Cook v Minister for Health and Wellbeing & Anor

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Judicial Review)
COOK v MINISTER FOR HEALTH AND WELLBEING & ANOR
[2024] SASC 40
Judgment of the Honourable Justice Hughes
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES
ENVIRONMENT AND PLANNING - BUILDING CONTROL - OPERATION OF STATUTORY CONTROLS - CONSTRUCTION AND INTERPRETATION
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IRRELEVANT CONSIDERATIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
The applicant seeks judicial review of a decision made by the first respondent, the Minister for Health and Wellbeing. The challenged decision was the endorsement of a change-of-use development application to allow an existing administration building on a site in Glenelg currently used for aged care, to be repurposed as a 12-bed drug and alcohol rehabilitation facility managed and operated by Uniting Communities Inc. The endorsement had the effect of the development becoming a “Crown development” for the purposes of the Planning, Infrastructure and Development Act 2016. In turn, this directed the application to be determined by the second respondent, the Minister for Planning, following a process managed by the State Planning Commission, as opposed to being determined by the Holdfast Bay Council Assessment Panel.
The applicant resides nearby the location of the proposed facility. The applicant contended that the proposed development does not meet the definition of “essential infrastructure” and therefore is ineligible to be endorsed as Crown development pursuant to section 131(2)(c) of the Planning, Infrastructure and Development Act 2016. The applicant further contended that if the proposal was amenable to endorsement, the decision-making process miscarried. The miscarriage occurred by virtue of the first respondent adopting erroneous propositions in the recommendation for endorsement, and for failing to afford the applicant an opportunity to be heard on the decision to endorse, such that the decision was vitiated for unreasonableness. It was further contended that the first respondent failed to take into account a relevant consideration namely the temporary nature of the facility, and took into account an irrelevant consideration namely that failure to endorse the proposal would lead to a lengthier public consultation process when in fact the endorsement led to a process that entailed no public consultation at all. The applicant contended that the First Respondent failed to take into account the temporary nature of the proposed facility, which was a relevant consideration. The applicant argued that the first respondent’s decision was vitiated by an apprehension of bias stemming from the Department’s contractual obligations under the funding agreement with Uniting Communities Inc.
Held –
1. The proposal is for the provision of a ‘health facility’ which is a designated type of ‘essential infrastructure’ within the meaning of those terms under the Act. There was no textual or contextual basis in the Act to support the contention that the definition imported connotations associated with the terms’ ordinary usage, and the definitions are to be understood to be exhaustive. The proposal was therefore amenable to endorsement.
2. The decision to endorse the proposal was not vitiated in any of the ways advanced by the applicant. The nature of the decision and the absence of legislative criteria for the decision-making allowed a broad range of policy factors to be brought to bear. The applicant did not establish that the State Director’s minute containing the recommendation to endorse led the first respondent into error, or that the first respondent’s role as Minister responsible for the Department that provided the funding to Uniting Communities Inc gave rise to a reasonable apprehension that he would not bring an impartial mind to the decision, in the sense required for that particular type of decision.
The application for judicial review is dismissed.
Planning, Development and Infrastructure Act 2016 (SA) ss 22, 82, 83, 93, 94, 99, 131, referred to.
Hastings Co-operative Ltd v Port Macquarie Hastings Council and Another (2009) 171 LGERA 152; Kennedy v Anti-Discrimination Commissioner of the Northern Territory (2006) 226 FLR 34; Harvey v Minister for Primary Industry and Resources [2024] HCA 1; PMT Partners Pty Ltd v National Parks and Wildlife Service (1995) 184 CLR 301; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342; Public Trustee v O'Donnell (2008) 101 SASR 228; Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049; Adelaide City Mission & Anor v South Australian Planning Commission; L.B. Adams and J.L. Neville (1993) 60 SASR 178; Chappel Investments Company Pty Ltd & Smallacombe Investment Company Pty Ltd v City of Mitcham (2009) 103 SASR 184; District Council of Coober Pedy v Aboriginal Family Support Services Inc (2014) 206 LGERA 83; Plaintiff M4702012 v Director-General of Security (2010) 251 CLR 1; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; Craig v State of South Australia (1995) 184 CLR 163; Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073; Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1; Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146; NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1; Re Patterson; Ex parte Taylor (2001) 207 CLR 391; Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Kioa v West (1985) 159 CLR 550; Minister for Immigration and Boarder Protection v SZSSJ (2016) 259 CLR 180; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; Acquista Investments Pty Ltd v Urban Renewal Authority (2015) 123 SASR 147; Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources (2023) 299 FCR 50; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; Corporation of the City of Norwood, Payneham and St Peters v Minister for Infrastructure and Transport [2021] SASC 97; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504, considered.

