David Cheney Pty Ltd v City of Adelaide & Dac No ERD-97-325 Judgment No OE476 [1998] SAERDC 476

37. (1) The regulations may provide that where an application for the consent or approval of a proposed development of a prescribed class is to be assessed by a relevant authority-

(a) the relevant authority must refer the application, together with a copy of any relevant information provided by the applicant, to a body prescribed by the regulations (including, where the relevant authority is a council, the Development Assessment Commission); and

(b) the relevant authority must not make its decision until it has received a response from that prescribed body in relation to the matter or matters for which the referral was made (but if a response is not received from the body within a period prescribed by the regulations, it will be presumed, unless the body notifies the relevant authority within that period that the body requires an extension of time because of subsection (3) (being an extension equal to that period of time that the applicant takes to comply with a request under subsection (2)), that the body does not desire to make a response, or concurs (as the case requires))."

24. (1) Pursuant to section 37 of the Act, where an application for consent or approval relates to a development that falls within a class of development prescribed under schedule 8, the relevant authority-

(a) must refer the application, together with a copy of any relevant information provided by the applicant, to the relevant body prescribed under schedule 8; and

(b) must not make its decision until it has received a response from that body in relation to the matter or matters for which the referral was made (but if a response is not received from the body within the period prescribed by schedule 8, it will be presumed, unless the body notifies the relevant authority within that period that the body requires an extension of time because of section 37(3) of the Act, that the body does not desire to make a response, or concurs (as the case requires)).

(2) Subregulation (1) is subject to the qualification that where an application for provisional development plan consent is referred to a prescribed body in accordance with the requirements of schedule 8, the relevant authority is not required, subject to subregulation (3), to refer to that body a further application for any other consent required for the approval of the same proposed development (and no further response is required from that body).

(3) Subregulation (2) does not extend to an application which is relevant to a matter that has been reserved for further consideration by the prescribed body."

(a) a form of development referred to in paragraph A of the item is prescribed as a class of development for the purposes of section 37 of the Act; and

(b) the body referred to in paragraph B of the item is prescribed as the body to which the relevant application is referred for the purposes of section 37 of the Act; and

(c) the period referred to in paragraph C of the item is prescribed for the purposes of section 37(1)(b) of the Act; and

(d) the following term or terms, when specified in paragraph D of the item, have (subject to any qualification referred to in the relevant paragraph) the meanings assigned to them as follows:

(i) Regard. This means that the relevant authority cannot consent to or approve the development without having regard to the response of the prescribed body;

(ii) Concurrence. This means that the relevant authority cannot consent or approve the development without the concurrence of the prescribed body (which concurrence may be given by the prescribed body on such conditions as it thinks fit);

(iii) Direction. This means that the prescribed body may direct the relevant authority-

if the relevant authority decides to consent to or approve the development-(subject to any other Act) to impose such conditions as the prescribed body thinks fit,

(and that the relevant authority must comply with any such direction).

(1) A. Other than development to be undertaken in accordance with a Heritage Agreement under the Heritage Act 1993, development which directly affects a State heritage place, or development which in the opinion of the relevant authority materially affects the context within which the State heritage place is situated.

B. The Minister for the time being administering the Heritage Act 1993.

(2) A. Development where a consent or approval proposed by a council as a relevant authority in relation to the development does not totally adopt the recommendation or any condition proposed in a report forwarded by the Minister under subclause (1).

Although there was no specific evidence before us, it may be presumed that prior to referring the application to the State Heritage Branch, the City of Adelaide formed the opinion that the appellant's development would either directly affect a State heritage place or materially affect the context within which a State heritage place is situated : The State heritage place being either or both of "Weeroni" and the place formerly known as "Duntocher".

By letter dated 3 September 1997 and signed by "Martin Brine, Manager, State Heritage Branch, Department of Environment and Natural Resources for and on behalf of the Minister for the Environment and Natural Resources", on the letterhead of the Department of Environment and Natural Resources, State Heritage Branch and addressed to "Ms Maggie Juniper, Planner, Department Community and Development Services, Corporation of the City of Adelaide", Mr Brine recommended to the City of Adelaide that the appellant's application should not receive approval in its current form. The City of Adelaide was required to have regard to this report. Subsequently, the City of Adelaide, resolved, subject to the concurrence of the Development Assessment Commission, to grant consent to the appellant's application. In accordance with Clause 5(2) of Schedule 8, the City of Adelaide duly sought the concurrence of the Development Assessment Commission. The latter declined to concur with the Council's resolution, as evidenced by the letter from the Secretary to the Development Assessment Commission dated 17 October 1997, addressed to the Adelaide City Council.

