Plaintiff v First Defendant

Plaintiff v First Defendant - [2009] VSC 215 - VSC 2009 case summary — Zoe

[108]

"Judicial Review

[174] The proceeding sought judicial review of the Minister's decision. The scope and purpose of judicial review is to ensure that powers are exercised for the purposes for which they were conferred and in the manner in which they were intended to be exercised. JJ Spigelman AC 'The Integrity Branch of Government' (2004) 78 (11) ALJ 724, 730. It is the extent of power and the legality of its exercise to which judicial review is directed. Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35-36 (Brennan J); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510, 579 (Gummow and Hayne JJA); Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 373 (Kirby J ).

Restraint in review of administrative decisions

[175] Having regard to the way in which the litigation was conducted, both at trial and on appeal, it is necessary for us to consider the material in order to see what reason or reasons the Minister gave for her exercise of the discretion to exempt. That said, we are conscious of the need to proceed with caution lest we exceed our supervisory role and trespass into the forbidden field of merits review. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 41-42 (Mason J); Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 36-37 (Brennan J); Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10, [127] (Spigelman CJ); Bruce v Cole (1998) 45 NSWLR 163, 184; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589. It would not suffice if we took the view that a different decision would have been more appropriate or that another Minister might have reached a different result. Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 626-627, (Gleeson CJ and McHugh J); Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28, 59-65, (Sackville J). As Brennan J said in Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35-36:

[116]

'Wednesbury' unreasonableness

...

[183] A decision may be unreasonable in the Wednesbury sense because it is manifestly unreasonable, that is, it simply defies comprehension, R v North and East Devon Health Authority; ex parte Coughlan (2001) QB 213, 244 (Lord Woolf MR) or because it is obvious that the decision-maker consciously or unconsciously acted perversely. Puhlhoffer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484, 518 (Lord Brightman). Wednesbury unreasonableness will also be made out where there was manifest illogicality in arriving at the decision - there being illogical findings, or inferences of fact unsupported by probative material or logical grounds. Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356 (Mason CJ); Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543, [20]-[26]; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 145 (Gummow J); Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565; (2001) 183 ALR 59, [28] (Finkelstein J); Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 [34], [37] (McHugh and Gummow JJ); [127] (Kirby J); Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, [559]-[561] (Weinberg J). A decision resting upon a finding of fact totally unsupported by evidence which is critical to the decision, whether expressed as the taking into account of an irrelevant consideration, error of law, or unreasonableness, cannot stand: Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39. 'Irrationality' thus encompasses disregard of relevant considerations, giving regard to irrelevant considerations and manifest unreasonableness. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 233-4; Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, 410 (Lord Diplock)."

[174]

91 The FAC report contains some important reminders about the breadth of the matters and issues that were raised by the By-Pass proposal, and about the nature of the decision-making process involved. As I have mentioned, the project was entirely federally funded. So Commonwealth laws and policies were relevant.[133] The FAC was required to consider all issues, including environmental issues, against a backdrop of federal, state and local laws and policies.[134] While VicRoads was designated (essentially for federal purposes) as the proponent of the road, the FAC was required to be independent of VicRoads and of all other players. Under its terms of reference it was to report, comprehensively, to the Minister for Planning and Local Government, not to VicRoads or to the Department of Transport. Indeed, in the foreword to the report, the FAC commented that it was faced "with a multitude of diverse, and often conflicting, issues" and that, by and large, Vicroads (and some opponents of the road) "failed to bring a sufficiently comprehensive or sophisticated approach to their analysis of the issues associated with a project of this magnitude, which has such potential for economic benefits as well as for damage to environment values". The FAC assessed the 7 alignment options investigated in the PAR, plus several modifications suggested by submittors (including one suggested by Mr Scanlon[135]). The question of what should be the precise alignment of the road between Cooper Street and O'Hern's Road if Option 2 or Option 5 was chosen was far from being the principal issue before the FAC. While Mr Scanlon may have given close attention to that point in his submissions to the FAC, Mr Love did not, in my view. To a significantly greater extent than Mr Scanlon, Mr Love concentrated on pushing for the road to be kept far away to the west, on or close to the original reservation. He sought strenuously to downplay environmental concerns in that respect. His first alternative position was that the alignment should be moved east to at least as far as the middle of the Scanlon land. He maintained that locating the By-Pass on the 150 metre wide strip on the western edge of the Scanlon land would be very detrimental to his quarrying plans. I will return to Mr Love's strategy in that regard in due course. However the general observations made by the FAC need to be kept steadily in mind in considering the passages from the FAC Report that relate more directly to the present controversy, to which passages I now turn.

