Minister for Urban Affairs and Planning v Rosemount Estates P/L and Ors [1996] NSWSC 348 - NSWSC 1996 case summary — Zoe

[231]

Part 4 addresses environmental planning control and deals with the granting of consent having regard to environmental planning instruments[31]. It does not address concepts of planning as such except in the sense of addressing the steps necessary to be taken, and the factors relevant to, the obtaining of an actual consent for a particular development to occur. Of particular relevance is s.90 specifying the matters which a consent authority shall take into consideration. Those matters include any environmental planning instrument that applies to the land to which the development application relates[32]. Thus it is contemplated that in considering consent, a consent authority will have regard to each of a SEPP, a REP, and a LEP if there be one applicable to the land the subject of the development application, recognising that the three instruments may be in conflict with each other, and recognising that the three instruments prevail in respect to each other in accordance with s.36(b), subject to contrary intention in a particular instrument. The applicable environmental planning instruments are but one of the matters referred to in s.90 which are to be taken into consideration in considering developing consent[33]. Whilst, in determining the content of an environmental planning instrument, be it a SEPP, REP or LEP, the Minister and others must have regard to the objects of the Act, many aspects of those objects which might be included in the environmental planning instrument are further specifically stated to be matters to be taken into consideration when considering a development application under Part 4. By way of example, the objects specified in s.5 include the protection of the environment, and that is an aspect to be considered in an environmental planning instrument under Part 3,[34] yet the impact of the particular development on the environment is also to be considered under Part 4 when considering consent to a development application in consequence of, not only the planning instrument, but the terms of s.90(1)(b). Similarly the objects of the Act include promoting "the social and economic welfare of the community". This matter is to be considered in planning instruments[35]: it is also to be considered under Part 4 in consequence of s.90(1)(d) in relation to the particular development.

Parties

Applicant/Plaintiff:

# Minister for Urban Affairs and Planning

Respondent/Defendant:

Rosemount Estates P/L and Ors \[1996\] NSWSC 348

Legislation Cited (4)

Planning and Assessment Act 1979

Coal Mining Act 1973

Planning and Assessment Act 1979

Coal Mining Act 1973

Cases Cited (51)

Minister for Urban Affairs and Planning v Rosemount Estates P/L and Ors [1996] NSWSC 348 (14 August 1996)

The reasons why this was inappropriate was never explained, but did not have to be. It may have been arguable that such a collateral purpose, if it existed, would have invalidated the SEPP. Cf The Queen v Toohey ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170. However the existence of a collateral and legally improper purpose for the making of SEPP 45 was not pleaded or litigated below, and no such case could either be raised or insinuated on appeal. In any event SEPP 45 applied to all mining.

I agree with Cole JA that the legal test for the validity of subordinate legislation such as an SEPP on the ground that no reasonable mind could justify it is whether there is "a real connection" between the delegated legislation and the purpose for which the power of delegated legislation was conferred by Parliament. See Clements v Ball [1953] HCA 61; (1953) 88 CLR 572 at 577; Minister for Primary Industry and Energy v Austral Fisheries Pty Ltd [1993] FCA 45; (1993) 40 FCR 381. I find it impossible to hold that SEPP 45 could not rationally be thought to relate to matters of significance for environmental planning for the State.

In The State of South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 the High Court considered a power to make regulations "so as to reduce or prevent the deterioration or pollution of any water within a watershed or watershed zone". The majority in their joint judgment at 165 said:

In Cunliffe v The Commonwealth [1994] HCA 44; (1994) 182 CLR 272 three judges in the majority considered the relevance of proportionality as a test of constitutional validity. Brennan J at 322 said that a test of proportionality has been invoked in two classes of case and it was helpful to distinguish between them. The second class comprised cases where the impugned law invoked a legislative power that was qualified by an express or implied limitation on power e.g. s 92 or the implied freedom of political discussion. This class is not presently relevant. The first class concerned "purposive powers" where proportionality was relevant in determining whether a law achieved a purpose or object which attracted the support of a legislative power. He noted that in the relevant cases the power was purposive e.g. the defence power, or had a purposive aspect e.g. the external affairs power. He pointed out that most of the powers in s 51 of the Commonwealth Constitution were not purposive, and in relation to such non-purposive powers he approved the statement of Dawson J in an earlier case:

