UPHAM v THE GRAND HOTEL

Supreme Court of SA|1999-09-24

The application was lodged on 10 February 1998. The proposed development included no provision for on-site car parking, and made no mention of any alternative provision for car parking. That feature of the proposed development was the subject of much consideration by the DAC, and lies at the heart of the question of whether the proposal was seriously at variance with the relevant Development Plan.

The proposal was treated as being a Category 2 Development: see s 38. Notice was given by letter dated 11 February 1998 in accordance with the Regulations on that basis. The Notice required any representation to be lodged by 26 February 1998: see Regulation 35.

By letter dated 26 February 1998 the plaintiff lodged with the DAC a representation expressing its opposition to the grant of consent to the development proposal. The main issues raised by the letter were the lack of off street parking provided as part of the proposal, the general lack of off street parking in the area, criticisms of the provision made for delivery and service vehicles, and noise emanating from the proposed building.

On 16 March 1998 the Council wrote to the DAC. The letter explained in some detail the strategies adopted by the Council in relation to the provision of car parking in the locality. The letter noted that it was understood that the Irish Hotel proposal had been assessed by Master Plan Pty Ltd (the planners acting for Mr Upham) as likely to generate additional car parking demand in the order of 60 cars. It referred to the difficulty of providing on site car parking, and the resultant reliance upon street car parking and publicly provided off street car parking. The letter stated that the Council had in recent years created 91 additional off street car parking spaces. The letter went on:

"In the context of Council's 'collective' approach to car parking demand and supply, the additional ninety one off street car parking spaces outlined above are 'unallocated' in so far as they have not been tied to any specific development. All of the new car parking spaces are within some 600 metres of the site at 11 Moseley Square, being a modest walking time of less than 10 minutes. It is Council's view that the increased off street car parking capacity which has been achieved more than adequately addresses the additional car parking demand associated with the Guinness Irish Pub proposal, and that the car parking aspects of the proposal are therefore satisfactory. The Council would be pleased if the Commission would formally recognise the notional allocation of 60 of the new 'supplied' car parking spaces for the subject Development Application, not to be 'used' in relation to any other future proposal."

"The Council is firmly of the view that its actions over the last three years, together with actions either well under way or currently being considered, all of which are in accord with Council's adopted car parking strategy, more than adequately address the car parking issues associated with the site at 11 Moseley Square, Glenelg in the context of the current Development Application."

On 20 March 1998 the DAC asked Mr Upham to provide further information.

By letter dated 31 March 1998 the Council informed the DAC that it had resolved to inform the DAC that the Council supported the Development Application subject to certain conditions set out in the letter, none of which are relevant to the issue of car parking.

By letter dated 7 April 1998 Master Plan Pty Ltd, on behalf of Mr Upham, responded to the DAC's request for further information. The letter is of seven pages, and deals in considerable detail with the issue of car parking. Among other things the letter refers to the fact that the purchase price to be paid to the Council for the land included a contribution (one half) towards the cost of developing 60 off street car parking spaces. It argues that it is impractical to provide car parking on individual sites in the locality, and that the proper approach is for the local authority to provide publicly owned car parking, assisted by developer contributions. The letter refers to relevant provisions of the Development Plan, to the Council strategies in relation to car parking and to demand for car parking likely to be generated by the proposed use. The letter argues that the property is proposed to be licensed for a maximum of 310 persons, and that an appropriate parking provision for the development is 60 car spaces. The letter deals with certain other aspects of the proposal.

On 9 April 1998 the solicitors acting for the Hotel went to the office of the DAC and asked to inspect the DAC file relating to the Development Application. The request was refused, and the only material made available by the DAC was the original application. By this time the time for the lodging of a written representation in relation to the application had expired: see Regulation 35. Accordingly, the period during which the DAC was obliged by the Regulations to make copies of certain documents available for inspection had ended: see Regulation 34(1).

The result of the DAC's decision was that the solicitors for the Hotel did not see the letter of 16 March 1998 from the Council, the letter of 31 March 1998 from the Council and the detailed letter of 7 April 1998 from Master Plan Pty Ltd.

By letter dated 14 April 1998 the solicitors for the Hotel wrote to the DAC complaining about the withholding of information. They threatened legal action.

On 27 April 1998 solicitors acting for Mr Upham provided to the DAC a copy of legal advice obtained by them. The advice was to the effect that the DAC could properly approve of the Development Application although no off street parking was provided.

On 30 April 1998 the Council provided to the solicitors for the Hotel a copy of its letter of 16 March 1998 to the DAC.

By letter dated 1 May 1998 the solicitors for the Hotel again complained about the failure of the DAC to provide information about how Mr Upham intended to deal with the car parking requirements of the Development Plan.

On 5 May 1998 the DAC decided that all persons who had made representations relating to the granting or refusal of consent would be permitted to appear personally before the DAC to be heard in support of the representation: see s 38(10)(a).

On 6 May 1998 the solicitors acting for the Hotel advised the DAC that they would appear at the meeting of the DAC in support of the Hotel's representation. They again complained about the lack of information made available to them.

Also on 6 May 1998 the solicitors for the Hotel provided to the DAC a copy of advice that they had obtained from a transport consultant. The tenor of the advice was that the proposal was seriously at variance with the relevant Development Plan because of the failure to provide on-site car parking.

On the afternoon of 8 May 1998 the DAC provided to the Hotel's solicitors a copy of the Council's letter of 16 March 1998 and of the letter from Master Plan Pty Ltd of 7 April 1998, together with a document entitled "Jetty Road Structure Plan". The DAC was due to meet to hear submissions on Tuesday 12 May 1998. The DAC did not provide a copy of the Council's letter of 31 March 1998, or of the legal advice that Mr Upham had provided to it.

The solicitors for the Hotel complain that, in the limited time available, they were not able to obtain expert planning advice or traffic advice on the material provided to them, before the meeting of the DAC.

On 12 May 1998 the DAC heard the solicitors for the Hotel in support of the Hotel's representation, and heard others who wished to be heard. The DAC also heard a submission from a representative for Mr Upham.

The DAC had a detailed assessment of the proposal from one of its own staff. The assessment proceeds on the basis that the maximum usage of the premises will be 310 people at any one time. It canvasses the relevant provisions of the Development Plan. It deals in considerable detail with the issue of car parking. It is difficult to summarise adequately the thrust of this detailed assessment. However, bearing that in mind, it can be said that overall the assessment is a favourable one. The proposed development is regarded as generally suitable for the locality. However, in the course of the assessment it is argued that having regard to the proposed use of the site, 100 car parking spaces should be provided rather than the 60 spaces suggested by the Council. The overall effect of the assessment is fairly reflected in the conclusion, which is as follows:

"Glenelg and more specifically Jetty Road, Moseley Square and the foreshore and environs area is a significant destination for people from Metropolitan Adelaide as well as interstate and international visitors. New development proposals should seek to reinforce the significance of this area. The proposal to develop an 'Irish Themed' hotel on the old 'Huggy Bear' site in Moseley Square will contribute in a positive way to the attractions within this area and will contribute to the enjoyment of the locality by both locals and visitors alike. Its appearance will improve the amenity of the northern frontage of Moseley Square and will enable safe and convenient pedestrian access from Colley Reserve. Having regard to the parking arrangements, the provision of 60 off site car park spaces is some 40% less than the Plan proposes in relation to a hotel. The number of spaces required for this proposal would be 100. The discounting of the number of car parking spaces by 40% is, We believe questionable. Nevertheless the question of the adequacy of car parking is relevant in the context of what is reasonable based on Council's parking strategy for the area. Council has indicated that it has established some 91 additional off street car parking spaces in the Jetty Road precinct all of which are within 600 metres of the subject site. Council is therefore seeking the agreement of the Commission that it will formally recognise the notional allocation of 60 of the new 'supplied' car parking spaces for the Irish Pub proposal and that these spaces will not be allocated to any other future proposals. It is worth noting that the letter by Murray Young questions whether these spaces are indeed 'unallocated' given that several nearby developments were under parked. It has been suggested that the requirements for funding additional car parking over the 60 currently allocated may jeopardise the viability of the project."

