City of Enfield v Development Comm

[1998] HCATrans 285

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A50 of 1997

B e t w e e n -

CORPORATION OF THE CITY OF ENFIELD

Applicant

and

DEVELOPMENT ASSESSMENT COMMISSION and COLLEX WASTE MANAGEMENT SERVICES PTY LTD

Respondents

Application for special leave to appeal

GLEESON CJ
GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 13 AUGUST 1998, AT 11.32 AM

Copyright in the High Court of Australia

MR A.J. BESANKO, QC:   If the Court pleases, I appear with my learned friend, MR G.K. FEARY, for the applicant.  (instructed by Piper Alderman)

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR B.R.M. HAYES, QC, for the second respondent.  (instructed by Johnson Lawyers)

GLEESON CJ:   The Deputy Registrar has provided a certificate saying that she has been informed by the Crown Solicitor’s Office in Adelaide, the solicitors for the first respondent in this matter, that the first respondent does not intend to make any representations at the hearing of the application for special leave to appeal, and will abide any order of the Court save as to costs.  Yes, Mr Besanko.

MR BESANKO:   If the Court pleases, the error that we submit was made by the Full Court in this case arose after the Full Court had found, as had the trial judge, that the fact in this case was a jurisdictional fact, so that the often difficult question of whether a fact is a jurisdictional fact was resolved in favour of the applicant.  However, in our submission, when the court came to consider what test should be applied in determining that fact, it did not apply the well‑established authorities, it applied a test, in our submission, that precluded the calling of evidence in almost all cases, and applied a test, in our respectful submission, that almost negates the doctrine of jurisdictional fact.

GUMMOW J:   In true, perhaps, sub silentio, some doctrine of deference to fact finding by specialist bodies, which is an American doctrine, is that the road it seems to be going down?

MR BESANKO:   I think that is so, your Honour.  But, the court certainly went a lot further than this Court has said is appropriate in cases such as Ludeke and Alley.  The relevant principles that emerge from those cases are set out in the judgment of Justice Bleby at page 58.

GUMMOW J:   I was looking at page 64 line 60, just at the bottom of the page:

without such an obvious and clear departure, the court on judicial review will defer to the judgment of the planning authority on planning issues.

(even if that judgment is a judgment as to what is a jurisdictional fact.)

MR BESANKO:   Yes.  Indeed, your Honour, there is a further passage which goes perhaps a step further than that one.  At page 68, where their Honours said at line 19:

It would have to be an obvious dereliction of its planning duty, and that is not apparent in this case.

Your Honours, we respectfully submit that the finding having been made, or the holding having been made that it was a jurisdictional fact, the court should have applied the tests that are referred to in the decisions of this Court.  They are set out conveniently in the judgment at page 58 at line 60, where there are three matters referred to.  Firstly, whether the evidence remains the same; secondly, whether “the Full Bench has confirmed the decision at first instance”; and thirdly, “if the issue of fact is one in which the commission’s knowledge and experience” provides it with a special ability to determine the question, then the court will defer to some extent to the decision of the fact finder.

In our submission, that has never gone any further in this country than saying that in a case of doubt one resolves the issue by having regard to the specialist qualifications of the inferior body.

GUMMOW J:   It has been said in relation to the Commissioner of Patents, too, a similar sort of thing.

GLEESON CJ:   Where do you find the further step being taken here?

MR BESANKO:   We say at page 64 in the passage that his Honour Justice Gummow pointed out at the bottom at line 60, and then at page 68 at line 19.

GLEESON CJ:   Do you think that what is said at the bottom of page 64 is meant to be anything more than saying in different words what appears on the bottom of 58 and top of 59?

MR BESANKO:   We submit it is, your Honour, when one looks, not only at the test as formulated, but also at the question of evidence; how the court approached the topic of evidence.  There are two relevant passages on that.  Firstly at page 64 at line 25.  The background is that earlier in the judgment his Honour has said the court should reserve to itself a right to consider the facts; but at line 25 his Honour says:

this court should be reluctant to embark on its own and different factual inquiry.

Then at page 68 at about line 32:

The limited role of this court on judicial review in the circumstances of this case rendered that -

that is an inquiry ‑ ‑ ‑ 

GUMMOW J:   It is really 64 lines 28, too:

it would be inviting jurisdictional challenges.....whenever some additional material could later be found which might cast a different light on the material then before the relevant authority.

MR BESANKO:   Yes.

GUMMOW J:   So what?

MR BESANKO:   Yes, indeed, your Honour.

