GRAND HOTEL v DEVELOPMENT ASSESS. COMM. & UPHAM No. SCGRG-98-963 Judgment No. S7018 [1998] SASC 7018

* to serve liquor and food described as Irish style beverages and traditional Irish food

The plans depict bars and lounges on each floor as well as a kitchen and toilet areas on each floor. There was no provision for on-site car parking and that gives rise to one of the issues in this application.

The proposed hotel was classified by the Commission as a Category 2 development for the purpose of s38 of the Act. It is common ground that the Commission correctly classified the development. It was necessary, therefore, for the Commission to give notice of the application and those to whom notice was given had the right to make representations to the Commission: s38(6).

The plaintiff, The Grand Hotel (SA) Pty Ltd, is established on the southern side of Moseley Square. It is almost opposite the proposed hotel. By letter dated 11 February 1998 from the Commission the plaintiff was given notice of the application and informed of its right to make representations pursuant to s38. On 26 February 1998 the plaintiff lodged with the Commission a representation opposing the proposed hotel. The main ground of its opposition was that the application made no provision for off-street car parking. The plaintiff objected on other grounds but, for present purposes, it is sufficient to note only the representations concerning car parking. The objection had been lodged by the solicitors who were then acting for the plaintiff. The plaintiff later changed its solicitor and, by April 1998, Griffins had been instructed to act on its behalf.

On 19 March 1998 the Commission received from the Council a letter dated 16 March 1998 concerning the proposed hotel. In that letter, the Council reported on its strategies in recent years concerning provision for car parking to serve Moseley Square and what it called the "Jetty Road Precinct". It noted that it understood that the car parking for the new hotel had been assessed by Master Plan on behalf of Mr Upham as creating a demand for parking in the order of 60 cars. The Council asked the Commission to recognise that it would make a notional allocation of 60 car parking spaces from 91 spaces it believed had been created. In this letter, the Council stated its intention to increase car parking in the Jetty Road Precinct. It concluded with this submission:

"... a reasonable and practical view of car parking demand and supply should be taken by the relevant planning authority.

The Council is firmly of the view that its actions over the last three years, together with actions either well under way or currently being considered, all of which are in accord with Council's adopted car parking strategy, more than adequately address the car parking issues associated with the site at 11 Moseley Square, Glenelg in the context of the current Development Application."

Given the fact that the Council owned the land and was selling it to the developer, it is not unreasonable to conclude that it was not an entirely disinterested participant in the planning process.

On 20 March 1998 the Commission wrote to Mr Upham asking him to provide further information concerning his application. The information requested was provided by Master Plan in a letter dated 7 April 1998 and received by the Commission the following day. I find that the documents had been requested by the Commission pursuant to s39 of the Development Act. The letter from Master Plan was seven pages long. It addressed a number of issues. Some five pages addressed the question of car parking. I will later examine the content of the letter.

At a meeting on 24 March 1998, the Council resolved to advise the Commission that it supported the proposed hotel development subject to certain conditions. Nothing in this application turns on the conditions. They were later adopted by the Commission. By letter dated 31 March the Council reported its decision to the Commission. The letter was received by the Commission on 1 April 1998. Thus, by 8 April 1998 the Commission had three documents in addition to the documents which had accompanied the planning application. They were the letters from the Council dated 16 and 31 March 1998 and the letter from Master Plan dated 7 April 1998.

On 9 April 1998 a solicitor employed by Griffins went to the office of the Commission and asked to inspect the Commission's file relating to this development application. He sought to ascertain whether there were any documents in addition to the development application and the documents which had accompanied it. The Commission refused the request. The solicitor was permitted to inspect only the development application and the documents which had accompanied it. The plaintiff complains that this refusal to supply the additional documents was contrary to the rules of natural justice. That is another issue in this application.

By letter to the Commission dated 14 April 1998 Griffins complained that the additional documents had not been produced for inspection. They asserted that the Commission had acted in breach of Regulation 34. I will later examine whether the Commission was in fact in breach of Regulation 34. Griffins asked that the additional documents be produced for inspection. The Commission acceded to the request by providing a copy of the Council's letter dated 16 March. It did not make available for inspection either the Commission's letter dated 31 March or the letter from Master Plan dated 7 April.

On 7 April the solicitors for Mr Upham had sought advice from Mr Hayes QC concerning the ability of the Commission to approve the proposed development notwithstanding that it failed to provide any off-street car parking. The advice was given in a letter dated 17 April 1998 and stated that the Commission was at liberty to do so. Mr Upham's solicitors sent the letter to the Commission which received it on 27 April. The plaintiff challenges some of the opinions proffered in the letter of advice.

On 1 May 1998 Griffins sent a letter to the Commission by facsimile transmission advising that it would be making oral submissions to the Commission in relation to the development application for the proposed hotel. The letter reiterated the concern that Griffins had not been entitled to inspect all of the documents concerning the application, and again drew attention to Regulation 34. The Commission did not make any additional documents available for inspection. It did not disclose that it had received from Mr Upham the letter of advice from Mr Hayes QC.

On 6 May 1998 Griffins sent another letter by facsimile transmission to the Commission repeating that it would be making oral submissions and seeking access to the additional documents. The letter enclosed a report dated 6 May 1998 prepared by Mr Murray Young, a traffic and parking engineer, concerning the issues of car parking. Mr Young's report disputed the Council's assessment as to what constituted car parking spaces. He added that 80 car parking spaces would not be sufficient to cope with the demand for car parking created by the proposed hotel. He asserted that the proposed hotel development was seriously at variance with the Development Plan.

