BIG COUNTRY DEVELOPMENTS PTY LIMITED v PENRITH CITY COUNCIL

An Improper Purpose? 10. A development control plan made under s 72 of the Act may contain provisions which regulate a use which is permissible with consent and which have the character either of a prohibition or of a development standard. This was clearly stated by Cole JA (with whom Meagher JA and Abadee AJA agreed) in North Sydney Council v Ligon 302 Pty Limited (at 30): AThe content of development control plans is addressed by s 72. It is to contain >the more detailed provisions= than are contained in the North Sydney Local Environmental Plan , which council regards as necessary or desirable (s 72(1)). Generally the development control plan must conform to the North Sydney Local Environmental Plan (s 72(3)). However, that does not mean that where a use is permissible with consent under a North Sydney Local Environmental Plan , >more detailed provisions= regarded as desirable or necessary and specified in a development control plan may not regulate the circumstances in which a use is permissible with consent. There is no reason in principle why those >provisions= would not have the character either of a >prohibition= unless certain criteria are satisfied, or of a >development standard=, which permits a development only on satisfaction of certain criteria. The manner in which the requirement regarded as necessary or desirable by the council is expressed in a Development Control Plan does not determine the validity or invalidity as being within or without power. Content, not form, is to be looked at. To say that a particular use, here residential flat development in a special uses zone, is permissible only if it meets a certain developmental standard, or is prohibited if it does not is, in substance, the same. A particular provision, such as cl 14A North Sydney Local Environmental Plan, may not be a development standard within the meaning of that expression in the State Environmental Planning Policy No 1 , as Mayoh held, but it does not follow that such a height restriction may not be a >detailed provision= within the meaning of that expression in s 72 of the Environmental Planning and Assessment Act and thus may be contained in a development control plan.@

11. It seems to me that the content of the draft development control plan in this case validly relates to matters which could otherwise be contained within a local environmental plan. The draft development control plan here contains >more detailed provisions= than are contained in the interim development order. The control or regulation of traffic is a planning matter and can be the subject of regulation either as a prohibition or a development standard. Moreover, there is nothing in this case to suggest that the purpose of the draft development control plan is the frustration of the pending Class 1 proceedings, being an improper purpose. The draft development control plan merely sets out to achieve that which the Council thought it had achieved by the existing development control plan and which the Chief Judge held to be ineffective for that purpose, namely, for the purpose of regulating on-site traffic. There is nothing improper in the Council now seeking to achieve that purpose.

Does Section 72 of the Act apply? 12. Section 72(1) of the Act relevantly provides: AWhere a council considers it necessary or desirable to provide more detailed provisions than are contained in a local environmental plan or a draft local environmental plan in respect of a part or parts of the land to which that plan or draft plan, as the case may be, applies, it may prepare or cause to be prepared a development control plan.@ (my emphasis)

The Miscellaneous Acts (Planning) Savings and Transitional Provisions Regulations (1980) cl 8B, provides as follows: A8B(1) The provisions of s 72 of the Environmental Planning and Assessment Act 1979 shall apply to and in relation to a deemed environmental planning instrument as if it were a local environmental plan.@

In Cleary v Maitland City Council (1983) 51 LGRA 85, at 88, Cripps J said of this provision that its purpose was Ato give s 72 status to those plans, codes and designs that were in existence at the appointed day and which had been advertised and otherwise dealt with in a manner similar to that required by the Environmental Planning and Assessment Act 1979.@ A development control plan having s 72 status is a matter which must be taken into consideration by a consent authority in determining a development application (s 90(1)(a)(iv) of the Act).

In my view a development control plan made under Interim Development Order No 28 - Penrith, and in particular a development control plan referred to in cl 13 of that instrument, is not one which is governed by s 72 of the Act. Under s 72 it is a council which must prepare a development control plan. Under cl 13 of the interim development order, however, the development control plan must be one which is >approved by the Authority=. Moreover, the reference in s 72 to a local environmental plan is not a reference to an interim development order. Although the interim development order is a >deemed environmental planning instrument= and thus an >environmental planning instrument= (s 4), it is not a local environmental plan as referred to in s 72. If this were so then cl 8B of the transitional Regulation would be unnecessary. The Regulation applies s 72 status to >a deemed environmental planning instrument as if it were a local environmental plan=. This view is reinforced by the judgment of Cripps J in Cleary, to which I again now refer.