GUMMOW J:   I mean, if the law has not been observed, it has not been observed.  That is what courts are about.

MR BESANKO:   If your Honour pleases.  Then, at 68 the court refers to the limited role of the court and says that an inquiry would be “unnecessary and irrelevant”.  That is an inquiry as to the facts; an inquiry undertaken by the learned trial judge.  In our submission, the effect of their Honours’ judgment is, having found it is a jurisdictional fact, their Honours have said that one needs to be satisfied of a clear departure or an obvious dereliction of duty on the information that was before the planning authority or inferior tribunal.  In most cases, an obvious dereliction of duty, if it appeared on the material, would be an error of law.  One would not need to worry about jurisdictional fact.  In our submission, the Full Court has, in effect, erected a hurdle by saying that before you can call any evidence you need to show an obvious dereliction of duty, and that that would involve, in most cases if not all, an obvious and apparent error of law.  If that is right, one would never need to go on to the next stage, if you establish that, of calling evidence, because you would have established your error of law and one would need to go no further.

Your Honours, that is the error that we submit has been made by the Full Court in this case.  It, as I mentioned, was a jurisdictional question.  The courts below accepted that.  It arose out of the terms of two sections in the Development Act.  Regulation 16, which was the regulation that enabled the authority to determine the nature of the development was not critical.  The Court is not concerned in this case with the mere interpretation of a regulation, it was the sections in the Act.  We submit the important question is how does one approach the issue of jurisdictional fact once the decision has been made that it is a jurisdictional fact.

GUMMOW J:   What do you say about what is said against you at the top of page 93 line 10, that we would be entangled in this factual complexity.  Is that right?

MR BESANKO:   It may not be, your Honour.  Justice Debelle, at first instance, heard the evidence and said conditions or no conditions, this was a special industry.  When the matter got to the Full Court, the Full Court dealt with the role of the court and said, “Our role is strictly limited, and having regard to that limited role we are not prepared to say that this is a special industry”.

GUMMOW J:   So they reversed the primary judge?

MR BESANKO:   Yes, but adopting the approach that they adopted, which was not one of considering the evidence that had been called at trial, other than in so far as it was evidence before the Development Assessment Commission.  So, we would say that if this Court heard the appeal and was with us, there would be an outstanding issue in that the respondent challenges the finding of the trial judge ‑ ‑ ‑ 

GUMMOW J:   That would have to go back to the Full Court.

MR BESANKO:   ‑ ‑ ‑ but that could be remitted to the court below.

GUMMOW J:   To see whether they disagreed with what Justice Debelle had found.

MR BESANKO:   Yes, it was an issue that they did not need to address, or did not address.

Your Honours, in our respectful submission, this is an appropriate case for special leave.  Your Honours will know from the terms of this legislation and other legislation that third party rights of appeal are affected.  In fact, in this case, whether or not there was a third party right, in effect, revolved around the decision as to whether this was a special industry.  So, important public rights are involved.  Further, in our submission, the appropriate supervision of inferior tribunals and bodies is an important matter and sufficient to warrant the attention of this Court.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Besanko.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, on the jurisdictional question, there are really two aspects which arise.  The first is what test did the Full Court, in fact, apply?  The second is, to what jurisdiction was it applying that test?  That is an underlying question, of course.  The third issue which then arises is, does it matter in any event if in the particular circumstances the Full Court got it wrong?  May I deal with those three things and deal with them in that order.

If I could turn to the first of them, it is true that the way in which the judgment in the Full Court is expressed, expresses itself in various ways.  But it is apparent enough, if one goes to page 67, that what the court was seeking to do was to apply a test fairly frequently applied in this area - I will give your Honours a reference in that regard - to whether the conclusion was reasonably open.  Your Honours will see that at page 67 in the passage commencing about line 29 from Jurkovic v Development Assessment Commission, and in particular, your Honours will see that the court appears to adopt what had been said in that case by two members of the court.  In particular, about line 50 the passage that is quoted in dealing with the concept of special industry is this:

On the evidence before the court, I am satisfied that whilst, if things go wrong, the processes proposed or the goods to be stored are such that such results may occur, one cannot reasonably say that such results are ‘likely’.

That appears to be an application of that test.  If I can just say that, for example, one can see that test being applied in this same general area in, for example, a case that should be in the book that your Honours have which has been supplied by our side, and it is the case, Save Blue Lagoon Beach Action Group v Kelvest. It is item No 5 in the book.If one goes to the third paragraph of the headnote, in a few lines summarises the case:

It was not reasonably open to the Council to have concluded that the subject structure were “cabins”.....and accordingly the development consent was void.