"Wednesbury unreasonableness" (Associated Provincial Picture Houses Limited v Wednesbury Corporation Limited [1947] EWCA Civ 1; [1948] 1 KB 223) must not be allowed to open the gate to judicial review of the merits of a decision or action taken within power. In Attorney General for New South Wales v Quin [1990] HCA 21; (1990) 170 CLR 1 at 36 Brennan J said:

"Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment [1985] UKHL 8; [1986] AC 240 at 249. Acting on the implied intention of the legislature that a power be exercised reasonably, the Court holds invalid the purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined."

Furthermore as Lockhart J pointed out in Minister for Primary Industries & Energy v Austral Fisheries Pty Limited [1993] FCA 45; (1993) 40 FCR 381 at 382:

Lockhart J went on to quote the observation of Starke J in Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142 at 149 that it is well settled that the Court is not entitled to form its own opinion as to the reasonableness of a by-law and if it thinks it unreasonable, though within the scope of the powers granted, to declare it invalid. In Clements v Bull [1953] HCA 61; (1953) 88 CLR 572 at 577 Williams ACJ and Kitto J said:

"If Parliament confers upon a subordinate body a power to legislate for limited purposes, it authorises even legislation which may be thought unreasonable, provided that nevertheless it is really legislation for those purposes. It may indeed be held invalid on the ground that no reasonable mind could justify it by reference to the purposes of the power: Brunswick Corporation v Stewart [1941] HCA 7; (1941) 65 CLR 88 at 97, 99; but that is only a way of stating the conclusion that no real connection with the purposes of the power can be seen."

"The Wednesbury doctrine is concerned with ultra vires in a broad sense of vitiation by reason of engagement by the decision maker in an abuse of discretion. ......... Hence the force for the situation in the present case of the authorities referred to by Lockhart J in Austral Fisheries ........ These indicate that when the issue concerns not the exercise of discretion but the validity of delegated legislation, the question is a more precise or narrower one. It is whether there is a `real connection' between the delegated legislation and the purpose for which the Parliament conferred the authority to make the law under challenge. Lockhart J referred to a number of High Court authorities of long standing which support that approach to the matter. Their force is not, in my opinion, diminished by the importation of any notion of `proportionality": Minister of State for Resources v Dover Fisheries Pty Limited [1993] FCA 366; (1993) 43 FCR 565 at 574-8, 583-6."

(1981) 151 CLR 170

(1953) 88 CLR 572

(1993) 40 FCR 381

(1995) 87 LGERA 349

(1983) 158 CLR 1

(1989) 166 CLR 161

(1994) 182 CLR 272

(1987) 17 FCR 55

(1990) 170 CLR 1

(1933) 49 CLR 142

(1941) 65 CLR 88

(1994) 125 ALR 151

(1993) 43 FCR 565

(1995) 83 CLR 273

(1985) 65 ALR 549

(1993) 81 LGERA 270

(1995) 86 LGERA 1

(1995) 183 CLR 273

(1992) 78 LGERA 306

(1995) 86 LGERA 186

(1996) 70 ALJR 313

(1972) 128 CLR 305

(1992) 30 NSWLR 307

(1990) 170 CLR 321

(1994) 55 FCR 439

(1993) 178 CLR 408

(1942) 66 CLR 452

(1954) 90 CLR 177

(1985) 10 FCR 1

(1990) 169 CLR 195

(1979) 143 CLR 242

(1987) 10 NSWLR 708

(1990) 23 FCR 148

(1985) 155 CLR 513

(1993) 30 NSWLR 646

(1981) 180 CLR 404

(1978) 20 ALR 323

(1989) 63 ALJR 298

(1981) 147 CLR 589

(1986) 162 CLR 24

Minister for Urban Affairs and Planning v Rosemount Estates P/L and Ors [1996] NSWSC 348

At a glance

Court

Decision date

Before

Source

Judgment (443 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (51)

Minister for Urban Affairs and Planning v Rosemount Estates P/L and Ors [1996] NSWSC 348 (14 August 1996)