In Cleary , Interim Development Order No 6 - City of Maitland had been gazetted on 14 April 1972. Clause 32 of that instrument provided: ACouncil shall not approve of any application for consent to subdivide land, erect buildings, carry out works or use any building, land or work within Zone 2(d) except in accordance with a Development Control Plan adopted by the Council for the whole of the land in such zone.@

It is immediately apparent that this clause is not dissimilar to cl 13 in Interim Development Order No 28 - Penrith . In Cleary , Cripps J said (at 88): AThe case made against the council and Galmo is not that the council failed to comply with cl 32 of Interim Development Order No 6. The case is that the development control plan adopted by the council pursuant to that clause was not advertised in accordance with s 72 of the Environmental Planning and Assessment Act 1979, and the regulations made thereunder and for that reason, it is alleged, the development control plan was null and void. The obligation referred to in cl 32 of Interim Development Order No 6 is not, in my opinion, subject to the provisions of s 72. Clause 32 has the meaning it had on the appointed day, 1 September 1980. In terms, it prohibits the council from approving an application for consent to subdivide except in accordance with a development control plan. Section 72 enables the council where it considers it necessary or desirable, to prepare a development control plan. Clause 32 and s 72 are directed, in my opinion, to different matters notwithstanding that both use the phrase >development control plan= to describe the relevant planning activity. The council may not approve the subdivision of land in zone 2(d) except in accordance with a development control plan adopted by it for the whole of the land in such a zone but it is not, in my opinion, necessary for the development control plan referred to in that clause to be advertised and exhibited in accordance with the Environmental Planning and Assessment Act 1979 and the regulations made thereunder.@

As I have noted, cl 32 of the interim development order with which Cripps J was concerned in Cleary is not dissimilar to cl 13 in Interim Development Order No 28 - City of Penrith . For the reason expressed by Cripps J in that case, cl 13 of the Penrith interim development order and s 72 of the Act are directed to different matters, notwithstanding that both use the phrase >development control plan=. The obligation to prepare a development control plan under cl 13 of the interim development order is therefore not subject to provisions of s 72. If, however, I am wrong in this conclusion then, for the reasons stated above (in pars 10 and 11 of this judgment) the draft development control plan here satisfies the description of an instrument which provides more detailed provisions than are contained in the interim development order and generally conform with the provisions of the interim development order.

Does the principle of proportionality apply? 18. The next question is whether the draft development control plan is disproportionate to the power to control development. This raises the preliminary question of whether the principle of proportionality applies at all. Under the present state of the law, the principle of proportionality does not apply in Australia, except, perhaps, in certain areas of federal constitutional law. Examples of the latter in which proportionality has arguably been applied, include the external affairs power ( The Commonwealth v Tasmania (the Tasmanian Dam Case ) (1983) 158 CLR 1, at 172, 232-233, 259-261; Richardson v Forestry Commission (1988) 164 CLR 261 at 295-296, 303, 311-312, 326, 331); constitutional restraints under s 92 of the Constitution ( Castlemain Tooheys Limited v South Australia (1990) 169 CLR 436, at 473-474); the trademarks and corporations powers ( Davis v The Commonwealth (1988) 166 CLR 79, at 99-100); the conciliation and arbitration power ( Nationwide News Pty Limited v Wills (1992) 177 CLR 1, at 28-31); and the naturalisation and aliens power ( Cunliffe v The Commonwealth (1994) 182 CLR 272 at 293, 313, 333-335, 350, 373, 387). Even in the context of Federal constitutional law, the concept of proportionality is strictly confined to determining whether the validity of a law is supported by a purposive power ( Leask v The Commonwealth (1996) 70 ALJR 995). Moreover, in Leask , Dawson J (with whom Brennan CJ, McHugh and Gummow JJ concurred) held that the concept of reasonable proportionality is generally inappropriate to the Australian legal system (at 1004). I set aside, for the purpose of this discussion, those cases which refer to the need for a sufficient or real connection between delegated legislation and the power to regulate, such as South Australia v Tanner (1989) 166 CLR 161. In some of the constitutional cases referred to above, Cunliffe v The Commonwealth , for example, this seems to be the real basis for the decision.

