ADELAIDE, 9 April, 27, 29 May 1997 (hearing), 11 June 1997 (decision)

Appellant (and respondent) Corporation of The Town of Gawler:

Appellant (and respondent) State of South Australia:

Respondents Pamela Edna Clark And Davids (SA) Limited:

1. These are two appeals from an injunction granted restraining the Minister for Housing and Urban Development and Local Government Relations ("the Minister") from taking any further steps in relation to the amendment to the Development Plan of the Corporation of the Town of Gawler ("the Council") that has been proposed by the Council and is the subject of a Plan Amendment Report ("PAR") dated 24 January 1996. The Council proposes to rezone the land in Gawler which is to be the subject of a retail shopping centre development, and to call the new zone the "Town Centre (Retail Core) Zone." The Council also proposes to rezone land in High Street, Gawler as "Town Centre (Fringe) Zone". The injunction was sought by Mrs P E Clark and Davids (SA) Ltd ("the plaintiffs"). The former owned land which is now zoned "Residential 2", but which is to be rezoned "Town Centre (Fringe) Zone", and will adjoin the proposed TAFE College site. The latter leases land for a supermarket which will be excluded from the proposed "Town Centre (Retail Core) Zone", and in consequence its further retail development will be curtailed.

2. The learned trial Judge held that the Council was precluded from preparing the PAR under s25 of the Development Act, 1993 ("the Act") because it had a financial interest in its adoption, and that it should therefore have asked the Minister to proceed under s26 of the Act. He held that the hearing before the Council formed part of the decision-making process, that the hearing was subject to the rules of natural justice, and that those rules were not satisfied in this case. He considered that the earlier unanimous Full Court decision of Nicholls and Arrow Ltd v Tea Tree Gully City Council and Minister for Environment & Planning (1989) 69 LGRA 121 ("the Nicholls case") was distinguishable, but in any event inconsistent with later High Court authority. Although that decision was based on the Planning Act, 1982, the immediate predecessor of the Development Act, it is very relevant, and will require careful consideration.

3. What I propose to do now is to look at the background facts, then at two decisions of the Full Court, R v Whyalla City Corporation; ex parte Kittel (1979) 20 SASR 386 ("the Whyalla Council case") and the Nicholls case, (both of which cases provide substantial guidance in deciding these appeals), then at the relevant provisions of the Act, and then at any differences between that act and the Planning Act 1982.

4. The relevant background to the decision now under appeal was set out by the learned trial Judge, and I quote from his judgment: "The Council has been examining redevelopment of the centre of the Town of Gawler since 1987. It then commissioned Kinhill Engineers Pty Ltd to examine the issues. In April 1988 Kinhill Engineers Pty Ltd reported to the Council recommending the establishment of additional retail development in the town centre. Since then the Council has commissioned other planning reports concerning the town centre, High Street and related areas. In November 1989 the Council submitted a supplementary development plan to the Minister amending the Development Plan relating to the town centre. It then proposed to proceed pursuant to s41 of the Planning Act 1982. In March 1990, the Minister granted approval to release the supplementary development plan for public consultation. However, for a number of reasons, the Council did not then proceed with it.

In about April 1992, the Council entered into discussions with Woolworths Properties Limited ('Woolworths') concerning the development of a retail shopping centre in the town centre. At that stage, the proposed centre was to include a very large supermarket of approximately 3,500 square metres, a discount department store of approximately 5,800 square metres, and specialty shops. Since then the Council and Woolworths have continuously been involved in examining the proposal and negotiating the terms on which the development should proceed. The precise dimensions of the components have altered but it still is a very large supermarket, a discount department store and specialty shops.

The proposed site for the retail shopping centre contains some 2.1 hectares. In 1992 the Council owned about one quarter of the site. Options then being considered by the Council included the Council acquiring all of the land and leasing it to a developer or selling the site including the Council land to the developer. A part of the proposed site included land occupied by the Department of Tertiary and Further Education (TAFE') and used as a TAFE College.

At a special confidential meeting on 9 September 1992, the Council carried the following resolutions:

'1. Council facilitate the development of a major retail focus for Gawler accommodating a Discount Department Store, a supermarket, specialty shops and car parking, in the Reid/Jacob Streets precinct.

2. Development should be integrated with Murray Street to ensure the existing retailing outlets are not detrimentally affected but enhanced by the addition of major comparison shopping facilities.

3. Council obtain a commercial return from any involvement., balanced by the desire to facilitate the development. Council's minimum position to be of cash flow neutral, i.e.: any borrowings or interest payments should be at least covered by rental income or additional Council revenue derived from the development'.

There are a number of other resolutions which are ancillary to those resolutions. They included a resolution that the Council would negotiate with Woolworths in respect of a lease of the site. Thus, whatever development proposal was ultimately adopted, the Council would have a direct financial interest in it.

On 7 September 1993 the Council and Woolworths signed heads of agreement relating to the proposed development. The heads of agreement provided that the Council would acquire all of the land required for the development and then lease it to Woolworths. Woolworths itself held an option to purchase part of the land. It was agreed that it would transfer its option to the Council. The agreement included provisions describing the nature of the proposed development, as to the terms of the lease and the proposed rental. The agreement was not binding on the parties but was 'intended as a guide to enable the parties to proceed towards final negotiation and documentation'.

As already mentioned, part of the proposed site was used as a TAFE College. In March 1993 Council had entered into discussions with TAFE seeking the relocation of the TAFE College to High Street, Gawler. Negotiations continued through 1993 and 1994. By letter dated 12 September 1994, TAFE advised the Council that it endorsed the Council's proposal to relocate the College and would seek approval from the State Government to the proposal. The land in High Street is currently zoned Residential 2. On 12 October 1994 the Council applied to the Development Assessment Commission for approval to construct the TAFE College on the land in High Street. On 20 December 1994, the Commission refused approval. The Council appealed to the Environment Resources and Development Court but, on 23 June 1995, the Court dismissed the Council's appeal. The amendments proposed by the Council include an amendment to change the zoning of the land intended for the new TAFE College from Residential 2 to Town Centre (Fringe). The provisions for the latter zone are expressed in terms which would permit the construction of the new TAFE College.

In addition, the Council was negotiating with others who owned land in the proposed Centre for the purpose of seeking to acquire the land.

On 15 January 1994 the Development Act 1993 came into operation and the Planning Act 1982 was repealed. The effect of the transitional provisions relating to those legislative steps was that the Council had to recommence the process of amending its Development Plan ...

In 1994 the Council decided to proceed again to amend its Development Plan. In March 1994 it commissioned a review of the earlier supplementary development plan. It prepared amendments. On 9 June 1994, the Council wrote to the Minister seeking the Minister's agreement to a Statement of Intent prepared by the Council concerning the proposed amendments. It also gave notice to the Minister that it would ask the Minister to grant interim authorisation of the amendment. On 10 August 1994, the Minister made a slight amendment to the draft Statement of Intent. He declined the Council's request to waive the requirement to submit the draft PAR to relevant government departments and agencies. The Minister indicated that it was unlikely that he would permit interim authorisation.

On 12 October 1994, the Council for the first time gave public notice of its involvement in the retail development proposed for the Town Centre. Section 197 of the Local Government Act 1934 requires a Council which intends to embark on particular kinds of projects to seek Ministerial approval and to give notice of that fact in a newspaper circulating in the area. The Council's proposed arrangements with Woolworths fell within s197. The Council published a notice in 'The Bunyip', a newspaper circulating in the Gawler area. Among other things, the notice stated the Council's involvement with Woolworths, the relocation of the TAFE College, and the Council's intention to enter into a 99 year lease with Woolworths.

At a meeting on 13 December 1994, the Council approved the PAR and resolved to refer it to government departments and agencies. By letter dated 25 May 1995, the Council submitted the PAR to the Minister. The PAR had already been submitted to government departments and agencies. The Council again sought interim authorisation pursuant to s28. However, as the process of consultation with government departments and agencies had not been completed, the Minister's advisers were unwilling to submit the request for interim authorisation to the Minister.

On completion of the process of consultation with government departments and agencies, the Council by letter dated 12 July 1995 submitted the PAR to the Minister pursuant to s25(7). It repeated its request for interim authorisation. By letter dated 16 August 1995, the Minister approved the PAR subject to one minor amendment. However, the Minister declined to give interim authorisation under s28. The Council accepted the amendment and released the PAR for public consultation.

The plaintiffs lodged submissions in respect of the PAR. Submissions were lodged by other parties. It is unnecessary to note the contents of those submissions other than to state that the second plaintiff's submission included an allegation of bias on the part of the Council. The Council heard oral submissions at a meeting on 7 November 1995. At a meeting on 12 December 1995 the Council resolved to amend the PAR and refer the amended PAR to the Minister for his approval. The Minister referred the PAR to the Advisory Committee which considered it at a meeting on 9 February 1996. The Committee investigated a number of issues and, on 2 April 1996, it recommended to the Minister that the PAR as amended was suitable for authorisation. In substance, that is where the matter stood when the plaintiffs instituted these proceedings.

It will have been noticed that at all times when it was involved in the process of recommending the PAR to the Minister, the Council had a direct financial interest in the outcome and was anxious for the development to proceed. Those matters are established by the following facts:

* The Council owned land intended to be part of the proposed development.

* The Council intended to acquire the rest of the land and to lease it to Woolworths for a term of 99 years.

* The Council's negotiations with TAFE had reached the stage where TAFE had agreed in principle to an exchange of land to enable a new TAFE College to be built. It was part of that agreement that the Council would pay the major part of the cost of construction of the new college and, after 28 years, TAFE would transfer the land to the Council at a price computed on an agreed basis. A draft deed embodying the agreement has been prepared but it seems that it has not yet been executed. The Council and TAFE have affirmed High Street as the preferred site for the new College and negotiations continue as to the terms of the agreement between them.

* The Council's anxiety that the development should proceed was evidenced by its repeated requests to the Minister to grant interim authorisation. The significance of interim authorisation lies in the fact that, upon interim authorisation of the amendment, an application for development of the land the subject of the amendment will be determined in accordance with the Plan as amended: s53 of the Development Act. Approval could, therefore, be given to the proposed retail shopping centre. The development consent would remain in force even if, the authorisation was later revoked. Thus, rights and interests in property of those involved in or affected by the development could be substantially affected by an interim authorisation.

Given these facts, it is no exaggeration to state that the Council had a very significant financial interest in the proposed retail development and in the rezoning of the land by an amendment to the Development Plan to enable the proposed development to proceed.

