CITY OF PT ADELAIDE ENFIELD v MINISTER & ORS No. SCGRG-99-188 Judgment No. S73 [1999] SASC 73

* steam turbine units which use the steam from the boiler unit;

* generators driven by the gas turbine and steam turbine units;

* transformers which boost the voltage produced by the generator up to the voltage used by the transmission lines;

* a switch yard with a series of switch yards which will allow for isolation of equipment for maintenance or other purposes;

* a water treatment plant which improves the quality of town water to the standard required for the boiler unit and the gas turbine evaporative coolers as well as associated water storage tanks;

* a gas compressor which pressurises gas from the pipeline to the level required for injection into the gas turbine units; and

* a cooling water system which draws in water from the Port Adelaide River through an intake pipe, circulates it through the turbine cooling system and discharges warmer water via a discharge pipe back into the Port Adelaide River.

The main structures will accommodate the gas turbines and steam turbine. The largest building on the site will be a steam turbine building which will be approximately 30 metres high. An exhaust stack, approximately 45 metres high, will be located at the end of each gas turbine. These buildings will be clad with galvanised steel sheeting. This plant and equipment will also have other associated equipment, the nature of which will be determined later. Most of the plant and equipment will be located within buildings or enclosures, the major exceptions being

* the gas pipeline cooling water system, town water and sewerage pipework and some electrical cables which are predominantly underground.

There will be a maximum of seven auxiliary buildings or structures on the site including administration offices, control rooms, maintenance workshops and the gas compressor buildings. Dimensions of many but not all of the buildings are provided in the Information Package. Other smaller structures are a water plant, water storage tanks, transformers, a cooler switching, a gas compressor five metres high and a fire service tank. A tower 28 metres high associated with the switching equipment is proposed. There will be parking areas. Landscaping is proposed but the plans show no details. It was intended that the construction of the power station would proceed in stages. The first stage involves the construction of a gas turbine unit with the capacity of at least 150 megawatts before the end of the year 2000.

It appears that the Department has not yet resolved upon the final form of the power station and other aspects of the proposal. Thus, the application did not include plans and other elevations of a defined power station complex. Instead, seven separate layouts called "conceptual layouts" for the power station were submitted as attachments to the application. Similarly, three alternative routes were submitted for the proposed electricity transmission line.

I have described the proposal in what might be considered to be unnecessary detail because of the submissions which were made by the Council. I will come to those submissions in a moment.

The application was considered by the Environmental Services Committee of the Council at its meeting on 1 December 1998. The committee recommended to the Council that it report to the Commission that it opposes the application for each of the four developments. The committee's recommendation was adopted at a meeting of the Council later on 1 December 1998. By a letter dated 8 December 1998 the Council informed the Commission of its decision and set out the grounds of that decision.

By letter dated 18 January 1999 the Commission sent to the Council a copy of the agenda papers relating to this application to be considered by the Commission at its meeting on 21 January. The agenda papers included a draft report on the four applications. As mentioned already, the Commission is required by s49(8) to report to the Minister whether the proposed development is seriously at variance with the provisions of the relevant Development Plan. The draft report included in the agenda papers stated that the power station was seriously at variance with the Development Plan. The draft report did, however, conclude that there was significant merit in the proposal.

At its meeting on 21 January, the Commission heard submissions from Mr Davos on behalf of the Council. In the course of those submissions he submitted that the proposed development was seriously at variance with the Development Plan and stated also that the proposal had a number of unresolved issues, identifying in particular that the proposal did not identify the location of the power station. He added that there was insufficient information before the Council to make a decision.

At the meeting on 21 January, the Commission amended the terms of its report and concluded that the proposal was not seriously at variance with the Development Plan. In that section of its report dealing with the Development Plan the Commission stated that it considered that the proposal warranted support with certain qualifications. It stated the Commission was aware that the proposal was at variance with some of the policies of the Development Plan but concluded that it was not seriously at variance. The Commission then went on to support the application for reasons contained in the report.

