TOWN OF GAWLER v MINISTER FOR TRANSPORT & URBAN PLANNING & THE STATE OFSA No. SCCIV-02-192 [2002] SASC 85

Supreme Court of SA|2002-03-05|Before: Debelle J

Judgment No. [2002] SASC 85

(Land And Valuation Division: Application For Judicial Review)JUR

DEBELLE J. On 18 January 2002, the Minister for Transport and Urban Planning ("the Minister") released for public consultation a Plan Amendment Report entitled "Gawler (CT), Playford (City), Noarlunga (City), Willunga (DC Metropolitan) Development Plans Urban Growth Boundary Plan Amendment". For convenience, I will call the Plan Amendment Report "the PAR". In releasing the PAR for public consultation, the Minister was purporting to act pursuant to s 26(4) of the Development Act 1993 ("the Development Act").

The PAR applies to the Development Plans for the whole of the area of the Corporation of the Town of Gawler, the City of Playford (which used to be the City of Elizabeth and the District Council of Munno Para), the City of Noarlunga, and a portion of the District Council of Willunga, that is to say, the metropolitan portion. The City of Noarlunga has been extended to include parts of the area formerly known as the District Council of Willunga. It is now called the City of Onkaparinga. The PAR therefore affects land within the City of Onkaparinga. Thus, shortly stated, the PAR applies to the areas of the Town of Gawler, the City of Playford, and the City of Onkaparinga.

On 15 January 2002, the Governor gave notice pursuant to s 28(1) of the Development Act that the PAR should come into operation on an interim basis from 18 January 2002. In that notice she stated that she was of the opinion that it was necessary, in the interests of the orderly and proper development of the area affected by the PAR, that it should come into operation without delay.

In this application for judicial review, the Corporation of the Town of Gawler ("the Council") seeks two declarations. The first is that the Minister has acted ultra vires in preparing a PAR and releasing it for public consultation. The second is that the notice given by the Governor on 15 January 2002 is invalid. The Council also seeks an order in the nature of certiorari quashing the Governor's decision and an order in the nature of prohibition restraining the Minister from further proceeding with the PAR.

Notice of this application was given to both the City of Playford and the City of Onkaparinga. Neither council sought to be heard.

In Mount Barker Property Investments Pty Ltd v District Council of Mount Barker [2001] SASC 249, the effect and operation of Development Plans is described. It is unnecessary to repeat it. While it is inaccurate to describe a Development Plan as delegated legislation, there are nevertheless prescribed procedures by which a Development Plan is amended. The prescribed procedures are set out in s 24 - s 26 of the Development Act.

Section 24 prescribes the persons who may amend a Development Plan. Those persons are either the council for the relevant area or the Minister. The council for the relevant area has the primary responsibility for amending the Development Plan for its area and may do so at any time and for any proper cause provided the council secures the consent of the Minister to a statement of intent prepared by the council pursuant to s 25(1) of the Development Act.

By contrast, the Minister is entitled to prepare amendments only in the circumstances prescribed by s 24. Although there are a number of instances in which the Minister may prepare an amendment, nevertheless, the Minister's powers are limited to those prescribed occasions. In this way, a council is able to restrain the Minister if the Minister should seek to act in circumstances not prescribed by s 24. Furthermore, the particular head of power relied upon by the Minister may assist those who seek to make representations upon proposed amendments in the process of public consultation in that it will enable them to point to the particular head of power relied on for the purpose of advancing the submission.

Section 25 of the Act prescribes the procedure which must be followed when an amendment is prepared by a council. Section 26 of the Act prescribes the procedure to be followed when the amendment is being prepared by the Minister. Section 27 of the Act provides a process of parliamentary scrutiny when an amendment has been approved by the Minister either under s 25 or s 26. Section 28 of the Act provides for a process of interim development control where the Governor considers it necessary, in the interests of orderly and proper development of an area of the State, that an amendment to a Development Plan should come into operation without delay.

