The Legislative Scheme
23 Part 3 of the Act is concerned with Environmental Planning Instruments. The sequence of steps for the preparation of a Local Environmental Plan is:
(i) Decision by the Council, or by the Minister, to prepare an LEP (ss54, 55).
(ii) Preparation of an environmental study (s57).
(iii) Consultation with public authorities (ss62, 63).
(iv) Preparation of draft LEP (s61).
(v) Submission of draft LEP to the Director (s64).
(vi) Certificate from the Director to permit public exhibition (s65).
(vii) Public exhibition, after notice, of the draft LEP and environmental study, specifying the period during which submissions may be made (s66).
(viii) Any person may make submissions in writing (s67).
(ix) Holding of a public hearing in respect of a submission, where requested and so resolved by Council (s68(1)).
(x) Report of the public hearing (s68(2)).
(xi) Council may make alterations to the draft LEP, with or without further public exhibition (ss68(3) (3A) (3B)).
(xii) Submissions of public submission, report and draft LEP to the Director (s68(4)).
(xiii) Report by the Director to the Minister (s69).
(xiv) Making of the LEP by the Minister (s20).
(xv) Publication of the LEP in the Gazette (s34(5)).
(xvi) Public access to the LEP at the Department and the Council (ss34(6) and (8)).
24 Sections 68 and 70 are of central significance in this case and I set them out in full:
"68(1) Where -
(a) a person making a submission so requests; and
(b) the council considers that the issues raised in a submission are of such significance that they should be the subject of a hearing before the council decides whether and, if so, what alterations should be made, the council shall, in the prescribed manner, arrange a public hearing in respect of the submission.
(2) A report of the public hearing shall be furnished to the council and the council shall make public the report.
(3) The council shall consider the submission and the report furnished pursuant to subsection (2) and may make any alterations it considers are necessary to the draft local environmental plan arising from its consideration of submissions or matters raised at any public hearing.
(3A) An alteration made by a council pursuant to subsection (3) need not relate to a submission.
(3B) The council may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to subsection (3). The provisions of this section and sections 66 and 67, with any necessary adaptations, apply to any such exhibition of a draft plan, but not so as to require a further certificate under section 65.
(4) The council shall, subject to and except as may be provided by the regulations, submit to the Director-
(a) details of all submissions;
(b) the report of any public hearing;
(c) the draft local environmental plan and the reasons for any alterations made to the plan pursuant to subsection (3); and
(d) a statement-
(i) to the effect that the provisions of sections 66 and 67 and this section relating to public involvement in the preparation of the draft plan have been complied with;
(ii) specifying the environmental planning instruments and directions under section 117 that have been taken into consideration;
(iii) giving details of any inconsistency between the draft plan and any instrument or direction referred to in subparagraph (ii) and the reasons justifying the inconsistency; and
(iv) giving details of the reasons justifying the exclusion of provisions of the draft plan under subsection (5) or the exclusion from the application of the draft plan of any land under that subsection.
(5) In submitting the draft local environmental plan, the council may exclude certain provisions thereof or exclude from the application thereof part of the land to which the draft plan applied (in this section referred to as the deferred matter) which, in its opinion, require or requires further consideration but which should not prejudice the consideration by the Director and the Minister of the draft plan as submitted.
(6) The council may subsequently take action under this section in respect of the deferred matter, without having to publicly re-exhibit that deferred matter, as if it were a draft local environmental plan.
(7) More than one public hearing may be held in respect of any submissions, and one hearing may be held in respect of more than one submission.
(8) The regulations may make provision for or with respect to the conduct of a public hearing."
"70(1) After considering the Director's report made under section 69, the Minister may-
(a) make a local environmental plan-
(i) in accordance with the draft local environmental plan as submitted by the council under section 68(4); or
(ii) in accordance with that draft plan with such alterations as the Minister thinks fit relating to any matter which in the opinion of the Minister is of significance for State or regional environmental planning;
(b) direct that action be taken in accordance with subsection (3); or
(c) decide not to proceed with the draft local environmental plan.
(1A) Without limiting subsection (1)(a)(ii), the alterations that may be made by the Minister relating to any matters which in the opinion of the Minister are of significance for State or regional environmental planning may comprise changes of substance to the draft local environmental plan and may arise from submissions or otherwise from the Minister's consideration of the matters in the draft plan.
(2) A local environmental plan shall apply to such area or part of such area as is described in that plan.
(3) The Minister may (but need not) direct the council to publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to this section or section 68, and the provisions of this section and sections 66, 67, 68 and 69 shall, with any necessary adaptations, apply to that plan.
(4) Where the Minister decides to make a plan in accordance with subsection (1), the Minister may exclude certain provisions thereof or exclude from the application thereof part of the land to which the draft plan applied (in this section referred to as the deferred matter) which, in his or her opinion, require or requires further consideration but which should not prejudice the making of the local environmental plan .