In the course of the hearing of the appeal, a question as to the authority of Mr Brine to provide the report dated 3 September 1997, referred to above in respect of the appellant's application, was raised. In evidence, Mr Brine indicated that he had reported to the City of Adelaide pursuant to a document, which, he asserted delegated to him the Minister's responsibility pursuant to Clause 5(1) of Schedule 8. The document to which he referred, which was appended to his statement of evidence, is in the form of a memorandum or minute to the Minister for Environment and Natural Resources from the Manager, State Heritage Branch dated 25 January 1994, upon which there appears the hand-written word "Approved" , which is initialled and dated "1/2/94". The content of the minute, the subject of which is "Delegations - Development Act, 1993" is as follows:

"Section 37 of the Development Act, 1993 requires Councils to refer to you applications for specified development. Where the proposal concerns a place entered in the State Heritage Register or a State Heritage Area, Council shall not grant development authorisation until it has received and had regard to any representations you desire to make. You are required to provide advice within two months of receiving the application. (S.5(1)A, Schedule 8).

In order to reduce delays associated with minor and non_controversial forms of development it is proposed that you delegate your responsibility for making representations to the following:

Heritage Advisers appointed to provide professional advice and support to various councils.

The proposed delegations will operate in a similar way to those established under the previous Planning Act, including the proviso that advice likely to be of a controversial or extraordinary nature will continue to be referred to you."

Section 20 of the Development Act provides, inter alia, that the Minister may delegate any power or function vested in or conferred on him, under the Act. By Section 4 of the Acts Interpretation Act 1915, the reference to "the Minister" in the Development Act is a reference to the Minister administering that Act, which is not now, and has not been since the Development Act came into operation on 15 January 1994, the same Minister who is responsible for administering the Heritage Act. Accordingly, Section 20 does not apply to the Minister responsible for administering the Heritage Act. There is no power in the Development Act enabling the Minister administering the Heritage Act to delegate any responsibility given to him by the Development Act or Regulations.

A perusal of the Heritage Act reveals that a body established under that Act, namely the State Heritage Authority, is empowered to delegate its powers under the Act, but there is not and has not been at any relevant time, a statutory power for the Minister administering the Heritage Act to delegate any of the Minister's powers under that or any other Act. That situation is not unusual in the context of Schedule 8. Of the other Authorities to whom a development application must be referred for a report in appropriate circumstances, the only Authority which may delegate its power or function to provide a report is the Coast Protection Board : see Section 13A Coast Protection Act 1972. None of the Commissioner of Highways, the Minister administering the Mining Act 1971 or the Environment Protection Authority has statutory power to delegate their function under the Development Regulations.

It has been well recognised that a Minister cannot be expected personally to carry out all the powers, functions and duties of an administrative nature assigned to him or her by legislation. In certain circumstances, it is permissible for a Minister to act through his or her duly authorised departmental officers : Carltona Ltd v Commissioners of Works and Others (1943) 2 All ER 560. Where a Minister authorises a departmental officer to act, the latter acts for and on behalf of the Minister - as the Minister's agent or alter ego; the Minister acts through the officer. The Minister retains responsibility for the acts of the departmental officer and is answerable to Parliament for the action of that person. This principle has sometimes been described as an implied power to delegate: see Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40; (1986) 162 CLR 24 and Din v Minister for Immigration and Multicultural Affairs (1997) 147 ALR 673. This situation is to be contrasted with that where the Minister, pursuant to a statutory power, has delegated his or her powers, functions or duties. In the latter case, the delegate acts on his own behalf as the delegate and any discretion exercised by the delegate is that of the delegate : Re Reference under Section 11 of the Ombudsman Act 1976 for an advisory opinion; Ex parte Director General of Social Services, (1979) 2 ALD 86, a decision of Brennan J, sitting as President of the Administrative Appeals Tribunal and Section 37A(b), Acts Interpretation Act.

It has been recognised that where there is a statutory power to delegate, the Carltona principle does not apply : Ombudsman [1983] HCA 47; Act (above), O'Reilly and Others v The Commissioners of the State Bank of Victoria and Others (1982) 153 CLR 1 per Mason J (in dissent), Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs and Another (1996) 137 ALR 103 and Din (above). Expressions to the contrary in Peko Wallsend (above) at 37 per Mason J and in O'Reilly do not concern us because they turned on facts not relevant here.