It is important to distinguish between the legislative purpose of s 24 of the Act on the one hand and the legislative purpose of s 25 and s 26 on the other. Section 24 prescribes who may prepare an amendment to a Development Plan. In other words, it prescribes who has the power or authority to make an amendment and in what circumstances the amendment may be made. Section 25 and s 26 are ancillary to s 24. They prescribe the procedure to be adopted by either a council (s 25) or by the Minister (s 26) when preparing the amendment. Thus, unless the Minister is able to point to a provision in s 24 which authorises her to prepare a PAR, she is unable to begin to prepare a PAR. The Minister cannot proceed to prepare a PAR unless the conditions in s 24 are satisfied. Parliament has prescribed s 24 as a condition prerequisite to the exercise of the power to prepare a PAR. To put it another way, s 24 provides the power to initiate the process of preparing the amendment and the circumstances in which the amendment may be made, whilst s 26 prescribes the means by which the Minister may prepare a PAR.

When it instituted this application the Council asserted that the Minister was acting without authority in preparing the PAR because she had failed to consult with the Council before beginning the preparation of the PAR and there was no other statutory basis for the Minister to act. As this PAR relates to the areas of three councils, the Council pointed to s 24(1)(b) which requires that the Minister is required to consult with each of the three councils affected. However, the affidavits filed on behalf of the Minister do not invoke s 24(1)(b). It is asserted, on behalf of the Minister, that the Minister was acting pursuant only to s 24(1)(g) of the Act. It is, therefore, necessary to consider the operation of those two provisions.

Section 24(1)(b) and s 24(1)(g) respectively provide:

"(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

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

Section 24(1)(b) requires three steps. They are

(1) that the Minister considers the amendment is reasonably necessary to promote orderly and proper development within the relevant areas;

(2) the process of consultation with each of the councils for the relevant areas; and

(3) the Minister considers that it is appropriate for the Minister to undertake the amendment.

Although the Minister has not purported to rely on this provision, it is necessary that I be satisfied that it does not apply.

There is no suggestion that the Minister has consulted with the Council. The Act does not define "consultation". In this context, it means "the act of consulting or taking counsel together; the act of deliberating and conferring together": see Oxford English Dictionary and Macquarie Dictionary. What amounts to consultation in any given situation is a question that will depend on the facts and circumstances of each case: Rollo v Minister of Town and Country Planning [1947] 2 All ER 488 per Morris J at 495.

In R v Whally; ex parte Bordin & Co [1972] VicRp 89; [1972] VR 748, Gowans J had to consider what consultation the members of the Building Regulations Committee in Victoria had to undertake before they could make a declaration under the provisions of the Local Government Act, 1958 (Vic). He said (at 750):

"The purpose of the requirement appears to me to be to ensure that, before operation of a provision is dispensed with or modified in a particular case, the appropriate representative of the local authority should be apprised of the application and given an opportunity of expressing a view as to whether or not the provision is inappropriate in the circumstances or can be dispensed with, or modified, without detriment to the public interest, or should be adhered to, so that the referees may take that view into account before deciding to direct a dispensation or modification."

The essence of that process, as identified by Gowans J, was, first, the giving of sufficient information to the person consulted to enable that person to express an informed view on the decision to be made. Secondly, the opportunity for that person's view to be received by the decision maker and the consideration by the decision maker of that view. In Rollo v Minister for Town and Country Planning [1948] 1 All ER 13 at 17, Bucknill LJ expressed a like view:

"A certain amount has been said as to what 'consultation' means. In my view ... it means that, on the one side, the Minister must supply sufficient information to the local authority to enable them to tender advice and, on the other, a sufficient opportunity must be given to the local authority to tender that advice."

In this case, there was no process by which the Council was invited to express its view on the proposal to prepare a PAR relating to urban growth. I am satisfied that the Minister cannot call in aid s 24(1)(b).