On 1 February 1999, the Minister approved the application to establish the power station and the application for the associated infrastructure. The approval was subject to a number of conditions. The Minister also approved the proposed land division. The Minister did not approve the application to extract sand for landfill purposes and deferred that for later consideration.

On 19 February 1999, the Council issued its application for judicial review. It seeks

(i) An order declaring that the approval of the application by the Minister on 1 February 1999 is ultra vires and void;

(ii) An order in the nature of certiorari quashing the Minister's decision to grant approval of the applications; and

(iii) An injunction to restrain the Minister and State of South Australia from acting in reliance upon the approval.

The State has entered into a contract with National Power Australia Limited and National Power South Australia Investments Pty Ltd to construct the power station. On its own application, those two parties have been joined as defendants in this action.

The Council seeks the orders in paras1 and 2 on the following grounds:

"(i) the application for approval did not comply with regulation 68 of the Development Regulations 1993;

(ii) the notice to the Council did not comply with regulation 69 of the regulations;

(iii) the approval dated 1 February 1999 is not an approval at law in so far as the applicant sought approval for eight optional layouts and the approval by Condition 2 stated that only one shall proceed without indicating which one;

(iv) the approval dated 1 February 1999 is not an approval at law in so far as the approval by Condition 3 purported to approve two options for the Corridor; and

(v) the approval dated 1 February 1991 in so far as it purports to reserve for further assessment detailed siting and design of building structures, car parking areas and landscaping is not an approval at law."

I will deal with each in turn. Central to the submissions of the Council is the fact that the Department's application did not contain plans of one proposed development but seven separate layouts and three alternative routes were proposed for the power transmission lines. (It is common ground that there were only seven separate layouts. The reference to eight in para (iii) above is an inadvertent error). The consequence is, the Council submits, that the Department has failed to comply with regs 68 and 69 and the Minister's approval is a nullity. In a real sense, the five separate grounds on which the Council relies are related, since they all turn on the absence of one proposal identified as the intended development.

68. Pursuant to section 49(2)(d) of the Act, the following particulars must be included in an application for approval lodged with the Development Assessment Commission:

(a) a description of the nature of the proposed development; and

(b) details of the location, siting, layout and appearance of the proposed development.

69. (1) Pursuant to section 49(2)(e) of the Act, a State agency must include the following particulars in a notice to a council under that section:

(a) a description of the nature of the proposed development; and

(b) details of the location, siting, layout and appearance of the proposed development." (Emphasis added)

It will have been noticed that the obligation in each regulation is expressed in mandatory terms. The stipulated information "must be included" in the application and the notice to the council "must include" the same information. The Council submits that the Department has failed to comply with both para (a) and (b) of each regulation.

The effect which is to be given to phrases which express imperative obligations of the kind contained in regs 68 and 69 have been the subject of many a judicial decision. At one stage, courts examined statutory provisions of this kind for the purpose of determining whether the particular provision was mandatory or directory in its operation. Although frequently adopted, the mandatory/directory dichotomy was not always helpful. Some of the difficulties are noted by DC Pearce and RS Geddes, Statutory Interpretation In Australia (4th ed), ch 11. In some decisions, the dichotomy has been rejected as misleading and a search for a more satisfactory approach has been undertaken. In Tasker v Fullwood [1978] 1 NSWLR 20 at 23 to 24 the Court of Appeal in New South Wales in a joint judgment spelled out the following propositions:

"(1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter.

(2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: see the Franklins Stores Pty Ltd case [1977] 2 NSWLR 955.

(3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: see Hatton v Beaumont [1977] 1 NSWLR 211.

(4) The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: see Victoria v Commonwealth [1975] HCA 39; (1975) 134 CLR 81.

(5) It can mislead if one substitutes, for the question thus posed, an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations.

(6) In particular, it is wrong to say that, if a statute is couched in directory terms, the Act will be invalid, unless substantial performance is demonstrated: see the Franklins Stores Pty Ltd case. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: see Victoria v Commonwealth (supra)."

