appellant to have that opinion considered, let alone formed. The Council was empowered to form the opinion and if it did, certain consequences would follow. But if it did not, then it could not avoid the obligation to acquire.
138 The Council placed reliance on the following passage from the judgment of Brennan CJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 373-374 [38] where, omitting citations, his Honour said:
"A third kind of provision must be distinguished from provisions which restrict the ambit of the power and provisions which prescribe conditions on its availability for exercise. A provision may require the repository or some other person to do or refrain from doing something (sometimes within a period prescribed by the statute) before the power is exercised but non-compliance with the provision does not invalidate a purported exercise of the power: the provision does not condition the existence of the power. Such a provision has often been called directory, in contra-distinction to mandatory, because it simply directs the doing of a particular act (sometimes within a prescribed period) without invalidating an exercise of power when the act is not done or not done within the prescribed period. The description of provisions as either mandatory or directory provides no test by which the consequences of non-compliance can be determined; rather, the consequences must be determined before a provision can be described as either mandatory or directory."
139 As I understand this submission, cl 19(3) required the Council to form the needs opinion or to refrain from doing so before it was required by cl 19(2) to acquire the land. However, as I have already observed (at [136]), cl 19(3) did not require the Council to determine whether or not to form the needs opinion although it was open for it to do so if it was so minded. Contrary to the Council's submission, there was no obligation imposed by cl 19(3) on the Council to give proper or any consideration to the notice to acquire in the sense of determining within a reasonable time whether or not to form the needs opinion. That is not to say that it might not do so: only that it was not obliged to do so. Accordingly, the giving of consideration whether or not to form a needs opinion was not a condition precedent to the obligation to acquire the land in the event that no opinion was formed within a reasonable time. Either the Council formed the needs opinion within a reasonable time or it did not. If it had done so, then it was relieved of acquiring the land. As it did not, then it was obliged to acquire the land. In other words, it simply could not approbate and reprobate.
140 In other words, the terms of cl 19(3) are permissive: hence the use of the preposition "if" in the phrase "if in the opinion of the Council…". The primary judge and the Council would construe the subclause, as the appellant submitted, as relieving the Council of the obligation under cl 19(2) to acquire the land "unless in the opinion of the Council the need for open space has been created by residential development in the vicinity". Such a construction would rewrite the provision and convert the requirement for a negative opinion into a positive opinion. Such an approach is unsustainable.
141 The Council nevertheless placed reliance on the decision of the Privy Council in Wang v Commissioner of Inland Revenue [1995] 1 All ER 367 at 373(f), 374(j) and 377(d)-378. Lord Slynn of Hadeley, who delivered the judgment of the Board, referred at 373(f) to s64 of the Hong Kong Inland Revenue Ordnance, subsection (1) of which provided for a person to object to an assessment stating precisely the grounds of objection within one month after the date of the notice of assessment. By subsection (2) it was provided:
"On receipt of a valid notice of objection under subsection (1) the Commissioner shall consider the same and within a reasonable time may confirm, reduce, increase or annul the assessment objected to."
142 The taxpayer contended first, that the Commissioner had failed to respond "within a reasonable time" to the taxpayer's objections to the assessment and, second, that if that was correct then the two purported determinations of liability for tax based on the assessment should be quashed since because of the delay the Commissioner had no jurisdiction to deal with them. Accordingly, if their Lordships concluded that the Commissioner had not acted "within a reasonable time", the question arose as to whether, after the expiry of a reasonable time, the Commissioner lacked jurisdiction to make any determination.
143 His Lordship, after reviewing the authorities cited by the taxpayer, observed that when a question such as in the present case arises - an alleged failure to comply with a time provision - the appropriate questions to ask were, first, whether the legislator intended the person making the determination to comply with the time provision, within a fixed time or a reasonable time; and second, if so, did the legislator intend that a failure to comply with such time provision would deprive the decision-maker of jurisdiction and render any decision which he purported to make null and void.
144 His Lordship concluded (at 377) that in the present case, the legislator did intend that the Commissioner should make his determination within a reasonable time. At the same time, the legislation imposed on the revenue authorities, including the Commissioner, the duty of assessing and collecting the relevant tax. If the Commissioner failed to act within a reasonable time he could be compelled to act by an order of mandamus. However, it did not follow that his jurisdiction to make a determination disappeared the moment a reasonable time had elapsed. Such a result would be surprising as it would mean that the Commissioner had jurisdiction to make the determination just before, but not just after, the expiration of a reasonable time.
145 His Lordship did not consider that that was the effect of a failure to comply with the obligation to act within a reasonable time in the particular legislation. Such a result would not only the deprive the government of revenue, it would also be unfair to other taxpayers who needed to shoulder the burden of government expenditure; the alternative result (that the Commissioner continued to have jurisdiction) did not necessarily involve any real prejudice to the taxpayer in question by reason of the delay.
146 Lord Slynn then concluded (at 377-378):
"Their Lordships accordingly consider that in the context of this legislation a failure to act within a reasonable time (had it occurred) would not have deprived the Commissioner of jurisdiction to make any determination by him null and void."
147 There are a number of differences between the legislative provisions in Wang and cl 19(3) of the LEP. First, s 64(2) of the Ordnance provided that on the receipt of a valid notice of objection, the Commissioner "shall consider the same and within a reasonable time may" confirm or annul the assessment objected to. Accordingly, the provision placed squarely on the Commissioner the obligation to consider the objection and to act upon it within a reasonable time.