(5) The Minister may subsequently take action in accordance with this section in respect of the deferred matter as if it were a draft local environmental plan submitted under section 68(4).
(6) Where the Minister decides not to proceed with a draft local environmental plan under subsection (1)(c), the Minister shall give such directions to the council as the Minister considers necessary in relation to that decision.
(7) The Minister shall inform the council of his or her decision under subsection (1) and, except where the Minister decides to make a local environmental plan in accordance with the draft local environmental plan as submitted by the council under section 68(4), the reasons therefor, and may at the same time give directions to the council as to the procedure to be followed in connection with making his or her decision known to the public.
(8) Notwithstanding anything in this section and without affecting the power to make alterations pursuant to subsection (1), the Minister may make a local environmental plan with such alterations as the Minister thinks fit, being alterations that do not affect the substance of the provisions of the plan as submitted by the council or as altered pursuant to subsection (1)."
25 A person must not carry out development, as broadly defined by the EPA Act, where such is prohibited by an LEP (s76B) or, where consent is required by an LEP, without consent (s76A). Proceedings may be brought to remedy or restrain the breach of either s76A or s76B (ss123, 124). Furthermore, contravention of either s76A or s76B constitutes an offence against the EPA Act (s125) and may be enforced by proceedings for an offence (ss126, 127).
26 As originally enacted in 1979, s35 of the EPA Act stated:
"35 The validity of an environmental planning instrument in relation only to any failure to comply with any formal or procedural requirements of this part (including the regulations in force in connection therewith) with respect to its making shall not be questioned in any legal proceedings except those commenced in the Court by any person within three months of the date of its publication in the Gazette."
27 By Schedule 7 of the Environmental Planning & Assessment Amendment Act of 1985 s35 was substituted and a new s104A was inserted. The new, and current, form of s35 is:
"35 The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within three months of the date of its publication in the Gazette."
28 The same Schedule to the Amendment Act inserted into Part 4 of the Act, dealing with Environmental Planning Control, the following section:
"104A The validity of the consent shall not be questioned in any legal proceedings except those commenced in the Court by any person within three months of the date on which the granting of consent has been publicly notified in accordance with the regulations."
29 The Explanatory Memorandum referred to Schedule 7 of the Amendment Act in these terms:
"… to make provision with respect to the validity of the environmental planning instruments and development consents."
30 In his second reading speech, the then Minister for Planning and Environment referred to these sections in the following terms:
"Provisions to impose reasonable time limits on challenges to environmental planning instruments and development consents, which enables greater certainty in the development process." (Hansard NSW Parliament 26 November 1995 p10638)
First Ground of Appeal: Ultra Vires
31 In his submissions to the Court Mr P Hall QC, who appeared for the Appellant, identified the first ground of appeal in terms of "clear non-compliance with conditions precedent to the exercise of the power."
32 Breaches of two "conditions precedent" were identified:
(i) The amendment did not arise from the public submissions.
(ii) The amendment was not publicly exhibited.
33 In Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28, McHugh, Gummow, Kirby and Hayne JJ considered the effect on the validity of an exercise of a statutory power of a failure to comply with an aspect of a statutory scheme. Their Honours said:
"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issues." [91]
34 Their Honours went on to accept the analysis in Tasker v Fulwood (1978) 1 NSWLR 20, 23-24, in which this Court rejected the traditional distinction between "directory" and "mandatory" requirements and posed the test in the following terms:
"A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid. … In determining the question of purpose regard must be had to the language of the relevant provision and the scope and object of the whole statute". (Tasker v Fulwood, 24)
35 This approach has long been adopted by this Court and it has now been authoritatively approved in the Project Blue Sky judgment [93].
36 The Appellant submits that, subject only to s35, the intention of the Parliament was to invalidate any instrument which failed to comply with the scheme for public notice and exhibition found in Part III Division 4 of the EPA Act. Clause 13(3) was not included in the draft LEP when public notice and exhibition occurred under s66 of the EPA Act. Clause 13(3) was never publicly exhibited.
37 The importance of the process of public consultation in the formulation of local government plans has long been recognised. See eg Scurr v Brisbane City Council (No. 5) (1973) 133 CLR 242, 251-252, a judgment which was concerned with the City of Brisbane Town Planning Act, but which has been cited on numerous occasions in other jurisdictions since that time. The Appellant referred to a number of cases in which the failure to perform a statutory requirement led to invalidity. Each case must turn on the particular statutory regime.
38 The detailed scheme of consultation and public exhibition in the EPA Act, makes it clear that Parliament regarded the procedural steps as of considerable significance for the integrity of the process of formulating local environmental plans. The critical provision for present purposes is s68(3), which authorises the Council to make "alterations" to the draft LEP after public submissions have been received and a public hearing, if any, has occurred. However, such "alterations" are limited to those which the Council:
"…considers are necessary to the draft local environmental plan arising from its consideration of submissions or matters raised at any public hearing."