COOK v MINISTER FOR HEALTH AND WELLBEING & ANOR
[2024] SASC 40
Civil: Judicial Review
HUGHES J:
Background

These proceedings concern an application for development approval in respect of land at 5 Maturin Road, Glenelg (“the proposal”). The land currently has premises on it that are used by the site owner to provide residential aged care in a four-storey building. It is currently characterised for the purposes of the Planning and Design Code as land used for the purposes of an aged care facility.[1] The buildings on the site include a single-storey wing that has been used as an administration area for the aged care services. The proposal requires approval for a change of use of the administration wing to provide a 12-bed drug and alcohol rehabilitation service to persons who will, whilst receiving those services, reside at the premises.
[1] Exhibit DGC-5 of the first affidavit of Dean Cook affirmed on 17 October 2023.
The proposal does not entail construction. However, the proposal entails a change of use, or more accurately an additional use, to which the land will be put. The proposed change of use enlivens the State’s planning scheme and requires development approval under the Planning, Development and Infrastructure Act 2016 (“the PDI Act”).
These judicial review proceedings concern a decision made in the planning approval process by the first respondent, the Minister for Health and Wellbeing (“the Minister”[2]).
[2] In this decision, the first respondent is the Minister for Health and Wellbeing and is referred to as “the Minister”. The second respondent is the Minister for Planning and is referred to as “the second respondent” or “the Minister for Planning”.
The parties and the decision
United Communities Incorporated is the development approval applicant, and an interested party in these proceedings. Its controlling entity is the registered proprietor of the land at 5 Maturin Road, Glenelg. The application described the development as a “Change of use from residential aged care facility to a community health facility”.[3]
[3] Exhibit DGC-5 of the first affidavit of Dean Cook affirmed on 17 October 2023.
If the proposal is approved, Uniting Communities Inc will deliver services at the site, under an agreement with a Government agency, the Department for Health and Wellbeing (“the Agreement”).[4]
[4] It was unclear from the evidence and submissions as to the State entity with whom United Communities Inc had the agreement. However, nothing turns on this as whatever the precise description of the legal relationship, the parties proceeded on the basis that the arrangements came within the remit of the Department for Health and Wellbeing which is responsible to the Minister.
The decision that attracted the challenge was the Minister’s endorsement of the proposal. The effect of the endorsement was to bring the proposal within a different approval process than would have applied if such an endorsement had not been given.
The impugned decision is recorded on a minute submitted to the Minister on 26 June 2023, authored by the State Director, Drug and Alcohol Services South Australia (a division or program of the Department of Health and Wellbeing), Ms Bowshall. The Minister’s approval of the recommendation in the minute constitutes the decision and occurred on 13 July 2023. The minute is exhibited as MB-7 to the State Director’s affidavit affirmed on 16 November 2023.
The decision was subsequently communicated to United Communities Inc in a letter from the Minister.[5]
[5] Exhibit DGC-4 of the first affidavit of Dean Cook affirmed on 17 October 2023.
The legal effect of the Minister’s endorsement of the development proposal was that the development application was required to be assessed and determined as Crown development pursuant to s 131 of the PDI Act.
Consequently, and consistent with the process mandated by s 131, the Minister and Uniting Communities Inc lodged a development application with the State Planning Commission on 19 July 2023.[6]
[6] Exhibit DGC-5 of the first affidavit of Dean Cook affirmed on 17 October 2023.
In accordance with the process of considering the application, the application was referred to the relevant council, City of Holdfast Bay, for comment, and the State Commission Assessment Panel as delegate of the State Planning Commission conducted a partially public meeting to consider the proposed development.[7] On 27 September 2023, the State Planning Commission advised the second respondent, the Minister for Planning, that the application warranted approval as being “generally in accordance with the relevant provisions of the [Planning and Design] Code”.[8] The progress of the development assessment process has not proceeded because of the challenge to it.
[7] Applicant’s Statement of Facts, Issues and Contentions.
[8] Exhibit DGC-6 of the first affidavit of Dean Cook affirmed on 17 October 2023.