After the PAR had been sent to the Minister, the Council proceeded with its negotiations with Woolworths. At a meeting on 15 April 1996, it resolved to proceed with the development on the footing that Woolworths would own the site. By letter dated 6 May 1996, the Council informed the Minister to that effect and stated that the written document give effect to that agreement was being prepared. The Council also informed the Minister that it no longer sought approval under s197 of the Local Government Act. There is no evidence as to the current state of the negotiations with TAFE or the extent to which either the Council or Woolworths has acquired other land for the shopping centre site. The Council's negotiations with Woolworths continue. Although the nature of the Council's interest has altered, it still has a direct financial interest and, importantly, that interest in November and December 1995 was quite substantial." 5. The legislation under consideration in the Whyalla Council case, supra, was the Planning and Development Act, 1967, the predecessor of the Planning Act, 1982. The Whyalla Council desired to arrange for the provision of funeral services in its area. It obtained an option to purchase premises and negotiated with undertakers for the establishment of a funeral parlour thereon. The undertakers applied to the council for consent to use the premises as a funeral parlour. After a hearing at which the council heard arguments for and against the application, it granted the application. King CJ and Wells J, White J dissenting, refused an application for certiorari to quash the council's decision on the ground that there was a reasonable likelihood of bias. At pp389-390 King CJ said: "There are, however, considerable difficulties about the application of the common law rule [of natural justice] to the situation created by the Planning and Development Act, 1966, as amended. Section 36 of that Act authorises the making of regulations to, inter alia, 'prescribe the cases and circumstances in and under which ... the use of any land within the planning area shall not be changed from its existing use without the consent of the Authority or the Council.' The Council which is to be empowered by regulation to grant or withhold consent is the Council constituted under the Local Government Act, 1934, as amended, to carry out the usual functions of local government and with powers conferred by that Act. It is evident that the discharge of those functions and the exercise of those powers might very well involve the Council in transactions which would give it a financial interest in a decision as to a change of use to which land might be put. Moreover many changes of use of land tend to alter the value of the land and improvements and have implications for the rate revenue of the Council. It is a proper function of local government to foster and encourage the provision in the area of needed services and to encourage the use of land in the area in particular ways. Such initiatives must from time to time give the Council an interest in the outcome of an application for consent to change of use of land. If the Council must refrain from those activities in order to discharge its planning functions, the conferral of the planning powers on the Council has diminished considerably its capacity to discharge its primary functions as a local government body. I cannot think that Parliament intended by conferring planning powers on the Council to diminish its capacity to discharge its local government functions.

I have no doubt that the Council, in considering applications of this kind, is required to act judicially in the broad sense of that expression and is bound by the common law rules of natural justice so far as they may be applicable to the situation created by the statutory provisions: The Queen v. Medical Board of South Australia; Ex parte S (1976) 14 SASR 360. Parliament may, however, by the scheme which it creates or authorises, impliedly exclude or modify the common law rules. In Jeffs v. New Zealand Dairy Production and Marketing Board [1967] AC 551, the Privy Council considered the problem which arose from New Zealand legislation which established a Dairy Production and Marketing Board with zoning powers and also authorised to the Board to make loans to companies which would be affected by the zoning decisions. It was held that the legislature had shown a clear intention to make an exception to the general rule that a person should not be a judge in his own cause, and that the Board was required to determine zoning questions even though its pecuniary interests might be affected. I appreciate that it is not mandatory under s.36 of the Act for the Council to be the consenting body. The Regulations, consistently with s.36, could have made the consenting body the Authority either alone or concurrently with the Council. I think, however, that the legislative intention that the Council should make planning decisions is so clear and the area of potential interest, financial and otherwise, of the Council in those decisions so wide, that there must be implied a statutory exclusion of the common law rule that no one may be judge in his own cause, to the extent that the Council's interest arises out of the exercise or purported exercise of its local government functions. At the very least, in my opinion, the regulation-making power in s.36 should be construed as authorising regulations which exclude the common law rule to that extent." 6. At p400, Wells J said: "I conclude, therefore, that the combined effect of the Planning and Development Act and of the zoning regulations is to modify the rules of natural justice, and that, provided in all other respects the Corporation went about the business of considering the application fairly and objectively, its decision to give consent cannot be challenged on the ground that it was patently interested in the outcome of the application.

I am confirmed in this conclusion by a further consideration. The Corporation's discharge of its responsibilities under the Local Government Act is likely to give rise to circumstances in which it will be interested - sometimes vitally interested - in a proposed use of land. It would not be surprising, therefore, if many applications for consent were to find the Corporation acting as a judge in its own cause. The language of s.36 accords with the view that the making of applications in such circumstances was foreseen by the legislature. For it is to be observed that the planning regulations authorised by that section are required to be 'not repugnant to or inconsistent with any Act'; the expression 'any Act', of course, includes the Local Government Act. One may fairly, I think, regard that qualification as the legislature's method of ensuring, inter alia, that the functions of local government were, as far as practicable, to proceed as hitherto, and were not to be frustrated by the inevitability that, on some occasions, a council would be called on to deliberate about a consent to a land in which it was legitimately, through the lawful operation of the Local Government Act, interested.

The circumstances of the instant case do not, therefore, present themselves as extraordinary or unexpected, but as something likely to happen where a council plays its full role to the public business both of administering the Local Government Act, and of acting as a local planning authority." 7. I here add a reference to the judgment of Glidewell J (as he then was) in R v Sevenoaks District Council, ex parte Terry (1985) 3 All ER 226. The factual situation was different, but at p233, his Lordship said:

"... the council must act honestly and fairly, but it is not uncommon for a local authority to be obliged to make a decision relating to land or other property in which it has an interest. In such a situation, the application of the rule designed to ensure that a judicial officer does not appear to be biased would, in my view, often produce an administrative impasse." 8. It must be stressed that the Nicholls case, supra, involved the Planning Act, 1982. Under that legislation a single Development Plan operated throughout the State of South Australia. It could be amended by what was called a Supplementary Development Plan ("SDP"). Under the Development Act, however, that portion of the Development Plan which related to a council area became the Development Plan for that Council (see s16 of the Statutes Repeal and Amendment (Development) Act, 1993). Such plans can also be amended after the preparation of what is called a Plan Amendment Report ("PAR").

9. In the Nicholls case, Cox J said at pp127-130, (Duggan and Mullighan JJ concurring): "The meaning and scope of the rule against bias, as that term is understood by the law, are not in doubt. A man may not be a judge in his own cause. He is disqualified if he has a personal interest in the outcome of his decision. He must not pre-judge the matter, or even appear to do so. All of those aspects of the bias rule would disqualify any judge who sat on a case in which he had the kind of financial interest in the result that the plaintiffs allege against the first defendant in this matter. Here is a council that is actively promoting planning changes, and taking part in the statutory procedure by which those changes are to be made, when (according to the facts alleged in the special case) it stands to gain considerable financial benefit, from the enhanced value of its own land, as a result of those changes. If the supplementary development plan goes through, the commercial use of the land by the first defendant will become a 'consent' use and the plaintiffs will lose their present right to object or to appeal. The defendants, however, argue that the common law rules about bias do not apply to a council acting under s41, and in my view they are right.

There is nothing improper or unusual about a council owning land in its council area and being interested in its commercial development. Often it will negotiate with an outside organisation with the object of developing a particular part of its area, and the land involved may include land which the council itself owns. It may consider that it is in the interests of its ratepayers generally that it should take the initiative in such matters. The direct financial benefit to the council from large scale commercial projects may be considerable. Getting them under way will sometimes involve a change in land use and it will often be necessary for approvals to be granted under the building laws and the planning laws as well. There will be a great many other projects in which the council will not be directly involved but which will produce additional rate revenue. In engaging in such activities the council is simply fulfilling its normal functions under the Local Government Act (1934) (SA): see generally R v Whyalla City Corporation; Ex parte Kittel (1979) 20 SASR 386 at 389-390; 44 LGRA 371 at 374-375. None of this will necessarily disqualify the council from participating in the administration of the planning laws. A lot will turn upon the precise nature of its participation ...

The role of a council in promoting a supplementary development plan is important but limited. It may initiate the amendment but thereafter its function is essentially advisory. Certainly it will be in a position to press its views on the Minister, but that is as much as it can do. If the Minister finds the original proposal unattractive he may reject it out of hand: see subs (5). If he is willing to let the proposal go forward, the council is given the responsibility of convening a public meeting and receiving written submissions, and of conducting the public hearing and listening to anyone who wants to speak in favour of, or in opposition to, the supplementary development plan or the written submissions relating to it. It must send the written submissions to the Minister, although with its own recommendations in relation to them. That appears to be the extent of the council's involvement under s41. The Minister by this time will already have had advice in relation to the plan from the Advisory Committee on Planning constituted under Pt II of the Act and if, after the public hearing, the Minister is satisfied that there is substantial public opposition to the proposed amendment or if the council has at that stage recommended substantial alterations to its original proposal, the Minister must refer the matter to the Advisory Committee again. Indeed, the Minister may request a report from the Advisory Committee on his own initiative, without assigning any reason at all. At this stage, again, the Minister may decline to approve the plan and that will be the end of the matter. If he does approve it, it still has to run the gauntlet of the Joint Committee on Subordinate Legislation with a further possibility, if the Joint Committee does not approve it, of disallowance by either House of Parliament. There are also certain powers of amendment that the Minister may exercise at different stages of the scheme. Finally, if all these hazards are surmounted, the plan may be referred by the Minister to the Governor who may declare it to be an authorised supplementary development plan and fix a day on which it will come into operation. By the time this happens, the proposal will have long been out of the council's hands.