On the afternoon of Friday 8 May 1998 the Commission decided to provide Griffins with some documents. Three were produced. They were the report from Master Plan dated 7 April 1998, the letter from the Council dated 16 March 1998 which had earlier been given to Griffins, and a document entitled "Jetty Road Structure Plan". Griffins did not have an opportunity of obtaining advice from a town planner or traffic consultant on those documents before the meeting of the Commission on 12 May 1998. It will have been noticed that the documents supplied by the Commission did not include the letter from Mr Hayes QC which it had received on 27 April. The letter was not subject to privilege. There was nothing which prevented the Commission from producing the letter.

Representatives of both the plaintiff and Mr Upham attended the Commission's meeting on 12 May 1998. Submissions were made on behalf of the plaintiff by Mr Griffin, the plaintiff's solicitor, and Mr Young. Submissions were made on behalf of Mr Upham by Mr Bone, a town planner employed by Master Plan.

The Commission resolved to defer consideration of the application pending the receipt of further information from the Council and Mr Upham. The Commission sought the following information from the Council:

* The number of public car parking spaces and publicly available car parking spaces that currently exist in the Jetty Road area.

* In the period in which there had been an increase in 91 car parking spaces, how many development consents have been issued and what parking requirements have been assigned to those consents?

* An indication of the available funds in the car parking fund.

* Is the Council willing to commit this developer's contribution to the car parking fund to the provision of increased car parking at the Elizabeth Street car park?

* The Council's response to establishing a publicly available register of car parking spaces for the Jetty Road area and a system of linking the allocation of car parking requirements for developments to available spaces.

* Specific details of the Council's program for the future development of car parking spaces in the Jetty Road area.

* The contents of the Land Management Agreement between the applicant and the Council over the subject land.

The information sought from Mr Upham is not relevant to this application and need not be considered. The Council responded in a letter dated 21 May 1998. A copy of the letter was not supplied to either Mr Upham or the plaintiff.

At its next meeting on 26 May 1998 the Commission again considered the application. It had before it the Council's letter dated 21 May. The Commission concluded that the proposed hotel development was consistent with the provisions of the Development Plan and resolved:

"(1) That the Commission supports Development Application No. DAC 110/0096/98 by J Upham to erect a Irish theme hotel at 11 Moseley Square, Glenelg, subject to:-

(1) Written confirmation from the City of Holdfast Bay of a

commitment to the allocation of 80 car parking spaces specifically allocated for this development in its public parking register.

(2) The City of Holdfast Bay to advise the Commission of the

(2) The Commission further resolved to delegate to the Presiding

Member, authority to issue the Provisional Development Plan Consent subject to the satisfactory resolution of the above issues."

By letter dated 11 June 1998 the Council advised the Commission that, at a meeting dated 9 June 1998, it had resolved as follows:

"That the Development Assessment Commission be advised that in response to its letter of 29 May 1998:-

* Council will allocate eighty (80) car parking spaces specifically associated with the Irish Pub in its public parking register, and

* Council will advise of the date of operation of the car parking register following its formal adoption (prior to 30 June 1998)"

On 16 June 1998 the presiding officer of the Commission granted provisional Development Plan consent to this application to develop the hotel subject to nine conditions. There is no condition relating to car parking. The conditions relate to incidental aspects of the application and need not be further considered. The parties were advised that development consent had been granted. By letter dated 30 June 1998 the Council advised the Commission that it had adopted the car parking register at a meeting on 23 June 1998.

The plaintiff applies for an order in the nature of certiorari quashing the development consent. In the alternative, it seeks a declaration that the consent is ultra vires, void and of no effect. The application is based on a number of grounds. Shortly stated, they are:

(1) That the Council has acted in breach of the rules of natural justice. There are several aspects of this ground to which I will refer in a moment.

(2) That, when making its decision, the Council had had regard to an irrelevant factor, namely, the Council's car park register.

(3) That the Commission erred in that the proposed development is seriously at variance with the Development Plan and that it erred in not making a decision at all on that issue.

The plaintiff first complains that the Commission failed to act fairly in that, before the meeting of 12 May 1998, it failed to provide it with all of the documents it had received and, in respect of those documents it did make them available in time to enable a reasonable consideration of them and so denied the plaintiff a fair hearing. It is also alleged that this failure was in breach of Regulation 34 and contrary to the rules of natural justice. I deal first with the complaint that the Commission acted in breach of Regulation 34.

Regulation 34(1) casts a duty on a planning authority to make documents submitted by an applicant for development consent available for public inspection. Regulation 34(1) provides:

"For the purpose of section 38 of the Act, the relevant authority must, in respect of any application for consent in respect of the Development Plan for a Category 2 or 3 development, ensure that copies of -

(b) any supporting plans, drawings, specifications or other documents or information provided to the relevant authority under section 39 of the Act; and

(c) if applicable, any statement of effect that has been prepared in accordance with these regulations,

are reasonably available for inspection (without charge) by the public at the principal office of the relevant authority for the period commencing on the day on which notice of the application is first given under these regulations and ending on a day by which written representations must be lodged under regulation 35."

In this instance the Commission was the relevant planning authority. It had a duty to comply with Regulation 34. The obligation imposed by Regulation 34(1) is quite extensive as to the kinds of documents which must be disclosed. However, the obligation exists for a limited time only. The obligation ceased on the date by which written representations were to be lodged, in this case, 26 February 1998. The Commission was not, therefore, under any statutory obligation to make the additional documents available for inspection after that date. The plaintiff does not, therefore, gain any direct assistance from Regulation 34(1).