[187]

...

Mr Scanlon opposes the route shown in the PAR as it affects his land. He submitted that the route selected, if Option 2 or 5 were chosen, should follow variation 'A' in Figure 8 or preferably a further variation he called the 'ultimate option' shown in Figure 10.

A constraining factor in this location is the high pressure gas pipeline running north/south through Love's property slightly less than 250 metres west of the boundary between Love and Epping Development Park. Variation 'A' would take the freeway between this property boundary and the gas pipeline. The 'ultimate option' would locate the freeway immediately west of the gas pipeline.

Mr Love opposes location of the freeway on his land. Should Option 2 or 5 be adopted, he favours a more easterly route than shown in the PAR, approximating to Variation 'B'. However, he would prefer Option 1 because this would not affect either his existing or proposed extractive industry operations, nor affect his home 'Clonard' located on O'Hearns Road.

In 1998, Mr Love made application for a planning permit for extractive industry in the area outlined on Figure 11. The application was strongly opposed by Mr Scanlon. The Minister for Planning and Local Government 'called in' the application pursuant to Section 97B(1) of the Planning and Environment Act on the basis that 'this application raises a major issue of policy and ... the determination of the application may have substantial effect on the achievement of planning objectives.' A panel hearing in respect of the planning permit application was held in September 1998. The Panel's Report has not been publicly released and advice has been given to the parties that the Minister will decide on the matter once the Hume Freeway alignment is determined.

In considering possible variations to Options 2 and 5 north of Cooper Street, the Advisory Committee must be guided by the objectives it has identified, which are relevant to this issue. The objective that is most relevant is to achieve the best possible integration between transport and land use planning. In this context, the Committee needs to be guided by the Whittlesea City Council's objectives for the Cooper Street Precinct. As noted previously, the vision for Cooper Street set out in the Cooper Street Precinct Strategy is:

[196]

The Committee does not consider it is relevant to examine details about the potential quality or quantity of stone which might be extracted from the Love property or the competitive market in which this stone would be sold.

Variation B

With respect to variation B, the Committee finds nothing in the above matters which would support it. Variation B produces no improved traffic or environmental benefits which are any different to the Option shown in the PAR, so far as the Committee is aware. By contrast, it produces detriments by cutting through Epping Development Park thereby substantially reducing its potential for industrial development.

Route Option Shown in PAR

If the route shown in the PAR is adopted, this would mean that the land in the Industrial 1 Zone owned by Epping Development Park could be fully developed for industrial purposes. Being located immediately adjacent to an important freeway interchange, it would enjoy many commercial benefits as a result of its excellent access, location and visibility. In addition, it would be highly suitable for the possible development of a major facility to service trucks and other vehicles without any of the constraints applicable to freeway service centres as a result of Clause 52.30 of the VPPs.

In terms of the land owned by Love, its current inclusion in a Rural Zone would mean that opportunities for commercial development are limited. It would not be in same position to take advantage of the proximity to the Cooper Street freeway interchange that the Epping Development Park land is as a result of its industrial zoning.

At this stage, Mr Love has indicated that he sees the potential future use of this land as being for extractive industry. This is permitted under the Rural Zone. The planning permit application he has lodged shows the area to be extracted extending to within approximately 20 metres of the property boundary and potential freeway reservation. However, the Committee considers that this is misleading for a number of reasons and that the potential area of extraction, if indeed any is possible, is far more limited than this.

First, any buffer areas must be accommodated within the Love property itself (see Clause 17.09-2 of the SPPF).

Second, the buffer distance that would be required between the area of extraction and the freeway would be in the order of 300 metres. This is based on a letter to the Committee from DNRE dated 3rd June 1999 contained in Appendix L.