One properly approaches an Act such as the Planning Act with the presumption that the common law rules of natural justice will apply to it. However, the limited and inconclusive role of a council in the making of any supplementary development plan, and the nature of the plan itself, tell against the application to it of the common law rules. The Solicitor-General argued that a council's decision to propose an amendment to the Development Plan is not one that affects rights ad interests of individuals in a direct and immediate way (cf Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584), but that may depend on the nature of the amendment. Nevertheless, it is generally true to say that the courts will be more inclined to find that the rules do not apply where the function in question is substantially legislative in character. It is a very different situation from the grant of a planning consent. A council might be the relevant planning authority to give such a consent under s47, but if the development proposal relates to an undertaking of the council itself the South Australian Planning Commission becomes the planning authority from which the consent must be obtained: see s8. Section 41, however, does not involve any form of planning authorisation by the council. Mr Beamond, for the plaintiffs, pointed out that it is always possible for a council to request the Minister to prepare a supplementary development plan - the section expressly provides for it (subs (2)(a)(ii), and submitted that this is the only course for a council to take when it has a direct financial interest in the proposed amendment. The submission is superficially attractive but not, in the end, persuasive. It would deny to the council the right to take the initiative in what might be an important commercial development for its area. It would leave the council wholly dependent on the inclination of the Minister to promote the amendment. There could be political considerations that would disincline the Minister from preparing the supplementary development plan although he might be willing to accept it if the council took the initiative and it survived the vicissitudes of s41's normal operation. The council is likely to have a better understanding of what is in the interests of its ratepayers and the local community generally than ministerial advisers whose attention and time must be shared between the whole of the State. At best, relying upon departmental initiative is likely to mean delay. It is not as though no other work for par (a)(ii) of subs (2) can be found. Preparing a supplementary development plan will often be an elaborate and costly matter, requiring expertise that a small council may not have and an expense that it could not afford, and it may have little choice but to ask the Minister to act on its behalf. A council may also decide to request the Minister to act where the proposal relates to a very large undertaking, with important implications for the whole State, though situated only in the area of the council. It is noteworthy that there is nothing in s41 or in s8 that applies to s41 the express prohibition against being in any sense judge in its own cause that Parliament has made in the case of a planning authorisation. Finally there is the uncertainty that would necessarily accompany any rule that disqualified a council under s41 for self-interest. It is one thing to identify a council as 'proposing to undertake development' for the purpose of s8 and therefore disqualified from granting a planning authorisation. It is a different and more difficult thing to decide what kind and degree of financial involvement would disqualify a council, if the plaintiffs' argument is sound, under s41. What of an amendment to the Development Plan that would bring increased business to the council's car parks? What if the effect of the present proposal were to benefit the council financial but to only a quite minor extent? Mr Beamond said that it would be a matter of degree, but that would inevitably cause problems in practice.

I have drawn attention to the limited power that a council has if it wishes to secure an amendment to the Development Plan. Furthermore, those who suspect a council of partiality are given every opportunity under s41 to make their concern, and the reasons for it, known to the Minister and others in whose hands the fate of any amendment proposal will lie. No doubt they will make written submissions to the council itself under subs (8) and voice their opposition at the public hearing. The council is obliged to forward copies of the written submissions to the Minister. The proposal has to pass the scrutiny of the Advisory Committee on at least one occasion, possibly more. The objectors can lobby the Advisory Committee and the Minister himself and also the Joint Committee on Subordinate Legislation. The practical safeguards against pre-judgment or self-interest on a council's part proving decisive are considerable.

In my opinion, it was the intention of Parliament, as indicated in s41 and other provisions of the Planning Act, that the common law rules of natural justice should not apply to prevent a council from preparing a supplementary development plan, or from taking any of the other procedural and advisory steps for which s41 provides, on grounds of bias." 10. The High Court, constituted by Mason CJ, Dawson and Toohey JJ, heard an application for special leave to appeal from the Nicholls decision on 9 March 1990 (A47 of 1989). In refusing leave, Mason CJ said:

"The Court is of the opinion that the decision of the Full Court of the Supreme Court of South Australia is not attended with sufficient doubt to justify the grant of special leave to appeal. The application is therefore refused." 11. It is necessary now to study the relevant provisions of the Development Act. Section 8 establishes the Development Policy Advisory Committee ("the Advisory Committee"). It consists of ten persons with "wide experience" in such matters as urban planning and development and in local government. Its functions, including advising the Minister on proposals to amend Development Plans, are set out in s9. The Development Assessment Commission is established by s10, and its functions are set out therein. Section 22 provides that the Minister must ensure that a Planning Strategy for development within the State is prepared and maintained, and s23(3) provides that a Development Plan should seek to promote the provisions of the Planning Strategy. That is new. I propose to quote ss24-27 inclusive of the Development Act, 1993 in full. They provide: "24.(1) An amendment to a Development Plan may be prepared - (a) where it relates to the area, or part of the area, of a council - (i) by the council for the relevant area; or (ii) by the Minister acting at the request of the council; or

(iii) where the Minister has requested the council to prepare a Statement of Intent within a specified time and the council fails to do so, or the Minister and the council cannot reach an agreement on a Statement of Intent within three months after a date specified by the Minister - by the Minister; or

(iv) where the Minister considers that a council has demonstrated undue delay in the preparation or processing of an amendment under this subdivision, or a council has decided not to proceed with an amendment under this subdivision - by the Minister; or

(v) where the council has failed to comply with the requirements of subdivision 3 - by the Minister; or

(b) where it relates to the areas, or parts of the areas, of two or more councils -

(i) by the Minister on the basis that he or she considers that the amendment is reasonably necessary to promote orderly and proper development within the relevant areas and that, after consultation with the relevant councils, the Minister considers that it is appropriate for the Minister to undertake the amendment; or

(ii) by the relevant councils with the approval of the Minister (and, in such a case, section 25 will apply with any necessary modifications); or

(c) where it relates to land that does not lie within the area of a council

• by the Minister; or

(d) where the same amendment, or substantially the same amendment, is to be made to two or more Development Plans - by the Minister; or

(e) where the purpose of the amendment is to establish a State Heritage Area and impose development controls in relation to that area-by the Minister; or

(f) where the purpose of the amendment is to impose controls in relation to a place that is entered, either on a provisional or permanent basis, in the State Heritage Register - by the Minister; or

(g) where the Minister considers that an amendment to a Development Plan is appropriate because of a matter of significant social, economic or environmental importance-by the Minister.

(h) a draft of the amendment, or a draft of the relevant section of the Development Plan as amended (with the amendments shown in a distinctive manner).

25.(1) If a council is considering an amendment to a Development Plan, the council must first reach agreement with the Minister on a "Statement of Intent" prepared by the council in accordance with the regulations.

(2) The Minister must, for the purposes of subsection (1), consult with the Advisory Committee if the Minister considers that the proposed amendment would be seriously at variance with the Planning Strategy.

(3) If or when agreement is reached, and the council decides to proceed, the council must prepare a draft Plan Amendment Report based on the outcome of investigations initiated by the council in accordance with the terms of he Statement of Intent and such other investigations (if any) as the council thinks fit, and after considering the advice of a person with prescribed qualifications appointed by the council.

(4) A Plan Amendment Report must assess the extent to which the proposed amendment-

(c) accords with other parts of the Development Plan;

(d) complements the policies in Development Plans for adjoining areas;

(e) satisfies the matters prescribed in the regulations,

(f) an explanation of the intent of the proposed amendment, the relationship between that intent and the policy of the Statement of Intent, and a summary of the major policy changes (if any) that are proposed; and

(g) a summary of the conclusions drawn from the investigations referred to above; and

(h) a draft of the amendment, or a draft of the relevant section of the Development Plan as amended (with the amendments shown in a distinctive manner).

(5) Subject to subsection (6), a draft Plan Amendment Report must be referred to any government Department or agency that has a direct interest in he matter for comment (but, if a response is not received from a Department or agency within six weeks or such other period as may be prescribed by the regulations, it will be taken that the Department or agency does not desire to make any comment), and the council may, as a result of any comments that it receives, amend the reports.

(6) The Minister may, after consultation with the council at the time of the preparation of the Statement of Intent, permit the council to undertake the consultation required under subsection (5) during the period for which the Plan Amendment Report is released for public comment under subsection (11).

(7) Subject to subsection (8), the council may then finalise its Plan Amendment Report and submit it to the Minister, together with a statement containing the prescribed particulars.

(8) Subsection (7) does not apply if the Minister has authorised the council to release the Plan Amendment Report for public consultation without submission to the Minister under that subsection.

(9) The Minister must, on receipt of a report under subsection (7) -

(a) accept the Plan Amendment Report, without alteration, as a basis for public submissions; or

(b) require an alteration to the Plan Amendment Report (after consultation with the council) and accept the report, as altered, as a basis for public submissions; or

(c) reject the Plan Amendment Report as a basis for public submissions (in which case the Minister must provide the council with written reasons for the Minister's decision).

(10) In considering a Plan Amendment Report under subsection (9) the Minister must assess the extent to which the proposed amendment satisfies the matters referred to in subsection (4)(a) to (e).

(11) Unless rejected by the Minister under subsection (9), a Plan Amendment Report may then be released for public consultation in accordance with the regulations.

(12) Where a proposed amendment designates a place as a place of local heritage value, the council must, on or before the day on which the Plan Amendment Report is released for public consultation under subsection (11), give each owner of land constituting the place proposed as a place of local heritage value a written notice -

(a) informing the owner of the proposed amendment; and

(b) inviting the owner to make submissions on the amendment to the council within the period that applies under subsection (11).

(13) The council must, after complying with the requirements under subsections (11) and (12) -

(a) prepare a report on the matters raised as a result of public consultation and, if relevant, under subsection (12) and on any recommended alterations to the proposed amendment; or

(b) if it thinks fit, by notice in writing to the Minister, decline to proceed any further with the amendment.

(14) A report under subsection (13)(a) must be referred to the Minister, who must -

(i) if the Minister is of the opinion that there is substantial public opposition to the whole or part of the proposed amendment, or that the council has recommended that substantial alterations be made to the amendment; or

(ii) in the case of an amendment that designates a place as a place of local heritage value

• if the owner of the land objects to the amendment (and, in such a case, the owner of the land must be given a reasonable opportunity to make submissions to the Advisory Committee (in such manner as the Advisory Committee thinks fit) in relation to the matter before the Advisory Committee reports back to the Minister); and

(b) if subsection (8) has applied, assess the extent to which the proposed amendment satisfies the matters referred to in subsection (4)(a) to (e), and thereafter the Minister must -

(d) alter the amendment (after consultation with the council) and approve the amendment as altered; or

(e) decline to approve the amendment (in which case the Minister must provide the council with written reasons for the Minister's decision).

26.(1) If the Minister is considering an amendment to a Development Plan, the Minister must first prepare a draft Plan Amendment Report based on investigations initiated by the Minister in relation to the matter and the advice of a person with prescribed qualifications appointed by the Minister.

(2) A Plan Amendment Report must assess the extent to which the proposed amendment -

(b) accords with other parts of the Development Plan;

(c) complements the policies in Development Plans for adjoining areas;

(d) satisfies the requirements prescribed by the regulations,

(e) an explanation of the proposed amendment and a summary of the major policy changes (if any) that are proposed; and

(f) a summary of the conclusions drawn from the investigations referred to above; and

(g) a draft of the amendment, or a draft of the relevant section of the Development Plan as amended (with the amendments shown in a distinctive manner).