I turn to examine whether the rules of procedural fairness imposed a duty at common law on the Commission to disclose the documents it had received after 26 February and before 12 May 1998. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 583-585 Mason J pointed out that, in the context of administrative decision making, it is more appropriate to speak of a duty to act fairly or to accord procedural fairness than to speak of natural justice. As he said, the expression "natural justice" diverts attention from the need to insist on the adoption in the administrative process of fair and flexible procedures for decision making: see also Deane J at 632-633. Mason J observed (at 585):

"In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the particular circumstances of the particular case. The statutory power must be exercised fairly, ie, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf Salemi v MacKellar [No.2] [1977] HCA 26; (1977) 137 CLR 396 at 451, per Jacobs J."

His Honour's comments have been adopted in later judgments and by academic writers. There is, I think, an advantage in speaking of a duty to act fairly or to accord procedural fairness in that it states more clearly the criterion by which administrative bodies should conduct themselves and is of more assistance to them when questions arise as to how to act in any particular situation. The resolution to a question as to how to proceed will often be ascertained by considering what is the fair thing to do.

It is well settled that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention: Kiao v West (supra) 584, 593, 609. In the same decision, Brennan J (at 609) noted that the relevant legislation under consideration is to be construed on the footing that

"The statute is construed, as all statutes are construed, against a background of common law notions of justice and fairness and, when the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that "the justice of the common law will supply the omission of the legislature": Cooper v Wandsworth Board of Works (1863) 14 CB (MS) 180 at 194[1863] EngR 424; , 143 ER 414 at 420. The true intention of the legislature is thus ascertained. When the legislature creates certain powers the courts presume that the legislature intends that the principles of natural justice to be observed in their exercise in the absence of a clear contrary intention: cf. Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 110, 112-113, 118; Heatley v Tasmanian Racing & Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 at 491, 498-499."

This is but an instance of the principle that the legislature is presumed not to intend to qualify or extinguish fundamental common law rights unless it has expressed its intention to do so with irresistible clearness: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 per O'Connor J at 304.

The Commission's decision affected rights and interests in property of Mr Upham as the developer and of the plaintiff and others in the immediate vicinity and so attracted the rules of procedural fairness unless those rules are ousted by the statutory scheme contained in the Development Act and the Development Regulations. Indeed, the real contest in this case was not whether the Commission's decision attracted the operation of the rules of procedural fairness but whether those rules have been displaced by the statutory scheme as to notice, lodging of representations and hearing of representors and, in particular, by Regulation 34(1). Both the Commission and Mr Upham relied on the decision of the majority in R v City of Munno Para; ex parte John Weeks (1987) 46 SASR 400 and submitted that the requirements of procedural fairness had no operation in the circumstances of this case.

It is a fundamental rule of the common law rules of procedural fairness that, generally speaking, when an order or decision is to be made which will deprive a person of some proprietary rights or interests he is entitled to know the case against him: Kiao v West per Mason J at 582 and the cases there cited and per Brennan J at 628. If the right to be heard has any meaning, it is essential that there be disclosure of the case that has to be met: Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322, 327 approved by Brennan J in Kioa v West at 628. To like effect is the observation of Lord Diplock in Hadmor Productions v Hamilton [1983] AC 191 at 233 that one of the most fundamental rules of natural justice is the right to be informed of any adverse point that is going to be relied upon and to be given an opportunity of stating what the answer to it is. It is a corollary of this principle that there will be disclosure of the material to which the decisionmaker has regard when making its decision: Bread Manufacturers of NSW v Evans [1981] HCA 69; (1981) 180 CLR 404.

In Kiao v West at 628 Brennan J stated the rule that a person is entitled to know the case against him and the qualifications on that rule in these terms:

"A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322 at 337; Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 at 113,114 per Lord Morris; De Verteuil v Knaggs [1918] AC 557 at 560, 561. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary:

"To 'over-judicialise' the inquiry by insisting on observance of the procedures of a court of justice which professional lawyers alone are competent to operate effectively in the interests of their clients would not be fair."

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account."

The qualifications on the rule have a limited operation. As His Honour emphasised, in the ordinary case when no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision.

It has been repeatedly said that the rules of procedural fairness have no fixed content and will vary according to the nature of the decision making body, the consequences of the decision and the statutory framework in which the proceeding takes place: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118, Kioa v West (supra) per Mason J at 584-585, Wilson J at 594-595 and Brennan J at 612-615. In considering whether the Commission had a duty to disclose documents, it should be remembered that it is desirable to avoid imposing an obligation on decision making bodies akin to that required by pre-trial procedures in litigation in the courts. A balance must be preserved between the proper requirements of procedural fairness and imposing undue burdens on administrative bodies. Thus, procedural fairness does not call for an inflexible application of a fixed body of rules but fairness in all the circumstances which includes the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise: National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 312.

With these observations in mind, I turn to consider the legislative scheme and to examine whether the Commission had a duty to disclose all of the documents it had received.

An examination of the scheme of the Development Act and the Development Regulations shows that Parliament has qualified but not abrogated the rules of procedural fairness. The scheme creates three categories of development. They are designated categories 1, 2 and 3. In the case of those developments which are within Category 1, the Act does not require that notice be given of the development application and there is no right to make representations to the planning authority or to appeal from the planning authority's decision: s38(3). There is, however, nothing to prevent a planning authority from giving notice and hearing any representation.

In the case of those developments which are within Category 2, the planning authority must give notice of the development application to

(a) the owner or occupier of each parcel of adjacent land; and

(b) any other person of a prescribed class: s38(4).

A person who receives notice of a Category 2 development is entitled to make representations to the relevant planning authority concerning the proposed development: s38(7). The planning authority has a discretion whether to allow the representor to be heard in support of the representation: s38(10)(a).