That approach was endorsed by the majority of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1988) 72 ALJR 841 at 860. Noting that the mandatory/directory dichotomy has outlived its usefulness, the court spelled out the approach to be adopted in these terms:

"In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with the statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue, which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is at the end of the enquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute.""

The intention of regs 68 and 69 is that both the Commission and the relevant council will be provided with sufficient information to enable them to make an informed decision, in the case of the Commission, for the purpose of assessing the proposal and reporting to the Minister and, in the case of the council, for the purpose of assessing proposal and reporting its views to the Commission. The information must be such as to enable each of those two authorities to determine the nature of the proposed development, the nature and extent of the intended use, the effect which the proposed development and the use of the land will have on the environment and upon the amenity of the locality, and the extent to which the proposal complies with the Development Plan. This list is not intended to be exhaustive. When considering whether a State agency has complied with the regulations, the enquiry is whether the application contains sufficient information to enable the Commission to assess the application and the Council to respond to it.

In this respect, it must be noticed again that the Commission, but not the council, may, if it wishes, request the State agency to provide additional documents or information pursuant to s49(4). It is reasonable to expect that the Commission would inform the relevant council of its request and provide it with the information received by the Commission in answer to the request.

I do not think that Parliament intended that the obligations of regs 68 and 69 should require strict compliance so that a failure strictly to comply with them would invalidate a decision approving development. That must, I think, be the consequence of the fact that the Commission has the power vested in it by s49(4) to seek additional information. One can readily imagine cases where the initial application lacks sufficient particulars to enable the Commission to assess the development and the Commission requests and obtains further information which it then accepts as adequate. In those circumstances, it would be absurd to suggest that any approval consequent upon a report by the Commission is invalid merely because the application as originally lodged did not contain all relevant information. In other words, if the Commission reports upon an approval to the Minister, it is reasonable to infer that the Commission had sufficient information to prepare the report. It is, of course, possible that the Commission could report that there was inadequate information on which to report and upon which to reach an informed decision for the purpose of the report. In those circumstances, it is difficult to imagine the Minister approving such an application. In any event, it would, in those circumstances, be apparent that there is inadequate information so that there would have been a failure to comply with regs 68 and 69 and the Minister's decision would be invalid on that ground. For these reasons, I do not think it is intended that there should be strict compliance with the regulations.

It is equally apparent that substantial compliance is required, since failure to comply would defeat the statutory objective that the Commission and council should have sufficient information to assess the proposal and report on it. Thus, if the State agency does not substantially comply with the requirements of the regulations, the application will be invalid and any approval of it will also be invalid.

The statutory scheme in s49 and regs 68 and 69 is quite unlike that which was considered in Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242. In that case, the planning legislation required an applicant to give public notice of the particulars of the application. The purpose was to inform the public of the nature of the application in circumstances in which the public had no power to call for further information from the applicant. By contrast, the scheme of s49 is to require the applicant to give particulars of the application to two planning authorities experienced in dealing with planning applications, one of whom has the capacity to call for further information.

So, the intention is that there must be substantial compliance with the regulations and a failure substantially to comply with them will invalidate the application and any approval based on it. The question whether the State agency has substantially complied will be a question of fact and degree in each case and the answer will depend on the extent to which, if at all, the alleged failure to comply is likely to defeat the statutory purpose: cf South Australian Planning Commission v McNeil (1985) 42 SASR 524 at 534.

I deal first with the requirement in para (a) of each of the regulations that the application must include a description of the nature of the proposed development. This application contains such a description. It is quite apparent from the application that the proposal is for a substantial power station with the capacity to produce 80 megawatts of electricity. It is also apparent that the power station will burn the natural gas to generate the electricity. There will be two gas turbine units and one steam turbine unit, each with generators. The application describes the nature of the plant and equipment to be used, the kinds of buildings to be erected on the site and provides an outline of the manner in which the power station will operate. In my view, the application plainly satisfies the requirements of para (a).