39 The Respondent Council relied on ss68(3A) and (3B) which state:
"(3A) An alteration made by a council pursuant to subsection (3) need not relate to a submission.
(3B) The Council may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to subsection (3) …"
40 The interrelationship between subsections(3) and (3A) is a matter of some difficulty. Whilst an alteration "need not relate to a submission", it remains the case that the power to alter is restricted by reference to "considerations of submissions" or of "matters raised at any public hearing". Whatever may be the effect of subsection(3A), it does not free a Council to adopt whatever amendments it likes, as if the words of qualification had been deleted from subsection(3). It is not, however, necessary to determine the proper construction of the nexus for which subsection(3) provides, in this case.
41 The Appellant's submissions were directed, and directed only, to the proposition that the subject matter of subclause 13(3) did not in fact arise from the content of any "submission" or from any "matter raised" at a public hearing. Accordingly, it was submitted that there was a breach of what was described as a "condition precedent", namely, the obligation for the contents of a local environmental plan to go through a process of public notice, public exhibition and receipt of submissions, which did not occur with respect to subclause 13(3).
42 The trigger of the power to make "alterations" is whether or not the Council "considers" such alterations to be necessary "from its consideration of submissions or matters raised at any public hearing". The condition precedent to the power is not the fact itself - i.e. did the amendment actually arise from a submission or public hearing - but the opinion of the Council that it did so arise. (See eg The Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297). This is a particular kind of jurisdictional fact. (Craig Administrative Law 3rd ed pp368-370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, 198; the passage from Craig was also referred to with approval in Australian Heritage Commission supra 303 n 34).
43 The process by which the Council forms its opinion is not immune from judicial review, but the grounds on which such review must be based are as set out by Gibbs J in Buck v Bavone (1976) 135 CLR 110, 118-119 and subsequent authorities. (See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 257-277; Australian Heritage Commission supra 301, 303; Bruce v Cole NSWCA 12 June 1998 pp36-38. See also Parramatta City Council v Pestell (1972) 128 CLR 305 at 323).
44 Save insofar as it attacked the Council's deliberations on the grounds of improper purpose or lack of bona fides, the subject of Ground 3 with which I will deal below, the Appellant did not challenge the formation of the opinion of the Council on any administrative law ground. Specifically, there was no suggestion that the Council did not "consider" the "alteration" to be "necessary" as, "arising from its consideration of submissions or matters raised at [the] public hearing". This submission should be rejected.
45 In order to vitiate the Council's decision on the Appellant's case, the question - Did cl 13(3) arise from a submission or a public hearing? - would have to be a jurisdictional fact, so that the Council's power to amend depends on the actual existence of a nexus between the amendment and a submission or matter raised at a hearing. The construction of cl 68(3) indicates that the relevant jurisdictional fact cannot be expressed in that way.
46 The Appellant's second submission, under the first ground of appeal, was that the process miscarried by reason of the Council's failure to publicly exhibit the amendment in cl 13(3). This must also be rejected.
47 Subsection 68(3B) makes it clear that the Council had a separate discretion to exercise with respect to public exhibition after any amendment. (See Coles Supermarkets Australia Pty Limited v Minister for Urban Affairs and Planning (1996) 90 LGERA 341, 346 per Pearlman J). The Appellant never challenged the decision not to advertise the amendment on any administrative law ground.
48 Whilst there are difficulties with the proposition that the amendment was such that it could be said to be so significant, that the LEP cannot be characterised as the product of a Part III Division 4 process, it is not necessary to decide the issue. (Cf Leichhardt Municipal Council v Minister or Planning (No 2) (1995) 87 LGERA 78, 84-88; Pearson "Environmental Planning Instruments - Consultation and Alteration" (1995) 12 EPLJ 352).
49 In my opinion, the first ground of appeal fails. No issue arises under s35 of the Act.
Second Ground of Appeal: Denial of Natural Justice
50 The obligation to afford procedural fairness is a doctrine of the common law which attaches to the exercise of public power, subject to any statutory modification of the common law in that regard. See Kioa v West (1985) 159 CLR 550, 576, 581, 632; Annetts v McCann (1990) 170 CLR 596, 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 574-575; Attorney General (NSW) v Quin (1989-90) 170 CLR 1, 57; Victoria v Master Builders Association of Victoria (1995) 2 VR 112, 138-139, 148, 157-160; Bayne "The Common Law Basis of Judicial Review" (1993) 87 ALJ 781. The view that the duty to accord procedural fairness is only an issue of statutory interpretation, consistently taken by Sir Gerard Brennan, has not prevailed. (See Kioa v West supra 609-616; FAI Insurance Ltd v Winneke (1982) 151 CLR 342, 407-413; Ainsworth supra 584-585).