The applicant lives in a house that is situated very close to 5 Maturin Road, Glenelg. He opposes the proposal, particularly by reference to its location.
The decision
The applicant contended that the development was not amenable to endorsement by the Minister because the proposal is not development of the type that enlivens the discretion. The applicant further contended that, in the alternative, if the proposal is amenable to endorsement, then the Minister’s exercise of the discretion to endorse the proposal miscarried.
The judicial review proceedings seek to set aside the endorsement and restrain the second respondent, the Minister for Planning, from determining the application for development approval.
The Minister maintained that the proposal was amenable to endorsement and that the decision-making process did not miscarry. The second respondent, the Minister for Planning, did not actively participate in these proceedings and abides the event.
The evidence
The Court has had regard to the oral and written submissions of the parties and
FDN 2 First Affidavit of Dean George Cook dated 17 October 2023
FDN 8 Affidavit of Marina Bowshall dated 16 November 2023
FDN 9 Affidavit of Victoria Cock dated 16 November 2023
FDN 12 Second Affidavit of Dean George Cook dated 7 December 2023
FDN 19 Third Affidavit of Dean George Cook dated 18 December 2023.
The following background is taken from the affidavit material. Under the Agreement, Uniting Communities Inc would receive funding from the State of South Australia and Uniting Communities Inc would administer a program to assist people overcoming addiction to reintegrate into the community. [9] The Agreement was undated but was to commence operation on 1 July 2023. The program entails the provision of a services to participants from premises at which the participants are accommodated.
[9] Exhibit MB-1 to the affidavit of Maria Bowshall affirmed on 16 November 2023.
The recitals of the Agreement state that the Southern Adelaide Local Health Network would provide funding to Uniting Communities Inc and that the latter would provide services to the community as specified in the agreement subject to the terms and conditions of the agreement. The services specified are “to provide an intensive residential treatment program to address substance misuse that integrates a range of services and therapeutic activities that may include:
·Counselling
·Social and community living skills
·Group work
·Relapse prevention
·Employment, education and living skills training
·Entry into non-drug using community groups and activities of interest.”[10]
[10] Exhibit MB-1 to the affidavit of Maria Bowshall affirmed on 16 November 2023.
The Agreement contains a warranty from Uniting Communities Inc that the relevant consents and approvals for the initiative to proceed had been obtained.[11]
[11] Exhibit MB-1 to the affidavit of Maria Bowshall affirmed on 16 November 2023.
The applicant asserted, and the Minister did not deny, that at the time the Agreement was entered into, the parties to the agreement did not believe that development approval was required for the agreement to be carried out.
Subsequently, the parties to the Agreement accepted that the proposal amounted to a change in the use of the land for the purposes of the PDI Act and required development approval. The State Director’s minute of 26 June 2023 advised the Minister that several options were available to him to “assist [Uniting Communities Inc] with the development approval process”.
The minute recommended that the Minister provide an endorsement of the proposal, which would have the effect that the proposal would be required to be submitted as “Crown development” to the State Planning Commission as provided for in s 131 of the PDI Act. The option was advanced alongside alternative courses of action which would have had the effect that the planning approval process would have been undertaken by the City of Holdfast Bay Council or its Council Assessment Panel.
The Minister adopted the recommended course of action. The Minister then wrote to Uniting Communities Inc expressing endorsement of the proposal for the purposes of s 131 of the PDI Act,[12] and the proposal was then submitted to the State Planning Commission for planning assessment.
[12] Exhibit MB-8 to the affidavit of Maria Bowshall affirmed on 16 November 2023.
Issues and contentions
The issues to be determined in these proceedings are, firstly, whether the proposal was amenable to endorsement by the Minister with the effect of characterising it as Crown development for the purposes of s 131 of the PDI Act. The parties agreed that if it is so amenable, it is because the proposal is one for the provision of “essential infrastructure” within the meaning provided for in the PDI Act. The parties further agreed that in order to be “essential infrastructure”, the proposal must be for a health facility or a community facility within the meaning of the PDI Act.
If the first issue is resolved with a conclusion that the proposal is one for “essential infrastructure”, the parties agreed that the Minister’s decision to endorse the proposal is amenable to judicial review and in particular, must have been properly made. The applicant contended that the decision was attended by various errors that vitiate it, and that the decision was unreasonable in a legal sense, and made by reference to irrelevant considerations and without affording the applicant procedural fairness as was required. The applicant also contended that an apprehension of bias arises from the circumstances of the decision-making.