Before examining whether the Department has provided the information required in para (b) of each regulation, it is useful to recall precisely the content of the Department's application. The application was for a change of use of the subject land to enable it to be used for the purpose of developing and constructing a power station of a particular type. It is not an application to construct buildings in a particular layout. That is apparent from the terms in which the application is expressed and from the fact that the Department did not submit plans of the proposed structures. The application did, however, describe the development and provide dimensions of the buildings, plant and equipment to be constructed or placed on the site.

Generally speaking, the question whether a change of use in land will be permitted requires an assessment to be made of the effects of the proposal upon the environment and the extent to which it accords with the relevant Development Plan. In order to be able to make that assessment, a planning authority will often require relatively detailed plans and other information. In this case, detailed plans have not been provided for the proposal, at least in the sense of plans which identify one proposal. However, the application contains information relating to the issues which the Commission and the Council had to consider when assessing this proposal. It describes the project; the nature of the plant; the types of buildings which will house the plants; dimensions of the buildings, plant and equipment which will be housed in the buildings; environmental aspects of the project, including issues such as emissions; water discharge; chemical use and storage, visual impacts and management of liquid and solid waste. The environmental aspects of the project were supplemented by the report from Hyder Consulting. As will be seen, what is said to be ultimately lacking was an identifiable layout and plans or elevations which would enable an assessment of the appearance of the power station.

Turning to requirements of para (b), I deal first with the obligation to show the location and siting of the proposed development. In this context, the word "siting" is synonymous with location. The application describes the proposed power station in some detail. There will be either 16 or 17 buildings, but the description lacks specificity, in that, although it states the kind of facilities which will be constructed or put in place, and states the dimensions of the buildings in which those facilities will be housed, it fails to identify the precise site of the proposed buildings. As already mentioned, there are seven separate drawings described as conceptual layouts of the power station. Each of those conceptual layouts is a different arrangement of the same 16 or 17 buildings which will constitute the power station complex. In all but one of these layouts the power station complex is located on the same site, namely, an allotment in a trapezoid shape, which comprises the allotments 1 and 2 to be created by the land division. The single exception is located on the proposed allotment 1. Broadly speaking, each of the conceptional layouts occupies the same part of that land. An examination of the attachments to the Information Package shows the location and siting of the proposed power station. In other words, after examining the attachments the Commission and the Council would be under no illusion as to the location of the power station. The application, therefore, gave particulars of the location and the siting of the power station, sufficient for the purpose of approving a change of use to a power station. In no respect has the Council identified any deficiency in being able to identify either the location or the siting of the proposed power station.

I do not think there is one absolute standard which will apply to all kinds of development. It will be a question of fact and degree in every case whether the location and layout of the constituent parts of a proposal have been shown with sufficient particularity. In some instances the location and the layout of the proposed development will be critical. If, say, the development is to be located in a closely settled part of the metropolitan area and the extent to which the development might impact upon neighbours or otherwise upon the amenity of the neighbourhood depends upon the precise location of buildings or plant and equipment on the development site, compliance with the regulations will require the precise layout to be specified and adhered to on construction. The case at bar is at the other end of the spectrum. The power station is to be located on the northern tip of LeFevre Peninsula. A considerable part of the border of the land is represented by the Port Adelaide River. The land across the river to the north is mangrove swamp. Vacant land adjoins the other boundaries of the site. The nearest developments are:

* the Australian Submarine Corporation complex which is approximately 1350 metres south-east of the site;

* the Royal Yacht Squadron marina which is approximately 1200 metres south-west of the site;

* the North Haven residential area which is approximately 1600 metres south-west of the site; and

* a fish farm with its caretaker's residence which is approximately 700 metres south.

In addition, the precise layout of the buildings on the site is not going to have a material effect upon the manner in which the development will affect the amenity of the locality or the manner in which the provisions of the Development Plan will apply to the proposal. To borrow a facon de parler of Gertrude Stein, a power station is a power station is a power station is a power station. By that I do not intend to ignore the fact that each power station must be considered on its merits. My purpose is to emphasise that nothing turns on the fact that the Department has not identified the final layout of the buildings. The impact will be the same no matter how the buildings comprising the power station complex will be disposed on the ground. The seven different options are not seven different proposals or alternative uses of the land. They are seven different layouts of the same development, each having the same impact on the environment. Nothing, in the Council's submissions, pointed to the contrary. Although, as a general rule, substantial compliance with regs 68 and 69 will require the location and layout of buildings to be identified in the application, the failure to do so in this case does not constitute a failure to comply with regs 68 and 69.