One question which arises is whether s 24(1)(b) provides the only power for the Minister to act where it is intended to prepare a PAR for the areas of two or more councils. I do not think it does. Sections 24(1)(f) - 24(1)(i) all authorise the Minister to prepare a PAR in circumstances which may affect the area of more than one council. Section 24(1)(g) provides a useful illustration. An amendment of significant social, economic or environmental importance may affect the area of two or more councils. Parliament would not have intended restricting the power of a Minister to make an amendment in such circumstances to one council area. Plainly, such an amendment may affect the area of two or more councils. I turn to examine s 24(1)(g).

The effect of s 24(1)(g) is to authorise the Minister to prepare a PAR where

(1) there is a matter which, in the opinion of the Minister, is of significant social, economic or environmental importance; and

(2) the Minister considers an amendment to a Development Plan is appropriate because of the matters the Minister has identified.

It will be noticed that the section requires that the Minister is able to identify a matter either of significant social, economic or environmental importance or any one or more of those factors and that the matter she has identified as being significant makes it appropriate to amend a Development Plan. In other words, the Minister must form two opinions. The first is to identify the matter of significant social, economic or environmental importance. The second is that an amendment to the Development Plan is thereby appropriate.

Before examining whether the Minister has formed the necessary opinions, it is necessary to note two further steps in the process of preparing a PAR. Section 26(1) requires that, if the Minister is considering an amendment, the Minister must first prepare a draft PAR which is based on both the investigations initiated by the Minister and on the advice of a person with prescribed town planning qualifications.

No evidence has been adduced on behalf of the Minister that she has formed an opinion on either of the two matters I have identified. There is no affidavit from the Minister. If the Minister has formed an opinion on those two facts, it has to be inferred from the documents which have been tendered on behalf of the Minister. Care must be taken when drawing inferences from the documents. The question to be determined is not whether there is a factual basis for the opinion required of the Minister but whether she in fact formed the required opinion. There is a danger in inferring whether the Minister had the required opinion because the Minister may be proceeding on another footing. That is especially true given that the Minister must be able to point to the particular power in s 24 on which she seeks to rely.

The evidence adduced on behalf of the Minister, from which it is said the inference can be drawn, is a series of studies which followed a green paper on urban regeneration issued in April 1999 and entitled "A Better Place to Live: Revitalising Urban Adelaide". The green paper was released under the authority of Cabinet. In response to the release of the green paper, Planning SA, on behalf of the Minister, investigated the concept of an urban growth boundary. That investigation was undertaken in consultation with State and local government agencies. Other investigations have followed. They have included:

1. A development of a spreadsheet by the Geographic Analysis and Research Unit of Planning SA to analyse the relationship between changing demographics in housing in metropolitan Adelaide.

2. The preparation by Planning SA of a draft structure plan of future urban growth at Gawler.

3. The preparation by Planning SA of a draft discussion paper dated March 2000 entitled "The Boundary to Urban Growth in Adelaide".

4. The preparation of a discussion paper dated August 2000 and a so-called Scoping Report dated October 2000 on development policy issues in southern Gawler prepared by the Council in consultation with Planning SA and other State agencies. Funding was provided for that project by Planning SA.

5. The preparation by the Urban and Regional Development Advisory Committee ("URDAC") of the Metropolitan Adelaide Land Supply and Demand Report dated September 2000 providing an analysis of residential land supply in demand in the Adelaide metropolitan area.

6. Consultation between URDAC and relevant State Government agencies.

7. Correspondence with the Council, the City of Onkaparinga and the City of Playford.

8. A publication by Planning SA of a paper dated November 2001 canvassing the issue of future urban growth in the area of the City of Playford.

The evidence does not, however, indicate that any of these investigations were necessarily being prepared for the purpose of preparing an amendment to the Development Plan. They evidence no more than that a series of studies relating to urban growth have been undertaken. Furthermore, I am not satisfied that the correspondence with the Council which has been tendered relates to the preparation of this PAR. It appears to be correspondence relating to certain proposals made by the Council to amend its own Development Plan.