The assessment then proceeds to recommend the grant of consent subject to conditions. The suggested conditions are virtually identical to the conditions that attached to the consent that the DAC later gave. There is no condition that relates specifically to car parking.

The assessment itself is nine pages long. It was accompanied by attachments numbering 61 pages, which included all of the relevant advice and submissions to the DAC in relation to the application. Much of this material relates to car parking.

On 12 May 1998 the DAC resolved to defer consideration of the application, pending the receipt of further information from the Council. The information sought related to car parking. The DAC also sought from Mr Upham information on matters not relevant to this case.

By letter dated 21 May 1998 the Council provided to the DAC further information relating to the question of car parking.

At a meeting of the DAC on 26 May 1998 the DAC was provided with the further information. The DAC considered the further information and concluded "that the proposed development was consistent with the provisions of the Development Plan." The DAC then resolved:

"(1) That the Commission supports Development Application No DAC 110/0096/98 by J Upham to erect a Irish theme hotel at 11 Moseley Square, Glenelg, subject to:- (1) Written confirmation from the City of Holdfast Bay of a commitment to the allocation of 80 car parking spaces specifically allocated for this development in its public parking register. (2) The City of Holdfast Bay to advise the Commission of the date of operation of its public parking register. (2) The Commission further resolved to delegate to the Presiding Member, authority to issue the Provisional Development Plan Consent subject to the satisfactory resolution of the above issues."

The conditions to which the approval was subject relate to the Council's policy of creating additional car parking spaces, and to the allocation of a specified number of those spaces to the proposed development in a public register that the Council proposed to establish. The effect of the condition was that the Council would not treat 80 identified spaces as available to meet parking needs that might be generated by other developments in the locality.

By letter dated 11 June 1998 the Council advised the DAC that it would allocate 80 car parking spaces as required, and would in due course advise of the date of operation of the car parking register.

By notification dated 16 June 1998 the DAC notified Mr Upham that it had granted Provisional Development Plan Consent in respect of the proposed development, described as "Irish themed Hotel". The grant was subject to nine conditions, none of which relate specifically to car parking. The reasons for decision that accompanied the notification stated that the proposal was consistent with the Development Plan, and that the DAC was "satisfied that Council has committed to the establishment of a public car parking register and that eighty (80) car parking spaces will be specifically associated with this development in that register."

By letter dated 30 June 1998 the Council advised the DAC that it had adopted the car parking register.

It is convenient to record here that when the solicitors for the Hotel appeared before the DAC on 12 May 1998, they had not been given any information from the files of the DAC other than that referred to above. They did not get the Council's letter of 31 March 1998, or the legal advice provided to the DAC by Mr Upham. They were not given access to the DAC's own advice. Nor were the solicitors for the Hotel provided with a copy of later requests by the DAC for information, or a copy of the information supplied by Mr Upham or by Council in response to those requests.

Complaint about procedural fairness and the Judge's finding

The Hotel complains that the DAC did not comply with the requirements of procedural fairness, because it withheld the information referred to. The Hotel also complains of the lateness of the disclosure of the material that was disclosed on 8 May 1998. The Judge found in favour of the Hotel on both points.

The Judge held that the DAC was obliged to make available to the Hotel, being a representor whom it had agreed to hear in support of its representation, all of the material in its possession before the hearing on 12 May 1998. The DAC had not done so.

The Judge also held that the limited disclosure made on Friday 8 May was made too late, bearing in mind that the DAC was to meet on Tuesday 12 May. The DAC had given the Hotel insufficient time to prepare its case for its appearance before the DAC.

The Judge further held that after the meeting on 12 May, the DAC should have provided to the Hotel the letter of 21 May from the Council to the DAC. The Judge said that this letter went to the core of the issues confronting the DAC. The DAC could have done so, bearing in mind that it was not proposing to meet until 26 May.

The Judge said that the DAC could (and presumably should) have adjourned its consideration of the application pending further written or oral submissions from the Hotel and other representors, arising from the Council's letter of 21 May.

The Judge held that the DAC was under no obligation to disclose the Council's letters of 11 and 30 June 1998, the former being of no great significance, and the latter arriving after the date of the DAC's decision.

On appeal, counsel for Mr Upham, and the Solicitor-General intervening for the Attorney General in support of the contentions of counsel for Mr Upham, submitted that in this respect the Judge erred. The submission is that the Act and the Regulations establish a code for the provision of information, that the Judge had found that the DAC was not in breach of Regulation 34, and that there was no obligation on the DAC to provide information to the Hotel and other representors beyond the requirement imposed by Regulation 34.

A consideration of these submissions require an understanding of the content of the legislation.

Under the Act, no development may be undertaken unless the development is an approved development: s 32. A development is an approved development only if a relevant authority has, among other things, assessed the development against and granted a consent in respect of the provisions of the appropriate Development Plan: s 33(1)(a).

In the present case the DAC was the relevant authority, and not the Council.

An overriding limit on the relevant authority is to be found in s 35(2), which provides as follows:

"Subject to subsection (1), a development that is assessed by a relevant authority as being seriously at variance with the relevant Development Plan must not be granted consent."

The Act provides that in certain circumstances there will be a process of public notice and consultation before a decision is made on an application for a development consent. That process is regulated by s 38. Section 38 creates three categories of development.

If a development is within Category 1, the Act does not require that notice be given of the development application, there is no right to make representations to the relevant authority and there is no right of appeal against the authority's decision: s 38(3).

If the development is a Category 2 development, notice of the application must be given to an owner or occupier of each piece of adjacent land (as defined) and to any other person of a prescribed class: s 38(4). A person who receives notice and any member of the public is entitled to make representations in writing to the relevant authority: s 38(7). The authority has an absolute discretion whether to allow a person who has made a representation to appear before it to be heard in support of the representation: s 38(10)(a). A person who makes a representation must be given notice of the authority's decision: s 38(12)(a). There is no right of appeal against a decision in respect of a Category 2 development.

If a development is a Category 3 development, notice must be given to a wider range of persons, and also to the public generally: see s 38(5). The recipient of a notice, or any member of the public, can make a representation in writing to the relevant authority: s 38(7). Such a person has a right to appear before the relevant authority in support of the representation: s 38(10)(b). A person who makes a representation has a right to be notified of the authority's decision and has a right of appeal against the decision: s 38(12).

The rights of an applicant are also regulated. If the relevant authority receives representations, it must provide a copy of them to the applicant: s 38(8). The applicant is entitled to respond in writing to those representations within a prescribed period: s 38(9). If the relevant authority permits a person to appear before it, or if a person exercises a right of appearance, the authority must allow the applicant to appear and to respond: s 38(11). A person who has applied for a development authorisation can appeal against a refusal to grant the authorisation, or the imposition of conditions: s 86(1)(a).

An application to a relevant authority must be in the required form, must include any information reasonably required by the relevant authority, and must be accompanied by prescribed plans and other documents: s 39(1). The relevant authority can at any time require an applicant to provide additional documents or information, and to remedy any defect or deficiency in any application or accompanying documents: s 39(2). Regulations prescribe a period of time within which a relevant authority must deal with an application: s 41(1) and Regulation 41. Broadly, a period of between four weeks and 12 weeks is allowed, with a provision for additional time if the application must be referred to another body or requires concurrence of another body. If the relevant authority requires the applicant to provide additional documents or information, the time taken by the applicant is to be added to the time within which the relevant authority must make a decision: s 39(3). If further information is required, and the applicant does not provide the information within the time required (three months) the authority may then refuse the application: s 39(3)(b) and Regulation 19.

A relevant authority may permit an applicant to vary an application, and to vary documents that accompany the application, but the Act provides that it may do so "provided that the essential nature of the proposed development is not changed": s 39(4)(a). Rule 20 implies that if the relevant authority permits an applicant to vary an application after referral to another body, or after public notice is given, the step of referral and the process of notice may be required to be repeated: Regulation 20(3). However, neither the Act nor the Regulations give any guidance on the circumstances in which either process should be repeated.