The final requirement of the regulations is that there will be particulars of the appearance of the building. Compliance with that obligation is usually achieved by plans and elevations of the proposed building and a description of the building materials to be used. Sometimes photographs of a like development will be used or even a computer or scale model of the development. There are no elevations showing proposed buildings, no photographs, no computer or scale models. Dimensions of the proposed buildings are provided and there is a description, in general, but non-binding, terms of the external appearance of some buildings. For example, para 4.6 of the application describes the external appearance of the buildings in these terms:

"The turbine buildings will comprise a structural steel frame clad with galvanised steel. The auxiliary buildings will be masonry or steel clad structures. The colour schemes for buildings and enclosures will blend in with the surrounding environment."

The absence of any degree of specificity or particularity in relation to the auxiliary buildings is immediately apparent. In addition, equipment will be located at different points on the site, the major items of which are transformers and coolers, the switch yard, a gas compressor and a fire service water storage tank. In addition, there will be other smaller pieces of equipment visible on the site. One example is fire service equipment. To compound these difficulties, the appearance of this development cannot be known until a decision is made on the precise form in which the power station is to be laid out and constructed. To summarise, the appearance of the power station cannot be identified until the precise layout is known and there are detailed plans of the complex. In many instances the absence of such information would be fatal. But in this case it is not. I apply mutatis mutandis the same reasoning which led to the conclusion that the Department had substantially complied with the requirement to give particulars of the layout. Furthermore, in the absence of any request for further information it is reasonable to infer that the Commission was able to assess the development and report on it.

For all of these reasons, I am satisfied that the Department substantially complied with regs 68 and 69.

I am fortified in reaching this conclusion by two facts. First, it is apparent from the Commission's report to the Minister that it believed it had sufficient information to assess the application. That report is replete with detail. Secondly, the Council did not, in reporting to the Commission, complain of a failure to provide sufficient information to enable it to assess this proposal. On 8 December 1998 the Council reported to the Commission pursuant to s49(5) that it opposed the development on four grounds, namely,

"1. The development is seriously at variance with the relevant provisions of the Development Plan in that it is listed in the Development Plan as a non-complying development in the Industry (Deferred Port) Zone in which the bulk of the land is situated.

2. The development pre-empts strategic planning reviews of the area currently being undertaken by council and State Government agencies and as required by the Development Plan provisions for the Industry (Deferred Port) Zone and MFP Zone in which the subject land is situated.

3. The proposed excavation and removal of sand from North Haven beach is likely to have an unreasonable impact on the residential areas of North Haven.

4. The proposed routing of electricity transmission lines through environmentally sensitive areas of Torrens Island is likely to have an unreasonable environmental impact, and should be the subject of an extensive Environmental Impact Statement prior to any consideration of this matter by the Minister."

There is not a hint or suggestion in that report that the Council believed that it required further information to assess the proposal. Indeed, paras 1 and 2 are objections based on the terms of the Development Plan. It is apparent that the Council has sufficient information to enable it to report on that part of its objection. Paras 3 and 4 are founded on the Council's reading of the application and the plans of the proposed routes for electricity transmission. They indicate that the Council understood the implications of the proposed development. In any event, para 3 of the report now does not require consideration given the application to extract sand is deferred. Even though the Council had no statutory right to request further information, it could have complained to the Commission if it believed information was lacking and could have requested the Commission to seek the information for it.

I have already referred to the fact that Mr Davos, in the course of his submissions, to the Commission, complained of a lack of information but nothing has been said, in the course of the submissions to me, which indicate in what respect any lack of information has hindered the Council in its consideration of this proposal.