51 A decision of the council is not the ultimate operative decision under Part III Division 4. The Minister must promulgate the plan under s70. However, before he can do so:
(i) The council must submit the plan to the Director, together with "the reasons for any alterations made to the plan" (s68(4)(c)) and a statement that the provisions of ss66 and 67 relating to public involvement "have been complied with" (s68(4)(d)).
(ii) The Director must furnish a report to the Minister as to whether the provisions of ss66, 67 and 68 "relating to public involvement in the preparation of the draft plan have been complied with" (s69(c)).
52 Although the Minister may refuse to make any plan at all (s70(1)(c)), he or she can only make a plan in the form submitted to him by the council (s70(1)(a)(i)). The only alterations he or she is empowered to make are limited to:
(i) "… any matter which in the opinion of the Minister is of significance for State or regional environmental planning". (s70(1)(a)(ii) as explained in ss70(1A)).
(ii) The exclusion of a provision or provisions which "in his or her opinion require or requires further consideration …" (ss70(4)).
(iii) "… alterations that do not affect the substance of the provisions of the plan as submitted by the council …" (s70(8)).
53 By reason of these restrictions on the Minister's authority, the decision by the council to amend a plan under s68(3) is of such significance that it is subject to judicial review. The council's decision may "destroy defeat or prejudice a person's rights, interests or legitimate expectations", which is the authoritative test for the application of the common law requirement of procedural fairness (Annetts v McCann supra 598; Ainsworth v Criminal Justice Commission supra 576).
54 In these two joint judgments, the High Court adopted the test as articulated by Mason J in Kioa v West supra, where his Honour 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 … But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:
'… which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a 'policy' or 'political' decision and is not subject to judicial review.' (Salemi (No 2) 1977 137 CLR at 452 per Jacobs J).
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. … 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. …
In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, ie in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, in the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations." (584-585)
55 In the present case the issue arises with respect to the construction of the power in s68(3) of the EPA Act to amend a draft LEP which has already been publicly exhibited. The two issues which arise are:
(i) Does the exercise of the power in the circumstances of the present case impinge on the rights, interests and expectations of the Appellant in the "direct and immediate way" to which Mason J referred?
(ii) Does the express legislative provision for public notice and public exhibition constitute a "clear manifestation" of a statutory intention that the common law duty to accord procedural fairness is to be excluded, with respect to the exercise of the power under s68(3)?
56 In considering the first of these issues it is important to recognise that the Appellant did not contend that the Council had created any form of expectation, by reason of past practice or otherwise, that it would engage in any form of consultation with affected landowners, with respect to amendments of the character found in subclause 13(3).
57 As Bignold J expressly found:
"I also note that both Mr Pagan and Alderman Lord gave evidence (which I accept) to the effect that it is not Council's obligation or policy to notify landowners of minor and secondary alterations that are made to a draft LEP after it has been exhibited. They were of the view that clause 13(3) could be so characterised."
58 The finding was not challenged. Accordingly, there was no occasion for the application in this case of the principle expressed most recently in the joint judgment of Brennan CJ, Dawson and Toohey JJ in Darling Casino Limited v New South Wales Casino Control Authority (1997) 71 ALJR 540, 541:
"…It should not be assumed that the exercise of a power conferred in general terms cannot be confined by the procedures adopted by a repository. If the power must be exercised in conformity with the rules of natural justice, a failure by the repository to adhere to a declared procedure may constitute or result in a failure to accord natural justice to a person whose interests are liable to affection by the exercise of the power. In such a case, an exercise of the power adversely to the interests of the person denied natural justice is liable to be set aside."
59 The issue in the present case must be determined on the basis of the statutory power in s68(3), to be construed in the context of the legislative scheme of which it forms part.
60 It is important to recognise that the common law doctrine is not subject to the requirement found in the Administrative Decisions Judicial Review Act 1977 (Cth) that judicial review requires a decision of "an administrative character". Although this statutory formulation is derived from the common law, nevertheless the administrative law jurisprudence of the Federal Court under the ADJR Act must be treated with caution in its application to a case based on the common law.
61 The relevant test is whether an amendment to a draft LEP under s68(3) affects an individual landowner in the "direct and immediate way" to which Mason J referred in Kioa v West.
62 It is relevant to note that the power may be exercised, and in the ordinary course is usually exercised, by promulgating a provision in terms of general language which often, perhaps usually, applies to significant numbers of landowners. However, there is nothing in the nature of the power which requires it to be exercised in this way. An amendment under s68(3) may apply to only a single landowner. This suggests that the issue is not whether an obligation to afford procedural fairness exists at all, but what is the content of such an obligation in a specific context.