The proposal
Before addressing each of these issues, it is convenient to consider the proposal in more detail, and the legislative framework within which the impugned decision was made. The documents provided by or on behalf of the Minister accompanying the application to the State Planning Commission give the most detailed account of the proposal.[13] They disclose as follows.
[13] Exhibit DGC-6 to the first affidavit of Dean Cook affirmed on 17 October 2023.
The land currently has premises built upon it. The premises have been used for accommodating elderly people with care provided by Uniting Communities Inc.[14]
[14] Exhibit DGC-9 to the first affidavit of Dean Cook affirmed on 17 October 2023.
In the development application, the Minister and Uniting Communities Inc described the development as a community health facility providing accommodation and therapeutic services to community members recovering from alcohol and drug dependency.[15]
[15] Exhibit DGC-5 to the first affidavit of Dean Cook affirmed on 17 October 2023.
The recommendation by the State Planning Commission summarised the proposal as follows:
The program is highly structured, with activities scheduled throughout the day including both group and individual counselling, rostered chores, recovery and wellbeing sessions, exercise and reflection.
Participants are guided and assisted through the program by Uniting Communities staff, who are highly trained professionals and are present on-site at all times.
The facility will be neither a shelter, clinical rehabilitation facility, sobering up centre or boarding house. It is a unique facility delivering a unique program which has a proven record of success. The pre-screening process allows for individuals who may pose a risk to be prevented from using the facility. Further, management and operational processes are in place to deal with unexpected events including regular drug testing and breathalysing to ensure safety of all participants. [16]
[16] Exhibit DGC-9 to the first affidavit of Dean Cook affirmed on 17 October 2023.
The report goes on to say:
Key elements of the proposed community health facility include:
·Participants will volunteer for the program and be pre-screened for suitability off-site at other Uniting Communities Inc facilities.
·Participants will agree to enter the program and the facility and sign a residential agreement outlining their understanding of the program, participant expectations, and behaviours that will not be tolerated.
·The operation on the site involves scheduled and monitored activities between 7.00 am and 9.00 pm. Outside of these hours, participants will be sleeping within either single or double bedrooms.
·A maximum of twelve (12) participants will be present at the site at any one time.
·There will be no visitors to the site and all off-site movements by participants will be supervised and managed by Uniting Communities staff.
·A series of potential risks, preventative and control measures and responses to incidents have been developed by Uniting Communities Inc to demonstrate the manner in which the facility will be operated.
Change of use

The subject land, and adjoining northern allotment contains the Murray Mudge residential aged care facility operated by Uniting Communities Inc. The existing building that will accommodate the proposed facility has historically been used for administrative purpose associated with the aged care facility.
A change of use (an additional land use) to a community health facility is proposed to the southern portion of the building fronting 5 Maturin Road, specifically providing a therapeutic service focused on community members recovering from alcohol and other drug dependencies.
A planning report provided to the State Planning Commission by the planning professionals engaged by Uniting Communities Inc, MasterPlan, contains the following:
The prevailing [existing] function of the building is for administrative purposes subordinate to the 4 storey aged care facility building also on the site which will continue to operate. [17]
Legislative framework
[17] Exhibit DGC-9 to the first affidavit of Dean Cook affirmed on 17 October 2023.
Who determines applications for planning approval?
By s 82, the PDI Act creates “relevant authorities”. A relevant authority has responsibility for specified planning decisions.[18] The Minister for Planning, the State Planning Commission, councils and council assessment panels are each relevant authorities.
[18] PDI Act, s 82.
Relevantly for these proceedings, a council is a relevant authority for development within its boundaries with respect to building work,[19] and a council assessment panel appointed by a council is a relevant authority for development within the appointing council’s boundaries,[20] subject to various exceptions. A council assessment panel is made up of a maximum of five members, and is restricted to only having one elected member of the council in its make-up.[21] A council assessment panel is not a delegate of the council, but a separate decision-making body. The State Planning Commission is a relevant authority for particular types of development at any location in the State.[22] The Minister for Planning may also designate a development proposal as having particular significance to the State which has the effect of requiring that it be assessed by the State Planning Commission.[23]
[19] PDI Act, s 99.
[20] PDI Act, s93.
[21] PDI Act, s 83(1)(b).
[22] PDI Act, Part 6.
[23] PDI Act, s 94(2).
