The Collateral Purpose Issue
90 The contention on the part of the Council that the Minister's Opinion was formed for an improper, collateral purpose is based on the Briefing Note which indicated that the Minister had never formed the opinion under cl 6 of the SEPP (SSD). The Briefing Note recommended that the Minister form the cl 6 opinion.
91 The relevant passage is:
"As the application is currently under appeal in the Land and Environment Court, the Court assumes the role of the relevant consent authority. Currently, the consent authority is Pittwater Council.
If this situation continues, the Court will only be empowered to consider and determine the currently permissible components of the proposal (Stage 1). The Applicant has previously indicated that Stage 1 of the development in isolation is not economically viable and would not proceed without Stage 2.
However, it is open to the Minister to now form the opinion under clause 6 of the then State Environmental Planning Policy (State Significant Development) 2005 that the development application as lodged met the requirements of the Policy was thus declared to be State Significant Development. The effect of forming this opinion to make the entire proposal State Significant Development and entirely permissible. The Court would then be empowered to considered and determine both Stage 1 and Stage 2 of the proposal.
In summary, there are two options currently available to the Minister:
1. do not form the clause 6 opinion under State Environmental Planning Policy (State Significant Development) 2005. The application would remain as local development and the Court would only be able to consider and determine Stage 1 of the proposal;
2 form the clause 6 opinion under State Environmental Planning Policy (State Significant Development) 2005. The application would become State Significant Development and entirely permissible. The Court would be able to consider and determine Stage 1 and Stage 2 of the proposal.
The assessment of the development application and purported determination by the Minister has proceeded as if the development were State Significant Development. In fact, at the time of lodgement, the proposal was State Significant Development.
The Department recommends that the process that was commenced for this proposal - that is, consideration as State Significant Development - continue to valid determination of the application. To enable this, the Department recommends that the Minister form the necessary clause 6 opinion under State Environmental Planning Policy (State Significant Development) 2005.
By forming such an opinion, the Court will be empowered to consider the development proposal in its entirety and on its merits."
92 The Council's contention is that the purpose of the author of the Briefing Note was to effectuate the then existing appeal in the LEC. It was submitted that this was a collateral purpose. Clause 8J(7), it was submitted, requires the Minister to form the opinion for the purpose of the Minister, rather than the Court, determining the application.
93 The structure of the Briefing Note itself does not support this submission. The introductory words of the Briefing Note under the heading of "Purpose" are:
"To seek the Minister's Opinion whether the proposed Careel Bay Marina upgrade and expansion is State significant development under the then State Environmental Planning Policy (State Significant Development) 2005 ."
94 The final recommendation is merely that the Minister "note the information in this Briefing Note" and then "form the opinion" that the proposal is "development of a kind" set out in cl 14 of Sch 1 of the SEPP (SSD).
95 The Council relies on the whole of the passage set out above, particularly on the references to the fact that "the Court would then be empowered to considered and determine … the proposal".
96 Justice Lloyd was of the opinion that there was no evidence to support the improper, collateral purpose. I agree. The Briefing Note is not such evidence. The author of the Note canvasses the effect that the formation of the opinion may have upon the extant LEC proceedings. However, this analysis is that of the author of the Note.
97 Mr Hutley SC submitted that the Briefing Note was evidence of the Minister's purpose because it was signed and thereby adopted by him. However, signature does not necessarily indicate "adoption" of the contents. All the Note itself suggests is that the Minister "note" its contents. The contents of a departmental memorandum of this character are not usually evidence of what was in the Minister's mind, nor do they establish the Minister's purpose.
98 Establishing the purpose of a decision-maker has always generated difficulty in applications for judicial review of administrative decisions where the decision-maker does not identify his or her reasoning process. That is why it was necessary to enact s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 25D of the Acts Interpretation Act 1901 (Cth). There are no equivalent provisions in this State.
99 However, there are judicial mechanisms for establishing the purpose of the actual decision-maker. In the present case, interrogatories could have been directed to the Minister with a view to eliciting the relevant evidence. Other powers of the court could be called in aid in order to establish the relevant facts.
100 I refer, for example, to Practice Note SC CL 3 which applies to proceedings in the Administrative Law List in the Supreme Court and which states:
"23. Where proceedings have been taken to challenge the decision of a public body or public official, because of the difficulties which at times arise in ascertaining the decision making process and the reasons for the decision, the Court may, at a directions hearing, direct the body or person whose decision has been challenged to furnish to the plaintiff within a specified time, a statement in writing setting out the reasons for the decision including findings on material questions of fact referring to the evidence or other material on which those findings were based, the body's or person's understanding of the applicable law and the reasoning processes leading to the decision (compare Administrative Decisions Tribunal Act 1997 (NSW) , s 49) . Otherwise in appropriate cases, orders may be made for such matters to be ascertained by way of particulars, discovery or interrogatories. Subject to this, orders for discovery or interrogatories will only be made in exceptional cases, and such orders will then generally be confined to particular issues. Evidence in matters in the List is normally by affidavit."
101 It is not, in my opinion, permissible to infer a Minister's purpose from a Briefing Note of the character under consideration. The Minister, who had had a long course of dealing with this issue, did not, by accepting the ultimate recommendation, adopt the whole of the reasoning in the document. It was necessary to establish his purpose in some other way. That was not done.
102 In any event, I am not satisfied that the purpose which the Council contends is identified in the Briefing Note is, in fact, a collateral purpose.