148 Second, it would have serious revenue implications which the legislature could not have intended if the failure to consider the objection and within a reasonable time to make a determination resulted in the Commissioner no longer having jurisdiction to subsequently do so.
149 Third, their Lordships' decision that a failure to act within a reasonable time would not deprive the Commissioner of jurisdiction to make a determination was specifically stated to be "in the context of this legislation". So much is consistent with the approach in Project Blue Sky as to whether of an act performed in breach of a statutory provision attracts invalidity.
150 Fourth, cl 19(3) is both in its terms and intent entirely different from the statutory provision considered in Wang. First, it does not place any express obligation upon the Council to form the relevant opinion. Second, subclause (3) is an exception to subclause (2) under which the Council is obliged to acquire the land on receipt of the notice. Third, the onus is placed upon the Council, if it wishes to avoid that obligation because it did not at that time have a need for the relevant open space to specifically form an opinion to that effect. It is only necessary for it to form the opinion that the need for the open space in question has not yet been created by residential development in the vicinity.
151 Fifth, if such a need has been created, then nothing in cl 19(3) requires the Council to form an opinion to that effect: if it does not form the negative opinion, then it is not required to form a positive opinion before it is obliged to acquire the land pursuant to cl 19(2).
152 Finally, the Council relied on the decision of Beaumont J in Naes v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 at [11]-[16] where his Honour held that even if there was inexcusable delay on the part of the Department, the only appropriate remedy would have been an application for mandamus compelling the relevant officer upon whom was placed the statutory duty prescribed by s198 of the Migration Act 1958 to remove the applicant "as soon as [is] reasonably practicable" in the circumstances of the applicant's case.
153 The relevant statutory provision in that case was in the following terms:
"An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed."
154 In [12] Beaumont J referred to the principles explained by Murphy J in Re Federal Commissioner of Taxation; Ex parte Australena Investments Pty Limited (1983) 58 ALR 577. That was an application for mandamus to compel the Commissioner to deal in a timely fashion with a taxpayer's objection to the Commissioner's assessment of tax. Murphy J (at 578) considered that the Commissioner had a public duty to allow or disallow an objection within a reasonable time. Although the Commissioner submitted that the duty was only to consider the objection or, at its highest, a duty to give diligent, honest consideration to it, there was no time limit, reasonable or otherwise, in which he was required to determine the objection.
155 His Honour rejected this argument holding that where time limits had not been specified, a reasonable time must be implied. Without a time limit, any duty would be illusory. In the circumstances of that case, Murphy J refused mandamus on the ground that the delay involved had been adequately explained.
156 Beaumont J noted (at [14]) that Murphy J did not hold that if undue and unexplained delay had been demonstrated it would have had the consequence that the taxpayer's objection was to be treated as allowed. To do so would have undermined the legislative scheme for dealing with the merits of the Commissioner's assessment. The point, however, as his Honour observed in [15], was that Murphy J made it clear that where inexcusable delay had been demonstrated the Court would issue mandamus compelling the Commissioner to perform his statutory duty by considering the objection and ruling on it as soon as reasonably practicable. That form of relief would give effect to, rather than undermine, the statutory scheme.
157 Again, the legislative provisions with which Beaumont J was concerned on the one hand and Murphy J on the other, imposed in the one case an express statutory duty on the relevant officer to remove an unlawful non-citizen from Australia as soon as practicable and, in the other, to consider a taxpayer's objection and allow or disallow it within a reasonable time. In each case the statutory context bore no relation to cll 19(2) and (3) of the LEP. I repeat that it is cl 19(2) that imposes a statutory duty upon the Council to acquire the land subject, relevantly, to subclause (3). That statutory duty can be enforced by an order in the nature of a mandamus as the appellant seeks to do.
158 Clause 19(3) on the other hand imposes no statutory duty upon the Council to do anything. It does not oblige the Council to consider the acquisition notice; nor does it oblige the Council to consider whether or not to form the needs opinion. The Council may form that opinion and if it does so within a reasonable time, it will avoid the statutory duty or obligation to acquire the land pursuant to cl 19(2). But if it does nothing within a reasonable time as in the present case, then it was bound to perform its statutory duty under cl 19(2) to acquire the land, a duty which is enforceable in the manner to which I have referred.
159 For the foregoing reasons, therefore, in my opinion the primary judge erred in holding that the failure of the Council to form the needs opinion within a reasonable time did not give rise to an obligation on it to acquire the land but only an obligation to require it to form that opinion which could be enforced by an order in the nature of a mandamus.
160 It may well be, as the Council submitted, that the underlying purpose of cl 19(3) is to give it the right to determine the time at which land zoned 6(c) which is the subject of an acquisition notice, should be acquired. But it does not follow that if the Council does not form the relevant negative opinion and simply does nothing as in the present case, that it is not deprived of forming that opinion at a time of its choosing, however distant. The Council is given a reasonable time within which to form the opinion that the need to acquire the land for open space has not yet been relevantly created. In that sense it has control of the timing of the acquisition of the land. But it requires the positive formation of the opinion that the need for that land as open space has not yet been created. If it fails to do so within a reasonable time then it must acquire the land pursuant to cl 19(2) as its power to avoid that obligation pursuant to subclause (3) is spent.
161 Accordingly, in my opinion Grounds of Appeal 1 and 2 should be upheld with the consequence that the appellant is entitled, subject to any question of discretion, to the relief claimed by it in its Further Amended Application.