(3) The Plan Amendment Report may incorporate any material prepared by a council under section 25 in relation to an amendment which was proposed under that section.

(4) Subject to section 28, the Minister must consult with any council which was a direct interest in the matter on the content of a Plan Amendment Report.

(5) The Plan Amendment Report must then be released for public consultation in accordance with the regulations.

(6) Where a proposed amendment designates a place as a place of local heritage value, the Minister must, on or before the day on which the Plan Amendment Report is released for public consultation under subsection (5), give each owner of land constituting the place proposed as a place of local heritage value a written notice -

(a) informing the owner of the proposed amendment; and

(b) inviting the owner to make submissions on the amendment within the period that applies under subsection (5).

(7) The Minister must seek the advice of the Advisory Committee -

(a) on the matters raised as a result of public consultation under subsection (5); and

(b) on any submissions made under subsection (6); and

(b) alter the amendment and approve the amendment as altered; or

27.(1) An amendment approved by the Minister under this subdivision must be referred to the Governor and the Governor may, by notice in the Gazette -

(a) declare the amendment to be an authorised amendment under this Act; and

(b) fix a day on which the amendment will come into operation (and the relevant Development Plan (or Plans) will then be taken, from that day, to be amended in the manner set out in the amendment).

(2) When the Governor has declared an amendment to be an authorised amendment under this Act, the Minister must, within 28 days, refer the amendment to the Environment, Resources and Development Committee of the Parliament.

(3) The Environment, Resources and Development Committee must, after receipt of an amendment under subsection (2) -

(a) resolve that it does not object to the amendment; or

(b) resolve to suggest amendments to the relevant Development Plan (as amended); or

(4) If, at the expiration of 28 days from the day on which the amendment was referred to the Environment, Resources and Development Committee, the Committee has not made a resolution under subsection (3), it will be conclusively presumed that the Committee does not object to the amendment and does not itself propose to suggest any amendments to the Development Plan.

(5) If an amendment is suggested under subsection (3)(b)-

(a) the Governor, may, on the recommendation of the Minister, by notice in the Gazette, proceed to make such an amendment; or

(b) the Minister must report back to the Committee that the Minister is unwilling to recommend that the relevant Development Plan be amended in the manner suggested by the Committee (in which case the Committee may resolve that it does not object to the amendment as originally authorised by the Governor, or may resolve to object to that amendment).

(6) If the amendment was proposed by a council, the Minister must consult with the council before a recommendation is made under subsection (5)(a).

(7) If the Environment, Resources and Development Committee resolves to object to an amendment, copies of the amendment must be laid before both Houses of Parliament.

(8) If either House of Parliament passes a resolution disallowing an amendment laid before it under subsection (7) then the amendment ceases to have effect (and the Development Plan will, from that time, apply as if it had not been amended by that amendment).

(9) A resolution is not effective for the purposes of subsection (8) unless passed in pursuance of a notice of motion given within 14 sitting days (which need not fall within the same session of Parliament) after the day on which the amendment was laid before the House.

(10) Where a resolution is passed under subsection (8), notice of that resolution must forthwith be published in the Gazette." 12. I will not quote s28, but it provides that where the Governor is of the opinion that it is necessary in the interests of the orderly and proper development of an area of the State that an amendment to a Development Plan should come into operation without delay, the Governor may declare that the amendment will come into operation on an interim basis. The learned Judge at first instance noted that the Council had repeatedly sought such a declaration, but that action (which was unsuccessful) is irrelevant, in my view, to the question of statutory interpretation.

13. I also consider it necessary to refer to s34 which provides for the determination of the relevant authority to approve a development, and expressly provides that where development of a prescribed kind is to be undertaken by a council within the area of a council that the Development Assessment Commission is the relevant authority. Regulation 38 of the Development Regulations, 1993 prescribes the relevant kinds of development to be undertaken by a council which must be approved by the Development Assessment Commission.

14. I have already mentioned three changes brought about by the Act, namely the change to separate Development Plans for each council, amendment by way of a PAR rather than SDP, and the introduction of a Planning Strategy. In addition, it will be noticed that under the Planning Act, the legislature had incorporated in the one section, namely s41, all provisions relating to amendments to the Development Plan, including the provisions identifying the circumstances when a council and when the Minister should prepare them, and the procedure in each case. Such provisions are now contained in four sections, ss24 - 27 inclusive, but in my opinion, such changes in the wording as have occurred do not advance the plaintiffs' arguments that the Nicholls case is distinguishable. When the Minister rejects a PAR as a basis for public submission he must now, in accordance with s25(9)(c), provide the council with written reasons for his decision (cf s41(5)(c) of the Planning Act). After the council has released a PAR for public consultation it must now prepare a report on the matters raised as a result thereof (s25(13), whereas under the Planning Act the council only had to forward copies of the written submissions received by it (s41(10). Where the Minister had approved a Supplementary Development Plan under the Planning Act, he could refer the plan to the Environment Resources and Development Committee of the Parliament (s41(12), and if that Committee approved the Plan, the Minister could refer it to the Governor (s41(13)), whereas s27 of the Development Act provides that an amendment approved by the Minister must be referred to the Governor, and when the Governor has declared an amendment to be an authorised amendment under the Act, the Minister must then refer it to the ERD Committee of the Parliament.

15. I am not persuaded that such legislative changes as have been made justify this court in not following the Nicholls case. Moreover, I am in substantial agreement with the reasons of Cox J.

16. I have anxiously considered the plaintiffs' argument that the decision in the Nicholls case overlooks recent decisions in the High Court. Their counsel, Mr Hayes QC, relied principally on the case of FAI Insurances v Winneke (1982) 151 CLR 342. It appears that counsel for the appellant on the application for special leave in the Nicholls case sought to rely on it also. In my opinion, that case involved a decision that the duty to observe the requirements of natural justice can be imposed on the Governor in Council. That aspect of the decision, of course, does not help in the case at bar, but Mr Hayes relied particularly on the following passage from the judgment of Brennan J (as he then was) at pp409-410: "The construing of a statute with a view to determining whether the principles of natural justice are to be applied requires more than mere exegesis of the statutory text; the common law attributes to the statute an operation which accords as closely as may be with the requirements of justice. The common law attributes to the legislature an intention that the principles of natural justice be applied in the exercise of certain statutory powers, and the legislature's intention provides the sole and sufficient warrant for judicial review of the exercise of those powers when an applicable rule of natural justice is not observed. And so, where a challenge to the validity of an exercise of a statutory power is made on the grounds that a rule of natural justice has not been observed, the true foundation for the challenge is that a condition imposed by the statute upon the exercise of the power, albeit an implied condition, is not fulfilled and that an exercise of the power is not efficacious unless the condition is fulfilled.

The subjects of statutory powers are so various, the repositories of power so differently constituted and the language of statutes so diverse that the conditions to be implied are not - indeed cannot be - constant from statute to statute. In each case it is necessary to infer the true intention of the legislature by examining both the text of the statute and those extrinsic matters to which reference might properly be made in aid of interpretation. That examination is no longer impeded by drawing a rigid distinction between powers to be exercised judicially and powers to be exercised ministerially. The rigidity of that distinction has given way to a consideration of the functions to be performed as an aid in ascertaining the legislature's intention. The concepts of natural justice and fairness, for all their imprecision, have illuminated the perception of the legislature's intention by the courts ...

In the present case the chief matters for consideration in ascertaining whether the legislature intended that the principles of natural justice should be applied are the statutory text, the interests affected by the statute and the repository of the power." 17. Lucid and eloquent though this passage undoubtedly is, I do not think it really demands a new approach to the ultimate question for decision here.

18. All councils own land in their council areas. In the exercise of their local government functions they are inevitably interested in the commercial development of that land. They have wide powers, see for example ss36, 196 and 198 of the Local Government Act 1934. Many decisions they make have rate revenue implications. That is the context in which the Act has to be construed. I am not sure that I agree with Cox J when he said, (supra), that a council "may initiate the amendment but thereafter its function is essentially advisory", but his Honour did add these words: "Certainly it will be in a position to press its views on the Minister".

I agree with the submission of counsel for the appellants that the council's role is really that of a proponent of the amendment, and that it is the Minister who is the adjudicator. No doubt the council must act honestly and fairly at all stages, but such a statement does not imply that the common law rules of natural justice still apply in all their rigour. Additional support for the view I have expressed is to be found in s34 of the Act, supra, where the legislature has expressly provided that in some circumstances the Development Assessment Commission is the authority, and the only authority, to rule on a council's development application (cf s8 of the Planning Act, 1982) There is no such express provision in relation to amendments to a Development Plan in either Act.

20. At the commencement of the hearing, Mr Hayes submitted that this was a matter in which five Judges should sit to review the decision in the Nicholls case. The court gave brief consideration to the submission, and intimated that as then advised it did not think that that would be appropriate, but that the submission would be kept in mind. This court has said many times that it will follow an earlier decision of the Full Court unless it is satisfied that it is clearly wrong. (See Sola Optical Aust Pty Ltd v Mills (1987) 46 SASR 364 at p369; Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd, McAuley & Anor [1989] SASC 1802; (1989) 52 SASR 148 at 157; R v Gilson (1990) 54 SASR 191 at p196, and Pashalis v Workcover Corporation [1994] SASC 5143; (1994) 63 SASR 71 at p83.) In my opinion, the Nicholls case was correctly decided.

21. Some weeks after the court had reserved its decision on these appeals, the solicitor for the respondents, Clark and Davids (SA) Ltd, applied to reopen their argument in consequence of obtaining a copy of a report from the Council's accountant prepared for a special Council meeting on 24 March 1997 on the subject of "Budget framework for 1997/98". It included the following passage: "As draft budget figures are still being prepared by various staff, I have had to make a number of broad assumptions in preparing the attached financial reports (Rates Determination Statement, Operating Statement and Reserves Statement). These assumptions have been

(b) $500,000 reimbursement from Woolworths not being received this financial year - this would translate the 1996/97 result from a $54,002 budget surplus to a $445,998 budget deficit carried forward to 1997/98; ..." 22. The report was the exhibit marked "B" referred to in an affidavit of Timothy James Mellor sworn on 16 May 1997.