This buffer distance is for safety reasons associated with blasting, rather than for visual purposes. The Extractive Industries Regulations 1989, which regulate blasting in Victoria, set performance criteria rather than prescribe set buffer distances. At the hearing, the Committee requested advice from DNRE about the actual distances which compliance with the performance criteria would translate into at this site.

The Committee was advised that, in line with similar advice to the Panel considering the permit application call-in, a 300 metre buffer between the proposed extraction limit and the freeway reservation would be required. This therefore means that no extraction could occur between the property boundary and the gas pipeline, as this distance is less than 250 metres. In fact, the limit of extraction would be slightly further to the west than the line shown in Figure 11 as the limit of the extraction area west of the pipeline.

As a result, if only the western portion of the Work Authority application area can be extracted, the Committee considers this would be compatible with the use of Epping Development Park for industrial purposes and consequently with the Cooper Street Precinct Strategy. The substantial buffer represented by the freeway reservation and the buffer distance within the Love property should mean that there are no adverse impacts on any industrial uses arising from extractive industry operations. There should be no adverse visual impacts as a result of extraction in this location either, due to the opportunities for planting within the buffer to the freeway and along Cooper Street. This would further implement the Cooper Street Precinct Strategy.[144]

The Committee's conclusion is therefore that locating Options 2 and 5 north of Cooper Street as shown in the PAR would meet both State Planning Policy in terms of Clause 17.09 of the SPPF, and local planning policy in terms of the Whittlesea MSS, which supports the development of Cooper Street as an employment area and implementation of the Cooper Street Precinct Strategy.

Variation A

Variation A would locate the freeway on the Love property between Epping Development Park and the gas pipeline. With respect to potential development on the Epping Development Park property, presumably Mr Scanlon hopes that the strip of land still included in the Rural Zone would be rezoned to Industrial 1. The Committee agrees that this is a reasonable assumption and one that would be in accordance with local planning policy.

With respect to future use and development of the Love property, the need for a 300 metre buffer between the freeway and any extraction areas would virtually eliminate any potential for extraction even within the western portion of the Work Authority application area shown on Figure 11.

The Committee does not consider that this implements State Planning Policy with respect to extractive industry so well as the route shown in the PAR. It make [sic] no difference to the implementation of local planning policy when compared to the route shown in the PAR.

...

The Committee's conclusion with respect to the 'ultimate option' is that it would not be in accordance with State Planning Policy with respect to extractive industry because it would sterilise any potential extraction of stone on the Love property west of the gas pipeline. It would be contrary to local planning policy because the lack of an adequate buffer between the freeway and the land fill operations would be detrimental to achieving the Whittlesea MSS objective relating to image and appearance.

...

Committee's Conclusion

Having considered all variations to the route of Options 2 and 5 in the area north of Cooper Street, the Committee's conclusion is that the route shown in the PAR best meets the objective of integrating transport and land use planning. It considers that this route meets the objectives of both State Planning Policy with respect to extractive industry and local planning policy objectives set out in the Whittlesea MSS. At a local level, it also best achieves implementation of strategies set out in the Cooper Street Precinct Strategy. If either Option 2 or Option 5 is selected, its route north of Cooper Street should be the route shown in the PAR."

[238]

"10.2 Cooper Street Industrial Corridor

The Cooper Street precinct strategy is a joint framework for future planning and development within the study area by Hume and Whittlesea City Councils. Vicroads acknowledges that Cooper Street is an important east/west arterial link from High Street Epping to the Hume Highway at Somerton. Options 5 and Y cross Cooper Street at the same general location. At the previous panel hearing Whittlesea City Council expressed a concern that Option 5 severed the eastern and western parts of this precinct. Vicroads maintains its position put forward at the previous panel hearing that the development along Cooper Street does not have to be continuous and a freeway interchange in the centre of the development could actually provide an optimum level of accessibility and exposure to the development. Vicroads also notes that Whittlesea Council now supports Option Y and view it as creating economic development opportunities and access benefits for Cooper Street. Mr P and Mrs H Haberfield and the Estate of Moffatt McKee, however prefer Options X or Z, as they contend that the freeway would reduce the development potential and flexibility of the Cooper Street area.