The Regulations provide for a right to inspect certain documents held by a relevant authority. Regulation 34 provides as follows:

"(1) For the purposes of section 38 of the Act, the relevant authority must, in respect of any application for consent in respect of the Development Plan for a Category 2 or 3 development, ensure that copies of - (a) the application; and (b) any supporting plans, drawings, specifications or other documents or information provided to the relevant authority under section 39 of the Act; and (c) if applicable, any statement of effect that has been prepared in accordance with these regulations, are reasonably available for inspection (without charge) by the public at the principal office of the relevant authority for the period commencing on the day on which notice of the application is first given under these regulations and ending on a day by which written representations must be lodged under regulation 35. (2) The relevant authority may, as it thinks fit, determine whether or not it will make copies of any documents available for inspection under subregulation (1) also available for purchase and, if such copies are available for purchase, the relevant authority may determine the price."

Regulation 35 fixes times for the lodging of written representations, and provides for the form of written representations. Representations must be lodged within ten business days after notice of an application is given, or within ten days after public notice is given in a newspaper. Regulation 36 provides that an applicant may respond to a representation within ten business days after the material is forwarded to the applicant. Regulation 37 requires that if a person is allowed to appear before a relevant authority to be heard on a representation or to respond, the authority must give the person at least five business days notice of the place and time at which the person should appear.

Comments on the scheme of the Act and the Regulations

The Act and the Regulations regulate in some detail the process of applying for a development consent, the giving of notice of the application, the entitlement to make a representation to the relevant authority, the time for the taking of the various steps in the process, the information to be provided to the relevant authority, the notice to be given to and information to be provided to interested parties, and the entitlement to be heard by the relevant authority.

In particular, the Act and the Regulations determine who is to get notice of an application for a development consent, who can made a representation, who may be heard by the relevant authority, who must be heard and who has a right of appeal. There is no reason to think that the Act or the Regulations allow for those matters to be determined by the application of common law principles of procedural fairness, subject to exceptional situations such as might arise as a result of a specific course of conduct between, for example, the relevant authority and a particular person.

The right to information conferred by Regulation 34(1) (set out above) is quite limited. It is limited as to the documents that must be made available for inspection and as to the period during which the documents must be available for inspection.

If Regulation 34(1) states exhaustively the right of a person who has made a representation or who is to be heard by the relevant authority, it is likely that there will be material information in the possession of the relevant authority which will be unknown to a representor or person who is to be heard by the relevant authority. It is unclear whether Regulation 34(1)(b) applies only to additional material required by the relevant authority from the applicant, or whether it applies also to material voluntarily provided by the applicant without any requirement being made. In any event, the Regulation does not appear to apply to material provided by a person other than the applicant. We say that because s 39 deals only with information provided by an applicant. As this case illustrates, there may well be significant material provided by other persons. As well, as this case again illustrates, it is likely that relevant material will be provided by an applicant or by another person after the day on which written representations must be lodged, or even after persons are heard by the relevant authority in support of their representations.

As well, Regulation 34(1) creates something of a dilemma. It requires the relevant authority to make available for inspection material provided under s 39 of the Act. But, as we have already observed, it appears that the authority can at any time require an applicant to provide additional information, or can receive additional information from an applicant at any time. On one view, Regulation 34 could be read as assuming that all information provided under s 39 will have been provided before the commencement of the inspection period. If it does not, then Regulation 34 will operate somewhat haphazardly, because it will apply only to such information as has been provided by the time of the period for inspection. We return later to this topic.

A relevant authority, when dealing with an application for a development consent, is not deciding an issue or dispute between the applicant for consent and persons who make representations. The authority must decide the matter for itself, after giving appropriate consideration to the provisions of the relevant Development Plan and to anything else to which its attention is directed by the Act or by the Regulations. The relevant authority will, as appropriate, collect information for itself and seek its own advice. It is not limited to the information presented by the applicant, nor to the information presented by persons who make representations. It will, of course, take this information and any views expressed into account, but is in no sense limited to the information and views put before it by the applicant and persons who make representations. The process of enquiry and assessment against the relevant Development Plan carried out by the relevant authority does not depend upon the presence or absence of persons who make representations, although such persons will have an effect upon the process. The fact that the Act and Regulations contemplate applications being amended, and in that event do not require as of course that previous stages of the process be revisited, serves to emphasise the limited role of persons who make representations. The emphasis in the Act and the Regulations on the relevant authority making its decision in a timely manner also tends to emphasise the limited impact upon the process of persons who are entitled to make representations.

In short, the process cannot be described as one in which the relevant authority decides issues as between contending parties. The authority is required to make its own enquiries, to obtain its own advice and to come to a conclusion. In certain circumstances it is required to give notice to persons who might have an interest in the application, and to permit them to make a representation, in some cases it has an absolute discretion whether to permit those persons to make a further submission to it, and in some situations it is obliged to do so.

The question in this case is whether the Act, or the Act and Regulations in combination, are a complete statement of the right of a person, who is to be heard in support of a representation, to information from the relevant authority about the application that the relevant authority is considering; or, to put it a little differently, do the common law requirements of procedural fairness continue to apply to such a person, except to the extent that they are specifically displaced by the Act or the Regulations? We express the issue in this way because there can be no doubt that in a number of respects the Act and the Regulations state exhaustively the obligations of the relevant authority, and state exhaustively the right of interested persons to notice of the making of an application and to become involved in the process. The issue here is the right of a person who was to be heard by the DAC (in the present case by the grant of that right, but presumably the same approach is to be taken when that right exists under the Act) to access to information held by the DAC. The issue is the right of access to such information before the time appointed for the hearing by the DAC, and after the hearing has taken place.

There is no real doubt about the principles to be applied in the present case. The issue is as to their application. The relevant principles are conveniently stated in the judgment of Mason J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550. At 584 Mason J said:

"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."

A little earlier Mason J illustrated one aspect of the requirement to act fairly, although he did so by reference to the common law doctrine of natural justice. He said (at 582):

"It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it ... The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests."

In considering whether there is a clear manifestation by the relevant statute of an intention to displace the common law principles, careful attention must be paid to the terms of the relevant statute, and to the evident purpose or intent of the statutory provisions. This appears from what Mason J said at 584-585:

"Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 503-504, Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on 'the particular statutory framework'. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting. "

The same point was expressed in slightly different terms by Gibbs CJ in National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 312 where he said:

"The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise."

If confirmation is needed that these passages state the law of Australia, it is to be found in the later decision in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 where Mason CJ, Deane and McHugh JJ said (at 598):

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment ... "

The judgment in that case is instructive because it illustrates the care that must be taken in deciding that statutory provisions conferring particular rights are to be read as excluding, by implication, the application of other rights that would tend to arise from the application of common law principles. The point is also made in that case, in the context of a coronial inquiry, that the grant of representation may itself carry with it or confer rights that would not otherwise arise (at 599). So, in that case the majority held that the grant of representation at a coronial inquiry gave rise to a legitimate expectation that the Coroner could not make a finding adverse to the interests represented by the persons to whom a right or representation had been granted, without giving them the opportunity to be heard in opposition to the finding.

Finally, it is necessary to bear in mind that in deciding what is required as a matter of procedural fairness too much emphasis should not be placed upon the practices and procedures that are characteristic of judicial decision making. As Mason J said in Kioa v West (at 584):

"The emphasis given in subsequent decisions to the presence and absence of these characteristics diverted attention from the need to insist on the adoption in the administrative process of fair and flexible procedures for decision making, procedures which do not necessarily take curial procedures as their model ... "

These are the principles that the Judge applied, and they are the principles to be applied in resolving the issues that arise on appeal.

Application of common law principles to the present case

The issue that we must determine turns on whether the Act and the Regulations evince an intention to determine conclusively the information to which a person who is to be heard by a relevant authority, in support of a representation, is entitled. The Regulations are relevant because they may be used to flesh out the scheme of the Act on the issue. As well, Regulations on the topic of the availability of information for public inspection are specifically envisaged by the Act: see s 108(2) and the Schedule to the Act, Clause 31.