63 In Medway v Minister for Planning (1993) 30 NSWLR 646, Mahoney JA, with whom Sheller and Cripps JJA agreed, said:
"Where the persons relevantly affected by the exercise of a statutory power are numerous or difficult to identify, or identify in advance, it may more readily be inferred that it was not the legislative intention that, before the exercise of a power, the case sought to be made be formulated and notified." (652-653)
64 Medway was concerned with a decision under s101(1) of the EPA Act, which empowered the Minister for Planning to direct that a council refer a development application of a specified character to the Department of Planning for determination by the Minister. The Court held that the Minister was not liable to afford joining landowners an opportunity to be heard before the Minister issued that direction. Two adjoining landowners had complained that they thereby lost the possibility of participating in the exercise by the council of its powers in the normal course. Mahoney JA gave weight to the fact that the persons who had lost the specific rights were a "much wider class" than adjacent landowners and that: "It would be difficult to identify all of them in advance" (653).
65 His Honour however also gave considerable weight to the particular circumstances of the specific case and described the persons who could object with respect to the particular development in issue as "a wider and more amorphous class" (653C). His Honour was, however, careful to add:
"It may be that in the case of a single application affecting only one person or several identifiable persons, different considerations may arise." (653B-C)
66 His Honour concluded:
"The principle illustrated in Kioa v West and the cases to which I have referred is a general principle and a beneficial one. But what it will require to be done in a particular case will depend upon the circumstances and context of that case. It is, in my respectful opinion, wrong to treat the content of its requirements as fixed and inflexible." (653F)
67 These two passages suggest that his Honour was not focussing on the existence of the duty to accord procedural fairness, but rather on its content in the specific circumstances of the case.
68 It is significant that Medway was concerned with what was said to be a legitimate expectation that a particular statutory procedure would be followed, which was said to support a challenge to the exercise of a statutory power, found in the same statute, which expressly provided that, in certain circumstances, that procedure would not be followed. In any event, the present case involves "several identifiable persons", in the words which Mahoney JA indicated would involve a position in which his conclusion may have been different.
69 This issue arose in circumstances more closely analogous to the facts of the present case, in Coles Supermarkets supra. Pearlman J concluded that s35 of the EPA Act applied to prevent the Applicant in that case from pursuing each of their grounds of appeal, including the ground based on an alleged denial of natural justice (353.5). Nevertheless, her Honour went on to decide the substantive merits of each of the grounds in comments which, by reason of the s35 finding, were obiter.
70 The applicants in Coles Supermarkets had the advantage of covenants in a lease which required their consent to the redevelopment of a shopping centre. The Wagga Wagga Local Environmental Plan 1985, the validity of which was challenged in those proceedings, purported to empower the Council to override the effect of such a covenant, to permit the implementation of a development to which the Council had granted consent. There was evidence before the Court that the amendment, denoted No 14, was motivated by the very development proposal which affected the Applicant. Nevertheless the actual form of amendment to the LEP was in terms of general application. Pearlman J concluded, after reference to Medway:
"Amendment 14 is of general application. It is apt to affect the operation of any covenant, agreement or instrument, and not just clause 11.17. Those who might be affected by its operation comprise a 'wide and amorphous' class of persons. That demonstrates, I think, that the Applicants could have no legitimate expectation that they would be consulted by the Council or the Minister before the making of amendment 14." (359)
71 Whether or not the exercise of a statutory power in the circumstances of a particular case is such as to activate the common law duty to accord procedural fairness before the exercise of that power, must depend on issues of substance and not form. I would not myself have regarded the form of the amendment in the Coles Supermarkets case as determinative of the issues before her Honour. The circumstance that the amendment was itself directed to the very application in question would, in my opinion, have been entitled to considerable greater weight than her Honour appeared to give it.
72 That is not to suggest that the actual decision in that case was not correct. It appears that the amendment to the Wagga Wagga LEP had been the subject of public notice and exhibition. The Applicants in the proceedings before Pearlman J had not made any submission with respect to the amendment as then proposed. Between the public exhibition and the final promulgation of the LEP, the Wagga Wagga Council had exercised the power in issue in the present case, i.e. s68(3), to amend the form of the draft LEP as publicly exhibited. Whilst complaint was made on ultra vires grounds as to the validity of that amendment, the change between public exhibition and final LEP was not itself the subject of challenge on the grounds of denial of natural justice. It was the whole of the amendment, both as originally promulgated and as finally adopted, to which the Applicants objected on the basis of a denial of procedural fairness. Her Honour could have rejected the case on the basis that the opportunity that had been afforded to the Applicants to make submissions in the context of the public exhibition - an opportunity of which they did not avail themselves - was a sufficient opportunity in all the circumstances. The change between the original public exhibition and the final plan as adopted was not material in this respect.