Vicroads also notes that Mr Scanlon the Managing Director of Epping Development Park, who opposed some of the options at the previous panel hearing on the grounds that it affected his land now supports Option Y. He sees the freeway connection as being essential to economic development and providing access to the area. Mr Love on the other hand does not support option Y or Option 5, as both of these options pass through his property. He supports a variation of Option 1, which Vicroads notes is not an option which the Advisory Committee has been asked to consider. Mr Love submits that options Y and 5 greatly affect his quarry operations and his access to his resource. However, Mr Love's extractive industry application has now been refused by the Minister for Planning_. Further, the Working Party note in its report that, with a slight alteration of option Y or 5 (move west) all of Epping Development's land will be released and sufficient space would also be available for a buffer of about 200 metres, should a quarry eventuate on Mr Love's land west of the gas pipeline_."[182]

[256]

"On the opposite (northern) side of Cooper Street to the land considered in Section 8.2.4 is land owned by Mr Tom Love and Epping Development Park Pty Ltd (represented by Mr Robert Scanlan [sic]). Both Mr Love and Mr Scanlan made extensive submissions to the first Advisory Committee about the most appropriate location of the freeway alignment north of Cooper Street and in relation to their common property boundary. These submissions were addressed in section 10.3.3 of the October 1999 Report where the Advisory Committee saw no reason to vary the route shown for Options 2 and 5 in the Planning Assessment Report.

Since then, Mr Scanlan has changed his position in favour of that adopted by the Advisory Committee in the October 1999 Report. He now supports Option Y.

Mr Love, on the other hand, maintains his opposition to Option Y (which is effectively the same as Options 2 and 5 in its location). His preference is for Option Z in a modified form. Mr Love was very critical of the way in which planning for the freeway and in connection with the Cooper Street Precinct Strategy has been carried out. His property is currently used for extractive industry and he has sought unsuccessfully to extend these extractive industry operations. He sees Option Y as limiting his potential for expansion. In his view, this is anti-competitive and against the long-term interests of promoting competition within the quarry industry from independent suppliers.

As the Committee has said elsewhere in this Report, it must accept the policies which have been adopted by Government at whatever level. It is not open to the Committee to change those policies. Therefore, to the extent that Mr Love is aggrieved by a perceived anti-extractive industry bias in the City of Whittlesea's Cooper Street Precinct Strategy, that is not a matter which the Committee can influence. With respect to the potential impact of Option Y on future extractive operations within the Love land, the Committee's views have not changed since the October 1999 Report. For the reasons set out in Section 10.3.3 of that Report, the Committee does not consider that a change should be made to the potential alignment of Options Y or 5 immediately north of Cooper Street."

[458]

218 In any event, the P & E Act seems to have the effect that "social and economic effects" are not a mandatory or imperative consideration for a planning authority, insofar as it is contemplating a planning scheme amendment. As indicated above,[354] there is a stark contrast in the Act between, on the one hand, the use of the word "must" in s 12(1) and in every paragraph of s 12(2) except s 12(2)(c), and, on the other hand, the use of the word "may" in s 12(2)(c). This seems to indicate that, in preparing a planning scheme amendment, a planning authority may, but is not obliged to, take into account "its social and economic effects".[355] It is true that s 12(1)(a) provides that a planning authority "must" implement "the objectives of planning in Victoria", and that one of those objectives is to provide for the "economic" use and development of land (s 4(1)(a)). However s 12(1)(a) is expressed in general terms, whereas s 12(2)(c) applies to planning scheme amendments (and planning schemes) in particular. Usually the specific prevails over the general.[356] Further, while it is true that s 4(2)(c) states that one of the objectives of the "planning framework established by this Act" is to "provide for explicit consideration of social and economic effects when decisions are made about the use and development of land", this provision seems to be merely indicative (in a general way) of the intended operation of other particular provisions of the Act which actually establish the "planning framework".[357] The most significant of those provisions, for present purposes, are s 12(2)(c) itself and s 60(1)(b)(i) (as it stood in 2001) which related to the grant of permits. At the relevant time s 60(1)(b)(i) provided that, before deciding on an application for a permit, the responsible authority,[358] - "if the circumstances appear to so require" - may consider any one or more of four specified matters, including "any significant social and economic effects of the use or development for which the application is made".[359] Again, s 60(1)(b)(i) was to be contrasted with s 60(1)(a)(i), (ii) and (iii) which referred to matters which the responsible authority "must" consider. In Returned and Services League of Australia (Victorian Branch) Inc v Moreland City Council,[360] the Court of Appeal held that, on the true construction of s 60(1)(b)(i), "if the circumstances appear to so require" the responsible authority was bound to have regard to whichever of the four specified matters bore upon the issue. However no expression corresponding to "if the circumstances appear to so require" is included in s 12(2)(c).