In the case of those developments which are within Category 3, the planning authority must give notice of the application to

(a) an owner or occupier of each piece of adjacent land;

(c) any other owner or occupier of land which, according to the determination of the planning authority, would be directly affected to a significant degree by the development if it were to proceed; and

Any person who has received notice has the right to make a representation to the planning authority in respect of the proposed development: s38(7), and the authority is obliged to hear any representor who wishes to be heard in support of the representation: s38(10)(b). In effect, as notice must be given to the public, any member of the public may lodge a representation. Persons who have been given notice of a Category 3 development and who have lodged a representation are entitled to appeal to the Environment Resources & Development Court against a decision granting development consent to the application: s38(12).

It is common ground that the development proposed for this case is a Category 2 development. Section 38 does not, in the case of Category 2 developments, oust the rules of procedural fairness. Instead, s38 reinforces those rules in that the plaintiff was entitled to notice of the application and to make representations in writing to the Commission. The Commission had a discretion whether or not to hear the plaintiff. It exercised that discretion in its favour. The scheme in s38 relating to category 3 developments even more strongly reinforces the rules of procedural fairness in that notice of a proposed development must be given, representations may be lodged, and representors are entitled to be heard.

As mentioned earlier, both the Commission and Mr Upham relied on the decision in Weeks. But that case concerned quite a different legislative provision. In that case, s53(1) of the Planning Act 1982 contained a power to make regulations exempting planning authorities from the obligation to give notice of certain kinds of development. Regulation 33 of the Development Control Regulations, the regulations then in force under the Planning Act, exempted District Centres from the requirements as to notice. The development which was the subject of the decision in Weeks was an application for a District Centre. There was, therefore, no requirement to give notice. The scheme of the legislation expressly exempted the proposal from that requirement. That case is in marked contrast to this, where the Act requires that notice must be given and, at the discretion of the planning authority, a person making representations opposing the development might be heard.

Regulation 34 imposes an obligation upon the planning authority to make copies of an application and any supporting documents available for inspection before the expiry of the time in which representations must be lodged. That obligation is limited to making those documents available for inspection by the public. However, Regulation 34 is entirely silent on the question of inspection by those who have lodged representations. There is nothing in Regulation 34 which qualifies the rules of procedural fairness or which qualifies the principle that a person is entitled to know the case he has to meet. Regulation 34 is entirely silent on the question whether those who have lodged representations are entitled to inspect copies of any additional material lodged by an applicant for development consent after the time for lodging representations has expired and before the planning authority hears the applicant and those who have made representations opposing it.

On one view, the scheme of the Act and the Regulations is that, on the one hand, those entitled to notice of the application are entitled to inspect the application and all supporting documents and, on the other, the applicant is entitled to inspect the written representations and respond to them. That, it might be said, is the full extent to which parties are entitled to the benefit of the rules of procedural fairness and to know the case to be met. While that might be the position where representors are not permitted to be heard, I do not think it applies where a planning authority has exercised its discretion and permitted a representor to be heard or, in the case of Category 3 developments, a representor has the right to be heard.

As Brennan J noted in Kioa v West, if the right to be heard has any meaning, it is essential that there be disclosure of the case that has to be met. The fact that Regulation 34 limits the period during which the Commission is obliged to make documents available for inspection by the public does not, I think, limit the period during which the Commission should make documents available to those who have made representations, particularly where the documents are sought by a person who, as a representor about to be heard by the relevant planning authority, has a legitimate interest in seeking to ascertain the full content of the application in order to make submissions in support of his representation. In short, there is nothing in Regulation 34 which qualifies the fundamental rule that a person is entitled to know the case against him.

There are planning schemes which deny an entitlement to notice or an opportunity to be heard. One example is the scheme which formerly applied to the City of Adelaide: see Colliers Properties (No 1) Pty Ltd v Adelaide City Corporation (1988) 65 LGRA 397. Similarly, in this scheme, the rules of procedural fairness do not apply to Category 1 developments. But those rules do apply in the case of Category 2 and 3 developments to the extent noted in these reasons.

The conclusion is reinforced by policy considerations. A moment's reflection indicates why the rules of procedural fairness should apply in these circumstances. In this case Master Plan supplied in its letter dated 7 April 1998 important additional and detailed information in support of Mr Upham's application. It dealt with the question of car parking in considerable detail, estimating by reference to the purported capacity of the hotel the number of spaces required. This information had not been supplied when the application had been lodged, although the letter from the Council to the Commission dated 16 March 1998 shows that information of some kind concerning car parking requirements had been given to the Council. It was material bearing on the merits of the application which those who had lodged representations were entitled to know. The letter had obviously also been prepared for the purpose of persuading the Commission that it should grant development consent. If Regulation 34 represented the limit of the Commission's duty to disclose what was in its possession, applicants for development consent could make it very difficult for those opposing the application to prepare a proper case. Applicants could lodge an application for development consent which contained only sufficient information to outline the proposal and, after the date by which representations had to be lodged, submit additional detailed information in support of the proposal. Such a course is plainly contrary to ordinary principles of fairness. Mr Hayes QC sought to avoid this result by contending that the letter from Master Plan dated 7 April should be considered as part of the application. He referred to Decca Pty Ltd v City of Adelaide (1982) 103 LSJS 462 at 471 and Shoff v McSporran (1987) 140 LSJS 356 at 358 to 360. But those cases are to be distinguished. This is a letter supplied well after the application had been lodged. It is apparent from the Commission's conduct that it did not think it was part of the application. Finally, if Mr Upham had been prosecuted for a breach of his planning consent for having more than 310 persons in the hotel, the letter would in all likelihood not be held to bind Mr Upham.