73 There are statutory powers which are of such general application and which involve such a significant policy content that, by their nature, they indicate an intention by the Parliament to exclude the obligation to accord procedural fairness. See for examples in the planning context: Minister for Urban Affairs & Planning v Rosemont Estates Pty Limited (1996) 91 LGERA 31, 91 per Cole JA; Save the Showground for Sydney Inc v The Minister for Urban Affairs & Planning (1997) 95 LGERA 33, 51-53 per Beazley JA. However, the relevant principle is that the duty is excluded only by "express words of plain intendment" (Commissioner of Police v Tanos (1957-58) 98 CLR 383, 396; J v Lieschke (1986-87) 162 CLR 446, 463; Annetts v McCann supra 598; Ainsworth v Criminal Justice Commission supra 576).
74 The fact that the exercise of a particular statutory power has effect on a wide range of persons, even in circumstances where the identity of all such persons is difficult to establish, will often impinge, not on the obligation to accord procedural fairness, but on the content of that obligation.
75 In Haoucher v Minister for Immigration & Ethnic Affairs (1989-90) 169 CLR 648 Deane J said:
"… the requirements of procedural fairness must be observed in any case where, by reference 'to the particular statutory framework' (see Mobil Oil Australia Pty Limited v Federal Commissioner of Taxation (1963) 113 CLR 475, 504) it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public)." (652)
76 His Honour went on to identify the direction of the case law with respect to the drawing of the distinction between occasions when a person is affected "in an individual capacity", from the effect on that person arising merely as a member of "the general public". He said:
"Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision making and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances." (653)
77 The first part of the immediately preceding passage was quoted with approval in the joint judgment in Annetts v McCann supra 598; and also by McHugh JA in Minister for Immigration & Ethnic Affairs v Teoh (1994-95) 183 CLR 273 at 311. In the latter case McHugh JA said:
"I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials." (supra 311)
78 It is also relevant to note that the fact that numerous persons are affected by the particular power exercised in the circumstances of a specific case, will also arise on the issue of discretion to grant relief. In Brooks v Minister for Planning & Environment (1988) 68 LGRA 91, to which I refer below on the mini-code argument. Hemmings J indicated that, if he had been wrong with regard to that question, he would have refused relief to the applicant who challenged the validity of an LEP on the basis that: "… it would work such an injustice as to be disproportionate to the end secured by enforcement of the legislation". That was because: "That plan, of course, extends to a vast area and not just that of the subject applicants" (100).
79 The power in s68(3) can be exercised in so general a way and with so significant a policy content, that a Court will readily infer that no opportunity to make submissions should have been afforded. That is not, however because the statutory power by its inherent character excludes the common law duty. Rather it is because the content of the duty in a particular exercise of the power is such that the failure to provide an opportunity to make submissions is not, in all the circumstances, a breach of the duty.
80 The Court is not concerned with a provision of general application to all land lying in a floodway, in circumstances in which the number of such owners is large. The particular decision in issue in these proceedings - the inclusion of subclause 13(3) in the Fairfield LEP - is, in terms, specifically limited to a very small number of landowners who could be readily approached. In my view, cl 13(3) does impinge on the rights and interests of these landowners in a "direct and immediate way".
81 Mr Tobias QC, who appeared for the Respondent Council, submitted, alternatively, that the scheme for public notice and exhibition, for which Part III of Division 4 of the EPA Act provides, was intended to constitute a mini-code for all consultation with persons affected by a local environment plan. This code for public notice was intended to apply to the exclusion of any private notice, which may otherwise have been required by the common law duty to accord procedural fairness. Accordingly, for purposes of the present case, s68(3B) expressly conferred a discretion on the Council as to whether a draft plan as amended should be subject to further public notice and exhibition. That discretion should be understood as substituting for any common law rights of private notice. As I have noted above, the exercise of that discretion was not separately challenged on any administrative law ground.
82 An argument of this character, with respect to the scheme of the EPA Act as then in force, was accepted by Hemmings J in Brooks v Minister for Planning & Environment supra, where his Honour said:
"The EPA Act has extensive provisions requiring advertising, exhibition and notice, but does not in terms require such personal notification to be given. A draft scheme may, as in this case, apply to a very large geographical area and a multitude of properties and owners, and I do not believe that this likelihood was overlooked by the legislature.
…
In this case the Council and the Minister, in my judgment, have observed all specified procedural steps and exercised all powers and duties adequately and in conformity with the provisions of the EPA Act for the making of the LEP.