23. The appeal subsequently came on for further hearing and, after hearing counsel for all parties, the hearing was further adjourned to enable the Council's solicitors to file an affidavit explaining, inter alia, the reference to the so-called "$500,000 reimbursement".

24. When the appeals again came on for hearing, the respondents Clark and Davids (SA) Ltd sought to amend their application to seek the following orders: "1. Directions for the production of further evidence.

The admission of further evidence before the Full Court with respect to the appeal herein and to make further submissions.

In the alternative, that the above respondents be able to make further submissions to the Court as to the nature of the issues which it should determine in relation to this appeal.

Such further and other Orders as the Court thinks fit." 25. The Court admitted an affidavit sworn on 29 May 1997 by Roy David Blight, Town Manager for the Council. Having regard to the importance of it to the argument for all parties, I propose to set it out in full. It read: "1. I am the Chief Executive Officer referred to as the Town Manager of the Corporation of the Town of Gawler and am authorised to make this affidavit on behalf of that Council.

2. I make this affidavit in response to the affidavit of Timothy James Mellor sworn in these proceedings on 16 May 1997 and in relation to the application made by the respondents herein on that date.

3. Since June 1995 I have been personally involved in the ongoing discussions with Woolworths Properties Ltd (hereinafter referred to as Woolworths) regarding the development of a commercial retail centre within the Town of Gawler. Although I was not empowered to enter into any binding arrangements on the Council's behalf I did have authority to develop proposals to be taken back to the Council for consideration.

4. It has always been the Council's minimum position in this matter that the financial outcome to the Council of any development of a retail centre should at least be cash flow neutral. This position is set out in a copy of the minutes of a Council meeting of 9 September 1992 contained within Appeal Book volume III at page 374 and establishes the broad principle upon which the Council was prepared to negotiate with Woolworths.

The details of the development proposal are set out broadly in Appeal Book volume II in the Public Information document prepared by Colliers Jardine for application under Section 197 of the Local Government Act for the Council to be permitted to borrow funds of approximately $4.5 million. It was anticipated that the Council would require these funds to finance its acquisition of the various sites of the development and other site consolidation costs including all related costs. That document at Appeal Book volume II page 157 notes that the Council's cost of that financing was to be taken into account in determining the amount of rent the Council was to receive from the project under the Heads of Agreement.

On 7 September 1993 Heads of Agreement were entered into between the Council and Woolworths for the purpose of setting out the general understanding between the parties as to the manner in which they would proceed with the management of the proposed development and their financial arrangements. That document is set out at Appeal Book [volume III], pages 394 to 412 and provided for a minimum rent to meet the Council's annual costs of the project (both principal and interest - see clause 3.1.2.2.1). In terms of the ground rent for the premises it also provided pursuant to clause 6 that the costs incurred by the Council were to be taken into account in the formula for establishing the rent. This was to achieve the Council's aim stated in its earlier position of cost neutrality at a minimum.

The Heads of Agreement was due to lapse on 1 July 1994 but was extended for a further 6 month period to 1 January 1995. The Heads of Agreement, which was stated to be a non-binding document, then lapsed.

Discussions about prospective arrangements continued between myself and other officers and consultants of the Council and Woolworths after the lapse of the Heads of Agreement. The discussions continued throughout 1995 on the basis of achieving a leasehold agreement with Woolworths based upon the principles set out in the Heads of Agreement document and maintaining at least the Council's cost neutrality requirement.

The concept of the proposed development being undertaken on a freehold basis was first raised by Woolworths in mid 1995 and on other occasions by Woolworths in the latter part of 1995 in discussions with Council's representatives.

It was not until February 1996 that the Council's representatives decided that subject to Council's approval it should abandon the leasehold negotiations. We determined that subject to Council's approval we should pursue negotiations in relation to a freehold sale of land.

Accordingly on 26 February 1996 a proposal was made to Woolworths subject to Council's approval in relation to the freehold sale of land. The proposal indicated that if the development was to proceed on the basis of a freehold sale then the Council would expect that its development costs in relation to its expenses of the development would be accounted for in any financial settlement between the parties. Other of the Council's costs would be compensated by the sale of land which it owned at market value. The shift from a leasehold to a freehold proposal meant that expenses committed by the Council to the development of the project would no longer be offset by rent as had been provided for under the Heads of Agreement. The new structure proposed was therefore necessary. At the time the letter was sent to Woolworths the Council had not been asked to consider and had not been advised of the proposed alternative method of proceeding.

The alternative freehold proposal was put to a meeting of the Council for the first time on 15 April 1996 by Woolworths. The Council's minute regarding this matter appears in Appeal Book volume IV [at p622]. As a result of that meeting the Council authorised me to negotiate with Woolworths on the basis of a freehold sale.

Representatives of Woolworths indicated on 15 April 1996 that they were prepared to negotiate with the Council on the basis that the land would be purchased and an amount in relation to the Council's development costs would be included in the final settlement.

Prior to this time there was no formal or informal acknowledgment from or understanding with Woolworths that negotiations for a freehold sale should proceed on the basis of the payment of development costs as part of such a proposal.

Shortly afterwards the subject proceedings were issued. Preliminary negotiations which had commenced as to the structure of a freehold agreement went into abeyance and have not been reactivated. There has been no agreement entered into between Woolworths and the Council in relation to the proposed sale of the land to Woolworths. There has been no agreement formal or informal between the Council and Woolworths reached as to the amount of any development costs that should be included if an agreement were to be signed.

The report to the council appearing as Exhibit B in the Affidavit of Timothy James Mellor arose as a result of a budget report made by me in preparation for the 1996/97 budget. The report was made by me after the Council meeting of 15 April 1997 when the Council resolved to proceed with the freehold sale of the land.

As a result of that resolution I considered that there was a reasonable prospect that the Council would recoup all or some of its costs in relation to this matter during 1996/97 if the development were to proceed within the time frame envisaged. I estimated the total cost of such fees at $500,00[0]. Accordingly I instructed the accountant to include this recoupment in the budget. These costs did not include the costs of the preparation of the Plan Amendment Report.

My proposal to include such provision in the 1996/97 budget was made to the Council in July 1996. It was based on the decision by the Council to negotiate an agreement with Woolworths for the sale of Council land and the commitment by Woolworths of 15 April 1996 to continue with the development. I therefore advised the Council that there was a reasonable premise for a view that the Council would be in a position to recover at least some of its costs later in that budget year.

As a result of delays in the development programme and no agreement being reached in relation to the development it was necessary to advise the Council on 24 March 1997 that the budget had to be revised. I therefore instructed Paul Horwood to write the document which is exhibit B to Mr Mellor's affidavit. The document accords with my instructions to him.

In summary I know the following matters to be true of my own knowledge:

20.1 Council originally envisaged recouping its development costs in this matter by rental to be calculated in accordance with the provisions of the Heads of Agreement to achieve at least a cost neutral position.

20.2 Council's representatives first made a decision subject to Council's approval to propose a sale of land rather than the leasehold of land in February 1996.

20.3 There was no formal or informal acknowledgment from or understanding with Woolworths that a payment of development cost should be negotiated as part of a freehold proposal until 15 April 1996.

20.4 The Council has never entered into any formal documentation with respect to the sale of its land and neither party is legally committed to such a process.

20.5 There has never been any binding agreement with Woolworths regarding recoupment of the Council's development costs. From April 1996 there have been discussions with Woolworths regarding the amount of any development costs which may be recouped by the Council if a sale proceeds but these have never been finalised. The amount of such a payment has never been the subject of an arrangement, formal or informal.

20.6 However my estimate of such costs as at 1996 were $500,000." 26. I see no reason to query what Mr Blight has deposed to in his affidavit. Mr Beamond, who at this stage appeared as counsel for the respondents Clark and Davids (SA) Limited, did not apply for leave to cross examine Mr Blight and, as I understood his submission, he did not dispute what was contained in the said affidavit. Moreover, he informed the court that he was not alleging dishonesty on the part of the Council. He did not seek any further adjournment, discovery or other order, but submitted that the affidavit material indicated that in pursuing the amendment to the Development Plan the Council was exercising its powers for an improper purpose. Notwithstanding what Mr Hayes QC in the course of his opening before Debelle J said, the court agreed to hear the submission and that of the other parties, and again reserved judgment.

27. During the course of the opening of Mr Hayes before Debelle J, the following exchange occurred: "HIS HONOUR: You're not pressing any failure to comply with the terms of the Act in relation to the preparation of a plan amendment report?

MR HAYES: So far as improper purposes is referred to, it's in relation to bias and I'm not pressing -

HIS HONOUR: Right, so you're not pressing improper purpose as some kind of other ground of bad faith?

HIS HONOUR: What do you mean you're not pressing improper purpose except as a ground of bias?

HIS HONOUR: That sounds like you're having a bit both ways. Are you saying that they have a particular purpose and that is a purpose to which regard should be had for the purpose of determining bias? If that's all you're putting then I understand it and

MR HAYES: That's all I'm putting. I'm not alleging they have some ulterior purpose which is improper and in accordance with their obligations.

MR HAYES: That's what it's about, and I'm not pressing the regulation 21 argument about the emotions. We make it clear that our argument is based on the perceived or implied bias." 28. I do not consider that there is any difference in substance between the Council's original proposed lease to Woolworths, the rent of which took into account development costs, and the later proposed sale of the freehold, the purchase price for which took into account development costs. The Council clearly expected a commercial return from its involvement in the development with, as Mr Blight put it, a cost neutral return as a minimum position. If it did not seek at least a cost neutral return, it may well have been in breach of its duties under the Local Government Act.

I am quite unpersuaded that the material now before the court, most of which was before Debelle J, necessitates a re-appraisal of my initial view that these appeals should be allowed. In my opinion, Mr Beamond was unable to establish "improper purpose". This case does not remotely resemble the line of cases exemplified by Sydney Municipal Council v Campbell [1925] AC 338, where the Privy Council ruled that compulsory acquisition for resale at a profit was unauthorised. All that Mr Beamond could derive from the additional material, in my view, was confirmation that the Council had a substantial financial interest in the proposed amendment.

I would allow the appeals and set aside the orders of Debelle J.

These are appeals against an order granting injunctive relief, which was made as the outcome of an application for judicial review heard and determined by Debelle J. By an order made by him on 4 October 1996, he restrained the Minister for Housing, Urban Development and Local Government Relations ("the Minister") from taking any further step under section 25 of the Development Act 1993 ("the Act") in relation to the proposed amendment of the Development Plan. That proposal was the subject of a Plan Amendment Report ("PAR") dated 24 January 1996, prepared by the appellant Corporation ("the Corporation"). The order further restrained the Minister from recommending approval of the amendment in question to His Excellency the Governor.

