74 Although I have concluded that all three of the grounds of appeal must succeed, it is necessary to consider the respondents' contentions that, for various reasons, the orders of the learned trial judge should not be disturbed. Some, but not all, of those contentions are set out in a notice of contention filed by the respondents' solicitors. The Supreme Court Rules 2000 make no provision for the filing of such a notice, unlike the rules of some other courts, eg, the Federal Court Rules, O52, r22(3). In this Court, the appropriate course is to summarise any such contentions in the written submissions filed before the hearing of the appeal.
75 The respondents contend that cl 2.4.2 does not impose a threshold test which needed to be satisfied before the RPDC could give its approval to the draft amendment. They contend that, when relevant, cl 2.4.2 only sets out policy objectives, or matters to be taken into account in making a discretionary decision.
76 Much depends on the nature of the decision being made. In some contexts, a decision-maker might be bound to take a State policy into account, but have a discretion to make a decision inconsistent with that policy. In other situations, a decision-maker might have a discretion to ignore a State policy altogether. But in the present context, because the LUPA Act, s32(1)(b), requires that an amendment of a planning scheme "must be prepared in accordance with State Policies", the RPDC is bound by the State Coastal Policy, and may not make a decision inconsistent with it.
77 Clause 2.4.2 does not impose a mandatory requirement in relation to ribbon development. It provides that different types of development "will be encouraged in order to avoid ribbon development". Thus, it implies that ribbon development should be avoided. But it goes no further than making the avoidance of ribbon development a policy objective, to be taken into account in discretionary decision-making.
78 However more restrictive language is used in the first sentence of cl 2.4.2, which provides that "Urban and residential development in the coastal zone will be based on existing towns and townships." In my view, if the RPDC makes a finding of fact that a proposed development amounts to urban development that is not based on an existing town or township, it must conclude that the requirement imposed by the LUPA Act, s32(1)(b), is not satisfied, in that the proposed draft amendment is not in accordance with the State Coastal Policy. In that respect, I think cl 2.4.2 imposes a threshold test.
79 When the delegates concluded that cl 2.4.2 was "not satisfied", I do not think they erroneously treated the provision relating to ribbon development as imposing a threshold test. Reading their reasons as a whole, and bearing in mind their status, I think they must have meant that the proposed development was offensive to cl 2.4.2 in that it constituted both urban development and ribbon development.