We consider that the decision made by the DAC can be regarded as a decision affecting the interests of the Hotel. It is a decision capable of attracting the requirement that procedural fairness be accorded to the Hotel. We so conclude on the basis of the nature of the decision (one likely to affect the business of the Hotel) and on the basis of the entitlement of the Hotel to notice of the application.

As we have already indicated, the Act and the Regulations determine conclusively who is entitled to notice of an application, who is entitled to lodge a representation with the relevant authority, and who may be or must be heard. Clearly enough, in those respects at least the Act and the Regulations determine conclusively matters that would otherwise be determined by reference to common law principles of procedural fairness. There are other procedural matters which the Act and the Regulations determine conclusively. For example, the time to be allowed for the various stages of the process.

We therefore approach the Act and the Regulations on the basis that, in some respects at least, they are intended to leave no room for the operation of common law principles of procedural fairness.

The Judge took the view that the provisions of s 38 relating to notice, to the entitlement to lodge a representation and to the right to be heard, were to be read as re-enforcing the rules of procedural fairness. We respectfully disagree. While it can be said that the relevant provisions are directed to the same end, in our opinion they supplant the relevant common law principles and indicate an intention to determine the relevant matters conclusively. They do not leave room for the common law principles to operate on the relevant topics. But we do not think that anything turns on that difference between us and the Judge.

Sub-regulations (1) and (2) of Regulation 34 deal in terms with the right to inspect documents in the possession of the relevant authority. The issue is whether Regulation 34 states exhaustively the rights available to a person who has lodged a representation and is to be heard in support by the relevant authority. We agree with the Judge that Regulation 34 is capable of being read as governing only the position of those who are considering making a representation. It is of some significance that the right that it confers ends on the day by which written representations must be lodged. It does not follow of necessity from the provision that it makes for a right of inspection, ending on the day by which a written representation must be lodged, that it was intended that that be the only right of inspection of available to a person who lodges a representation.

A conclusion that such a person has no other right of access to information in the possession of the relevant authority must be drawn from the scheme of the Act and of the Regulations as a whole. That conclusion is not dictated by the terms of Regulation 34. To conclude that the only right a representor has is that conferred by Regulation 34, it is necessary to reach the conclusion that reading the scheme as whole, the failure to confer any other right is intentional, and gives rise to an inference that no such right is to be available.

Considering the relevant provisions of the Act and of the Regulations together, they are capable of being read as a code, and as a code in particular on the issue of the information that is to be made available to interested persons by the relevant authority. The provisions of the Act and of the Regulations regulate the process of dealing with an application for a development consent quite comprehensively.

A conclusion that a representor has no right to information beyond that provided by Regulation 34 is not inconsistent with the function that the relevant authority performs. The process of the relevant authority is inquisitorial rather than adversarial. The relevant authority can be expected to collect information for itself, and to seek its own advice. The relevant authority must consider matters put to it by an applicant and by a representor, but it does not decide an issue between those persons.

The Judge appears to have been influenced by the view that he expressed that:

"There is nothing in Regulation 34 which qualifies the rules of procedural fairness or which qualifies the principle that a person is entitled to know the case he has to meet."

A little later, referring to the right to be heard, he said:

"... if the right to be heard has any meaning, it is essential that there be disclosure of the case that has to be met."

"... the fundamental rule that a person is entitled to know the case against him."

"Finally, in contested planning applications of this kind, the planning authority, be it the Commission or a Council, is acting as an adjudicator between parties in an adversarial position, a situation in which parties will usually have access to all the material to be considered by the decision maker. A party is entitled to examine information which is pertinent to the decision, credible and significant ... "

We respectfully disagree with the thrust of these observations. A representor does not have to meet a case, and is not dealing with a case that is being put against him. Nor do we consider that a representor who opposes an application, and the applicant, are to be treated as if they were parties in an adversarial position. We consider that the scheme of the Act and of the Regulations makes it quite clear that the relevant authority makes its own enquiry into an application for a development consent. As we have already said, if the process is to be characterised, it is inquisitorial rather than adversarial. A person who makes a representation, and who is granted the right to be heard or is entitled to be heard, is not given by the Act or by the Regulations the status of a party to an adversarial dispute before the relevant authority. The status and role of such a person is a limited one. We do not consider that the part played by a representor is such that, for it to be meaningful, the representor must be accorded the same right to information as would be accorded to a party to an adversarial dispute, who has to meet a case against that party. In short, we do not consider that the role of a person who has been granted the right to be heard, or has the right to be heard, is such that it follows of necessity that that person must be given access to all significant information in the possession of the relevant authority.

The role and status of such a person is significantly different from the role and status of the person whose procedural rights were considered in a number of the cases, such as Kioa v West [1985] HCA 81; (1985) 159 CLR 550. In a number of those cases the person whose rights were being considered by the High Court was the person whose rights or interests were the subject matter of decision, and it could properly be said that the purpose of the process was to decide a case put forward by the person or to enable the person to meet a case against him or her. The relevant administrative decision was being made in relation to the rights and interests of that person. But in the present case the person who is to be heard by the relevant authority is no more than a person who has particular rights under the Act and under the Regulations to receive notice, to make a representation and to be heard. That person has those rights only in relation to an application made by another person.

In short, we consider that the Judge gave inappropriate emphasis to the role of the representor in the proceedings, and should not have treated such a person as if it were a party to adversarial proceedings.

On the other hand, we agree with the Judge's observations that if Rule 34 represents the limits of the duty of disclosure by the relevant authority, it may well be quite difficult for a representor to prepare a proper argument in support of its representation. If an applicant is able to withhold relevant material until after the time for the lodging of a representation has expired, the applicant will be able to ensure that the representor does not get access to that information. In any event, as this case illustrates, it is quite likely that in the ordinary course of events relevant information will come to the relevant authority after the date for the lodging of representations has gone by, and even after the making of submissions in support of a representation.

Another relevant consideration is the impact on the decision making process of according to a representor the rights that the Judge accorded. To impose on a relevant authority the obligation that the Judge imposed could be quite burdensome. It may also have a tendency to disrupt the process. In the present case, the right of access to information that the Judge accorded gave rise to a situation in which, having heard the Hotel in support of its representation, the DAC was obliged to provide to the Hotel information that it acquired later, then apparently to allow the making of further submissions, and presumably to allow the making of a further reply by Mr Upham. We must say that the scheme of the Act and of the Regulations does not appear to contemplate that occurring. One might well ask, if that is the position, when does the process of the provision of information come to an end? The Judge's approach might also give rise to difficulties when an application is referred to another body for consultation or for concurrence: see s 37. It might be disruptive of the process if information from such persons must also be made available to a representor, and an opportunity for comment provided.

Another relevant consideration is that the relevant authority does not undertake a public enquiry. Indeed, it is only obliged to hear submissions in the case of a Category 3 application. The process is unlike the process under consideration in Bread Manufacturers of New South Wales v Evans [1981] HCA 69; (1981) 180 CLR 404. It was there held that when investigative powers were conferred on a body for the purposes of a public enquiry, the body was precluded from using information obtained privately without disclosing it to the parties. But the emphasis of the court there was that the powers were conferred for the purposes of a public enquiry. That is not the case under the Act and under the Regulations.

Another matter to take into account is the observation made by the Judge that if the Act and the Regulations are a code in respect of the right to information, it may be that a person who makes a representation never gets access to material that is highly relevant to the matter upon which the person has made a representation.

To some extent the answer to that might lie in the relevant authority insisting upon the provision of complete information with an application. It might also lie in the conclusion that information requested from an applicant under s 39(2) is information that must be disclosed under Regulation 34(1)(b). We note that the Judge treated the letter from Master Plan Pty Ltd of 7 April as such a document. But if, as here, information requested by the relevant authority is provided after the date by which written representations must be lodged, disclosure will still not be required by Regulation 34.

We have rejected the suggestion that a representor who is to be heard by a relevant authority is to be treated like a party to a dispute between the representor and an applicant to the relevant authority. That is not a sound basis from which to assess the rights of such a person.

Despite that, a person who is to be heard by a relevant authority is exercising a right granted by the authority or by the Act, as the case may be, on a matter that may affect the representor's interests. It will be difficult to exercise that right in a meaningful sense if the only right to information in the authority's possession is that granted by Regulation 34. The exercise of that right will be facilitated if the authority requires the provision of full information at the outset.