The concept of proportionality as a principle for determining the validity of legislative and administrative acts is used in the European Economic Community and has thus been adopted in English administrative law. Its place is explained by Dawson J in Leask as follows (at 1004): AThe concept of reasonable proportionality has its origin in Europe, where it was developed as an instrument for the review of legislative and administrative acts. In the jurisprudence of the European Court of Justice the principle of proportionality emerged from the legal system of member states of the European Community as a general principle of European Community law. The principle was written into the Treaty establishing the European Economic Community (the Treaty of Rome) by the Treaty on European Union (the Maastricht Treaty), in an amendment which also gave formal recognition to the principle of subsidiarity (of which there is no Australian equivalent), in the following terms: >Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.=

The inappropriateness of such a concept in Australian constitutional law where legislative power is with few exceptions conferred by reference to subject matter rather than aims or objectives is immediately apparent. It is even more apparent when regard is had to the manner in which the principle is applied.@

Dawson J held that even in a constitutional context the concept of proportionality was inappropriate. His Honour said (at 1005): ATo introduce the concept of proportionality, whether it be via the notion that a law must be reasonably appropriate and adapted to some end in view or by any other route, is to introduce a concept which is alien to the principles which this Court has hitherto applied in determining the validity of laws passed by the Commonwealth Parliament.@

Dawson J goes on to suggest that the test in constitutional cases (expressly referring to Cunliffe ) is and remains one of sufficient connection. He then continued: AIf that connection is established, it matters not how ill-adapted, inappropriate or disproportionate a law is or may be thought to be.@

In the Full Court of the Federal Court in Minister of State for Resources & Anor v Dover Fisheries Pty Ltd (1993) FCR 565, there is a suggestion in some obiter observations by Gummow & Cooper JJ that the principle of proportionality may apply as a test of the validity of delegated legislation. The authorities relied upon by their Honours, however, are Federal constitutional cases. Notwithstanding their Honours= views, the High Court=s decision in Leask is binding upon me.

The applicant relies on some obiter remarks by Sheller JA in Minister for Urban Affairs and Planning v Rosemount Estates Pty Limited (1996) 91 LGERA 31, at 45, as support for the adoption of the principle of proportionality in New South Wales. In the event, Sheller JA saw nothing disproportionate in applying the legislation in that case. In the same case, however, Handley JA (at 37-38) and Cole JA (at 81-82) held that proportionality was not established as an independent ground for the invalidity of subordinate legislation.

In New South Wales v Macquarie Bank Limited (1992) 30 NSWLR 307, Kirby P (at 321-324) applied the principle of proportionality as a ground for finding that a regulation had been made beyond power. But Kirby P arrived at the same result by an alternative route, so that his decision in that case does not rest solely on the absence of proportionality. The majority in that case, however, whilst agreeing with the result, expressly declined to rely on the principle of proportionality. Mahoney JA (with whom Handley JA agreed) said (at 330): ABut lack of proportionality has not, I think, been seen as being, in itself, a ground for holding invalid a regulation otherwise within the terms of its regulation-making power.@

Before a court would, I think, adopt the principle it would want to know what is meant by proportionality. The considerations which arose in the constitutional cases to which I have referred are not the same considerations which would apply in administrative law. The court would also need to justify the imposition of this additional restraint on the maker of delegated legislation. And if the court is to adopt the principle of proportionality, then a number of other questions (including questions of fact) would need to be resolved, such as what is Anecessary@, what is Asuitable@ and what is Aproportionate@?

The authorities thus demonstrate that the principle of proportionality is not part of Australian administrative law. I should add that in this case the use of other criteria such as Wednesbury unreasonableness are concerned with the exercise of statutory discretion and administrative decision making, and have quite properly not been relied upon by the parties, being not relevant to the issue of the validity of the draft development control plan in this case.

The applicant nevertheless relies on the principle of proportionality, not as a separate head of consideration, but in the context of the draft development control plan being incapable of being an appropriate exercise of power. Reliance is placed by the applicant on the following passage in the judgment of Brennan J in South Australia v Tanner (1989) 166 CLR 161 (at 178): AIn the Commonwealth v Tasmania (the Tasmanian Dam Case ) Deane J and I held certain regulations to be invalid. In my view, the generality of the prohibitions imposed by those regulations was such that, in some instances, they would be inimical to the object which they were intended to achieve and in any event they were so wide that they could not properly be characterised as regulations conducive to that object (namely, the protection and conservation of particular properties). Deane J adopted the test that the regulations would be valid >if they are capable of being reasonably considered to be appropriate and adapted to the protection and the conservation= of the particular property to which they related >in accordance with Australia=s obligations under the Convention to protect and conserve the Wilderness National Parks=. His Honour then referred to >proportionality=, not as a broad, free-standing test of validity but in a very precise context. He referred to >such a lack of proportionality as to render them incapable of being reasonably considered appropriate for the discharge of Australia=s obligations under the Convention=. That criterion accords with the cases cited.@