Leaving aside the argument as to whether a statutory power to delegate precludes the application of the Carltona principle, the authorities do recognise that there are and will be cases where it is not appropriate for a departmental officer or any other person to act as the agent or alter ego of the Minister. In Ex parte Forster; Re University of Sydney (1963) SR (NSW) 723 the Court suggested that it was necessary to look at the "purpose and objects of the statute, the character of the power which is conferred, the exigencies of the occasions which may arise with respect to its exercise, and other relevant considerations", when determining whether and when an Authority might properly authorise an official to act. In addition, the Federal Court per Merkel J, said in Ozmanian (above) at 121, that the consequences of the exercise of the power must be taken into account in deciding this issue. Similar sentiments were expressed in O'Reilly (above), and in Peko-Wallsend (above) per Mason J.

A consideration of the Australian authorities on the application of the Carltona principle (Ex parte Forster (above), O'Reilly (above), Peko Wallsend (above), Re Ombudsman Act (above), Ozmanian (above) and Din (above)) suggests that the following should be considered in determining whether a Minister might properly authorise another to act as his alter ego in carrying out a power, function or duty:

the nature or character of the power, function or duty;

whether the exercise of the power could adversely affect the rights of or have serious consequences for a person;

whether it would be impractical for the Minister to act in every case;

whether the legislation suggests that Parliament intended that the Minister act personally; and

whether the Minister enjoys a statutory power of delegation.

Where a development application is referred to the Minister administering the Heritage Act pursuant to Clause 5 of Schedule 8 to the Development Regulations, the Minister is empowered to make a recommendation having significant weight; either that the application be refused consent, or be granted consent subject to conditions which he or she may propose. That the recommendation carries significant weight is underscored by the duty imposed on the Council to seek the concurrence of the Development Assessment Commission, should it decline to implement the recommendation of the Minister, pursuant to sub-clause 5(2) of Schedule 8, notwithstanding that the relevant authority is bound only to have regard to the report from the Minister pursuant to sub-clause 5(1) of the Schedule.

The purpose of the power is to enable the provision of an expert report, having regard to the community interest in heritage places, to the relevant authority. Exercise of the power has important consequences alluded to above, and because of that, its contents are likely to have a significant influence on the ultimate decision, thus affecting the interests of both the community and the applicant. Although the Development Regulations do not specify how the Minister should exercise her power, it is readily reasoned that the Minister might take into account the relevant heritage place and its particular attributes, the nature of the proposed development and its likely effect on the heritage place, and then exercise a discretion as to whether to make a report and, should she so decide, as to whether to recommend refusal or the granting of consent, subject to conditions, and if so, the nature of the conditions. The discretion which the Minister may exercise is not purely administrative in nature.

As has been noted earlier, there is no statutory power of delegation applicable to the Minister administering the Heritage Act. In Australia, legislation now commonly provides for an Authority to delegate powers, functions and duties. It is so common, that there is a strong argument that where Parliament has not enabled an Authority to delegate, it must have intended that the Authority exercise its responsibilities personally. A perusal of legislation within the general areas of the jurisdiction of this Court reveals that it is common for an Authority, including in some instances a Minister, to be given a power to delegate its, his or her powers, functions and duties. We refer to the Development Act, the Mining Act, the Coast Protection Act, the Water Resources Act 1997, the Irrigation Act 1994, the Environment Protection Act 1993 and the Soil Conservation and Landcare Act 1989. That Parliament has not enabled the Minister to delegate his or her responsibility under clause 5(1) of Schedule 8, suggests strongly an intention by Parliament that the Minister act personally.

The power, of its nature involving an exercise of discretion not purely administrative, is not one which departmental staff should exercise in the absence of a specific delegation. They would, of course, provide the Minister with advice, but the decision must be hers. The consequences of the exercise of the power are significant, as reasoned above. In the words of Wilcox J in Din (above), "..... once we go beyond the principle that a statutory discretion must be exercised by the nominee personally or by an appointed delegate of the nominee, and allow any officer to exercise a statutory Ministerial power, there is no accountability; the day has long gone when Australian Ministers were expected to answer with their resignation for the acts and omissions of their departmental officers." If the Minister does not personally exercise the power, she is not accountable to Parliament for its exercise. It is important that the Minister be accountable where the power is of the nature here described.