But, the test that is applied, your Honours will see at page 149 in the passage, the second new paragraph on page 149 and about halfway down that paragraph:

It is not simply a matter for the Court to substitute its own finding of fact for that of the Council.  The Court could do that only in circumstances where the factual assessment by the Council was one which was not reasonably open to it.

Then that is referred to also in the passage ‑ ‑ ‑ 

GUMMOW J:   What was the nature of this proceeding in the Land and Environment Court?

MR JACKSON:   Your Honour, it appears to have been an application for a declaration that the development consent was void.  That appears at the first page, page 144, and also the first paragraph of the judge’s reasons.

In our submission, that was the test that the court was seeking to apply.  The second thing is to what was the court seeking to apply that.  Your Honours will see that if one goes to the bottom of page 68 in the last paragraph on that page, one sees what really is the issue that was being agitated before the Full Court.  That relates to the operation of Regulation 16.  What your Honours will see is the proposition being put:

It was not alleged in these proceedings that, if the development was properly classified as general industry -

Then one sees:

for the purposes of Regulation 16, the DAC had contravened that subsection -

et cetera.  Regulation 16 is not the statute, of course.  If I could just take your Honours very briefly to the terms of Regulation 16 and to the statute, your Honours will see those again in that same book.  If one goes to Regulation 16, which should be in the second part of the book, following the Development Act, the regulation forms part of Part 4 of the development regulations, which commence on the second page extracted.  Your Honours will see in Regulation 15(1) that in relation to proposed development there has to be lodged with the council the various documents and accompanied by the various things set out in Regulation 15(1).  Then at the bottom of that page, subregulation (4), if the development is lodged with a council but it is Development Assessment Commission that has to deal with it, the material has to be - this is the top of the next page - has to be forwarded to that commission.

Then one comes to Regulation 16 at the bottom of page 12.  It consists of two subregulations - I will not read them out, of course - but your Honours will see that subregulation (1) requires the authority to “determine the nature of the development”, and then for it to proceed to deal with it on that basis.  It is clear enough, in our submission, if one goes to the next subregulation, that is subregulation (2) where one sees the words “is of the opinion” used in it, that what the authority is required to do is at the time contemplated by those regulations to form an opinion as to whether the application does or does not fall within a particular category.  That is a decision to be made, as is obvious enough, your Honours, for the relatively early point.  In our submission, the Full Court ‑ ‑ ‑ 

GUMMOW J:   Are you saying the jurisdictional fact is the formation of the opinion?

MR JACKSON:   Yes, your Honour, and in reviewing that decision, a court, as the Full Court held in this case, in our submission, is looking at the situation as it was before the relevant authority.  Could I refer your Honours to page ‑ ‑ ‑ 

GLEESON CJ:   And deciding whether it is reasonably open to form the opinion.

MR JACKSON:   Yes, your Honour.  I am going on to say in just a moment if I may, that the formation of that opinion by the Commission is not conclusive, because it is the Act - the regulation cannot lift one above the Act, of course - some provisions of the Act that say it either is or it is not.  But, may I deal with that in just a second.

What I am seeking to say is that if one goes to page 64 lines 10 to 43, your Honours will see there that the Full Court was dealing with the case on the basis that what it was reviewing was the formation of an opinion by the Development Assessment Commission.  It is, in our submission, in that light, that one must look at the Full Court’s view; that it is only if that decision was not reasonably open to the Commission that the Regulation 16 decision could be attacked.

What we have sought to say in our summary of argument at page 94, about line 20, is that really underlying, though, perhaps not expressed:

Underlying the applicant’s argument is the notion that a determination under reg 16 decides whether a proposed development is or is not a non‑complying development -

But, your Honours, the Act does not seem so to suggest.  May I take your Honours to section 35 of the Act, in part 1 of the materials that your Honours have.  Your Honours will see the two provisions which are effectively the obverse of each other - 35(1) and 35(3).  Section 35(1) says:

If a proposed development is of a kind described as a complying development -

Or, (3):

A development that is of a kind described as a non‑complying development.....must not be granted a provisional development -

and so on.  So, there seems to be a limitation on power depending upon the satisfaction of a fact or not.