In November 2001, Planning SA engaged Ms Simone Fogerty and Mr Terry Bell of Brown and Root Services Asia Pacific Pty Ltd to advise in relation to the preparation of a draft PAR for the urban growth boundary based on the investigations already mentioned. On 12 December 2001, Ms Fogerty and Mr Bell sent a draft PAR to the Minister. That was the PAR which was released for public consultation on 18 January 2002. As at 12 December 2001, no decision had been made by the Minister to act pursuant to s 24(1). There is no evidence that the Minister commissioned the preparation of the draft PAR.

On 12 December 2001, a minute was sent to the Minister by Planning SA recommending that

"1. Pursuant to s 26(1) of the Development Act you initiate investigations for the preparation of a draft PAR to introduce an urban growth boundary; and

2. Pursuant to s 26(1) of the Development Act you appoint Mr Geoff Butler of the State Policy Branch as a person with prescribed qualifications to provide advice on the PAR."

As this minute was sent to the Minister on 12 December 2001, it is clear that the Minister had not before that date turned her mind to the preparation of a PAR or the grounds on which she might cause it to be prepared.

It will be noticed that the statutory provision, pursuant to which it was recommended that the Minister act, was s 26(1). She was not being asked to make any decision pursuant to s 24(1)(g) of the Development Plan. On 14 December 2001 the Minister returned the minute without endorsement requiring the maps to which the minute referred to be amended to refer to road names and other details.

At the time of receiving the minute, Mr Savery, the officer who had the responsibility for this PAR, was informed by another officer in Planning SA "that the recommendation numbered 1 ... of the minute did not refer to the correct provision of the Development Act". Mr Savery agreed. On 19 December 2001, Mr Savery returned the minute to the Minister with the alteration she had requested to the maps and with an alteration to the first recommendation made in his own hand. That alteration was to delete from recommendation 1 the reference to s 26(1) and to substitute in its place a reference to s 24(1)(g). When returning the recommendations, Mr Savery also included a note to the Minister on the front page of the minute, which referred to the fact that the minute had been revised in response to her comments and that it was anticipated that the total urban programs package forwarded to her would be sent to her by the end of the week. It will be noticed that Mr Savery's note did not in any respect refer to the alteration to the first recommendation nor did he give any reason for it.

On 29 December 2001, the Minister approved the recommendation as altered. By that approval she authorised investigations for the preparation of a draft PAR and she also approved the appointment of Mr Butler to provide advice on the draft PAR. She did no more.

On 9 January 2002, the Minister referred the draft PAR to Cabinet for consideration under s 28 of the Development Act. On 15 January 2002, the Governor signed the declaration that the PAR was to come into operation on an interim basis on 18 January 2002. Notice of that declaration was published in the Gazette on 15 January 2002. It was in those circumstances that the Minister released the PAR for public consultation on 18 January 2002.

There are a number of features of the minute of 12 December 2001 which was approved by the Minister on 29 December which call for comment. The first is that there was an internal inconsistency in the minute in that the decision to initiate investigations is made under s 26(1), not under s 24(1)(g) of the Act. Secondly, the Minister does not anywhere in that minute identify a matter of significant social, economic or environmental importance. Nor does she state that she considers an amendment to the Development Plan is appropriate because of a matter of significant social, economic or environmental importance. Thirdly, it is not clear whether the investigations to which the minute refers are some or all of the investigations mentioned earlier in these reasons which had already been undertaken or whether the Minister intended to undertake further investigations. Fourthly, a draft PAR must be based on investigations and the advice of a person with prescribed qualifications. There is no proof that Mr Butler has yet considered the draft PAR or advised the Minister upon it. She could not therefore release it. There is a question whether the preparation of the draft PAR must logically precede the formation of the necessary opinions prescribed by s 24(1)(g). However, it is unnecessary in this matter to examine that issue. It is sufficient to note that the Minister has nowhere identified a matter of significant social, economic or environmental importance nor addressed the question of whether an amendment to a Development Plan is therefore necessary. It cannot be inferred from this minute that the Minister has formed the two opinions required by s 24(1)(g). The internal inconsistency which has already been identified denies such an assertion.