A person who is granted or has the right to be heard, is heard in support of a representation. The representation must relate to the decision of the relevant authority on an application made to it: s 38(6). The hearing before the authority will be a meaningful exercise, and a fair hearing, only if the person to be heard knows what the applicant is seeking and what the applicant proposes.

We consider that, unless displaced by the Act and Regulations, procedural fairness requires that the person to be heard be given access to the information provided by the applicant to the relevant authority, up to the time of the hearing. However, that requirement does not include an applicant's written response to representations: see s 38(8). The requirement applies to the application for approval, and material submitted in support of it. It does not apply to material generated as part of the process of representations in writing. That process appears to be wholly regulated by the Act.

Bearing in mind the limited role of a representor who is to be heard, we do not consider that the relevant authority is obliged to provide access to other information and advice that the authority gathers in the course of considering the application. We consider that the Act and the Regulations are inconsistent with imposing on a relevant authority an obligation to disclose material other than material submitted by an applicant: see in particular s 39 and Regulation 34. The inquisitorial role of the relevant authority likewise argues against an obligation to disclose all relevant material in its possession to a person who is to be heard by the authority. The authority is not conducting a public enquiry to which the person to be heard is a party.

We also consider that the Act and Regulations impliedly exclude a right of access to information received from the applicant after the representor has been heard by the authority. We consider that the Act does not contemplate that a representor will play a part in the process after the representor has been heard, subject of course to the exercise of such rights of appeal as might exist.

We reject the submission that Regulation 34, or the Act and the Regulations more generally, wholly exclude the application of common law principles of procedural fairness. The Act does not purport to regulate all aspects of the process of considering an application for a development consent. The silence of the Regulations in relation to access to information after the date for lodging representations does not, to our minds, imply that there is to be no such right. We read Regulation 34 as a provision dealing only with access to information for the purpose of deciding whether a representation is to be lodged, and the content of the representation. Clause 31 of the Schedule to the Act empowers more wide ranging regulations. The regulation made is quite limited.

We therefore conclude that procedural fairness required that the DAC disclose to the Hotel material that it received from Mr Upham up to the time of the hearing of submissions, but not including his written response to representations. The Act and Regulations do not, expressly or by implication, exclude that application of the common law principles.

It follows that on 9 April 1998, when the solicitors for the Hotel sought access to material in the possession of the DAC, the DAC should have disclosed to the Hotel's solicitors the letter of 7 April 1998 from Master Plan Pty Ltd. The DAC was not obliged to disclose the letters that it had received from the Council. The letter from Master Plan Pty Ltd was provided on 8 May 1998. The legal advice provided by Mr Upham to the DAC on 27 April should also have been provided to the Hotel's solicitors. We add, however, that there was an obligation to provide it only upon request.

The Hotel was entitled, on request made to the DAC, to inspect material provided by the applicant and in the possession of the DAC, before the Hotel was heard by the DAC. The receipt of information by the DAC from an applicant is under the control of the DAC. Subject to the Act and to the Regulations, it is for the DAC to decide what material it will accept from an applicant, and when it will accept it. The point we make is that the entitlement of a person who is to be heard by a relevant authority to inspect material arises when that material is received by the DAC. A person cannot complain that the relevant authority agreed to receive material from an applicant at a time that meant that the person to be heard had insufficient time to comment on it. In our opinion the relevant authority undertakes its own enquiry into an application, and as long as it makes available to a representor who is to be heard the material that it receives, it satisfies the requirements of procedural fairness.

It follows from all this that the DAC was wrong to refuse access to the letter from Master Plan Pty Ltd until 8 May, and to refuse access altogether to the legal advice provided by Mr Upham. There was no obligation on the DAC to give access to material that it received after the hearing on 12 May.

On that limited basis, the Judge's decision that the Hotel was denied a fair hearing, and that the decision of the DAC should be set aside, should be upheld. The fact that the Hotel has no right of appeal against the DAC's decision makes it all the more important that its rights to information be respected. The delayed disclosure of the letter from Master Plan Pty Ltd on 7 April denied the Hotel an opportunity to deal adequately with the material raised by that letter. Under the circumstances, we would not exercise the court's discretion to withhold relief. Had the letter been released earlier, it might have been appropriate to do so.

Regulation 34(1), which confers a right of inspection in relation to certain applications, is set out above. The right is an important one.

As we remarked earlier, Regulation 34(1) seems to proceed on the assumption that before notice of an application is given under s 38(5) of the Act, the relevant authority will have received information about the application that would be important in deciding whether to make a representation, and in deciding the contents of the representation.

However, as we has also remarked earlier, the powers conferred on a relevant authority by s 39 of the Act are such that important information may be received after notice is given under s 38(5) and, indeed, after the period for making a representation has expired. The present case illustrates the unsatisfactory position in this respect. The DAC sought and received important information from Mr Upham well after the expiry of the period for making a representation. That has given rise to some of the issues in this case.

Issues of the kind that have arisen in this case might be averted if the relevant authority, before giving notice under s 38(5) of the Act, considers whether all information required from an applicant for a proper consideration of the application has been provided. If that information has not been provided, the relevant authority can request the information under s 39(2). If such a request is made, the period between the date of the request and the date of compliance with the request is not included in the time within which the relevant authority is required to decide the application: s 39(3)(a). We do not suggest that, upon receipt of an application, a relevant authority can immediately give it full consideration. But as things stand a relevant authority must, at the outset, give certain consideration to the application. It must assign a category to the proposed development: see s 38(1). It must decide whether the proposed development is a non-complying development: see s 35(3)(a) and Regulation 17. If, at the same time as these things are considered, the authority considers whether there is an obvious omission of significant information, and requests the applicant to remedy that omission, the legislative scheme would work more satisfactorily. In the present case, it appears that no information about proposals for carparking was included with the application. That seems to us to have been an obvious omission of significant information. Without that information the proposal could not be assessed against a number of requirements of the Development Plan. A request at the outset that Mr Upham provide details of the applicant's proposals in that respect might have produced the result that, by the time notice of the application was given, sufficient information to satisfy the requirements of procedural fairness was available for inspection. That is the point of these comments. The provision by an applicant of significant information after the expiry of the period for making representations is likely to give rise to issues of procedural fairness. A relevant authority should do what it can to avoid that happening.

We do not suggest that this approach will solve every problem, but we believe that it might help.

We add that it seems to us that the relationship between s 38 and s 39 of the Act on the one hand, and Regulation 34(1) on the other hand, warrants some further consideration. The right to notice of an application, and to information about the application, are important rights. As things stand there is an obvious gap in the legislative scheme. The right to receive information about an application does not mesh tidily with the process by which a relevant authority may receive information.

We earlier set out the terms of s 35(2) of the Act. The DAC was not entitled to grant a consent if it assessed the development as being seriously at variance with the relevant Development Plan.

It was argued before the Judge that the DAC had failed to consider that issue at all. However, the Judge rejected that submission. We agree. The DAC's resolution (set out above) was that the proposed development was consistent with the provisions of the Development Plan. It is implicit in that that the DAC had considered the question of whether the development was seriously at variance with the provisions of the Development Plan, and had concluded that it was not.

The Hotel also submitted before the Judge that, in any event, the DAC had erred in failing to assess the proposed development as being seriously at variance with the relevant Development Plan. In essence, the submission before the Judge and on appeal was that the failure of the proposal to provide adequate car parking on site or off site, and the absence of sufficient car parking located conveniently to the proposed development, led inevitably to the conclusion that the proposed development was seriously at variance with the Development Plan.

This submission was accepted by the Judge. There were two aspects to the submission. The first was the formulation of the test to be applied by the court in proceedings by way of judicial review. The second was the application of that test to the facts.

The Judge took the view that if, in proceedings by way of judicial review, a court is satisfied that a proposal is seriously at variance with the Development Plan, a consent to the development can be and ordinarily will be set aside without making any further inquiry. In other words, on his approach a determination by the court that the proposal is seriously at variance deprives the relevant authority of power or jurisdiction to grant a consent.