Given that the Minister will only be called upon to exercise her power where a proposed development the subject of a development application will directly affect a State Heritage place or might materially affect the context of a State Heritage place, it is unlikely that the Minister would be overwhelmed with referrals pursuant to Schedule 8. The Minister's responsibility in this regard would not be nearly as overwhelming as that which potentially faced the Commissioner and Deputy Commissioners of Taxation in O'Reilly, and the University Senate in Ex Parte Forster, which would have made it impossible for each to personally exercise statutory power. We are unable to conclude that the Minister would be so busy, if she was required to exercise her power under Schedule 8 personally, that it would be impractical for her to act and that, as a consequence Parliament must have intended that her power be exercised by others, out of administrative necessity.

The minute set out above appears to have been sent to the Minister administering the Heritage Act, soon after the Development Act came into operation. It is a proposal that the Minister to delegate his responsibility under Schedule 8, but only in certain circumstances, namely, where the proposed development is of a "minor or non-controversial form" or not requiring "advice likely to be of a controversial or extraordinary nature". Assuming the word "approved" and the initials on the minute are those of the Minister at the time, the document might amount to an approval by the Minister of the proposal that his power and function be delegated to the person acting from time to time in either of the nominated positions or to each person, not within the State Heritage Branch, who held an appointment at any given time as a Heritage Adviser. However, it would amount to no more than that - merely an approval of the proposal.

It is fundamental that an instrument of delegation be clear in its terms, particularly as to whom the responsibility is being delegated, the subject matter of the delegation, the period during which the delegation may be exercised and as to the conditions under which the delegate may exercise the delegated power. The minute does not satisfy these requirements. In addition to other deficiencies, the nature of the circumstances in which the delegation is to be exercised by the delegates is unclear; there is no provision as to the determination of a development as one of a "minor and non-controversial nature". An instrument which delegates a power should not be construed loosely : Perpetual Trustee Company v Commissioner for Australian Capital Territory Revenue (1994) 123 ACTR 17. As we have seen, there is not and was not at any relevant time, a statutory power for the Minister to delegate the responsibility to report. The same requirements as set out earlier in this paragraph apply to an instrument authorising another person to act on the Minister's behalf, where an exercise of discretion is involved. The same criticisms are relevant, assuming the document to have this character. The minute cannot amount to an instrument whereby the Minister has properly authorised other persons to exercise his or her function under Schedule 8 to the Development Regulations.

It is not relied upon for our decision, but relevant here to note that, if the minute amounts to an authorisation, one of the expert witnesses called by the appellant, Mr D B Harry, would have been entitled to act as the alter ego of the Minister by virtue of his being a Heritage Adviser to a number of Councils, although Mr Harry is not, and has not been since 1988, an officer of the State Heritage Branch. This illustration serves to emphasise how inappropriate it would be for the minute to stand as an authorisation. For the Minister to have authorised a person to exercise a discretion of this nature, when that person is not entirely under the aegis of the Department cannot be consistent with the lawful exercise of ministerial responsibility. If the Minister is no longer strictly accountable to Parliament for the acts and omissions of her departmental officers, she is less likely to be accountable for the exercise of her responsibility by a person other than a departmental officer or employee, unless she has directly appointed that person.

We have been made aware that there has been a long-standing practice whereby the relevant Minister has purported to delegate his or her power to report, or authorised a departmental officer to do so. In the circumstances before us, long-standing departmental practice does not validate that which is not valid. The question is whether the power or function is one in respect of which the Minister may properly authorise a departmental officer. If by its nature, the power or function is not one which may be so authorised, then its exercise by a departmental officer is not effective: In Re Ombudsman Act.

The Manager of the State Heritage Branch did not have power to exercise the responsibilities of the Minister pursuant to clause 5(1) of Schedule 8 to the Development Regulations. Accordingly, the purported report forwarded to the City of Adelaide by the Manager, State Heritage Branch dated 3 September 1997 was not a valid report and hence no valid report has been received by the City of Adelaide in respect of the application by the appellant.

We now propose to offer the parties the opportunity of making submissions as to the nature of the order or orders that this Court might properly make. To enable the parties to make any submissions, we have listed this matter for further hearing, at 10.30am, on Tuesday 31 March 1998.