[461]

221 In the end, however, I need not and do not decide that point. On any view, Minister Thwaites did, by taking into account the FAC Report and the SAC Report, take into account the estimated total acquisition costs, and the estimated total overall costs, of each individual proposed alignment of the By-Pass respectively, including Option 5 (which went through the Scanlon land) and Option Y (which went through the Love land).[363] He also had the benefit of the IDWP Report which dealt specifically with the reasons for the "move" from the Scanlon land to the Love land, being reasons that were obviously related to questions of comparative acquisition costs. In addition he had the benefit of the L143 Panel Report and the Quarry Permit Panel Report, as well as the Ministerial Assessment (which he adopted). In my view, having regard to the enormous breadth and scope of the issues raised by the By-Pass proposal, the fact that the overall costs of Option Y were estimated at between $255 million and $306 million (including $27 million for acquisition costs) whereas the overall costs of Option 5 were estimated at between $310 million and $365 million (with $31 million for acquisition costs), the fact that the cost of the By-Pass was to be met entirely by federal funding, the fact that adopting Option 5 instead of Option Y would have meant intersecting quite differently with land to the south of Cooper Street[364] (inevitably raising concerns about the potential for detrimental or costly impacts that have not even been explored, much less dispelled, in this proceeding), and the factual history generally, and notwithstanding everything the plaintiff says about the "Scanlon Undertaking" and about the worth of the basalt stone resource on the Love land (to each of which I will shortly return), I am not satisfied that Minister Thwaites was bound to "examine and investigate"[365] questions of comparative acquisition costs at any greater "level of particularity"[366] than he did. In other words I am not satisfied that he failed to take into account anything that he was bound to take into account in relation to comparative acquisition costs.

[501]

247 However, the plaintiff submits that, had the 150 metre strip been compulsorily acquired, the Roads Corporation would have been justified in paying only farming level compensation because of the "Scanlon Undertaking". The defendants (being, of course, the State of Victoria itself and the Roads Corporation itself) deny this. They submit that, if any relevant undertaking was given at all, it was only given as a consequence of the road proposal. They submit that, therefore, by reason of the Pointe Gourde principle[393] or s 43(1)(a) of the Land Acquisition and Compensation Act 1986, or both, any such undertaking would have to be disregarded in calculating compensation. The plaintiff puts a complicated and, as far as I can tell, unprecedented argument in response, to the general effect that this Court or VCAT, in assessing the compensation, would, if need be, have heard, accepted and acted upon evidence from the relevant planning authority (being, perhaps, the then current Planning Minister or a former Planning Minister) to the effect that, by reason of the undertaking, the planning authority would not have approved the re-zoning of the 150 metre strip to "industrial" before it was acquired. The plaintiff cited in support, principally, Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority[394] and Western Australian Planning Commission v Temwood Holdings Pty Limited,[395] I need not and do not finally decide this legal point (which, on my findings of fact, has become hypothetical or virtually so) but I would observe that, as it seems to me, neither Walker nor Temwood assists the plaintiff's legal argument much, if at all. The main point established in Walker was that there was a need to distinguish between changes in value for which the resuming authority was responsible and any such outcome caused by other official action.[396] In the present case, the Roads Corporation was both the resuming authority and the officially designated proponent of the proposal. Temwood upheld the validity of a town planning condition that a developer cede a certain portion of foreshore land to the Crown free of costs, and without compensation by, the Crown. In the present case, any concession offered by Mr Scanlon was not formalised by way of a condition or a statutory agreement or otherwise. Nor, in my opinion, should it be seen as having had any or any substantial connection with the re-zoning decision. Of course, both Walker and Temwood were decided well after Minister Thwaites made his decision. In any event, Minister Thwaites would have been entitled, at least, to be very doubtful about the soundness of the legal argument now advanced by the plaintiff, had it occurred to him.