A second policy reason can be identified. As a general rule, applications for development consent for Category 2 and 3 developments will have an effect of some kind upon neighbours or others in the immediate vicinity of the development. The particular effect may be in a range from beneficial through to detrimental. Planning legislation recognises competing interests. The purpose of planning legislation is to provide for orderly and proper planning. In the case of Category 2 and 3 developments, the legislation has regard to the interests of both developers and those who will be affected by the proposed development. On many occasions, the application will be for a substantial development. It has the capacity to affect others in the immediate neighbourhood. In the case of substantial developments, the scheme of the planning legislation in relation to all but Category 1 developments is that, generally speaking, there is an entitlement to notice of the application and to make representations and, in the case of some Category 2 developments and all Category 3 developments, the Act adds the opportunity to make oral submissions in support of the representation. To that extent the rules of procedural fairness are preserved. Although King CJ said in Weeks at 406: "The purpose of the planning legislation is not to inhibit development but to facilitate its concurrence in a way that is both orderly and compatible with public interest.", that observation expresses the matter a little too absolutely and puts an emphasis upon the facilitation of development which I do not think is justified by the scheme of the legislation. Instead, in the case of proposals for Category 2 and 3 developments, the Act recognises competing interests and allows for the demands of procedural fairness in the manner outlined above. The position is more appropriately summarised by White J in Weeks at 431-433. Given the capacity of Category 2 or Category 3 developments to affect neighbours and others in the immediate vicinity for a long time, it can be readily understood that rights and interests in property might be substantially affected. Decisions of the Commission quite often involve substantial developments with significant consequences both for the developer and others affected by the development. Depending on the nature of the development, the consequences might be environmental or financial. As the Act preserves procedural fairness in the case of Category 2 and Category 3 developments to the point of allowing representations to be made (in the case of Category 2 developments by leave), it is proper that the rules of procedural fairness should apply so that there is full disclosure of the information on which the intending developer relies. At the risk of repetition, if the right to be heard has any meaning, there must be disclosure of the case that has to be met.

It was submitted on behalf of the Commission that in some instances hundreds of representations are made opposing an application for development consent. So, it was said, an obligation to make documents available for inspection would impose an onerous administrative burden on the Commission and other planning authorities. This is a kind of flood gates argument which, notoriously, do not withstand scrutiny. On examination, this contention has no merit. One's experience at the bar and as a judge in this jurisdiction indicates that, in almost all cases, the representors are few indeed, often only one or two. Further, the obligation to make documents available for inspection is limited to those representors who are going to be heard in support of the representation. There is, therefore, no ground for concluding that the obligation to make the documents available for inspection will involve the Commission or any other relevant planning authority in undue or inordinate expense. Finally, the obligation on a planning authority is limited to making documents available for inspection. There is no need for a planning authority continually to advise a representor of the documents in its possession. It is for the representor to make enquiries. An obligation to make available for inspection all material submitted by an applicant to those who have lodged representations and who are to be heard would not, therefore, impose an undue burden on the Commission or any other planning authority nor would it be conducive to inefficiency.

I acknowledge that the Commission is a specialist body. It will use its experience and expertise in dealing with planning applications. But a party should have an opportunity to test or comment upon arguments, calculations, and theories advanced by his opponent. If there is no disclosure, there is no opportunity to do so: Moore v Guardianship & Administration Board [1990] VicRp 80; [1990] VR 902 at 912, National Companies & Securities Commission v Bankers Trust Australia Ltd [1989] FCA 530; (1989) 91 ALR 321.

For all of these reasons, the Commission was obliged to make available for inspection all of the documents and other materials it had in its possession relating to this application prior to 12 May 1998. The Commission ought to have supplied all of those documents when requested to do so on 1 May. The failure to disclose all the documents meant that the plaintiff was denied the opportunity of commenting upon, or disputing the advice of Mr Hayes QC.

Not only is a person entitled to notice of the case he has to meet but he is also entitled to reasonable notice of that case: Egan v Harradine (1975) 6 ALR 507; Ansell v Wells [1982] FCA 186; (1982) 43 ALR 41 at 62; Moore v Guardianship & Administration Board (supra) at 912; Claro v Minister for Immigration [1993] FCA 581; (1993) 119 ALR 342 at 353-354. The Commission was, therefore, obliged to make the material available in sufficient time to permit the plaintiff a reasonable opportunity of examining it and preparing its response. The Commission did not supply the material until the afternoon of Friday 8 May. The hearing was on 12 May. That gave all too little time to enable the plaintiff to prepare its case, particularly with the weekend intervening. The right to be heard will count for little if a party does not have a proper opportunity to gather evidence and prepare his case. In this context, it is relevant also to note that Regulation 37 provides that a person who is allowed to appear and make representations in support of an objection must have at least five business days notice of the hearing. The Commission gave only two business days in which to inspect the documents it provided. For these reasons, although the Commission did, in the result, supply most of the documents, it nevertheless failed to do so in accordance with the rules of procedural fairness. The Commission's failure both to disclose the documents and to disclose them within a reasonable time in breach of the rules of procedural fairness has the consequence that the Commission's decision must be set aside.

The next ground on which the plaintiff asserts a failure by the Commission to act fairly is that it failed to provide it with the letter dated 21 May sent by the Council and considered by the Commission at its meeting on 26 May. It is also asserted that this was a failure to comply with Regulation 34. For the reasons already given, the Commission did not in that respect fail to comply with Regulation 34. The only question is whether the rules of procedural fairness required disclosure of the letter and an opportunity for the parties to make further submissions.

As is apparent from these reasons, the question of car parking was the actual issue concerning this development application. The absence from the proposal of any provision for off-street car parking and the reliance on existing car parking was a major ground of the plaintiff's opposition to the development proposal. In addition, both the report of Mr Johnston, the Commission's planning adviser, and the minutes of the Commission show that the Commission was also concerned with whether there was adequate car parking. The Commission's resolution on 12 May to request the Council to supply additional information, therefore, was very material to its decision whether to grant development consent.