In essence, the ground of the appeals is that the learned trial Judge erred in law in declining to follow and apply the decision of the Full Court in Nicholls & Arrow Ltd v The City of Tea Tree Gully and Minister for Environment and Planning (1989) 69 LGRA 121 ("Nicholls"); and in holding that the Corporation had breached the rules of natural justice in the manner in which it had promoted an amendment to the Development Plan, by reason of a reasonable apprehension of bias.

The narrative background facts related to the matter are not in dispute.

The learned trial Judge found that the Corporation had been contemplating a redevelopment of the centre of the town of Gawler since about 1987. That process had gone through a number of phases of evolution, but had effectively recommenced, ab initio, following the coming into operation of the Act on 15 January 1994.

The evidence before Debelle J indicated that, from about April 1992, the Corporation had entered into discussions with Woolworths Properties Limited ("Woolworths") concerning the proposed development of a retail shopping centre in the town centre of Gawler. The proposals have evolved over time, but the current key components are the creation of a large supermarket, a discount department store and specialty shops. This is to occur on a site of some 2.1 hectares in a central location within the town.

A portion of the relevant site is already owned by the Corporation and the proposed development originally contemplated the acquisition by it of the remainder, followed by a leasing of the whole site to Woolworths for a term of 99 years. As portion of the scheme it was contemplated that an existing TAFE facility would be relocated to another location within the town, upon which a new TAFE College would be constructed.

It is common ground that, in order to achieve the desired development, it was necessary to take formal steps to amend that portion of the existing Development Plan, which, under the pre-existing Planning Act, 1982, had earlier been applicable to the town of Gawler. Certain re-zoning requirements had to be attended to, in particular, to give effect to the proposal.

Prior to the coming into operation of the Act steps had already been initiated by the Corporation to effect the requisite amendments to the Development Plan. However, these had to be aborted because of procedural requirements, implemented by the coming into operation of the Act, which differed from that under the pre-existing statutory regime.

The scheme of the Act, as related to an amendment of the Development Plan, may be summarised in these terms:- * the Corporation is required, initially, to prepare a Statement of Intent, which is submitted to the Minister for his agreement; * if that agreement is forthcoming the Corporation must next prepare the requisite PAR; * the PAR is then to be referred for comment to any department or agency of the Government which may be interested in the amendment; * upon receipt of comments from such organisations, the Corporation may, if it chooses to do so, amend the PAR; * upon finalising the PAR in light of comments received, the Corporation is then to submit it to the Minister, who may either accept it as a basis for public consultation, require it to be amended before release for public consultation, or reject it; * upon approval of the PAR by the Minister, or amendment as directed by him, it may be released for public consultation; * that process requires giving a public notice of the amendment and of the PAR, an opportunity for public inspection of the relevant documents, an opportunity for interested persons to make written representations to the Corporation, and a public hearing at which the Corporation is to hear persons desirous of making oral representations upon the submission; * following the prescribed process of public consultation, the Corporation is required to report to the Minister on the matters arising out of the consultation (both in relation to oral and written submissions); and also on any alterations which it recommends to the proposed amendment in light of those matters; * in the event that there is substantial opposition to the proposed amendment, or if the Corporation recommends substantial alterations at that stage, the Minister is required to refer the PAR to the Advisory Committee which is constituted pursuant to the Act; * upon receipt of the response of the Advisory Committee, it is then for the Minister to approve the amendment, approve it as altered, or decline to approve it. 40. It should be mentioned that the foregoing procedure is that prescribed by section 25 of the Act. It is applicable in situations in which a Council itself desires to initiate an amendment to the existing Development Plan.

The statute provides, by section 24, that an amendment to the Development Plan may also be prepared by the Minister, either acting at the request of a Council, or of his own motion in certain other circumstances.

In the event that an amendment is promoted by the Minister then the procedure to be followed is that prescribed by section 26. Such procedure is, conceptually, somewhat similar to the section 25 procedure and there is no need to rehearse the differing detailed processes.

Once the Minister has approved an amendment to the Development Plan, whether it be pursuant to section 25 or section 26 of the Act, it is then referred to the Governor who may, by notice in the Gazette, declare the amendment to be an authorised amendment. However, such an amendment is subject to a subsequent process of parliamentary scrutiny and potential disallowance, in accordance with specific provisions contained in the Act.

Section 28 of the Act permits a process known as "interim development control". This is applicable where the Governor is of the opinion that the interests of orderly and proper development require that an amendment to the Development Plan should come into operation without delay. In such a case the Governor may, at any time after a PAR is released for public consultation, declare, by notice in the Gazette, that the amendment will come into operation on an interim basis.

As will hereafter appear, the processes which I have described fall to be contrasted with those which were formerly prescribed by section 41 of the Planning Act, 1952. The provisions of that section are described by Cox J in Nicholls and there is no need to reiterate them in these reasons.

In the course of his reasons for decision, Debelle J traced the various detailed steps which had been taken by the Corporation in the instant case pursuant to section 25 of the Act. There also is no present requirement to retrace that same ground.

Suffice it to say that, by 2 April 1996, the finally adjusted PAR, having been referred by the Minister to the Advisory Committee, the latter recommended to the former that, as amended, it was suitable for authorisation.

On 23 March 1996, the respondents Clark and Davids (SA) Limited issued the summons in the present proceedings, seeking relief against the Corporation and the State of South Australia by way of judicial review. Orders in the nature of prerogative relief were sought, with a view to preventing an implementation of the amendment - on the footing that, in promoting it, the Corporation had breached the rules of natural justice by reason of apparent bias, by virtue of apparently pursuing what was asserted to be its own financial interest in the subject matter of the amendment. It was the contention of the plaintiffs in the proceedings that, because of such interest, any initiative to effect an amendment of the existing Development Plan could only, properly, have been by way of request to the Minister to execute the necessary procedures pursuant to section 26 of the Act.

In his reasons for decision the learned trial Judge concluded that, at all times when it was involved in the process of recommending the PAR to the Minister, the Corporation had a direct financial interest in the outcome and was anxious for the development to proceed. He based that finding on the following found facts:- * the Corporation owned land intended to be part of the proposed development; * it intended to acquire the rest of the land required for the project and to lease it to Woolworths for a term of 99 years; * the Corporation had embarked upon detailed negotiations with TAFE for an exchange of land and the erection of a new TAFE College on a different site; * the Corporation's anxiety that the development should proceed was evident by reason of the making by it of repeated requests to the Minister to grant interim development control, all of which requests the Minister had declined. 50. Having recited those circumstances, Debelle J said:-

"It is no exaggeration to state that the Council had a very significant financial interest in the proposed retail development and in the re-zoning of the land by an amendment to the Development Plan to enable the proposed development to proceed." 51. He went on to recite that, after the PAR had been sent to the Minister, the Corporation proceeded further with negotiations with Woolworths. He stated that the outcome of those negotiations was that, contrary to the original intendment, Woolworths would actually own the site to be developed. The Minister was informed of that proposal by letter dated 6 May 1996. Debelle J commented that the negotiations between the Corporation and Woolworths are still continuing and that, although the nature of the Corporation's interest in the project had altered, it still, in his view, retained a direct financial interest in what was being promoted. He emphasised that, in his opinion, its financial interest in November and December of 1995, when key section 25 procedures were in train, was "quite substantial"

52. At first instance, an important issue which was debated by the parties was whether the decision of the Full Court of this Court in Nicholls was directly applicable to the situation; and as to whether it could fairly be argued that the rules of natural justice applied to the procedures which were adopted to amend the Development Plan. The sole basis of attack upon what had been done by the Corporation was, as I have indicated, that, by virtue of its asserted financial interest in the outcome of the proposed development, its activities were vitiated by a reasonable apprehension of bias on the part of the respondents.

53. In addressing the arguments developed before him, the learned trial Judge reviewed the leading authorities bearing on the issue of the need to accord procedural fairness. He expressed the opinion that, prima facie, they were directly applicable to the situation before him. He then proceeded to reason that the adoption of the section 25 procedure was offensive to the requirements of procedural fairness, because of the self-interest of the Corporation in the outcome.

54. Without reciting his reasoning in extenso the principal points made by him, apropos the circumstances now before the Court, were:- * The Corporation was required to make a number of decisions during the section 25 process. These embraced deciding to institute the amendment process; the terms of the PAR; whether, after the process of public consultation, the proposed amendment should go forward, with or without alterations, or at all; what ought to be in the content of the report prepared for the Minister in relation to the outcome of the public consultation process; and what final recommendation to the Minister ought to be made. * In this regard he stressed that there was no statutory obligation on the Corporation to disclose a financial or other interest in the land sought to be affected by the proposed amendment and that the Corporation had the real power, by its report and recommendations, to influence the decisions of either the Minister or the Advisory Committee. He drew attention to a number of dicta bearing on this type of situation, including that of the author of the 4th edition of de Smith, Judicial Review of Administrative Action, to the effect that the normal standards of adjudication cannot, meaningfully, be applied to a body entitled to initiate a proposal and then decide whether to proceed with it, in the face of objection. He observed that the force of such an observation is the greater when the body hearing submissions also has a financial interest in securing the amendment. It was his contention that, because the statutory hearing by the Corporation was the only opportunity for those whose interests were perceived to be adversely affected by an amendment, the hearing process would be a somewhat futile gesture if the relevant Council had an interest in securing the proposed amendment. Procedural fairness required that the hearing be conducted before an impartial and objective person or body. * In the present circumstances, the Corporation's financial interest in procuring the amendment had the consequence that the public hearing was not to be perceived as an impartial and objective process. * The failure of the Corporation to comply with procedural fairness was not cured by the later consideration of the amendment by the Advisory Committee and the Minister because they did not have the benefit of hearing relevant submissions and had, of necessity, to rely on the Corporation's report. The utility of that report depended entirely on the extent to which it was accurate and complete and, in any event, it was no substitute for an actual hearing of the direct oral submissions. He contended that an impartial body might ask questions and thereby elicit further information or submissions on some particular aspect. 55. On that basis of reasoning, he concluded that, if the rules of natural justice were applicable to the circumstances, then they had not been observed and the processes complained of had been vitiated.