The Judge acknowledged that a consent might also be invalid on the grounds that it is unreasonable, because the relevant authority has failed to take into account relevant matters or has taken into account irrelevant matters. However, as we have already said, the Judge's view was that it was not necessary to consider such matters if the court was satisfied for itself that the proposal was seriously at variance with the relevant Development Plan. The Judge took the view that the approach taken by this Court in R v City of Munno Para ex parte Weeks (1987) 46 SASR 400 continues to be applicable. The Judge acknowledged that the court would not conclude that a development was seriously at variance with the relevant Development Plan unless that variance could be discerned plainly by the court from the material before it, without resolving debatable issues relating to planning merits: see Munno Para at 403 King CJ.

The Judge then went on to consider the issue of the provision made for car parking, and the provisions of the Development Plan. He referred to the provisions of the Development Plan which apply throughout the Council area, and also to those provisions applicable in the District Centre Zone. He did not ignore, but did not attribute any great importance to, the provisions of the Development Plan applicable in the Glenelg (Foreshore/ Patawalonga) Zone. We have already mentioned that in this respect the Judge erred, because of a misunderstanding as to the zone in which the development was situated. The development site is on the boundary of the two zones, and much of the material to which the judge referred was relevant, whichever of the two zones the site was in. The Judge reviewed the material before the DAC. He referred to the fact that no condition limiting the number of occupants of the proposed Hotel to 310 persons had been imposed. He referred to the fact that having regard to the floor space, the Licensing Court, applying its usual criteria, might licence the premises to be occupied by 450 persons at any one time, in which event, the Judge said, 100 car parking spaces might be required rather than the 80 spaces suggested by the Council. Speaking of the issue of car parking generally, the Judge said:

"It is apparent from the papers that there are already inadequate facilities for car parking in the area of Jetty Road. A decision to allow a development to proceed which has no car parking or inadequate car parking will plainly exacerbate the existing parking problems in that area. The car parking should also be proximate to the proposed development. The Council's letter suggests that the Council is not prepared to develop its Elizabeth Street carpark, which is the closest car park operated by the Council."

The Judge then referred again to a view expressed by one of the planners that 100 car parking spaces were required. He referred to the need for the car parking to be closer to the Hotel than the spaces that had been notionally allocated by the Council to the proposal. He said:

"In addition, the Plan and other evidence points to the existing pressures upon car parking in this area. When the deficiency of 20 per cent below the minimum car parking requirement is added to the fact that a good deal of that parking is distant from the hotel, it is clear that the car parking substantially falls short of what is required for this hotel and the proposal is seriously at variance with the Development Plan."

Thus, putting particular emphasis upon the fact that the Hotel might be licensed to accommodate 450 persons, and the fact that in that event the Judge considered 100 car parking spaces were required, the Judge concluded that the proposal was seriously at variance with the Development Plan.

It is submitted that the Judge erred in his approach to the question of the role of the court, and erred as well in concluding that the proposal was seriously at variance with the Development Plan.

The Planning Act 1982 contained a provision that had some similarities to s 35(2) of the Act. The provision was s 47(9), and it provided as follows:

"(9) In deciding whether to consent to a proposed development under this section, a planning authority - (a) shall have regard to the provisions of the Development Plan so far as they are relevant to that decision; and (b) shall not make a decision that is seriously at variance with those provisions."

In R v City of Munno Para ex parte Weeks (1987) 46 SASR 400 an application was made to the court for an order quashing a consent on the grounds that it was invalid because it was seriously at variance with the provisions of the Development Plan. The Court came to the conclusion that s 47(9)(b) set a limit to the legal power of the planning authority to consent to a proposed development, and rendered invalid any purported consent which was at serious variance with the Plan. The Court rejected a submission that a contravention of the provision gave rise to a decision which was incorrect but legally valid. King CJ's view was substantially the same as the other members of the Court. He reached this conclusion somewhat reluctantly. As he said (at 402):

"... The determination of the question whether a proposal is seriously at variance with the provisions of a planning document such as the Development Plan necessarily involves a large element of planning judgment. There is an incongruity in a court of law being required, in proceedings which are not by way of appeal against the correctness of the decision but by way of judicial review of its validity, to exercise a judgment of that kind which must depend to such a degree upon the individual's assessment of competing planning values. There is a presumption, to our minds, against a legislative intention that the very validity, as distinct from the correctness, of an administrative act should depend upon such an uncertain factor as a judgment as to whether the decision leading to the administrative act is seriously at variance with a document expressed for the most part in terms of general principles and objectives."

But King CJ concluded that the language of the section required the conclusion that a contravention of its provisions did invalidate the relevant planning consent. He said (at 403):

"... I must say that I have reached this conclusion with some reluctance because it makes the validity of an important administrative act depend upon debatable questions relating to planning values and the degree of the proposed departure from the Development Plan. Such considerations cannot prevail, however, against the language and structure of the section. Courts are, of course, able to apply criteria, however, imprecise, if Parliament requires them to do so: Sutherland Shire Council v Finch [1970] HCA 49; (1970) 123 CLR 657 at 666, per Gibbs CJ."

"... Care will be required on the part of the court, when such an issue comes before it on an application for judicial review, to confine itself to its legitimate role in supervising the legality of the planning process. The court must ensure that it does not become involved in matters of planning merits which are proper for the consideration of the appellate tribunal but which are not jurisdictional in character. An alleged serious departure from the plan can be the basis of intervention by the court on judicial review only if the existence and seriousness of the departure can be discerned plainly by the court from the material before it without the necessity of resolving debatable issues relating to planning merits."

White J took a similar approach: at 414-416. Legoe J also appeared to take the same approach, although he dissented in the result because he was not satisfied that the development was seriously at variance with the Development Plan: at 440-441.

In light of the comments made by King CJ and by White J, it is significant that the Parliament has now expressed the limit on the power of a relevant authority as it has. What is now prohibited is not the grant of a consent to a proposed development that is seriously at variance, but the grant of a consent to a development that is assessed by the relevant authority as being seriously at variance. To some the change in language might seem subtle, but in our opinion it is nevertheless significant.

The language used is apt to achieve the result that the relevant authority lacks power or jurisdiction to consent only if it assesses the proposed development as being seriously at variance with the relevant Development Plan. What that means is that power or jurisdiction to consent is not absent because the court, in proceedings by way of judicial review, decides that the proposal is seriously at variance with the Plan. The power or jurisdiction is lacking only if the relevant authority has made that assessment. The distinction between power or lack of power turning upon the existence of a state of affairs determined objectively, and power or lack of power turning upon the formation of an opinion or the making of an assessment by the person on whom the power is conferred, is well known in administrative law, and its consequences in terms of judicial review are equally well known: see, for example, R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430 Latham CJ; Sutherland Shire Council v Finch [1970] HCA 49; (1970) 123 CLR 657 at 666 Gibbs CJ; Foley v Padley [1984] HCA 50; (1984) 154 CLR 349 at 352-353 Gibbs CJ, at 363 Wilson J, at 369-370 Brennan J, at 375 Dawson J; Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297 at 302-303 Dawson, Gaudron, McHugh, Gummow, Kirby JJ. The Parliament must have had this distinction in mind, and must have deliberately chosen the language that it used to ensure that the validity of a planning consent no longer depends upon the court's own assessment of whether a development is seriously at variance with the Development Plan.

In short, the power to consent, or the lack of power to consent, is conditional upon the assessment by the relevant authority of the proposed development.

This does not produce the result that the decision by the relevant authority is unreviewable.

"Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist."

"It should be emphasised that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to enquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed."

In Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 Dixon CJ referred to a power to be exercised upon the basis of satisfaction as to the state of corporate voting power. In other words, the relevant power depended upon a state of satisfaction as to a certain matter. In relation to that state of satisfaction, Dixon CJ said (at 360):

"His decision, it is true, is not unexaminable. If he does not address himself to the question which the sub-section formulates, if his conclusion is effected by some mistake of law, if he takes some extraneous reasoning into consideration or excludes from consideration some factor which should effect his determination, on any of these grounds his conclusion is liable to review."

