MOUNT BARKER PROPERTIES LTD v DC OF MOUNT BARKER No. SCCIV-01-587 [2001] SASC 249

Two questions exist as to the proper interpretation of s 25(3). First, the meaning of the expression "and after considering the advice of a person with prescribed qualifications appointed by the Council" is not entirely clear. At what time must the Council consider the advice? Must it obtain the advice before it begins the task of preparing the draft PAR or can it receive that advice in the course of preparing the draft? In my view, it is the latter because it is unrealistic to expect that the advice could cover all issues before the draft PAR is prepared. In addition, new issues may surface in the course of preparing the PAR and it is both sensible and convenient for the Council to have the benefit of planning advice on them while drafting the PAR.

The other question is whether the Council is required to appoint a person who is not one of its employees to give the advice or whether it is entitled to rely on the advice of an employee who has the prescribed qualifications. In my view, the word "appointed" permits either. The manifest object of this provision is to ensure that a council obtains advice from a person with appropriate town planning qualifications. That advice can be just as useful when given by an employee with the prescribed qualifications as when given by an outside independent contractor. Furthermore, if the Parliament had intended to exclude employees with appropriate qualifications it could have said so.

It is reasonable to infer that Mr Grear was involved throughout the whole process before and during the preparation of the PAR and gave advice to the Council. There is nothing to suggest the contrary. The plaintiff has therefore failed to prove that the Council did not prepare the draft PAR after considering the advice of a person with prescribed qualifications appointed by it. It has, in short, failed to prove that the Council did not comply with s 25(3).

The plaintiff relied on three further grounds. The first is that the Council has failed to comply with s 25(7) in that it did not finalise its PAR before submitting it to the Minister. When preparing this PAR, the Council and the Minister purported to follow the procedures in s 25(7), (9), (10) and (11). As already noted, the Council, on 17 July 2000, resolved that its Chief Executive Officer or his delegate be authorised, among other things, to "undertake further amendments to the PAR so as to bring it up to a standard suitable for consultation with government agencies and the public in accordance with s 25 of the Development Act 1993". The Chief Executive Officer of the Council later signed a statement in the PAR that "on 17 July 2000 1999" (sic) the Council resolved that the PAR "is in a suitable form to request the Minister to authorise the commencement of public consultation pursuant to s 25(7) of the Act". The date is obviously intended to be 17 July 2000. The alleged non-compliance with s 25(7) is said to lie in the fact that the statement signed by the Council's Chief Executive Officer is inaccurate and does not accord with the resolution so that there is a failure to comply with s 25(7). The submission is misconceived.

Before the PAR could be released for public consultation, it had to be submitted to the Minister under s 25(8). As is apparent from the terms of the Council's resolution carried on 17 July 2000 (see para 17 above), that was the procedure the Council intended to follow. The effect of the Council's resolution was to delegate to its Chief Executive Officer the power to bring the PAR to a state suitable for submission to the Minister and seek the Minister's authority to release the PAR for public consultation. The Chief Executive Officer's statement is inaccurate. The Council did not resolve that the PAR was in a suitable form to request the Minister to release it but, instead, that the Chief Executive Officer should be authorised to put it in a suitable form to request the Minister's authority. Although the Chief Executive Officer has overstated the true position, it does not have any material consequence. Section 25(7) requires no more than that the Council finalise the PAR and submit it to the Minister with a statement containing the prescribed particulars. There is no submission that what was submitted to the Minister did not contain the prescribed particulars. The Council through its delegate finalised the PAR and submitted it to the Minister. There is, therefore, no failure to comply with s 25(7). This ground must, therefore, fail.

The plaintiff next contends that the PAR is invalid because it proposes an amendment to the car parking standards in the proposed Regional Town Centre Zone in a form which does not enable interested members of the public properly to address the amendment and so defeats the intention of s 25 and regs 11 and 12. The statement of the proposed amendments include principles of development control which will apply in the Regional Town Centre Zone and para 4 of those principles concerns car parking. It reads:

"Vehicle parking areas should be designed in accordance with Table MtB/3 (vehicle parking requirements) and Table MtB/7 (Design Standards for vehicle parking areas).