56. The present appellants contended before Debelle J that, given that it was a decision in relation section 41 of the former Planning Act 1982, the reasoning and decision of the Full Court in Nicholls was, nevertheless, equally applicable to section 25 of the Act; that is to say, that a Council preparing and propounding an amendment to the Development Plan pursuant to such a procedure is not subject to the common law rules of natural justice.

57. Debelle J rejected that submission on the basis that, as he put it:-

"Since that decision, the High Court has re-stated the requirements of natural justice in terms which, I respectfully suggest, require that the decision in Nicholls should not be followed and permit the issue to be examined afresh." 58. As I understand his reasoning, he also concluded that the differences between the procedures erected by the Planning Act and the Act were such that the reasoning in Nicholls was inapplicable.

59. As to this, he said:- "Further, in Nicholls, the Court found that the role of a Council is 'important but limited'. That cannot be said of the procedure in section 25. Once a Council has secured the agreement of the Minister to the statement of intent which it has prepared, the Council then prepares the PAR which reports on all the matters listed in section 25(4). The PAR is then submitted to the Minister. The Minister may accept it, he may alter it (but only after consultation with the Council) or he may reject it. If he rejects it, the Minister must provide the Council with written reasons for his decision. In this respect, section 25(9) differs from section 41(5) of the Planning Act which permitted the Minister to reject the proposed amendment 'out of hand', to use the words of the Full Court in Nicholls. Thereafter, the Council has a role in the public consultation process and prepares a report on the matters raised by the public consultation. It can recommend alterations to the proposed amendment after the process of public consultation. After planning advice from the Advisory Committee, the Minister must either approve the amendment, alter it (again only after consultation with the Council) or decline to approve it, and again the Minister has an obligation to provide the Council with written reasons for his decision). In addition, as already mentioned, after the process of public consultation, the Council decides whether to proceed with the amendment as proposed or whether it should be altered. The Council is, therefore, an active participant in the whole process with a capacity to advance its interest.

I acknowledge that there is a legislative flavour to the process in the sense that, if the amendment is authorised by the Governor, it forms part of the Development Plan which itself is a statutory instrument. However, the procedures prescribed by sections 25 and 26 are administrative in nature. They are statutory prerequisites to the authorisation of an amendment to a Development Plan and are expressed in terms which invoke the rules of natural justice." 60. Debelle J also rejected the submission of counsel for the Minister to the effect that, as was said in Nicholls, to invoke the requirements of procedural fairness would deny Councils the right to take the initiative in what might be an important commercial development for its area; and would leave the Council wholly dependent on the inclination of the Minister.

61. Whilst recognising that a like view had been expressed in R v The City of Whyalla; ex parte Kittel (1979) 20 SASR 386, Debelle J concluded that that case depended very much on the construction of what was a quite separate and different statutory provision. It was, he concluded, therefore, of limited value in arriving at a conclusion in the instant case. The learned trial judge went on to express a direct criticism of the reasoning of the Full Court in Nicholls by saying:-

"With respect, the views expressed in Nicholls failed to give due weight to the Parliamentary and other means by which a Council seeking to promote a development can bring pressure to bear on the Minister should he decide, for whatever reason, not to accede to a Council's request to initiate the amendment process." 62. He also sought to develop other bases of criticism of that decision.

All that need be said in that regard is that the principle of stare decisis requires that, if a decision of the Full Court is fairly applicable to a later statutory situation, then it is not for a single Judge of this Court to purport to dissent from the reasoning involved and prefer his own (The Queen v Gronert (1975) 13 SASR 189 at 191, albeit that that decision focused on the conduct of a judge of a subordinate court).

It follows, then, that a critical issue in the present case is as to whether or not it may be said that the reasoning in the decision in Nicholls is equally applicable to the circumstance with which the learned trial Judge was confronted. If it is, then cadit quaestio.

I, therefore, initially, turn to a consideration of that case.

The judgment in Nicholls was written by Cox J and concurred in by the other two members of the Full Court. As in the instant case, it arose from an initiative of the relevant local government authority to seek an amendment to the Development Plan, for the purpose of facilitating a commercial development plan involving the creation of a shopping centre complex, in a situation in which, land owned by the authority itself, was to be involved. The process embarked upon was that provided by subsection (2)(a)(i) of section 41 of the Planning Act. The appellant Nicholls objected to the proposed development. It initiated proceedings to attempt to prevent the local government authority from further pursuing the section 41 process, which was then already well advanced, on the ground that there was either actual bias, or a reasonable apprehension of bias, by virtue of the authority's own financial interest in the project.

Having analysed the scheme erected by section 41, Cox J concluded that the common law rules relating to natural justice are inapplicable to the section 41 process under consideration. He pointed out that the role of the Council in relation to the section 41 procedure was important, but limited. He expressed the view that, having initiated the process to lead to an ultimate amendment to the Development Plan, the function of the Council was essentially advisory. The fundamental decisions fell to be made by the Minister.

As to this, he commented:- "It [the Council] may initiate the amendment but thereafter its function is essentially advisory. Certainly it will be in a position to press its views on the Minister, that is as much as it can do. If the Minister finds the original proposal unattractive he may reject it out of hand. See subsection (5). If he is willing to let the proposal go forward, the Council is given the responsibility of convening a public meeting and receiving written submissions, and of conducting the public hearing and listening to anyone who wants to speak in favour of, or in opposition to, the Supplementary Development Plan or the written submissions relating to it. It must send the written submissions to the Minister, although with its own recommendation in relation to them. That appears to be the extent of the Council's involvement under section 41. The Minister by this time will already have had advice in relation to the Plan from the Advisory Committee on Planning constituted under Part II of the Act and if, after the public hearing, the Minister is satisfied that there is substantial public opposition to the proposed amendment or if the Council has at that stage recommended substantial alterations to its original proposal, the Minister must refer the matter to the Advisory Committee again. Indeed, the Minister may request a report from the Advisory Committee on his own initiative, without assigning any reason at all. At this stage, again, the Minister may decline to approve the Plan and that will be the end of the matter. If he does approve it, it still has to run the gauntlet of the Joint Committee on Subordinate Legislation with a further possibility, if the Joint Committee does not approve it, of disallowance by either House of Parliament. There are also certain powers of amendment that the Minister may exercise at different stages of the scheme. Finally, if all these hazards are surmounted, the Plan may be referred by the Minister to the Governor who may declare it to be an authorised Supplementary Development Plan and fix a day on which it will come into operation. By the time this happens, the proposal will long have been out of the Council's hands."

Having considered the relevant authorities on the topic, Cox J came to the conclusion that, by virtue of the nature of the role discharged by a local government authority under section 41, the common law rules related to natural justice were not applicable. In arriving at that opinion he traversed a series of well-known authorities, including the decision of the High Court in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, which , in turn, had discussed the reasoning of the High Court in the earlier decision in FAI Insurances Limited v Winneke & Ors (1981-1982) 151 CLR 342 ("FAI").

Cox J pointed out that a clear distinction needs to be made between functions such as the granting of a Planning Consent which have direct effects upon the rights of parties; and other functions which are substantially legislative in character. It was his opinion that the procedure initiated by the Council, pursuant to section 41 of the Planning Act, fell in the latter category. He arrived at that conclusion against the background that it was clear, under the legislation, that the effect of the proposed amendment of the Development Plan was simply to provide a planning environment in which the proposed development could possibly take place. In the event that the amendment was duly given effect to, there would then need to be a further, quite separate, step of seeking formal development approval. This would, of necessity, have to be considered by a completely independent authority.

Cox J acknowledged that section 41 provided for the possibility of the Minister promoting an amendment to the Development Plan, at the instance of the Council, as a quite separate exercise, but pointed out that this was not to say that, simply because a Council had a direct interest in promoting a new commercial development in its area of interest, it was constrained to pursue that course. He identified suasive reasons why a Council might not wish to do so and stressed that a Minister might be disinclined to take the initiative for political or other reasons.

"It is noteworthy that there is nothing in section 41 or in section 8 that applies to section 41 the express prohibition against being in any sense judge in its own cause that Parliament has made in the case of a planning authorisation. Finally, there is the uncertainty that would necessarily accompany any rule that disqualified a Council under section 41 for self-interest. It is one thing to identify a council as 'proposing to undertake development' for the purpose of section 8 and therefore disqualified from granting a planning authorisation. It is a different and more difficult thing to decide what kind and degree of financial involvement would disqualify a Council, if the plaintiff's argument is sound, under section 41. What of an amendment to the Development Plan that would bring increased business to the Council's car parks? What if the effect of the present proposal were to benefit the Council financially but to only a quite minor extent? Mr Beamond said that it would be a matter of degree, that would inevitably cause problems in practice." 73. He later summarised his ultimate conclusions in these terms:- "I have drawn attention to the limited power that a Council has if it wishes to secure an amendment to the Development Plan. Furthermore, those who suspect a Council of partiality are given every opportunity under section 41 to make their concern, and the reasons for it, known to the Minister and others in whose hands the fate of any amendment proposal will lie. No doubt they will make written submissions to the Council itself under subsection (8) and voice their opposition at the public hearing. The Council is obliged to forward copies of the written submissions to the Minister. The proposal has to pass the scrutiny of the Advisory Committee on at least one occasion, possibly more. The objectors can lobby the Advisory Committee and the Minister himself and also the Joint Committee on Subordinate legislation. The practical safeguards against pre-judgment or self-interest on a Council's part proving decisive are considerable.

In my opinion, it was the intention of Parliament, as indicated in section 41 and other provisions of the Planning Act, that the common law rules of natural justice should not apply to prevent a Council from preparing a Supplementary Development Plan, or from taking any of the other procedural and advisory steps for which section 41 provides, on grounds of bias."

Following the publication of the decision in Nicholls the appellant applied for special leave to appeal to the High Court. The transcript of that application was before this Court.

It is at once apparent from that transcript that, in seeking special leave, counsel for the appellant in that case was heavily relying on FAI as constituting an authority suggestive that the Full Court had fallen into error.

In the course of argument, the members of the High Court pointed out that there was an essential difference between Nicholls and FAI because, in the latter case, what was in issue was an administrative decision related to the renewal of a previously held licence to write motor vehicle insurance. Any decision made directly impacted on the rights of a party. This was to be contrasted with a proposed amendment of the Development Plan, which was of general application and would not, of itself, confer any rights on any party.

In resisting the application for special leave, counsel for the local government authority made the point that what was essentially in issue was a legislative-type process which would be rendered almost impossible, in practical terms, if the rules related to natural justice were applicable - for the very reason that, in most instances, it could be said that the authority's property or interests were likely to be affected in some fashion; that it was related to car parks, potential rate revenue, involvement of land owned by the Council and so on.