For these reasons, I find that the Minister believed she was doing no more than deciding to initiate investigations and appoint a person with prescribed qualifications to advise her. With all due respect to the Minister, I do not believe that, as a busy person, she noticed the inconsistency in the first paragraph of the minute. I find that she believed that she was deciding no more than is stated in her recommendations. That is to say, she was deciding no more than that investigations should be initiated for the preparation of a draft PAR to introduce an urban growth boundary and, secondly, to appoint Mr Butler to provide advice on that PAR. The evidence proves no more than that the alteration was made to the minute by an officer in Planning SA. It is not established that the Minister addressed the issues in s 24(1)(g).

The Minister relies on the presumption of regularity. Where a statutory power is conferred upon terms requiring the prior formation of a particular opinion by the donee of the power, it will be presumed from the exercise of that power, in the absence of evidence to the contrary, that the donee had the required opinion: McLean Bros and Rigg Ltd v Grice (1906) 4 (Part 1) CLR 835 at 859 - 860; Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36 at 46 - 47; Attorney-General for the Northern Territory v Minister for Aboriginal Affairs (1986) 67 ALR 282 at 297; and Minister for Natural Resources v New South Wales Aboriginal Lands Council (1987) 62 LGRA 409 at 424. The presumption is rebuttable. The burden of proof lies upon the party attacking the presumption. The presumption is rebutted in this case by reason of the internal inconsistency in the terms of the first recommendation. That inconsistency denies the conclusion that the Minister formed the necessary opinion under s 24(1)(g). Furthermore, it is necessary for the Minister to act under one of the heads of power prescribed by s 24. It cannot be inferred from the evidence, when viewed as a whole, under which of those powers she was purporting to act in the particular circumstances of this case. There are at least two possible powers, namely, those prescribed by s 24(1)(g) and s 24(1)(h). Finally, the failure by the Minister to identify a matter which she opines is of significant social, economic or environmental importance has the consequence that it is not possible to be satisfied whether the Minister was, in truth, purporting to exercise any of the powers prescribed by s 24(1).

There is a further difficulty in the path of the Minister. As Lord Simonds noted in Morris v Kanssen [1946] AC 459 at 475 - 476, there are limits to the application of the presumption of regularity. The presumption is designed for the protection of those who are entitled to assume, because they cannot know, that the person with whom they deal has the authority which is claimed. The principle cannot be invoked if the condition is no longer satisfied, that is to say, if he who would invoke it is put upon his inquiry. He cannot presume in his own favour that things are rightly done, if the inquiry that he ought to make would tell him that they were wrongly done. The effect of Lord Simonds' views is that the presumption does not apply where a person purports to act and his authority to act is in question.

For all of these reasons, the grounds for the Minister's action are not known. Although there has been an attempt to invoke s 24(1)(g), it has not been shown that the Minister relied on that provision. The reference to it is entirely out of context and in no respect specifies a matter of social, economic or environmental importance. There is, in short, no decision by the Minister in which she identifies the matters required by s 24(1)(g) upon which she purports to rely.

The next issue is whether the inability of the Minister to point to the head of power on which she relies should cause the PAR to be invalid. Section 24 prescribes the conditions precedent for the Minister to prepare an amendment to a Development Plan. As already mentioned, unless the Minister can point to a particular power she cannot act. The Minister has failed to point to any power. It follows that the PAR must be invalid.

This is not a case calling for the application of the principles enunciated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at par 91. Even if it were, this is an instance where Parliament intends that a failure to comply with the prescribed requirement should lead to invalidity. In truth, this is a case where Parliament has prescribed the circumstances in which the Minister may act. She cannot amend a Development Plan for any reason other than those prescribed in s 24. The Minister has not shown the particular head of power upon which she relied. The process is, therefore, a nullity.

I turn to examine the validity of the Governor's notice of interim development control pursuant to s 28(1) of the Development Act. The terms of s 28(1) make it clear that the existence of a valid PAR is a condition precedent to a declaration by the Governor under that provision. Section 28(1) provides:

"28. (1) 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, at the same time as, or at any time after, a Plan Amendment Report in relation to the amendment is released for public consultation under this subdivision, and without the need for prior consultation with any council or other authority, by notice in the Gazette, declare that the amendment will come into operation on an interim basis on a day specified in the notice."