The Council's response of 21 May went to the very core of the issues confronting the Commission. It is unnecessary to set out the terms of the letter. It is sufficient to note that it put forward assertions which the plaintiff and others who made representations would wish to challenge, in particular, the amount of car parking already available in the area. Furthermore, as already mentioned, the Council as the vendor of this land was not an entirely disinterested party. Furthermore, the letter of 21 May did not answer all of the Commission's requests.

As the Council's letter dealt with an issue which was central to the question whether development consent should be granted, the Commission was bound by the requirements of procedural fairness to disclose it: Bread Manufacturers of NSW v Evans (supra). The Commission had already decided to adjourn its consideration of the application to 26 May. It could easily have provided the Council's letter to the representors and further adjourned its consideration of the application pending written or oral submissions from the representors. Such a course would not have unduly delayed the Commission's consideration of this application. Nor would it have imposed any undue administrative burden on the Commission to have provided a copy of the Council's letter of 21 May to the representors who had been heard on 12 May. Not infrequently, the Commission adjourns from time to time its consideration of applications such as this where there is a degree of controversy.

Finally, in contested planning applications of this kind, the planning authority, be it the Commission or a council, is acting ad an adjudicator between parties in an adversarial position, a situation in which parties will usually have access to all the material to be considered by the decision maker. A party is entitled to examine information which is pertinent to the decision, credible and significant: Lek v Minister for Immigration, Local Government & Ethnic Affairs [1993] FCA 297; (1993) 43 FCR 100, 129. As Mason J noted in Kioa v West at 587:

"...recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it."

The information sought by the Commission was of critical importance. It went to the central issue. The Commission should have disclosed the letter and allowed the parties an opportunity to comment upon it.

This failure to act in conformity with the requirements of procedural fairness is a further reason for setting aside the decision of the Commission.

There was a suggestion in the submissions of the plaintiff that the Commission had acted in breach of the rules of procedural fairness in failing to provide the plaintiff with copies of the letters from the Council dated 11 June and 30 June 1998. Different considerations apply to these letters from those which are material to the letter of 21 May. The letter dated 11 June did no more than confirm the Council's commitment to allocate 80 car parking spaces as requested by the Commission. The letter dated 30 June was submitted after the grant of development consent and confirmed earlier information. The failure to provide copies of those letters did not constitute a departure from the rules of procedural fairness.

For all of these reasons, the Commission failed to deal with the application in accordance with the rules of procedural fairness. The decision granting development consent should, therefore, be set aside and the matter remitted to the Commission for hearing and determination. The plaintiff has, in the result, seen all of the information submitted by Mr Upham. Mr Upham has seen the plaintiff's submission. The Commission should hear the parties afresh and determine whether provisional Development Plan consent should be granted.

Mr Walsh QC submitted that the Commission's decision should also be set aside on the ground that it had regard to an irrelevant factor, namely, the Council's car park register and the fact that the price being paid by the developer for this land included a financial contribution to the provision of future car parking. Relying on decisions such as Gillott v Hornsby Shire Council (1964) 10 LGRA 285 and Twenty Seven Properties Ltd v Corporation of Noarlunga (1975) 11 SASR 188, Mr Walsh QC submitted that the Council had no power to require a developer to make a financial contribution towards future car parking. In addition, he pointed to the fact that the amendment to the Development Plan which ultimately became Objective 21 of the Development Plan had included a power to recover cash contributions from developers and that had been deleted by the Minister from the amendment. Although the Council may lack the power to impose conditions requiring financial contributions to provide car parking, it does not follow that the Council cannot factor into the price of land it is selling an amount to provide for car parking. The purchaser is at liberty to accept or reject the Council's price. There is a great gulf between those instances where a council, as the owner of land, is seeking to sell it for a price which a developer can accept or reject and those instances where a council, as a planning authority, imposes conditions on the grounds of development consent. I do not think, therefore, that the Commission was considering an irrelevant factor when it had regard to the car park register and the financial contribution to future car parking included in the price for this land. That conclusion does not, of course, mean that the car park register and the financial contribution would necessarily resolve the car parking requirements for this proposed hotel. The car park register and the financial contribution were no more than some of the factors to be weighed with others in determining whether there would be sufficient car parking.

It was a ground of the plaintiff's application that the Commission had erred in that it had not determined that the proposal was seriously at variance with the Development Plan and had erred in not making a determination at all on that issue. The latter part of the argument may be disposed of immediately. The preamble to the Commission's resolution indicates that the Commission had concluded that "the proposed development was consistent with the provisions of the Development Plan". That is tantamount to a conclusion that the proposal was not seriously at variance with the Development Plan. In appropriate circumstances it is permissible to go behind such a statement by a planning authority. An example is Rhylyn Pty Ltd v Willunga District Council (1994) EDLR 509. But there is nothing in the circumstances of this case which enables the court to conclude that the Commission did not consider whether the proposal was seriously at variance with the Development Plan. The only issue, therefore, is whether the Commission erred in deciding that the proposed development is seriously at variance with the Development Plan.

Section 35(2) of the Development Act provides:

"Subject to sub-section (1), a development that is assessed by a relevant authority as being seriously at variance with the relevant Development Plan must not be granted development consent."

It is unnecessary in the circumstances of this case to have regard to the provisions of sub-section (1). The effect of s35(2) is that a planning authority must be satisfied that the proposed development is not seriously at variance with the relevant Development Plan.