In my opinion, an examination of the provisions of Part III of the EPA Act with respect to the making of environmental planning instruments and the mandatory provisions for exhibition and public participation makes it clear that Parliament has specifically directed its attention to the question of whether the rule is to apply or not, and the manner in which the discretion of the statutory authority or Minister is to be exercised. In my opinion, in substitution for the common law, Part III is an appropriate self-contained statutory code of 'fairness' prescribing the steps leading up to and the making of an LEP, and there has been total compliance therewith." (99-100)
83 His Honour did not refer to the contrary views on this matter expressed by McLelland J in Sydney City Council v Ke-Su Investments Pty Limited (No 2) (1983) 51 LGRA 186, 202; see also Bradbury "The Duty to Observe Procedural Fairness in the New South Wales Planning System" (1995) 12 EPLJ 440. Similar conclusions have been reached with respect to the Victorian planning legislation as in force from time to time. See Attorney General (Victoria) v City of Knox (1979) 42 LGRA 402, 423; Mietta's Melbourne Hotel Pty Limited v Roper (1988) 17 ALD 112, 114; Grollo Australia Pty Limited v Minister for Planning & Urban Growth & Development (1993) 1 VR 627, 637-640.
84 In the case of an amendment, after public exhibition, pursuant to the power in s68(3) of the EPA Act, Council must establish that the discretion with respect to further public notice and exhibition provided in s68(3B) is part of a mini-code designed to provide exhaustively for the circumstances in which notice of either a public or private character is to be given. If that is so then, where, as here, the discretion was exercised against any further public notice, no complaint can be made by those who may otherwise have been entitled to private notice at common law.
85 In my opinion, the decision of Hemmings J in Brooks has been superseded by the much more stringent requirements for exclusion of the duty to accord procedural fairness, established in subsequent decisions of the High Court, particularly Lieschke, Annetts and Ainsworth.
86 The reasoning of Mason CJ, Deane and McHugh JJ in the joint majority judgment in Annetts v McCann supra 598 is in point:
"In Tanos (1958) 98 CLR at 396 Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelt out from 'indirect references, uncertain inferences or equivocal considerations'. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice (Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 at 344-345, 347, 349)."
87 In Annetts v McCann a statutory provision giving interested persons a right to attend a coronial inquest and to examine and cross-examine witnesses was held not to be exhaustive of such persons' rights, so that such a person was entitled to be afforded the common law right to make submissions.
88 Baba, a decision of this Court, to which the joint judgment referred with approval, held that express provisions for hearings of the Parole Board in the Prohibition and Parole Act 1983 were not exclusive of the common law duty.
89 In Lieschke supra, the statutory scheme contained a number of specific provisions for participation by parents in proceedings before a magistrate relating to a neglected child. The High Court overturned the decision of this Court that the express provisions in the statute were inconsistent with the application of the common law requirement for procedural fairness (Shales v Lieschke (1985) 3 NSWLR 65, 78 and 88-89).
90 The point also arose in Ainsworth v Criminal Justice Commission supra, where the issue was whether the statutory provisions for the conduct of the affairs of the Criminal Justice Commission of the State of Queensland were exhaustive when they imposed an obligation on the Commission to: "act independently, impartially, fairly and in the public interest". This express provision was "not effective to exclude duties of fairness imposed by the general law in the situations not specifically dealt with by the Act" (575).
91 Of course, each of these cases turns on its specific legislative scheme. In my view, applying the test of "express words of plain intendment" (Tanos), the legislative scheme for public notice and exhibition under Division 4 Part III of the EPA Act is not intended to be exhaustive of all forms of consultation. The express provision in s66 for public notice and exhibition of the original draft LEP is directed to requiring a public consultation process with respect to proposals in which the public at large is interested. The legislature regarded the process of public consultation of all aspects of an LEP as being of such significance that it should not be left to the discretion of individual councils to respond to whatever democratic pressures may exist in each case.
92 The fact that the content of an Environmental Planning Instruments often raise questions of broad public concern is the basis of this specific statutory regime. Issues of public interest of this character require a public process in a democratic system of government. Citizens may be interested in such quasi legislation, whether or not they have any specific tangible "right, interest or expectation" of a character which the common law doctrine of procedural fairness is designed to protect. The requirement of a community wide consultation is not the equivalent of, nor in my opinion exhaustive of, obligations to consult by reason of an intrusion upon private rights and interests.
93 Subsection 68(3B) creates a discretion in the case of any alterations made after public submissions and any public hearing. Obviously such amendments may not be of such significance as to justify further public consultation. Furthermore, the consideration already given in the course of submissions and public hearing may have satisfied the policy purposes of the Act. The legislature was content to leave further publication at this point to the Council, subject to the Minister directing further public exhibition under s70(3). The purpose of public consultation is again not equivalent to nor, in my opinion, intended to be exhaustive of, all forms of consultation.
94 It will often, perhaps almost always, be the case that the process of public notice and exhibition will be found to satisfy the common law obligation to accord procedural fairness, even in the case of particular persons whose interests are specifically adversely affected by the contents of a draft LEP. That is not however sufficient for the Council in the circumstances of the present case.
95 Private landowners can be expected to look after their own interests by maintaining an interest in the activities of their Council and investigating any proposed local environmental plan, even without notice specifically directed to each affected landowner, and by participating in the public process. The course of public submissions, and of any public hearing, will often provide sufficient opportunity for affected landowners to make submissions.