(Note Tables MtB/3 and MtB/7 are still to be reviewed. Planning SA is presently undertaking a review of vehicle parking standards. It is Council's aim to include the findings of the Planning SA study in this PAR before undertaking community consultation.)"

The PAR includes Tables MtB/3 and MtB/7 which have been taken from tables which exist in the present Development Plan. Although the Council intends to review those tables, it had not received any findings from the study by Planning SA at the time of public consultation. The PAR does not include any proposed alteration of the car parking requirements in Tables MtB/3 or MtB/7.

The plaintiff points to a telephone conversation on 22 December 2000 between an employee of Planning SA and Ms Weston, who is an employee of the Council. The file note of the conversation which has been made by Ms Weston reads:

"Told Gary that neither car parking tables had been included in the PAR for public consultation.

He advised that these could be introduced as part of my own submission."

The plaintiff submits that the clear inference from the terms of the PAR and this file note is that the Council intends to modify the car parking amendments after the process of public consultation and so will by-pass the statutory procedures.

This attack is misconceived, if not also premature. At this stage the car parking requirements are those in tables MtB/3 and MtB/7 which repeat existing requirements. There is no evidence that Ms Weston or any other employee or representative of the Council has made any submission to alter the car parking requirements. The summary of submissions prepared by the Council in accordance with s 25(13) and reg 13 does not include a submission from Ms Weston or other representations of the Council. Further, there is no evidence that Ms Weston has authority to propose such an amendment. More significantly, in her affidavit sworn on 17 May 2001, Ms Weston states that the existing car parking requirements are untouched by the PAR. That indicates that the Council does not intend by the PAR to amend the car parking requirements at this stage. That conclusion is reinforced by the submissions on behalf of the Council which state in para 34:

"The note in the Regional Town Centre Principles simply warns that the Tables could have been under consideration for amendment if amendments were ready prior to public consultation. As this has not happened, no amendment can be made. Future amendment of the Tables will need to await a further process."

All of this suggests that the Council recognises that it will have to engage in a fresh process of amendment if it seeks to amend the car parking requirements in accordance with the intention stated in the note to para 4 of the principles of development control.

I note that the Council may in its report to the Minister, pursuant to s 25(13), recommend alterations to the proposed amendment after the process of public consultation has been completed. It is not clear whether that power is limited to recommendations to alter the proposed amendment to deal with matters raised as a result of submissions from the public or is at large. The issue was not argued and there is no need to express a concluded view on it because the process of amendment is not complete and at this stage the Council does not seek to include any amendment to car parking. Thus, the plaintiff's challenge on this ground is without foundation. If the Council does amend the car parking requirements after the process of public consultation, it may face a challenge to the validity of its amendments. Those are issues for another day if and when they should arise.

The final ground of alleged invalidity concerned the form of public notice which was asserted to be misleading. The notice does not fail to comply with either the Development Act or the Development Regulations. Counsel for the plaintiff said that the plaintiff did not press this ground. It is therefore unnecessary to deal with it. I simply note in passing that it is doubtful that the notice was misleading.

Thus, on examination, the plaintiff established only one respect in which the Council has failed to comply with s 25, namely, that the PAR does not expressly examine the extent to which the amendment accords with the statement of intent and so fails to comply with s 25(4)(a). Furthermore, as already mentioned, I am prepared to assume, for the purpose of these reasons, that the Council has failed to comply with s 25(4)(f) in that the PAR does not include an express statement of the relationship between the intent of the proposed amendment and the policy of the statement of intent.