The Governor's opinion that it is necessary in the interests of orderly and proper development that an amendment to a Development Plan should come into operation without delay plainly depends on the existence of a PAR. It follows that if the PAR is invalid, the Governor had no basis on which to form an opinion or to declare that the amendment should come into operation on an interim basis. For these reasons, I will make a declaration that the Governor had no power to make a declaration pursuant to s 28(1) and that the notice published in the Gazette on 15 January 2002 is invalid.

The remedies sought by the plaintiff are discretionary in nature. I turn to examine the question whether, despite the fact that the Council has obtained the declarations it seeks in these proceedings, in the exercise of my discretion, I should refuse to set aside the PAR and the notice of interim development control. The PAR affects quite a substantial area of land in three council areas. I have already referred to the fact that neither of the two other councils affected sought to be heard in support of the application to set aside the PAR. There is an obvious public interest in permitting the process under s 26 to proceed. Members of the public and the Council will have the opportunity to make submissions in relation to the PAR and those submissions must be considered in turn by the advisory committee and by the Minister pursuant to s 26(4), (7) and (8). The criticism which the Council makes of the proposal in the PAR can be voiced to the Minister and considered. However, Parliament has prescribed the conditions prerequisite to the preparation of a PAR by the Minister. It is not known by what authority the Minister purports to prepare this PAR. She may not even have formed any opinion under s 24 or she may be proceeding for reasons outside s 24. The failure to establish the power to act under s 24 is, for the reasons already expressed, fatal to the Minister proceeding with this PAR.

It is not possible to ascertain by what authority the Minister purports to proceed. It was submitted, on behalf of the Minister, that the fact she could form the necessary opinion and recommence the process renders a declaration of invalidity futile. I do not agree. The contention assumes that the Minister has formed that opinion but that fact has not been established. Furthermore, the Minister may be called upon to justify the opinion. I believe that it is more appropriate for the Minister to be able to demonstrate that she is acting in accordance with the Act. Furthermore, the Council, which has the responsibility for the Development Plan for its area, is entitled to be satisfied that the Minister is, in fact, acting within the authority of s 24.

In addition, the three separate councils affected by this proposal may each themselves prepare a separate PAR for their respective council areas tailored to the individual needs of each area. Whatever process is adopted will take time. However, it is possible for that process to be accelerated, particularly given the investigations which have already been undertaken.

This Council has acted without delay. It instituted these proceedings immediately upon receiving notice of the draft PAR and upon the gazettal of the notice of interim development control by the Governor. There is no justifiable basis, in my view, for exercising a discretion to allow the Minister to proceed with this PAR notwithstanding the invalidity.

I do not lightly reach this decision. I have no desire to play the role of an iconoclast. However, as I have already mentioned, the Council is entitled to know by what authority the Minister purports to act.

For these reasons, the Minister has acted without power in preparing this PAR. It follows that there should be a declaration that the PAR is invalid and an order prohibiting the Minister taking any further steps pursuant to s 26 in relation to that PAR. It also follows that there will have to be an order declaring the notice of interim development control invalid.

I will hear the parties as to the terms of those orders.

There is a further matter I should mention. If the Minister does decide to proceed with a draft PAR and seeks to rely on a particular head of power under s 24 and if it is decided to issue a notice of interim development control, it might be desirable to reconsider the terms upon which the notice of interim development control is drawn. In the course of argument, it became fairly clear that a more appropriate provision for interim development control to prevent urban growth inconsistent with the objectives of the PAR would be to give notice in terms of the order made by the Governor on 15 January 2002 but, in the case of the area of the Town of Gawler, not to implement the draft PAR but to continue with the existing provisions relating to the relevant rural zone. In this way, there is a much sounder basis for preventing urban growth pending the implementation of this PAR. This issue also might be considered when drafting the terms of the proposed PAR.

Development Act 1993

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (74 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)