96 The plan as publicly exhibited - a process which in the circumstances may well have accorded procedural fairness, even to these few specific landholders, with respect to the contents of the plan as so exhibited - indicated that development of this character could be permissible with consent, subject to certain conditions. The change from "permissible with consent" to "prohibited", adversely affected the "rights, interests and expectations" of this small group of persons.
97 If the Council had chosen to further publicly exhibit the amended plan under s68(3B), then those persons would probably not have been entitled to complain. Without such exhibition, however, in my opinion, the Council was obliged to afford those specific persons an opportunity to make submissions to the Council on the adoption of the amendment to cl 13. It may be that such private notice procedure could have been more readily and expeditiously conducted than any process of public notice and public exhibition. No such opportunity was afforded to the Applicant.
98 The discretion in subsection 68(3B) retains a real content with respect to amendments which do not affect "rights, interests and expectations" in the relevant sense and in cases where the obligation to accord procedural fairness has been discharged in the course of public submissions and hearings or by, perhaps more expeditious, private notice.
99 Here, no notice of any character was given and no opportunity was afforded to make submissions. This occurred in a context where a quite different regime had been promulgated and publicly exhibited. In my view procedural fairness should have been accorded to relevant landowners before the Council changed the applicable rule from "permissible by consent" to "prohibited".
100 The draft Fairfield LEP which the Council purported to submit to the Director under s68(4)(c) was not a "draft local environmental plan" within the meaning of that section. Accordingly, the Minister could not make a LEP under s70(1)(a)(i) "in accordance with" a "draft local environmental plan as submitted by the council", because no such plan was submitted.
101 By reason of this conclusion, the operation of s35 of the EPA Act necessarily arises, albeit limited to the issue as to whether or not that section extends to proceedings alleging a contravention of the common law obligation to afford procedural fairness.
Third Ground of Appeal: Bona Fides
102 The third ground of appeal concerns alleged improper purpose or lack of bona fides on the part of the Council, in its decision to adopt subclause 13(3). This was a matter of fact which was before his Honour and his Honour found against the Appellant.
103 The submission made to this Court was, in essence, that the amendment was tainted by an extraneous or improper purpose, or manifested mala fides, because it was directed to the deprivation of rights of owners of specific property to exploit their land. This purpose was said to arise from the fact that the amendment was instituted by a member of Council, who acted without professional advice, and who wished to ensure that, in the future, neither the Council itself nor the staff of the Council, nor the Court on appeal, could exercise any discretion so as to permit development in the particular floodway.
104 None of the matters relied on constitutes an extraneous or improper purpose, nor a manifestation of mala fides. The expression of opinion and motive on the part of Alderman Lord, who instigated the amendment, does not necessarily reflect the collective opinion of the Council which passed the amendment. Even if it could do so, nothing in the conduct of Alderman Lord indicates an improper motive or purpose, or manifests mala fides.
105 She wished to prohibit development by means of filling on the land in this particular floodway, by reason of the experience that she had had with previous decisions of Council permitting filling in that floodway. She was obviously concerned with the consequences of development of this character. This involved, in my opinion, proper purposes for the Council to seek to achieve in developing a LEP.
106 The fact that a member of Council or even the Council itself, wished to ensure that neither the Council itself, nor its officers, nor the Court on appeal from the Council, could exercise a discretion adverse to the policy that the Council wished to implement with respect to this particular land, is democracy at work. It indicates nothing in the nature of an extraneous purpose. Nor does it in any way indicate a lack of bona fides. Such consequences necessarily arise from any prohibition of development which, as I will show below in the context of the fourth ground of appeal, the Act expressly contemplates.
107 In the Court below Bignold J rejected a submission of this character. His Honour concluded:
"In respect of the all important decision of the Council, I accept, as substantially accurate, the account of the Council meeting of 15 June 1993 given in the testimony of Ms Lord (which is corroborated by the testimony of Mr Pagan). She spoke with some force and emotion to the meeting about the undesirability of filling land situated within the floodway on the Lansvale Peninsula. She, herself, was partly motivated by the effects of personal experience suffering flood damage while living in Lansvale and what she saw as a desirable public objective for residents of Lansvale, not by any malice towards the applicant. As I've earlier noted it was Alderman Heggie, of her own volition, and without prior consultation with Ms Lord, who moved for the inclusion of clause 13(3) in the draft LEP.
In the circumstances, I have not been satisfied on the balance of probabilities that the passing of the Council resolution on 15 June 1993 was tainted by bad faith, or by any extraneous or improper purpose, or (to phrase the matter differently) by lack of good faith, on the part of the Council."
108 This finding was patently open to his Honour and there are no grounds for disturbing it or questioning it in any respect. The ground of appeal alleging lack of good faith or improper purpose on the part of the Council, should be rejected.