That statement of principle has been reaffirmed by the High Court in numerous later cases. So has the following observation of Gibbs J in Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, dealing with a power to take action when a certain person or body is satisfied of the existence of certain matters (at 118-119):

"... Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts."

In Foley v Padley [1984] HCA 50; (1984) 154 CLR 349 the High Court considered a power conferred upon a Council to make by-laws regulating activity in a Mall if the activity was, in the opinion of the Council, likely to affect the use or enjoyment of the Mall. In that context, Gibbs CJ said (at 352-353):

"When a power to make by-laws is conditioned upon the existence of an opinion, it is the existence of the opinion, and not its correctness, which satisfies the condition. However, that does not mean that an exercise of the power is immune from challenge, even if the opinion, which was a condition of that exercise was made in good faith in the sense that it was honestly held."

He went on to approve the law as stated by Latham CJ in R v Connell (above). Wilson J agreed with the reasons of Gibbs CJ and Dawson J: at 363. The approach of Brennan J was similar to that of Gibbs CJ. He said (at 369-370):

"... Where the power to make a by-law depends upon the formation of an opinion, the opinion must be reasonably formed if the power is to be validly exercised."

He went on to approve the statement of law by Latham CJ in R v Connell. He then said:

"The question for the court is not whether the Court would have formed the opinion but whether the repository of the power could have formed the opinion reasonably. Although the area of judgment that a court must leave to a repository of power is not unlimited, as [sic] allegation of unreasonableness in the formation of an opinion may often prove to be no more than an attack upon the merits of the by-law made in purported exercise of the power."

The position was summarised thus by Dawson J (at 375):

"It is well established that where it is a prerequisite to the exercise of a power to pass subordinate legislation that some person or body should hold an opinion or belief, the legislation will be invalid unless an opinion or belief is actually held at the time the legislation is passed and that opinion or belief is of the kind contemplated by the statute conferring the power. It will not be of the kind contemplated if the subordinate authority has acted male fide, has taken into account matters which were not contemplated by the statute or if for some reason the requirements of the statute have been misconstrued. It may be that the subordinate legislation is unreasonable in a way that makes it apparent that the subordinate authority cannot have formed the necessary opinion or belief: Reid v Sinderberry [1944] HCA 15; (1944) 68 CLR 504 at 511-512; R v Connell: Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430-432; McEldowney v Forde ([1971] AC 632 at 660; Reade v Smith [1959] NZLR 996 at 1000-1002. But it is quite clear that if the subordinate authority in fact held an opinion or belief at the time of making the subordinate legislation which was of the kind contemplated by the relevant legislation, it is not for a court to substitute its own opinion or belief however much it might disagree with that of the subordinate authority."

These principles have relatively recently been reaffirmed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-276 and in Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297 at 302-303.

To use the terminology used in some of the submissions before us, and in some of the cases and some of the texts, the "jurisdictional fact" is not that the development is seriously at variance with the Development Plan, but the assessment by the relevant authority that the development is seriously at variance. Or, to be more precise, in the present case an absence of power or jurisdiction to consent turns not upon the fact of the development being at seriously at variance with the Plan, but upon the assessment by the DAC that it is seriously at variance. The validity of an assessment that the development is not seriously at variance may be reviewed.

It is implicitly required by s 35(2) of the Act that, before a consent is granted, the relevant authority must make an assessment that the development is not seriously at variance with the relevant Development Plan. However, the power of the court to invalidate a consent will turn upon whether the relevant authority directed its mind to that issue, and the validity of the decision that it made. The power of the court to invalidate a planning consent does not turn upon the court's own assessment, at least directly, of whether the development is seriously at variance with the Development Plan.

To the extent that the Judge decided otherwise, and held that the approach taken by this Court in Munno Para to the differently worded s 47(9) is still applicable, we respectfully disagree. However, we agree with the Judge that a relevant authority's assessment that a development is not seriously at variance with the relevant Development Plan can be set aside if that assessment is made without having regard to a relevant matter, or taking into account an irrelevant matter, is made arbitrarily or if the decision reached is one that no reasonable authority could properly reach. We return to those matters shortly.

The point now under consideration did not have to be finally decided by this Court in Corporation of the City of Kensington & Norwood v Development Assessment Commission (1997) 70 SASR 471. However, as we understand that decision the observations made by Williams J (in particular at 480-485) are consistent with the view that we have expressed, and we express our own agreement with the general tenor of the remarks made by Williams J.

The cases to which we have referred indicate that a failure to conclude that a development is seriously at variance with the Development Plan, or a conclusion that a development is not seriously at variance, will be invalid if the decision results from a mistake of law, from reliance upon an irrelevant matter, from a failure to take into account a relevant matter, or if the decision is one that no reasonable authority could properly have reached.

A number of those cases sound a caution against allowing review on these bases to become, in substance, a review of the planning decision on its merits.

In the present case there is no suggestion of a mistake of law, so we put that basis to one side. We propose to say something more about the other bases. For convenience, we will refer to the first two of them simply as the issue of relevance. We will refer to the third of them as the issue of unreasonableness or, as it is often called in the cases Wednesbury unreasonableness.

The assessment made by the DAC under s 35(2) involved consideration of a series of facts about the proposal and the locality, and consideration of a number of provisions of the Development Plan. It involved the application of those provisions to the facts by the exercise of a planning judgment. The decision made is not simply a process of fact finding. It involves substantial elements of judgment both at the level of assessing the provisions of the Development Plan and at the ultimate stage of relating the provisions of the Development Plan to the facts.

That feature of the decision makes particularly pertinent some observations made by Mason J in Minister for Aboriginal Affairs v Peko-Walsend Limited [1986] HCA 40; (1986) 162 CLR 24. In relation to relevance as a ground of judicial review, Mason J said (at 39):

"The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ... What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion."

"Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision. ... The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. ... It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. ..."

His Honour went on to explain how, in some cases, review on the grounds of relevance might be better expressed as review on the basis that the decision is "manifestly unreasonable" (at 41). We will return to that issue later. However, we make the point that these cautionary remarks appear to us to be equally applicable to review on the grounds of relevance and review on the grounds of reasonableness.

The decision made by a relevant authority under s 35(2) of the Act involves, as we have explained, considerations of matters of fact and the exercise of a substantial element of judgment. The terms of the section are such that the decision is not one for which the relevant and irrelevant considerations can be determined from the section that empowers the making of the decision. It seems to us that what is relevant will turn upon the nature of the development application and the provisions of the Development Plan: cf Abebe v Commonwealth [1999] HCA 14; (1999) 73 ALJR 584 at [195]. Nevertheless, it remains necessary to avoid drifting into a consideration of the merits of the decision, rather than the process by which the decision is reached.

Under the section, the relevant authority does not give detailed reasons. The court must decide an attack on validity on the grounds of relevance by considering the material before the relevant authority, and the decision made. An attack on the grounds of relevance can succeed on such a case only if the court is satisfied that the relevant authority must have ignored a relevant matter, or must have taken into account an irrelevant matter, and that that matter is likely materially to have affected the decision made.

In the case of a complex assessment of the kind made under s 35(2), it will not be easy to conclude that a relevance complaint is established.

An attack on the validity of a decision on the grounds of reasonableness also requires careful consideration of the remarks of Mason J, for the reason that we have indicated. Those same remarks suggest that Mason J accepted reasonableness as a general ground of judicial review: see Peko-Walsend at 41-42.

But the status of reasonableness as a general ground of judicial review, and its content, awaits authoritative determination by the High Court. In Minister for Immigration and Ethnic Affairs v Eshetu [1998] HCA 38; (1999) 73 ALJR 746, the decision the subject of judicial review was a decision by the Refugee Review Tribunal. The decision was that the applicant was not a refugee. That being so, the applicant was not entitled to a protection visa under s 36 of the Migration Act 1958 (Cth). That decision involved a consideration of facts relating to the applicant, and the application of those facts to the definition of a refugee to be found in a certain Convention. That is a somewhat simplified description of the position. The decision of the Tribunal was attacked on the grounds that it was so unreasonable that no reasonable Tribunal, acting within jurisdiction and according to law, would have come to such a decision. The suggested illogicality or unreasonableness in the Tribunal's decision was said to lie in the failure of the Tribunal to give sufficient weight to certain information before it, and the fact that it attached unwarranted importance to the absence of certain evidence: see Gleeson CJ and McHugh J at [40]. The attack was treated as raising the issue of Wednesbury unreasonableness. It is to be noted that this was not a case in which the attack was upon the exercise of a broad discretion. What was under attack was a decision by the Tribunal as to whether the applicant met a criteria which, if satisfied, entitled him to the grant of the visa in question: see Gummow J at [127-128].