Mr Hayes QC, who appeared for Mr Upham, submitted that the plaintiff could not succeed unless it was able to show that the Commission's decision was unreasonable in the Wednesbury sense, that is to say, whether it is so unreasonable that no reasonable planning authority could have come to it: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 228. The flaw in that submission is that it fails to have regard to the fact that the Development Act, by s35(2), provides the criterion by which the relevant planning authority must examine the proposal. In other words, if it is possible plainly to discern that the proposal is seriously at variance with the Development Plan, it will fail for that reason and it will not be necessary to examine the question whether the decision is unreasonable in the Wednesbury sense. It should be added that the decision that a proposed development is not seriously at variance with the Development Plan might also be set aside on the ground that it is unreasonable because of a failure to take into account relevant factors or because the authority has taken account of irrelevant factors: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-42, a passage which emphasises the caution the court must exercise in setting aside a decision on those grounds, and Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275 to 276.

As to the court's role in determining whether a planning authority has erred in determining whether a proposal is not seriously at variance with the Development Plan, I adhere to the views I expressed in Hayes v Development Assessment Commission (No 4) (15 May 1997, unreported, Judgment No S6155). Nothing in s35(2) absolves a planning authority from the obligation to have regard to the relevant Development Plan and the obligation to determine whether the proposal is seriously at variance with it. In other words, a planning authority has no power to grant development consent unless it has determined that the proposal is not seriously at variance with the relevant Development Plan. It cannot be imagined that, if a planning authority abdicated its function and approved a development which, on any view, was substantially at variance with the Development Plan, this court could not set aside the decision. If, say, the Commission had approved this proposal without any regard to car parking requirements, this court is not obliged to stand by and deny relief to a plaintiff challenging the decision on the ground that the proposal was seriously at variance with the Development Plan. The effect of s35(2) is to reinforce the fact that the court cannot review the decision unless, as King CJ observed in Weeks, "the existence and seriousness of the departure can be discerned plainly by the court from the material before it without the necessity of resolving debatable issues relating to planning merits". If the planning authority reaches the conclusion that a proposed development is not seriously at variance with the Development Plan, this court can interfere in the circumstances identified by King CJ. The court can also interfere if the planning authority has made some mistake of law, if it has taken an extraneous reason into consideration or excludes from consideration some factor which should affect its determination. For these reasons, I respectfully disagree with the views expressed by Matheson J in Mt Gambier Shopping Centre Pty Ltd v Village Fair Shopping Centre (SA) Pty Ltd (25 January 1996, unreported, Judgment No S5441). I do not understand the decision in Corporation of the City of Kensington & Norwood v Development Assessment Commission (12 February 1998, unreported, Judgment No S6545) to require me to alter my conclusion.

There are many provisions in the Development Plan for the area of the Council which relate to car parking. I have had regard to them all. I will not recite the terms of every provision. Those which are most relevant are:

* Objective 21 of the Objectives which apply throughout the Council area and which provide a concept plan for parking for most, if not all, of the District Centre Zone in which the proposal is situated. It provides:

"The provision of public car parking at conveniently located sites within the area designated on Fig CP/1.

The provision of car parking to meet the needs of users of an area is a fundamental planning consideration. In new and developing areas, on site car parking is provided as part of any development site and/or sufficient; and is set aside in initial development plans to accommodate future car parking needs on a shared basis. In the case of the Jetty Road centre and environs, the area was fully developed prior to the introduction of planning controls. As such, whilst it functions as a centre, its efficiency is substantially hampered and redevelopments, particularly those revolving around changes of use, are often unable to meet on site car parking requirements. The development of public car parking in convenient locations and in a co-ordinated manner is important to the future development and successful operation of the centre.

Possible public car parking areas denoted in Fig CP/1 which are located within Areas 1 and 2 of the Glenelg (Foreshore/Patawolonga) Zone, as shown in Fig G(F/P)/1, may be subject to relocation/redesign within those areas as a result of any comprehensive redevelopment of the foreshore area."

* Principle 17 of the Principles of Development Control which apply throughout the Council area which state:

"(a) not less than one car parking space for every two square metres of total floor area which is available to the public in a bar;

(b) not less than one car parking space for every six square metres of total floor area which is available to the public in a lounge, dining room or beer garden".

* Objective 6 of the Objectives for the District Centre Zone:

"The provision of public car parking areas developed to assist in meeting the demand associated with new development."

* Principles of Development Control 6-12 which apply in this District Centre Zone. It is sufficient to quote Principle 12:

"Whilst development should provide sufficient car parking having regard to the above standards either on the site of the development or on another convenient and accessible site in the locality of the development site, a lesser amount of parking may be appropriate dependant upon:

(a) the nature of the development and the past use of the

(b) the design merits of the development, particularly with

respect to the provision of public facilities such as

sheltered pedestrian facilities, open space, bicycle

(c) existing built-form on or adjacent to the development

site which dictates the development of the site in a

(d) the opportunity to exploit shared car parking areas

(e) suitable arrangements for any parking short-fall to be met

I do not think that anything is to be gained from examination of the provisions of the Glenelg (Foreshore/Patawalonga) Zone. Those provisions relate to an adjoining area and are plainly influenced by the objective of providing a major tourist and recreational area. It discourages stand-alone car parks (Principle 17). If anything, the provisions in the Foreshore/Patawalonga Zone create an additional burden upon car parks in the District Centre Zone.

Although Principle 17 provides a standard for hotels to achieve, the Plan recognises in Objective 21 the special problems in the Jetty Road area in providing on-site parking. Thus, the Plan permits parking requirements to be satisfied by development of car parking by the Council or others in convenient locations. Consideration will be given to shared facilities capable of accommodating demands at different times. But there is nothing in the Plan which detracts from either the requirement to provide sufficient car parking for any proposed development or from the requirement that the parking be located conveniently to the proposed development.