[514]

259 This can only be done indirectly. As mentioned above, in late October 1997 Vicroads officers - particularly Aleksic, Stella and Gray - were contemplating factors for and against locating one of the alignments on the Scanlon land rather than the Love land. They knew that Mr Love had had a combined quarry/saleyards proposal before Whittlesea Council for some time. (This was soon after replaced by the quarry only proposal). They had obtained relevant advice from Vicroads' property section, from VicRoads geotech division and from the Department of Minerals and Energy.[415] They had also sought a valuation from the Valuer-General. By a memorandum dated 22 October 1997 Mr Lynton Doyle, of the office of the Valuer-General, provided an opinion based on a stated assumption, generous from Mr Love's perspective, that, contrary to previous understandings, the area east of the gas easement could be mined. Mr Doyle advised that "the potential loss of mining royalties will increase the estimated compensation for Love's land [from $900,000] to $3 million.[416] The assumption was later contradicted by advice given by DNRE to the Quarry Permit Panel, and in turn by the Report of the Panel. Other restrictions, too, would have been imposed by the Panel. But the Quarry Panel Report was not made available until somewhat later. There is no conclusive evidence as to whether Vicroads actually adopted the $3 million figure in its estimates of total acquisition costs as set out in the PAR for the alignments then under consideration,[417] but the valuation was repeated in a facsimile from the valuation and survey services division of Land Victoria of 23 April 1998.[418] In any event, it seems highly unlikely that Vicroads would have adopted any higher figure. Whatever it was that Vicroads put forward, the FAC and the SAC adopted it. So one can reasonably infer that the decision-makers' (effectively unchallenged) estimate of the compensation cost for the By-Pass Excision Land was no more than $3 million[419] and possibly considerably less.

[617]

"118 It is unnecessary to repeat the considerations discussed by the Chief Justice in Paige at the above pages, which I gratefully and respectfully adopt. The duty contended for here amounts, in substance, to the assertion of a compensatory claim for administrative error: cf Dunlop v Woollahra Municipal Council [1982] AC 158; Takaro Properties Limited v Rowling [1986] NZCA 27; [1986] 1 NZLR 22; and Rowling v Takaro Properties Limited [1987] UKPC 2; [1988] AC 473.

119 The lack of coherence between administrative law doctrines and the imposition of monetary compensation for the flawed or failed exercise of governmental power is illustrated later in these reasons in the discussion of breach of the posited duty. As will be seen, if standards of administration are to be regulated and enforced by recourse to the recovery of damages at common law, the courts must necessarily become involved, not just in the constitutional role of ensuring legality, but also in laying down standards of administrative conduct by reference to a standard of reasonable care. This standard setting and its enforcement by the courts would be in relation to the exercise of power of another branch of government and in circumstances where there exist machinery and techniques for the setting and maintenance of good administration and good government. The courts, of course, play a central role in that machinery in supervising the legality of the activity of government. To infuse common law duties and the recovery of damages in such a field as the issuing of notices under s 91 where governmental (EPA supervision) and legal (judicial review) controls already exist would introduce an undesirable incompatibility and lack of coherence to the regime of environmental protection.

120 The above is not to deny the continued force of Caledonian Collieries v Speirs and like cases. When a Council exercises a power to build a structure, approve a plan, give permission for an act or otherwise engage in activity, it may well be required (on pain of liability in damages) to exercise care in relation to someone who may be affected by the power's exercise. What tends to strike at the coherence of administrative law here is the positing of a duty to exercise reasonable care not to make a flawed decision by, for instance, failing to give procedural fairness or failing to confine the power within statutory limits. Such a duty, as contended for here, would tend to open public authorities to the spectre of compensation for flawed decision making, in circumstances where the validity of the exercise of power can be tested and resolved by judicial review, and where standards of competence and skill are well able to be dealt with by an appropriate regime of governmental administration."

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Cases Cited (48)