It was put to the members of the High Court by the Solicitor-General that it must always be borne in mind that, in relation to any proposal to amend the Development Plan, it was to be expected that the local government authority would, almost always, have already developed quite strong policy views in connection with the proposals and, probably have some potential interest, in one form or another, in the outcome. If the common law rules as to natural justice were applicable it would almost negate the possibility of the local government authority ever being able to initiate the statutory procedure for an amendment of the Development Plan.

It is to be noted that, in light of the foregoing submissions, the High Court ultimately declined to grant special leave on the basis that, in its opinion, the decision of the Full Court in Nicholls was not attended with sufficient doubt to justify the grant of special leave to appeal.

It is to be noted that, in the course of his judgment in FAI, Brennan J (as he then was) made the point that, where a challenge to the validity of an exercise of a statutory power is made on the grounds that a rule of natural justice has not been observed, the true foundation for the challenge is that a condition imposed by the statute upon the exercise of the power, albeit an implied condition, is not fulfilled; and that an exercise of the power is not efficacious unless the condition is fulfilled. As he emphasised, the subjects of statutory power are so various, the repositories of power so differently constituted, and the language of statutes so diverse, that the conditions to be implied are not - and cannot be - constant from statute to statute. In each case it is necessary to infer the true intention of the legislature by examining both the text of the statute and those extrinsic matters to which reference might properly be made in aid of interpretation. Such an examination is not impeded by drawing a rigid distinction between powers to be exercised judicially and powers to be exercised ministerially.

It is abundantly clear from a careful reading of Nicholls that it was that process of statutory interpretation which was embarked upon by the Full Court and which gave rise to its eventual decision.

In the course of his judgment in the instant case, Debelle J approached the relevance of Nicholls on two separate bases.

First, he sought to argue that it was distinguishable, because it related to a legislative scheme which was significantly different from that erected under sections 24-27 of the Act.

Second, he took it unto himself to conclude that, in any event, Nicholls was wrongly decided and/or in conflict with later decisions of the High Court and ought not to be followed at the present time.

With all due respect to him, it appears to me that, in conceptual terms, there is no significant difference, for present purposes, between the fundamental scheme of the Act and that which preceded it in section 41 of the Planning Act.

True it is that there are some minor procedural differences but, taken either individually or in their totality, they do not reflect any essential change in the relevant conceptual statutory process. The general overview described by Cox J in Nicholls is as directly applicable, in all material respects, to the provisions of the Act as it was to section 41 of the Planning Act.

As in the case of section 41, the Corporation, having initiated the process, is then essentially in the hands of the Minister and his advisors; and any eventual decision of the Minister is subject to review by the legislature. Moreover, the same opportunities to lobby and make submissions at all stages of the process, as were noted by Cox J to be available within the statutory regime then under consideration, are also available in relation to procedures initiated, inter alia, pursuant to section 25 of the Act. Such variants as do exist between the two statutory regimes are essentially differences in minor detail which do not give rise to any material distinction. Indeed, it may fairly be said that any differences which do exist confer greater safeguards on potential objectors than did the section 41 regime. For example, section 25 stipulates that the Minister must be supplied with both all written objections and also a summary of all oral objections.

As to the direct criticisms, on the part of the learned trial Judge, of the reasoning in Nicholls, the short answers are:- 1. It is quite plain that the High Court failed to discern any significant defect in reasoning of the nature adverted to by him and, in my opinion, the criticisms advanced simply cannot be sustained. In any event, well settled principle demands that a single Judge of this Court should loyally accept and apply the reasoning of the Full Court, particularly where as here, that reasoning was unanimously concurred in by all members of that Court.

2. It seems to me that both Mr Walsh QC and Mr Roder, of counsel for the Corporation of the town of Gawler, are plainly correct when they contend that the suggestion of the learned trial Judge that decisions of the High Court since Nicholls have re-stated the requirements of natural justice in terms which require Nicholls to be re-examined simply cannot be made good. 89. Much was said, in the submissions advanced on behalf of the present respondents, to the effect that Nicholls was plainly wrong because, inter alia, it failed to consider and give due effect to the reasoning of the High Court in FAI.

I have already pointed out that, in Nicholls, Cox J made reference to the case of Kioa, which, in turn, discussed FAI. More importantly, FAI was, virtually, the critical focus of the application for special leave and the High Court was quite unmoved by the reliance upon it.

In point of fact, the only relevant decisions of the High Court since Nicholls are the cases of Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, Ainsworth and Anor v Criminal Justice Commission (1992) 175 CLR 565, and Haoucher v Minister for Immigration [1990] HCA 22; (1990) 169 CLR 648.

A careful reading of these authorities reveals that none of them did other than apply well settled principles of law; and none of them purported to re-state those principles in any form which was incompatible with what fell from the High Court in FAI.

Moreover, each of those cases bore upon situations in which the particular activity under challenge potentially had a direct effect upon the rights of parties. Conceptually they were situations a world apart from that currently under consideration. The reasoning in relation to them simply has no application to circumstances of the nature now under review.

In no sense is the Corporation, in the instant case, an adjudicator. Its role is that of a mere proponent of the amendment to the Development Plan. Such a situation simply does not attract the application of the rule against an entity being a judge in its own cause. That potential situation is specifically catered for, in quite separate provisions of the Act, dealing with the mode of processing actual applications for planning authorisation.

There cannot, in my view, be the slightest doubt that, whilst Nicholls remains as an authoritative pronouncement of the Full Court of this Court, it is directly applicable to the situation here in question and is to be treated as binding authority. It is not open to this Full Court to overrule that decision unless it is satisfied that it was arrived at per incuriam, or is otherwise plainly wrong. (Sola Optical Australia Pty Ltd v Mills (1987) 46 SASR 364 at 365, Pooraka Holdings Pty Ltd v Participation Nominees Pty Ltd and Ors [1989] SASC 1802; (1989) 52 SASR 148 at 157. In the latter case five judges unanimously accepted that an earlier decision was wrong.)

Certainly it did not appear to the High Court, on the special leave application to which I have referred, that there was significant reason for questioning the correctness of the decision made. In my opinion the decision in Nicholls was plainly correct and accurately reflected a proper application of the relevant legal principles.

It follows then, as night the day, that, for the reasons which I have expressed, the present appeals ought to be allowed and the injunction appealed against vacated.

At a point after this Court reserved its judgment on the appeals as argued, but before that judgment was delivered, Mr Beamond, of counsel for the respondents, requested the Court to reconvene to hear further submissions. In the event a number of affidavits were tendered (one of them sworn at the direction of the Court) in support of an application filed by the respondents. In its initial form, that application, in effect, simply constituted an application to admit further evidence, or, alternatively, to make further submissions on the appeal. It was later amended to seek an order directing what was, in reality, further discovery of facts by the appellant.

It appears that the application was precipitated by the publication, in the Gawler "Bunyip" newspaper of 16 April 1997, of an article which referred to an agreement by Woolworths to pay to the appellant $500,000 reimbursement of development costs when it received approval for that development to go ahead.

In the event, the Court directed the appellant Corporation to file an affidavit in clarification of the relevant factual situation. It did so.

That affidavit, in reality, revealed a situation which extended little beyond that which was well-known to the learned trial Judge. It will be remembered that, in his reasons, he commented -

"After the PAR had been sent to the Minister, the Council proceeded with its negotiations with Woolworths. At a meeting on 15 April 1996, it resolved to proceed with the development on the footing that Woolworths would own the site. By letter dated 6 May 1996, the Council informed the Minister to that effect and stated that the written document give effect to that agreement was being prepared. The Council also informed the Minister that it no longer sought approval under s 197 of the Local Government Act. There is no evidence as to the current state of the negotiations with TAFE or the extent to which either the Council or Woolworths has acquired other land for the shopping centre site. The Council's negotiations with Woolworths continue. Although the nature of the Council's interest has altered, it still has a direct financial interest and, importantly, that interest in November and December 1995 was quite substantial." 102. In his affidavit the Chief Executive Officer of the appellant Corporation deposed that all discussions with Woolworths had always gone forward on the basis that any proposed development was to be cost neutral to the appellant Corporation. At the time when the proposal was mooted on the basis of a projected leasing arrangement, the development costs incurred by the appellant were to be factored into any rental formula. After the PAR had gone to the Minister and an alternative sale proposal was discussed, it was an inherent part of those discussions that any projected sale would also comprehend a financial formula involving the recoupment of costs incurred by the appellant. It was to this that the "Bunyip" article referred.

In addressing the application filed by him, Mr Beamond seemed rather ambivalent as to whether, despite consistent earlier indications by Mr Hayes QC eschewing any such allegation, the respondents desired, now, to pursue an assertion of actual bias and/or whether it sought to raise some argument based on alleged improper purpose. Seemingly, he desired to promote the former, with the latter as an alternative proposition.

In my view the respondent's belated application was utterly misconceived.

As to both potential prongs of the desired argument, the respondents have simply not been able to point to any factual information of significance which had not already been before and was well known to the learned trial Judge. The respondents elected, at the time, not to pursue any issue of actual bias and did not seek to obtain further discovery and information as to the precise details of the later negotiations. Furthermore, on the affidavits tendered, no compelling factual case is made out in that regard. At best, if the matter was to be examined, there would need to be a major factual enquiry of the type which the respondents chose not to pursue at trial; which could not be carried out before the Full Court; and would seek to raise totally fresh issues in a quite impermissible manner (Tyson v Brisbane Market Freight Brokers Pty Ltd [1994] HCA 67; (1994) 120 ALR 1).

Perhaps more importantly, it is obvious that the present application is, in reality, an exercise akin to chasing shadows. As Mr Roder, of counsel for the appellant Corporation, so clearly demonstrated, there is, in substance, nothing sinister or new in the circumstances now sought to be agitated by the respondents. Quite apart from the fact that the revised basis of dealing (which did not crystallise until after the PAR had been dispatched to the Minister and the appellant Corporation had concluded its functions in relation to it) was well known to the parties and the learned trial Judge, what is now relied upon was, patently, always part and parcel of the conceptual basis of what was in contemplation. That has not changed. All that has altered is the means of giving effect to it.

In my opinion the matters sought to be raised in this belated fashion are ephemeral and the procedure sought to be adopted quite inappropriate.

I would further order that the respondent's application be dismissed.

I agree with the order proposed by Matheson J for the reasons which he has given.