Eshetu, therefore, bears some similarities to the present case.

Gleeson CJ and McHugh J did not express a firm view one way or the other as to the availability of Wednesbury unreasonableness as a basis for judicial review of administrative action. They did not regard the case as presenting that sort of issue in any event. They said at [40]:

"Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as 'illogical' or 'unreasonable', or even 'so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence."

They went on to refer to the reasoning process of the Tribunal, and to make the point that the complaint was the giving of inadequate weight to certain considerations and undue weight to others. They said that this was not a case of Wednesbury unreasonableness: at [45].

"In essence, an unreasonable decision is one for which no logical basis can be discerned."

They said that the case before them was not such a case. A logical basis for the Tribunal's reasoning was apparent.

Gummow J considered the issue of Wednesbury unreasonableness in some detail. He made the point that the concept of Wednesbury unreasonableness had its origin in a case dealing with the exercise of a wide discretion to impose conditions, and not a decision on an anterior question as to a jurisdictional fact: at [123]. He made the point that in the case before him what was in issue was a determination by the Tribunal that it was not satisfied that the applicant answered a statutory criterion ("a refugee") that had to be met before the Tribunal was empowered to grant a visa. That decision was nevertheless reviewable, and he referred to a number of the cases to which we have referred. The same is true of the case before this Court. What is in issue is the assessment of the DAC that the development was not seriously at variance with the Development Plan, or, to be more precise, its failure to make the assessment that the development was seriously at variance. Gummow J went on to refer again to a number of the cases to which we have referred, and to the grounds of review that they indicate are available in such a case. Having considered a number of cases, he concluded at [145] that the appropriate basis for judicial review in such a case was one that:

"... would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds."

He said that whether the ground of review was stricter than that could be left for determination in another case. He concluded at [147] that the decision of the Tribunal was not based on findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds. It was not to the point that another decision-maker might have reached a different view, and might have done so reasonably.

Hayne J expressly reserved the availability of Wednesbury unreasonableness as a ground for the exercise of judicial review: at [159]. Callinan J also found it unnecessary to determine the extent to which Wednesbury unreasonableness is available as a general ground of judicial review: at [187]. He also was satisfied that the case was not one in which the Tribunal had failed to determine a factual issue which was an essential preliminary to the making of its ultimate decision. The decision could not be characterised as in any relevant sense an unreasonable one, because it depended upon a view of the facts that was open to the Tribunal: at [193-194].

These passages emphasise a need for care when unreasonableness is put forward as the basis of judicial review, in a case like the present in which what is in issue is the formation of a complex assessment as the condition of the exercise of a power to grant a consent, or as determining that the power to grant a consent does not exist. The relevant ground of judicial review is not made out by establishing that the decision is one with which the court exercising the power of judicial review disagrees, or even strongly disagrees. Assuming, as we are prepared to, that unreasonableness is available as a ground of judicial review, it is made out by establishing that the decision is one which displays a lack of logic or lacks probative material to support an essential step in the reasoning. We emphasise again the need to avoid drifting into a review of the assessment on its merits.

It is now convenient to turn to the issue of whether the decision of the DAC is invalid.

A subsidiary reason for the Judge's conclusion that the DAC's decision was invalid was his conclusion that it failed to have regard to a relevant matter. The material before the DAC suggested quite strongly that it had made its assessment of the proposed development on the basis that the capacity of the proposed Irish Hotel would be limited to 310 persons at any one time. Much of the material before the DAC about the requirement for car parking spaces, and the DAC's own advice, was based upon that being the case.

But the floor space of the premises was such that the Licensing Court might, applying its usual criteria, licence the premises on the basis of a maximum usage of 450 persons at any one time. That, in any event, is what the Judge found.

The approval granted by the DAC does not contain a condition limiting the number of persons in the hotel at any one time to 310. The consent does contain a condition requiring that "all development is to be established in strict accordance with the details on the plans ... submitted with the development application dated 10 February 1998." We doubt whether that condition could be regarded as picking up such a specific matter as the number of persons to be in the premises at any one time.

The Judge therefore concluded that the DAC had failed to have regard to a factor that is plainly relevant to the amount of car parking required. That is, the fact that the premises might be licensed on a basis that would permit their use by a number of persons significantly exceeding the number upon which the DAC had made its assessment in relation to car parking requirements.

In this respect we agree with the Judge's approach. It was wrong for the DAC, having regard to the basis of its decision, to fail to ensure that the basis upon which it approved of the development would be secured when the development took place. As well, having regard to the importance of car parking in the assessment of the development, and to the basis upon which the DAC made its decision to consent, the DAC could not reasonably have concluded that the development should be approved without any limit on the number of persons to be present at the hotel at any one time.

The number of persons permitted to use the premises at any one time is a matter that must have been material to the decision made by the DAC. The material before the DAC so indicates. The number of persons using the premises is plainly, in light of the provisions of the Development Plan a material factor when considering car parking requirements. In short, it is a relevant matter, and likely to have materially affected the DAC's decision. To fail to impose an appropriate condition is to fail to have regard to an essential aspect of the DAC's own reasoning process.

Before the Judge, and on appeal, Mr Upham offered to submit to a condition limiting the occupancy of the premises at any one time to 310 persons. It is fair to say that a good deal of the material before the DAC appears to proceed on the basis that the proposal was for a hotel with a capacity limited to 310 persons. As to the offer, the Judge said:

"Mr Hayes QC stated in open court that Mr Upham would consent to a condition limiting the numbers to be accommodated in the hotel to 310. But there are two reasons why I do not think it desirable to act on the basis of that offer. First, the need for parking should be determined on the potential capacity of this hotel. It is futile, if not also highly undesirable and contrary to principle, to proceed in any other way since it is always open to the proprietor of this hotel to seek to increase the numbers to be accommodated, perhaps fortified by some ad misericordiam plea that it is necessary for the hotel to trade profitably. Secondly, given that there are other grounds on which to set aside the Commission's decision, it is undesirable to act on the offer."

It is well established that power to impose conditions cannot be used to make suitable for consent a development that is inherently unsuitable for consent. Before conditions are considered, the proposal must be considered on its merits. If it is not a proposal that merits consent, it should be refused. It is not proper to use conditions to transform an unacceptable proposal into one that is acceptable: see Remove All Rubbish Pty Ltd v City of Salisbury [1989] SASC 1286; (1989) 51 SASR 26 at 34 Jacobs J and South Australian Housing Trust v Lee (1993) 81 LGERA 378 at 390 Debelle J.

However, from an early stage the proposal to the DAC was a proposal for premises accommodating no more than 310 persons at any one time. The letter of 21 May 1998 from the Council to the DAC states that this was a condition of the sale of the land by the Council to Mr Upham. The same limitation is referred to in the letter of 7 April 1998 from Master Plan Pty Ltd to the DAC. We agree with the Judge that this limit was not made as clear as it might have been or should have been, but we remain of the view that it is reasonably clear that from an early stage this was the nature of the proposal. The decision by the Licensing Court as to the permitted occupancy of the premises at any one time will depend upon that Court's consideration of a number of factors. The Court might well see fit to fix the same limit as was proposed by Mr Upham to the Council and to the DAC. Indeed, one would expect it to do that, if the relevant facts are drawn to the Court's attention.

At a glance

Court

Decision date

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Judgment (220 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (23)

UPHAM v THE GRAND HOTEL (SA) PTY LTD & THE DAC No. SCGRG-98-963 Judgment No. S414 [1999] SASC 414 (24 September 1999)