South Australia v Tanner

South Australia v Tanner - [1989] HCA 3 - HCA 1988 case summary — Zoe

[18]

The evidence before the Court shows that the Watershed, to which reg. 37.2 applies, is unique in that it is particularly vulnerable to pollution compared with watersheds in other States. Unlike the situation interstate, the Watershed is largely inhabited and, coming within less than 10 miles of the centre of Adelaide, is extremely accessible. It is also particularly attractive for rural living. Furthermore, because of low rainfall, the Watershed is relatively large in comparison with its effective yield and this accentuates any potential pollutional effect. Increasing urbanization in the Watershed and increasing demand for primary products by the expanding metropolitan area have stimulated animal husbandry and horticultural activities such as pig and poultry raising, dairying, sheep and cattle grazing, market gardening and fruit growing. Mr. Harvey, a senior planning officer with the South Australian Government, has been closely involved with the management of the Watershed over a number of years. By an affidavit filed in the Supreme Court he testified that the controls imposed by the Waterworks Regulations on animal-keeping activities in the Watershed are essential to prevent further deterioration of water quality. He explained that the more intensive animal-keeping activities such as piggeries, zoos and feedlots pose the greater problem because of the difficulty of disposing of the waste generated by them. In the case of zoos, an additional factor which increases the risk they present to the quality of water in the Watershed is their potential to attract people and motor vehicles. More people and vehicles are likely to lead to the construction of more paved areas such as roads, paths and carparks. Paved areas are more likely than open ground to facilitate pollution entering a watercourse because of the run-off of water when it rains. While the impact of additional people and motor vehicles attracted into the Watershed by a single zoo may not cause a large pollution load, the situation has, according to Mr. Harvey, become so critical that any risk of pollution must be addressed. The existence of many small pollution loads generated by different activities taken together is "very significant". In summary, Mr. Harvey concluded:

[62]

To determine whether a by-law is an exercise of a power, it is not always enough to ascertain the subject-matter of the power and consider whether the by-law appears on its face to relate to that subject. The true nature and purpose of the power must be determined, and it must often be necessary to examine the operation of the by-law in the local circumstances to which it is intended to apply. Notwithstanding that ex facie there seemed a sufficient connexion between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power. In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power: compare Widgee Shire Council v. Bonney [21] . In that case, McTiernan J. [22] treated a submission that the impugned by-law was unreasonable as raising the question "whether, notwithstanding that on its face it relates to traffic, the operation of the by-law is such that it can have no reasonable relation to the purpose for which the power to make by-laws was granted, namely, the order and convenience of the traffic of the city". When the validity of a regulation (I use the term to describe any kind of subordinate legislation purportedly made under a statutory power) is attacked as ultra vires the court will not hold the regulation invalid unless, having regard to its operation in the circumstances to which it applies and to the statutory object to which it must be directed, the regulation could not reasonably have been adopted to achieve the object. The badge of invalidity is not attached merely because the impugned regulation applies in some instances which are immaterial to the fulfilment of the statutory object. In Clements v. Bull [23] the validity of a regulation made by the Melbourne Harbour Trust Commissioners was challenged. The Commissioners had power to make regulations "for or relating to" a number of subjects including the improvement and management of the port and "generally for carrying out the objects and purposes of this Act". The impugned regulation forbade the holding of a meeting or the addressing of an assemblage within the port without the Commissioners' consent. Williams A.C.J. and Kitto J. who, in dissent, would have upheld the validity of the regulation, said [24] : Its operation must have a direct relevance to the management of the port or to some other purpose of the Act; it is not every tendency, however remote, to assist the more efficient conduct of the affairs of the port which will suffice. The point is that the problem is one of characterization by reference to subject-matter. It is not one to be answered by exercising imaginative ingenuity in order to see whether the effect of the provision in some possible or probable instances of its application may be foreign, or even inimical, to the attainment of purposes which fall within the purview of the Act. The first step must be to inquire, what does the regulation really do by way of altering the law in force in the port. The second question is whether a connexion can be seen between that alteration of the law and the control and management of the port . If there is such a connexion the final question arises, whether that connexion is so direct and substantial that the regulation is seen really to satisfy one of the descriptions by reference to which the regulation-making power is conferred. A regulation which is shown by the answers to these questions to be within power cannot be held ultra vires on the ground that in some circumstances it will produce results which are considered unreasonable. If Parliament confers upon a subordinate body a power to legislate for limited purposes, it authorizes 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 [25] ; but that is only a way of stating the conclusion that no real connexion with the purposes of the power can be seen. Their Honours were in dissent in this case but not, I think, upon any question of principle. Fullagar J. [26] accepted that it would be a "grave mistake" "when the validity of a by-law is in question, to begin by "thinking up" examples of the possible application of the by-law which are at once seen to be capricious, fanciful or absurd, and then to say that the power cannot possibly extend to the creation of such consequences. It was said that such an approach amounted to a reversion to the discredited idea that a by-law could be held invalid because it appeared to a court to be an "unreasonable" provision: see Williams v. Melbourne Corporation [27] ." His Honour held the by-law invalid, however, not because it could have produced unreasonable results in some instances but because it extended to acts and things which could not "reasonably be regarded as the concern of a corporation charged with the management of a port or harbour". It is only in this sense that unreasonableness is relevant to validity. The approaches of Webb J. [28] and Taylor J. [29] accorded with that of Fullagar J. 1. (1907) 4 C.L.R. 977, at pp. 982-983. 2. (1933) 49 C.L.R. 142, at pp. 149-150, 158. 3. (1930) 43 C.L.R. 386, at p. 406. 4. (1933) 49 C.L.R., at p. 155. 5. (1907) 4 C.L.R., at pp. 982, 986. 6. (1933) 49 C.L.R., at p. 159. 7. (1953) 88 C.L.R. 572. 8. (1953) 88 C.L.R., at p. 577. 9. (1941) 65 C.L.R. 88, at pp. 97, 99. 10. (1953) 88 C.L.R., at p. 581. 11. (1933) 49 C.L.R. 142. 12. (1953) 88 C.L.R., at pp. 579-580. 13. (1953) 88 C.L.R., at p. 588.

