Re Yates Security Services Pty Limited v Honourable Paul Keating Mp; Rockvale Pty Limited; Valtone Pty Limited and the Registrar General of New South Wales [1990] FCA 432; 98 ALR 21 - FCA 1990 case summary — Zoe

[104]

"Despite the clarity of the statutory language,

respondents argue that the Secretary has wide

discretion. They recognize that the requirement that

there be no 'feasible' alternative route admits of

little administrative discretion. For this exemption

to apply the Secretary must find that as a matter of

sound engineering it would not be feasible to build the

highway along any other route. Respondents argue,

however, that the requirement that there be no other

'prudent' route requires the Secretary to engage in a

wide-ranging balancing of competing interests. They

contend that the Secretary should weigh the detriment

resulting from the destruction of parkland against the

cost of other routes, safety considerations, and other

factors, and determine on the basis of the importance

that he attaches to these other factors whether, on

balance, alternative feasible routes would be

'prudent'.

But no such wide-ranging endeavor was intended. It is

obvious that in most cases considerations of cost,

directness of route, and community disruption will

indicate that parkland should be used for highway

construction whenever possible. Although it may be

necessary to transfer funds from one jurisdiction to

another, there will always be a smaller outlay required

from the public purse when parkland is used since the

public already owns the land and there will be no need

to pay for right-of-way. And since people do not live

or work in parks, if a highway is built on parkland no

one will have to leave his home or give up his

business. Such factors are common to substantially all

highway construction. Thus if Congress intended these

factors to be on an equal footing with preservation of

parkland there would have been no need for the statutes.

Congress clearly did not intend that cost and

disruption of the community were to be ignored by the

Secretary. But the very existence of the statute

indicates that protection of parkland was to be given

paramount importance. The few green havens that are

public parks were not to be lost unless there were

truly unusual factors present in a particular case or

the cost or community disruption resulting from

alternative routes reached extraordinary magnitudes.

If the statutes are to have any meaning, the Secretary

cannot approve the destruction of parkland unless he

finds that alternative routes present unique problems."

[112]

116. It is against this background that I turn to the question whether, in the present case, there was material before Mr Keating which, as a matter of law, was capable of satisfying him that there was no feasible and prudent alternative to the revocation of the prohibition orders. It will be recalled that, in each of their first two minutes regarding the site, the Foreign Investment Review Board referred to the question whether there was a feasible and prudent alternative to approval of the application by Rockvale. In the minute of 27 February 1990 the Board noted the Commission's advice that Stage 2 of the project will adversely affect the national estate and commented that it would therefore be necessary for the Treasurer to be satisfied that " no feasible and prudent alternative is available to the development" and that all reasonable minimisation measures have been taken. The Board referred to oral advice from the Attorney General's Department "that the general question is not so much one of alternative sites but of prudent or feasible alternatives available to the Treasurer." These comments are unexceptional. But the Board seems not to have grasped their significance. It apparently did not appreciate that the effect of that advice was that the critical question for the Treasurer was whether or not there existed a feasible and prudent alternative to approval, so that an investigation of alternatives would have to be made before any approval could be granted. In the absence of an investigation showing that there was no feasible or prudent alternative, the application of the Department's advice must have led to rejection. Yet, although no investigation had occurred or was proposed, the Board declined to recommend that course. Instead, it recommended an approval, subject to conditions. In doing so, it was actuated by economic considerations. In effect, the Board treated s.30(1) of the Australian Heritage Commission Act as merely introducing a heritage aspect into the overall decision, an aspect capable of being negotiated with the Commission and overborne, if the Treasurer saw fit, by economic considerations.

Parties

Applicant/Plaintiff:

# Re Yates Security Services Pty Limited

Respondent/Defendant:

Honourable Paul Keating Mp; Rockvale Pty Limited; Valtone Pty Limited and the Registrar General of New South Wales \[1990\] FCA 432; 98 ALR 21

Legislation Cited (60)

Darling Harbour Authority Act 1984(NSW)

Darling Harbour Authority (Amendment) Act 1988(NSW)

Property Act 1900(NSW)

Museum Act 1959(WA)

Local Government Act 1919(NSW)

Acquisitions and Takeovers Act 1975

Heritage Commission Act 1975

Planning and Assessment Act 1979

Act, Darling Harbour Authority (Amendment) Act 1988

Courts (Cross-vesting) Act 1987

Protection (Impact of Proposals) Act 1974

Michigan Environmental Protection Act 1970

Connecticut Environmental Protection Act 1971

Broadcasting Corporation Act 1983

Broadcasting and Television Act 1982

Darling Harbour Authority Act 1984(NSW)

Darling Harbour Authority (Amendment) Act 1988(NSW)

Property Act 1900(NSW)

Museum Act 1959(WA)

Local Government Act 1919(NSW)

Acquisitions and Takeovers Act 1975

Heritage Commission Act 1975

Planning and Assessment Act 1979

Act, Darling Harbour Authority (Amendment) Act 1988

Courts (Cross-vesting) Act 1987

Protection (Impact of Proposals) Act 1974

Michigan Environmental Protection Act 1970

Connecticut Environmental Protection Act 1971

Broadcasting Corporation Act 1983

Broadcasting and Television Act 1982

Darling Harbour Authority Act 1984(NSW)

Darling Harbour Authority (Amendment) Act 1988(NSW)

Property Act 1900(NSW)

Museum Act 1959(WA)

Local Government Act 1919(NSW)

Acquisitions and Takeovers Act 1975

Heritage Commission Act 1975

Planning and Assessment Act 1979

Act, Darling Harbour Authority (Amendment) Act 1988

Courts (Cross-vesting) Act 1987

Protection (Impact of Proposals) Act 1974

Michigan Environmental Protection Act 1970

Connecticut Environmental Protection Act 1971

Broadcasting Corporation Act 1983

Broadcasting and Television Act 1982

Darling Harbour Authority Act 1984(NSW)

Darling Harbour Authority (Amendment) Act 1988(NSW)

Property Act 1900(NSW)

Museum Act 1959(WA)

Local Government Act 1919(NSW)

Acquisitions and Takeovers Act 1975

Heritage Commission Act 1975

Planning and Assessment Act 1979

Act, Darling Harbour Authority (Amendment) Act 1988

Courts (Cross-vesting) Act 1987

Protection (Impact of Proposals) Act 1974

Michigan Environmental Protection Act 1970

Connecticut Environmental Protection Act 1971

Broadcasting Corporation Act 1983

Broadcasting and Television Act 1982

Cases Cited (14)

Re Yates Security Services Pty Limited v Honourable Paul Keating Mp; Rockvale Pty Limited; Valtone Pty Limited and the Registrar General of New South Wales [1990] FCA 432; 98 ALR 21 (2 November 1990)

(1980) 146 CLR 493

(1981) 149 CLR 27

(1987) 13 FCR 306

(1988) 83 ALR 79

(1977) 138 CLR 283

(1908) 7 CLR 1

Re Yates Security Services Pty Limited v Honourable Paul Keating Mp; Rockvale Pty Limited; Valtone Pty Limited and the Registrar General of New South Wales [1990] FCA 432; 98 ALR 21

At a glance

Court

Decision date

Before

Source

Judgment (155 paragraphs)

Parties

Legislation Cited (60)

Cases Cited (14)

Re Yates Security Services Pty Limited v Honourable Paul Keating Mp; Rockvale Pty Limited; Valtone Pty Limited and the Registrar General of New South Wales [1990] FCA 432; 98 ALR 21 (2 November 1990)