It will have been noticed that s 25 is expressed in terms which state that the procedure to be undertaken by either the Council or the Minister "must" be performed. The word "must" appears in all subsections except subsections (7) and (8). On its face, the word "must" denotes a mandatory obligation. The Council has failed to comply with two of the prescribed steps. The question is whether that results in the invalidity of the PAR. That depends on whether it is possible to discern a legislative purpose to invalidate any act that fails to comply with the requirements of s 25: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, para 91 where the High Court said that the existence of the purpose of the legislation is to be ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the statutory requirements. Some guidance can be gained from distinguishing between acts done in breach of an essential preliminary to the exercise of a statutory power or authority (which are regarded as going to jurisdiction and thus mandatory so that a failure to comply results in invalidity) on the one hand and, on the other, acts done in breach of a procedural condition for the exercise of a statutory power or authority (which are directory and a failure to comply does not result in invalidity): Project Blue Sky (supra) at para 92. But, as the High Court notes in paras 92 and 93 in Project Blue Sky, the distinction between mandatory and directory provisions has proved elusive and has outlived its usefulness. Thus, a better test for determining the issue of invalidity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid: Project Blue Sky at para 93. See also Barwick v Law Society of NSW [2000] HCA 2; (2000) 74 ALJR 419, para 49.

There are some provisions in s 25 where non-compliance might result in invalidity because it is an essential part of the process. They might include the requirement in s 25(1) that the council must prepare a statement of intent and reach agreement with the Minister before being able to proceed with its PAR. That is because the statement of intent is a kind of essential preliminary to the amendment process and informs the Minister of the council's intention. Another is the requirement for public consultation. It is unnecessary to express a final view on those provisions as there has been compliance with them. The question is whether the two provisions with which the Council has failed to comply result in invalidity.

The following factors suggest that Parliament does not intend that a breach of s 25(3) and (4) should result in invalidity. There is nothing in s 25 or elsewhere in the Act which suggests that non-compliance with those provisions should result in invalidity. Indeed, the above examination of s 25 suggests the contrary. I particularly refer to the following.

1. The extent of ministerial control and, in particular, the fact that it is the Minister who decides whether a PAR will be released for public consultation and whether the proposed amendments will be made. It is apparent that Parliament intends that the Minister should have complete control subject only to disallowance in the Parliament.

2. The Minister's extensive powers of control over the process including the power to alter the proposed amendments, both before and after the process of public consultation, as well as in response to comments of the Environment Resources and Development Committee.

3. The fact that the Minister has power to approve a PAR, notwithstanding that it does not comply with s 25(4)(a) to (e). This fact, coupled with the Minister's extensive control over the whole process is a particularly strong pointer to the fact that a failure of a council to comply with s 25(4)(a) to (e) does not invalidate the proposed amendment. It indicates that compliance with s 25(4)(a) to (e) is not an essential prerequisite to the Minister's assessment.

4. The fact that the statement of intent is a document prepared to assist the Minister in making the assessment required under s 25(10) and s 25(14)(b) and is not released to the public indicate a number of things. Most importantly, it points to the conclusion that the Minister has a wide discretion whether to approve the proposed amendment, notwithstanding the Council's failure to comply with any of the provisions in s 25(4)(a) to (e). The only restraint is that the Minister act within the powers conferred by the Act. The Minister is liable to be restrained only if she exercises her discretion for a purpose for which it was not conferred or otherwise acts unreasonably. This conclusion is reinforced by the fact that the proposed amendment does not have to accord with the statement of intent, by the fact that the ministerial assessment required by s 25(10) and s 25(14)(b) is subjective, and by the fact that the Minister is at liberty to make an amendment to the PAR before it is released for public consultation.

5. Furthermore, nothing in s 25(3) or s 25(4), that is to say, none of the grounds of invalidity relied on by the plaintiff, could be regarded as an essential prerequisite to the process of public consultation or the ministerial assessment.