The Council's challenge in paras (iii) to (v) relies on the failure of the Department to make an application for development in terms which identify the final form of the development. These grounds are related to the previous grounds but raise different issues. It is said that, since the Department has not yet identified the intended layout and proffered a series of alternatives, there cannot be any approval.

The approval is contained in the letter for the Minister to the Department dated 1 February 1999. The relevant parts of the letter read:

"I hereby approve your applications under the Development Act 1993 to establish a power station and associated supporting infrastructure at Pelican Point. This approval is subject to a number of conditions designed to minimise environmental impact. You should note also that I have not approved any fill source at this stage. Further approval may be required depending on which fill source is chosen.

You may therefore proceed in accordance with your plans, as submitted for the applications, subject to the following conditions:

1. That the development shall proceed in accordance with the plans and reports attached to the three applications, (excluding the application for the fill source area), except:

(a) Where varied by the facsimiles from the Department of

Treasury and Finance to Planning SA dated 12 and 14

January 1999 held on DAC docket 49/040/023/98 outlining

land division plans and the amended route for transmission

2. That only one of the optional layouts of the power station outlined in the applicant's report shall proceed.

3. That Corridor A for the 275 kV transmission line shall not proceed. Corridors B or C are optional. Should Corridor B be chosen, the Torrens Island transmission tower adjacent to the Port River must be located as far south as practical within the corridor. Should Corridor C be chosen, the 257 kV transmission line shall be integrated with the 66kV transmission line at the point of the Port River crossing, with removal of redundant existing transmission lines and pylons....

23. That the following matters are reserved for further assessment (the plans and proposals shall be submitted to the Development Assessment Commission for consideration by the Minister for Transport and Urban Planning prior to each stage of development):

* detailed siting and design of buildings, structures, car parking areas and landscaping.

1. Sand required for fill material shall not be extracted from the beach or off shore of North Haven, as described in the development application by the proponent and in the letter dated 14 January 1998 from the Department of Treasury to DAC. The development application to extract sand, including transport of the sand to the site, will be determined after further consultation with the Coast Protection Board and the City of Port Adelaide Enfield.

2. While I have approved either Transmission corridors B or C, I prefer that Option C be adopted, unless there are overriding technical reasons for rejecting this option."

The conditions which have not been quoted might be described as the usual kinds of conditions which might be attached to a planning approval of this kind. They include conditions specifying the minimum height of the transmission line across the Port Adelaide River, the preparation of a construction management plan, a limitation upon noise levels at the power station, conditions dealing with discharge of stormwater and conditions requiring the site design to minimise the risk of coastal erosion and impact flooding. They are based on conditions suggested in the Commission's report.

The Council submitted that condition 23 represented an invalid delegation by the Minister to the Commission of a power to approve detailed drawings of the buildings structures, car parking areas and landscaping. I do not agree. Whilst Condition 23 might have been couched in clearer terms, its purpose is apparent. The effect of condition 23 and the approval, when read as a whole, is that the Minister has approved the change of land use for the purpose of constructing a power station but requires detailed plans to be submitted to the Commission which she will then approve. In other words, the Minister has reserved unto herself the capacity to approve the final layout of the building on site and any other aspect going to the appearance of the buildings.

The Council contends that a valid approval requires that there be one identifiable proposal to which the application relates. Thus, it argues, it is absurd to impose a condition, such as condition 2, and contends that the condition serves to emphasise the absence of an identifiable proposal. In the final analysis the submission of the Council turned on the fact that the Department had not identified one layout and one complex of buildings as a subject of the approval and did not nominate one corridor for the proposed power lines. The argument for the Council overlooks the terms of the application and the fact that it is an application to use land for the purpose of constructing a power station without specifying the precise layout or including specific drawings. The approval is for that change of use with the Minister reserving, as I have said, the right to approve the precise layout. In my view it is open to the Minister to grant the approval in those terms.