[72]

[A]n examination [of the operation of this regulation in the local circumstances to which it is intended to apply] leads me inexorably to the conclusion that reg. 37.2.1 is so wide in its unqualified prohibition as to go beyond the stated purpose of the power pursuant to which it was made. It must proceed upon the assumption that every piggery, every feedlot, even for a single animal, every zoo, in every part of the vast area of this watershed - on a very rough estimate somewhere between 500 and 1000 square miles - is an unmanag[e]able threat to the watershed, in terms of pollution. It is unnecessary to do more than state that proposition in order to reject for it is in my opinion plainly untenable, and one does not need to conjure up examples to support that conclusion, even if it were permissible to do so. Millhouse J. thought the relationship between the prohibition of an aviary and control of pollution to be "so tenuous as not to justify the regulation". The fact that reg. 37.2 might apply to a piggery, feedlot or zoo which would pose no threat to water quality in the watershed area does not lead to the conclusion that the regulation fails to answer the description contained in par. XXIV. That fact alone does not show that the regulation could not reasonably be adopted to prevent deterioration or pollution of water within the watershed. Measures designed to prevent risks to public health might have to be drawn in wide terms and their application to some situations which prove to be innocuous is not necessarily demonstrative of invalidity: see, e.g., Colville v. Christie [38] . Moreover, before a regulation is struck with invalidity because it is too wide to be reasonably adopted to fulfil a statutory object, the true operation and effect of the regulation must be ascertained. If its terms are reasonably susceptible of a broad construction which would deny it validity or of a narrow construction which would bring it within power, the narrow construction is preferred (ut res magis valeat quam pereat): Widgee Shire Council v. Bonney [39] , per Griffith C.J. That rule applies to reg. 37.2. 1. (1896) 21 V.L.R. 603. 2. (1907) 4 C.L.R., at p. 983.

[74]

It is obvious that minds will differ on the directness and substantiality of a connexion between a regulation and a statutory object. Although the sufficiency of the connexion is a matter of degree, validity of an impugned regulation is a question of law. Hence, when that question arises on appeal, the appellate court must determine for itself the sufficiency of the connexion. Here, although the threat of water pollution from animal or bird waste or animal-borne or bird-borne diseases must be accepted, there are two features of the regulation which seem to me to deny its validity: (1) the absence of any attempt to prescribe, even in broad terms, any factors (e.g., the number or species of animals or birds) which would be material to the degree of risk to water supply to be apprehended from use of land in the watershed area in one of the forbidden ways; and (2) the uniformity of the prohibition throughout the whole of the watershed area, including the township of Hahndorf, irrespective of the distance of any part of the area from the area of the reservoir and irrespective of the access of the land to any watercourse or other means of transmitting pollution or disease to the water supply. The undiscriminating nature of the regulation certainly reveals that, in many instances, the regulation would apply to an activity which does nothing to enhance the risk of pollution; but it also reveals - and this is relevant to validity - that the regulation has been framed without regard to the limitation contained in par. XXIV. It might have been framed so as to discriminate between those aviaries which pose a risk to water quality (whether by reason of size or number of birds or position or any other material consideration) and those aviaries which do not pose such a risk. Although there is no evidence to describe the risk which aviaries pose to water quality and although there is a presumption in favour of validity, I am unable to conclude that the regulation could not have been framed with more particularity without adversely affecting the fulfilment of the statutory object. Lacking that particularity, reg. 37.2 is too wide and exhibits such a want of proportionality that it could not have been reasonably adopted as a means of fulfilling the statutory object. I would therefore hold that reg. 37.2 is not supported by par. XXIV. Paragraph XX confers no wider power. Regulation 37.2 is invalid.

[89]

It is implicit, if not express, in the Full Court's finding of inconsistency that the prohibitions in reg. 37.2 of the Waterworks Regulations and in s. 46(1) of the Planning Act are not independent and cumulative. If those prohibitions are independent and cumulative, it is clear that a consent given by a relevant planning authority pursuant to s. 47(1) is effective to lift only the prohibition imposed by s. 46(1). On that hypothesis, there would be no need to reconcile the unqualified prohibition in reg. 37.2 with the power to consent conferred by s. 47(1): the reg. 37.2 prohibition stands whether or not the s. 46(1) prohibition is lifted. In my opinion, the prohibitions contained in reg. 37.2 and s. 46(1) are independent and cumulative. The definition of development in the Planning Act does not embrace every activity prohibited by reg. 37.2.1. For example, a piggery, zoo or feedlot could be enlarged in breach of reg. 37.2 without changing the use of land or converting a building in breach of s. 46(1). And the uses prohibited by the principles of the applicable Supplementary Development Plan do not include a prohibition on the use of land for aviaries, whether containing many birds or few. Although the objectives of planning control include the protection of water quality, the legal controls to effect that object under the Planning Act are simply the prohibition on development and the provision for consent by the relevant planning authority. The Planning Act contemplates that a number of possibly competing objectives may bear upon the desirability of a particular development and that a consent may be granted in some instances even though the preservation of water quality is prejudiced. The legal control for which reg. 37.2 provides is different both in the singularity of its purpose and the absoluteness of its terms. The two statutory regimes have different, though partly coincident, purposes and they may co-exist: see, by way of analogy, Associated Minerals v. Wyong Council [40] .

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