In the applicant=s submission, the development control plan in the present case must be directed towards making more detailed provisions for permissible development in the relevant zone. The draft development control plan in this case is incapable of being appropriate for that purpose because it would preclude any form of appellate review on the merits of the manner in which traffic is to be regulated on the applicant=s land. In other words, the draft development control plan is incapable of being appropriate to a discharge of the power to make a development control plan for the control of permissible development. The means adopted by the Council in this case fall within the principle described above in the judgment of Brennan J in Tanner . That is to say, the applicant contends, the draft development control plan suffers from such lack of proportionality as to be incapable of being reasonably considered to be appropriate for the control or regulation of traffic. In that sense the draft development control plan is totally disproportionate to the power to make a development control plan under the instrument.

It seems to me, however, that since the purpose of the draft development control plan is to make detailed provisions for the control or regulation of traffic on the applicant=s land, such being a town planning purpose, then the making of such a draft development control plan is capable of being reasonably considered to be appropriate for that purpose and thus within power. It follows that this ground relied upon by the applicant is not established.

Conclusions 29. The applicant has failed in the three arguments it has raised therefore the application must be dismissed. There are three observations I nevertheless should make. Firstly, in her judgment in the Class 1 proceedings to which I have previously referred, the Chief Judge said: AI have reached the conclusion that cl 13 operates as a prohibition with considerable reluctance. This is because cl 13 has the effect of making compliance with the terms of DCP 27 an absolute requirement, whereas the purpose of a development control plan, in terms of s 72 of the EP & A Act, is to make more detailed planning provisions, and, by virtue of s 72(3), those provisions must generally conform to the provisions of the local environmental plan to which it refers. In that respect, cl 13 seems to be inconsistent with the statute. But these are not class 4 proceedings, the validity of cl 13 is not in issue, and that matter was not argued. That matter was adverted to by Cripps J in Cleary v Maitland City Council & Anor (1983) 51 LGRA 85 at 88, where his Honour expressed the opinion, in relation to a clause similar to cl 13, that A[I]t must be regarded as doubtful whether such a clause would now be permitted in an environmental planning instrument=.@

30. Secondly, in Cleary Cripps J said of cl 32 of the interim development order in that case (at 88-89): AIt must be regarded as doubtful whether such a clause would now be permitted in an environmental planning instrument. Section 72 provides a code for the making of more detailed planning provisions which must conform to the provisions of the local environmental plan. It is not submitted that cl 32 is not valid and operative for the reason, I assume, that it is a provision in a former planning instrument which by operation of cl 2 of schedule 3 to the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, is to have >full force and effect according to its tenor=. On 26 September 1980, the Minister made an order pursuant to cl 2(2) of Schedule 3 to the Miscellaneous Act (Planning) repeal and Amendment Act 1979. The effect of this order was to amend former planning instruments by removing provisions of former planning instruments inconsistent with or dealing with the same or like matter as is dealt with by the Environmental Planning and Assessment Act or the regulations made thereunder. It would seem to me that cl 32 in Interim Development Order No 6 and, perhaps, similar clauses in other deemed environmental planning instruments have been inadvertently omitted from that order and that it might be desirable, in the interests of certainty, for attention to be given to this matter.@

31. Thirdly, it is clear that the draft development control plan can only be described as unfair and even draconian, since it precludes the merits of the traffic control measures in it from appellate review. This is a wholly unsatisfactory state of affairs. But that fact does not bear on the question of the validity of the draft development control plan. If the second respondent intends to approve the draft development control plan, then this Court cannot interfere. It is unfortunate that the call by Cripps J for attention to be given to clauses in deemed environmental planning instruments such as that with which he was concerned in Cleary (and with which I am concerned here) has been ignored. I can only repeat the call made by Cripps J as long ago as 1983.

Orders 31. In view of the foregoing reasons I make the following orders: (1) Application dismissed; (2) The exhibits may be returned. (3) Costs reserved.

I certify that this and the 16 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd

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