In this case, what one sees is that whilst the primary judge took the view that on his interpretation of the definition of special industry, our application was one that fell into the concept of special industry, it is apparent enough that the Full Court took a different view, and a view which, on the findings of basic fact adopted by the primary judge, would mean that the case did not satisfy the requirement of special industry.  I am sorry I put that in a somewhat, perhaps, convoluted way, but what I am seeking to say is this:  if one looks at page 68 lines 7 to 12 - your Honours, I should, perhaps, preface what I am saying by saying the point I am seeking to make is that if everything else were against us in the end it is not simply a case where there is a finding of fact against us, nor is it a case where, if the matter went back to the Full Court from this Court on that issue, it would enjoy sufficient prospects of success to merit the grant of special leave, in our submission.

I say that because if one goes to page 68 commencing at the top of the page, his Honour refers to the fact that the way in which the terms of paragraph (d) of the definition of “special industry” were satisfied, was because there might be odours emerging if things went wrong in the management of the plant.  And, he refers to the fact this “was possible but unlikely”.  Your Honours will see two sentences further on:

I cannot see that the determination of the DAC, on the information before it, constituted a departure from the requirements of the definition.

Underlying that, and one sees that from the discussion on the preceding three pages at page 65 line 10, through to page 67 line 61, is a rejection of the proposition which was underlying the primary judge’s view, because the primary judge’s view had been based on the proposition that we would fit within paragraph (d) of the definition because of the prospect that there might be odours emerging if things went wrong. 

The Full Court, at page 68 to which I referred a moment ago, took a different view, and the fact that the primary judge’s view - different view of construction of the provision.  If I could just pause to say, in our submission, the construction of paragraph (d) of the particular provision of the particular plan is not something that, in our submission, by itself, would attract the Court’s grant of special leave.  It is very much a provision of a particular plan, a particular jurisdiction.  But, it is apparent that the primary judge’s view was based on the proposition that things might go wrong, and approached the section with which the Full Court has disagreed.  Your Honours will see that at page 28 in the paragraph commencing at line 37 where his Honour summarises his view. 

So that, your Honours, if I could summarise what we would seek to say about the particular case, we would submit that whilst there is undoubtedly some flexibility - if I could put it that way - of language in relation to the description of the test that the court was applying, it is apparent enough if one looks at the authorities relied on, that the court was applying a fairly standard approach to the issue.  The second thing is that if one looks at the particular issue, one sees that the jurisdictional question was a question of opinion in the end.  And the third thing we would say, your Honours, if that is wrong, and it turns ultimately upon what the facts were, that as applicants in a situation where the approach to the particular provision taken by the Full Court is one which is adverse to it in the sense that the facts as found by the primary judge would not satisfy that test.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you Mr Jackson.  Yes, Mr Besanko.

MR BESANKO:   Only one matter in reply, if your Honours please.  In our respectful submission, the jurisdictional fact in this matter arose by virtue of section 35(3), not by virtue of Regulation 16. 

GUMMOW J:   What is the interrelation between Regulation 16 and section 35?

MR BESANKO:   We submit that Regulation 16 is simply the mechanism that provides that the authority is to determine the nature of the development for the purpose of then dealing with it in a particular way.  But, at the end of the day, if the consent is for a non‑complying development, and the relevant concurrence has not been obtained, then the consent is invalid, and the jurisdictional fact arises from whether or not it is a non‑complying development.  The regulation cannot, in effect, make it a matter of reasonable opinion as the relevant jurisdictional fact.  It is the question of whether or not it is a non‑complying development.

GUMMOW J:   You say 35(3) is imperative - must not be granted.

MR BESANKO:   Yes, we do, your Honour.

GUMMOW J:   How does one work out if the development is of a kind described as a non‑complying development?  What steps are taken to determine satisfaction of that criteria?

MR BESANKO:   Your Honour, in the usual case the authority receives the application; has an ability to seek further information, and then makes a decision as to the nature of the development.

GUMMOW J:   No, but what is the section talking about - a development that “is of a kind described”?

MR BESANKO:   Described in the development plan.  That is, described in the development plan as a non‑complying development.

GUMMOW J:   And to whom is 35(3) addressed?  Upon whom is the prohibition placed not to grant?

MR BESANKO:   Probably on the authority.  That is, because it is the authority that must seek the relevant concurrence.  If the Court pleases.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 12 NOON SHORT ADJOURNMENT

UPON RESUMING AT 12.04 PM

GLEESON CJ:   In this matter the Court is of the view that there should be an order for special leave to appeal.  Leave is granted.

AT 12.05 PM THE MATTER WAS CONCLUDED