The Council also fastens upon condition 3 which allows two options for the corridor of the 275 kV transmission line. There is no inherent mischief in an applicant for planning approval presenting three options for consideration by the relevant planning authority provided that they are all aspects of the same development and do not represent alternative uses: cf District Council of Mallala v Bishop (1997) 96 LGERA 145 at 155. In this case the Minister apparently sees no difficulty with either corridors B or C. She has, however, imposed conditions upon each. In this respect it is relevant also that the Minister's decision accords in part with the report of the Commission which had disapproved corridors A and B but had supported corridor C subject to the imposition of certain conditions upon each. Those conditions are incorporated in condition 2. Once it has been decided which of the corridors B and C will be used for this transmission line, it will be necessary for the Department to submit detailed plans so that the Minister can determine whether the proposed route conforms with the condition.

At the end of the day what has occurred is that only one development has been granted approval, namely, the approval to use land for the purposes of constructing a power station. The Department must now identify the final layout.

In the course of the hearing of the application the Council was granted leave to amend its application to add a further ground in these terms:

"A declaration that the Development Assessment Commission acted unreasonably in not assessing the proposals as being seriously at variance with the provisions of the appropriate Development Plan and in not reporting to the Minister accordingly".

Mr Walsh QC, who appeared for the Council, said that the contention is that the Minister's decision was so unreasonable that no reasonable authority could have come to it, as that expression is explained in Associated Provincial Houses Ltd v Wednesbury Corporation [1948] 1 KB 233.

At its starting point, the submission must be able to demonstrate that the proposal is seriously at variance with the Development Plan. There may well be some force in Mr Walsh's contentions to that effect. But, at the end of the day, that is not the question which I have to determine. The task of demonstrating that the decision is unreasonable in the Wednesbury sense is a difficult one. The question whether a particular development is seriously at variance with the Development Plan plainly involves the exercise of a value judgment.

One of the complicating factors in relation to this proposal is that part of the land is within the MFP Zone. It is a notorious fact that the Multi Function Polis is not now a viable proposition. The Commission has, in the course of its reasons, noted that the power station impacts only upon a small part of the MFP Zone. Although not stated in its report, the minutes of the meeting of 21 January 1999 disclosed that it was encouraged to reach the view that the proposal is not seriously at variance with the Development Plan by reason of the fact that the objectives of the MFP Zone were clearly unattainable. Whilst it is well settled that planning authorities must have regard to the terms of the Development Plan as they exist and are not to seek to forecast future developments, it cannot be said that the exercise by the Commission of its judgment to conclude the proposal is not seriously at variance with the Development Plan was so unreasonable a decision that no reasonable authority could have made it. Furthermore, only a small part of the power station impacts on the MFP Zone. In the result it is not possible to conclude that the Council succeeds on this ground.

Even if I am wrong in each of the matters I have so far decided, I would nevertheless in the exercise of my discretion have dismissed the application. The Council has failed to demonstrate any respect in which it was disadvantaged by the manner in which this application was made. The submissions made on behalf of the Council were remarkable in that the Council was not able to point to any respect in which the fact that there are seven conceptual layouts has prevented it from assessing the extent to which the proposal complies with its Development Plan or making any assessment of the effect of the proposal upon the environment or on the amenity of the locality or has, in any other respect, prevented it from reaching a conclusion on the relevant planning issues. Indeed, as already mentioned, the Council was able to report to the Commission upon the extent to which the proposal was, in its view, seriously at variance with the Development Plan. Mr Walsh QC was forced to acknowledge that all would be achieved by this application succeeding would be to require the Department to submit to the Commission a fresh application identifying the particular development with which it was proposed to proceed. All that can be achieved, therefore, would be to delay the proposal. The force of his last contention can be tested by noting that it is well settled that an applicant may make more than one application for a development on a particular parcel of land: see, for example, City of West Torrens v McDonald's Properties (Australia) Pty Ltd (1985) 38 SASR 467; Cook v Faithland Inc (1993) 79 LGERA 308 at 318 to 319_._ Had the Department in this instance decided to submit seven separate applications and the Minister had required the department to nominate which was to proceed, it is doubtful whether the Council would have had any legitimate ground to challenge this application.

For these reasons, the application is dismissed.