103 Mr Hutley SC identified the purpose of the Minister's opinion in the terms of cl 8J(7): an opinion is "required" to be formed by the Minister "in order to determine the application on that basis", that is, that it was State significant development. It is noteworthy that this particular formulation appears in the pre-condition, cl 8J(7)(b), and does not appear in the operative part of cl 8J(7), which simply empowers the Minster to form the opinion that the development was of the character "at the time the application was made". The final sentence then empowers the application to be "determined" in accordance with the pre-existing legislative scheme.
104 The thrust of the Briefing Note is that the Minister had, in fact, made that determination, by his earlier refusal of consent, although a pre-condition had not been satisfied for constituting the Minister himself as the consent authority. Nevertheless, the Briefing Note does not challenge the validity of the proceedings in the LEC and, in fact, states expressly that the LEC "assumes the role of the relevant consent authority". It accepts that because of the provisions of the Pittwater Local Environmental Plan, the Court would only be empowered to approve Stage 1 of the proposed development. However, if the Minister formed the opinion, which the Briefing Note recommended he form, then the Court would be empowered to determine both Stage 1 and Stage 2.
105 In the circumstances in which the Minister had already refused consent to the whole of the development, in my opinion, it is not a collateral purpose to enable the Court exercising the powers of a consent authority with respect to Stage 1, to also exercise those powers with respect to Stage 2.
106 I note cl 2(a) of the SEPP (SSD) which identifies an objective of the Policy to be:
"to identify development of economic, social or environmental significance to the State or regions of the State so as to provide a consistent and comprehensive assessment and decision making process for that development ." (Emphasis added)
107 This objective creates a context in which it is appropriate for the Minister to exercise a statutory power conferred by that instrument in order to create a coherent and streamlined approach to resolving a development application. By avoiding a situation where issues would be procedurally dislocated and determined on a basis that does not reflect the nature of the development application as a whole, the Minister's Opinion evidences a proper purpose.
108 The Council relied on Thompson v Council of the Municipality of Randwick (1950) 81 CLR 87 at 105-107 where the Court identified an actuating purpose test and overruled a decision by a local council to acquire land, beyond what was required for the construction of a road, for the purpose of profit-making on resale. Such a purpose was clearly beyond the purposes for which a power to compulsorily acquire land had been conferred. I do not regard the purpose on which the Council relies in this case as being of the same character. Conferring on the Court the capacity to deal with Stage 2 of the development proposal is closely related to its capacity to deal with Stage 1.
109 In view of the judgment of the Court on the jurisdictional issue, which is not challenged on this appeal, the assumption that the Court could exercise this jurisdiction has proven to be incorrect. Nevertheless, the purpose identified is not so foreign to the power being exercised as to constitute a collateral purpose in the particular circumstances of this case. The Minister's "purpose" could be seen to be to determine the matter on the basis that it was State significant development, as he had assumed it was at the time he refused the application. He may have erred as to the identity of the consent authority at the time of the formulation of the ministerial opinion, but that does not make his purpose in forming that opinion collateral in the relevant sense.
110 Even if the Briefing Note did reflect the Minister's mind, there is no clear inference that the purpose is that for which the Council contends. The stated purpose at the head of the document was, as I have noted, the precisely appropriate one of forming the opinion. That is the purpose identified, and which the Minister expressed in the document constituting the opinion, which I have set out at [9] above. The fact that the consequence of formulating that opinion may have been to enable the LEC to act in the particular manner, does not suggest that that was the actuating purpose of forming the opinion, as distinct from a consequence.
111 The Briefing Note is equivocal in this respect. It states "the effect of forming [the] opinion" to be that the proposal would become State significant development. It goes on to say: "The Court would then be empowered …". Furthermore, the concluding words are "By forming such an opinion, the Court will be empowered". This is language of consequence or of effect. It is not, or at least not clearly, language of purpose. The Briefing Note, even if reflecting the Minister's purpose, is an inadequate basis for concluding that there was a collateral purpose.
112 Furthermore, there is no evidence to suggest that, even if the Minister had been told that he, rather than the Court, would be the consent authority upon the formation of the Minister's Opinion, any different decision would have been made with respect to the making of the opinion. The purpose, as the Briefing Note itself stated, was the formation of opinion which would have the consequence, by force of cl 6, that the development proposal was State significant development. The further consequences of that decision were not established to be a purpose in the relevant sense. The fact, if it be a fact, that the Minister may have thought that the consequence of his decision would be that the jurisdiction of the Court would be extended, whereas it now appears that the consequence is that the Minister's authority to decide is re-established, does not identify a collateral purpose of the relevant kind.
113 Even assuming that the Minister's purpose can be identified on the basis of the Briefing Note alone, it is open, and in my opinion is the better view, that the "purpose" reflected in that Note is to enable the application made on the basis that it is State significant development to be determined on its merits. That is not, in my opinion, a collateral purpose in a context where the institution exercising the powers of a consent authority was believed to have authority to determine one part of a project, but not the other.
114 In the above analysis, I have distinguished between a purpose and a consequence. It may be that this case involved multiple purposes, although the evidence upon which such a conclusion could be based was not adduced. Such evidence is essential in order to apply an actuating purpose test to the relevant decision-making process.
115 The Minister's Opinion, and the Briefing Note on which it was based, may have had multiple purposes, linked in a series, to use the analogy suggested by David M J Bennett QC in "The Ascertainment of Purpose when Bona Fides Are in Issue - Some Logical Problems" (1989) 12 Sydney Law Review 5. Purposes linked in a series are not readily able to be assessed for predominance or actuating effect. They build on one another in such a way that the absence of one undermines the whole. The question of actuating purpose is not readily answered. The ultimate characterisation of one of multiple purposes, in order to conclude that the decision-making process was invalid, requires an analysis of the kind identified in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. No such analysis was attempted in this case.
116 The Council's submissions on the collateral purpose issue should be rejected.