There is an important defect in the Commission's approach. It is apparent that the Commission has grounded its decision on the fact that the capacity of this hotel will be limited to 310 persons. That is apparent from the calculations made in the report by Mr Johnston which the Commission's resolution shows was adopted by the Commission. There is nothing in the application which justifies that conclusion. The conclusion is apparently based on a statement in the letter dated 7 April 1998 from Master Plan. It might also be grounded on the contract of sale between the Council and the developer which, according to the Council's letter to the Commission dated 21 May, provided that the number of persons in the hotel at any one time be limited to 310, a term which, it is said, was to be reinforced by the planning consent. (The terms of the contract were not proved in this court). There is no condition of planning consent limiting the number of persons to be accommodated in the hotel at any one time. The absence of such a condition enables the developer to apply to the Licensing Court for a capacity greater than 310 persons. It is common ground that, given the area of this hotel, the Licensing Court might authorise as many as 450 persons to be in this hotel at any one time, more than half as many again as the purported limit of 310. There is nothing to prevent the Council from agreeing to an amendment to its contract to permit more than 310 persons. As the Council is the vendor of the land, it might be encouraged to agree such an amendment.

The failure of the Commission to include a condition limiting the number of occupants to 310 has the capacity to frustrate entirely compliance with the standards for parking in the Development Plan.

If the applicant succeeds in obtaining the consent of the Licensing Court to accommodate 450 persons in the hotel, the parking will be manifestly inadequate. Mr Johnston went on to calculate the car parking required for this hotel. In his view, the minimum requirement was parking for 100 cars. He expressly rejected the suggestion made by Master Plan on behalf of Mr Upham that 60 spaces were sufficient. He concluded:

"Nevertheless the question of the adequacy of car parking is relevant in the context of what is reasonable based on Council's parking strategy for the area. Council has indicated that it has established some 91 additional off-street car parking spaces in the Jetty Road precinct, all of which are within 600 metres of the subject site. Council is, therefore, seeking the agreement of the Commission that it will formally recognise the notional allocation of 60 of the new "supplied" car parking spaces for the Irish pub proposal and that these spaces will not be allocated to any other future proposal. It is worth noting that the letter by Murray Young questions whether these spaces are indeed "unallocated" given that several nearby developments were under-parked. It has been suggested that the requirements for funding additional car parking over the 60 currently allocated may jeopardise the viability of the project."

It would seem that the last paragraph influenced the Commission to decide at its meeting on 12 May 1998 to seek further information from the Council. The Commission has not identified in its decision the minimum car parking requirements but it has not rejected Mr Johnston's recommendation. It is reasonable, therefore, to infer that it has accepted his report.

The Commission resolved on 26 May 1998 to accept the provision of 80 spaces but without any regard to the proximity of those spaces to this proposed hotel in Moseley Square other than that they were within 600 metres of the subject site. I should add that there does not appear to be any basis which justifies the reducing the need for car parking from 100 cars to 80. It is apparent from the papers that there are already inadequate facilities for car parking in the area of Jetty Road. A decision to allow a development to proceed which has no car parking or inadequate car parking will plainly exacerbate the existing parking problems in that area. The car parking should also be proximate to the proposed development. The Council's letter suggests that the Council is not prepared to develop its Elizabeth Street carpark, which is the closest car park operated by the Council.

Two observations may be made. First, a provision of 80 car parks is 20 per cent less than the minimum identified by Mr Johnston. Secondly, a good deal of the car parking provided by the Council is some 400-600 metres from the proposed hotel. It hardly needs to be stated that adequate car parking is an essential pre-requisite for a hotel of this kind. That is clearly expressed in the Development Plan. In addition, the Plan and other evidence points to the existing pressures upon car parking in this area. When the deficiency of 20 per cent below the minimum car parking requirement is added to the fact that a good deal of that parking is distant from the hotel, it is clear that the car parking substantially falls short of what is required for this hotel and the proposal is seriously at variance with the Development Plan.

That conclusion is reinforced by the fact that there is nothing which guarantees that the Council will ensure that 80 spaces are provided. Despite the undertakings in the letter, the Council is under no legal obligation to provide those spaces. Similarly, there is nothing which will ensure that the money received by the Council will be spent on car parking.

This conclusion is put beyond question once it is noted that the hotel could be licensed to accommodate 450 persons. In his report, Mr Johnston believed that 100 car parking spaces were required if the hotel accommodated 310 persons. On that footing, about 140-150 car parking spaces would be required if the hotel is licensed to accommodate 450 persons. Thus, the Council's proposal to provide 80 car parking spaces is more than 40 per cent less than the minimum required.

For these reasons, the proposal is seriously at variance with the Development Plan.

There is an alternative footing for concluding that the proposal is seriously at variance with the Development Plan. It is apparent that the Commission has failed to have regard to the fact that the hotel could be licensed to accommodate more than 310 persons. It has failed to include a condition limiting the number of occupants of the hotel. It has, therefore, failed to have regard to a factor which is plainly relevant to the question of car parking. On that footing also, the decision of the Commission should be set aside.

Mr Hayes QC stated in open court that Mr Upham would consent to a condition limiting the numbers to be accommodated in the hotel to 310. But there are two reasons why I do not think it desirable to act on the basis of that offer. First, the need for parking should be determined on the potential capacity of this hotel. It is futile, if not also highly undesirable and contrary to principle, to proceed in any other way since it is always open to the proprietor of this hotel to seek to increase the numbers to be accommodated, perhaps fortified by some ad misericordiam plea that it is necessary for the hotel to trade profitably. Secondly, given that there are other grounds on which to set aside the Commission's decision, it is undesirable to act on the offer.

Thus, the decision of the Commission was made in breach of the rules of procedural fairness. In addition, the proposed development was seriously at variance with the Development Plan. The decision of the Commission must, therefore, be set aside. There will be an order in the nature of certiorari quashing the decision of the Commission.