This examination of s 25 shows that the intention of the Parliament is that a council proposes an amendment and seeks to justify it with a PAR; that the Minister decides whether the PAR will be released for public consultation; that, if released, there will be a process of public consultation; and that, informed of any representations made by the public, the Minister decides whether the amendment will be made, either as proposed or as amended by the Minister. The involvement of the public in this process is limited to receiving notice of the PAR, examining the PAR and the proposed amendment, and making representations upon them. Public consultation is secondary to the overall and extensive control of the Minister.

Another factor which points to the fact that Parliament did not intend that non-compliance should result in invalidity is that, if a failure to comply with any of the steps prescribed in s 25 were to result in invalidity, serious delays could occur in the process of amending a Development Plan. As already mentioned, a Development Plan is an essential document in the process of assessing development applications. The process of amendment is quite lengthy and involved and includes a great deal of consultation between the council and the Minister. The safeguards to ensure that the amendments are carefully and responsibly made are the extent of Ministerial control, which effectively means the supervision by officers in Planning SA, and the fact that interested members of the public have an involvement in the process. However, at the end of the day, it is the Minister who says yea or nay to the proposed amendment even to the point of being able to make her own amendments. To adapt Thomas à Kempis, a council proposes, but the Minister disposes.

For all of these reasons, it is apparent that Parliament does not intend that failure strictly to comply with s 25(3) and s 25(4) will result in invalidity. Instead, all that is required is that there be a substantial compliance. The conclusion is reinforced by an examination of s 25(4)(f) to (h). Section 25(4)(f) requires, among other things, that the PAR include a summary of the major policy changes (if any) that are proposed. The Mount Barker PAR included such a summary. But that is not the issue. What is relevant, when determining whether Parliament intended that a non-compliance would result in invalidity, is that there may be a debate whether a policy change constitutes a major policy change. There are no objective criteria by which that issue can be determined. It is inconceivable that Parliament intended to put the whole amendment process at risk over such a question where there are no objective criteria by which that issue can be determined. Again, it was inconceivable that Parliament intended to put the amendment process at risk if a council omitted to include but one of a number of major policy changes, particularly if that change is noted elsewhere in the PAR. Similarly, there is an absence of objective criteria in s 25(3) insofar as it requires the PAR to be based on investigations made by the Council. Another provision where Parliament would not intend an omission to result in invalidity would be an omission to include a summary of one of a number of conclusions drawn from investigations by the council as is required by s 25(4)(g) or an error in the terms of the amendment as required by s 25(4)(h). The omission of a word from the terms of the proposed amendment may not impair an understanding of the intent of the amendment. Even the omission, say, of such an important word as "not" or its inadvertent inclusion would not be intended to lead to invalidity if the intent of the amendment is otherwise apparent. If such an important word as "not" was wrongly excluded or included, it would be necessary to determine whether or not there was substantial compliance and that would in turn depend upon an examination of the whole PAR, and such questions as whether the intent of the amendment was conveyed elsewhere in PAR.

Thus, it is quite apparent that Parliament intended that substantial compliance with s 25(3) and s 25(4) was sufficient. In other words, a failure strictly to comply with those provisions would not invalidate the process or the ministerial approval of an amendment.

Although the Council failed to comply with s 25(4)(a) and did not assess the extent to which the proposed amendment accorded with the statement of intent, it is apparent that the PAR effectively does accord with what was proposed in the statement of intent in respect of the Regional Town Centre Zone and the other amendments in the PAR. The Minister was aware of that fact. It is quite clear that the Council has substantially complied with s 25(4)(a). The plaintiff has a further difficulty. The Minister has authorised the release of the PAR for public consultation, notwithstanding the failure of the Council strictly to comply with s 25(4)(a). The Minister has the power to do so. For the reasons already given, the Minister has not wrongly exercised her discretion nor has she acted unreasonably in the Wednesbury sense. In short, the Minister has acted lawfully and the plaintiff cannot rely on this ground. In addition, even if the Council has failed to comply with s 25(4)(f), it is apparent from the above reasons that it has substantially complied with it.

For these reasons, I dismiss the application. The plaintiff has failed to establish that the PAR is invalid.