The State Planning Commission is the State’s principal planning advisory and development assessment body.[24] Amongst other things, it has the function of preparing and maintaining the Planning and Design Code against which much of the development undertaken in the State must be assessed.
[24] PDI Act, s 22(1)(a).
When is development “Crown development?”
“Crown development” describes certain development involving a State agency and is assessed by the Minister for Planning following a process managed by the State Planning Commission. Crown development is governed by Part 9 of the Act comprising s 131. That section, relevantly for these proceedings, provides as follows:
Part 9—Development assessment—Crown development
131—Development assessment—Crown development
(1)In this section—
the Crown means the Crown in right of the State;
State agency means—
(a)     the Crown or a Minister of the Crown;
(b)     an agency or instrumentality of the Crown (including a Department or administrative unit of the State);
(c)     any other prescribed person or prescribed body acting under the express authority of the Crown,
but does not include a person or body excluded from the ambit of this definition by regulation.
(2)Subject to this section, if—
(a)     a State agency proposes to undertake development (other than in partnership or joint venture with a person or body that is not a State agency); or
(b)     a State agency proposes to undertake development for the purposes of the provision of essential infrastructure (whether or not in partnership or joint venture with a person or body that is not a State agency); or
(c)     a person proposes to undertake development initiated or supported by a State agency for the purposes of the provision of essential infrastructure and specifically endorsed by the State agency for the purposes of this section,
the State agency must lodge an application for approval containing prescribed particulars with the Commission.
(3)Subject to subsection (4), this section does not apply to or in relation to proposed development if—
(a)     the development is accepted development or deemed‑to‑satisfy development under Part 7 Division 2; and
(b)     the relevant State agency determines to proceed with the assessment and approval of the development under Part 7 or Part 8 Division 1 (and any other related provisions
of this Act).
(4)No application for approval is required (either under this section or any other provision of this Act), and no notice to a council is required under subsection (6), if the development is of a kind excluded from the provisions of this section by regulation.
(5)The Commission may request the State agency to provide additional documents or information (including calculations and technical details) in relation to the application.
(6)If an application relates to development within the area of a council, the Commission must give notice containing prescribed particulars of the development to the council in accordance with the regulations.
(7)A council may report to the Commission on any matters contained in a notice under subsection (6).
(8)Where a notice is given to a council under subsection (6), and a report from the council is not received by the Commission within 4 weeks of the date of the notice, it will be conclusively presumed that the council does not intend to report on the matter.
(9)The Commission must assess an application lodged with it under this section.
(10)The regulations may provide that where an application relates to a proposed development of a prescribed class, the Commission must refer the application, together with a copy of any relevant information provided by the State agency, to a body prescribed by the regulations for comment and report within the time prescribed by the regulations.
(11)A prescribed body may, before it provides a report under subsection (10), request the State agency—
(a)     to provide additional documents or information (including calculations and technical details) in relation to the application; and
(b)     to comply with any other requirements or procedures of a prescribed kind.
(12)If an application is referred to a prescribed body under subsection (10) and a report from the prescribed body is not received by the Commission within a period determined under the regulations, it will be conclusively presumed that the prescribed body does not intend to report on the matter.
(13)If an application is for a development that involves construction work where the total amount to be applied to the work will, when all stages are completed, exceed $10 000 000, other than an application for a variation to an approved development that, in the opinion of the Commission, is of a minor nature, the Commission must—
(a)     by public notice, invite interested persons to make written submissions to it on the proposal within a period of at least 15 business days; and
(b)     allow a person who has made a written submission to it within that period and who, as part of that submission, has indicated an interest in appearing before it, a reasonable opportunity to appear personally or by representative before the Commission to be heard in support of his or her submission; and
(c)     give due consideration in its assessment of the application to any submissions made by interested persons as referred to in paragraph (a) or (b).
(14)The Commission will then prepare a report to the Minister on the matter.
(15)If a council has, in relation to any matters referred to the council under subsection (6), expressed opposition to the proposed development in its report under subsection (7), a copy of the report must be attached to the Commission's report (unless the council has, since providing its report, withdrawn its opposition).
(16)If a prescribed body has provided a report under subsection (10), a copy of the report must also be attached to the Commission's report.
(17)The Commission must, unless the Minister grants an extension of time, furnish its report within the time prescribed by the regulations.
(18)If a request is made under subsection (5), any period between the date of request and the date of compliance is not to be included in the calculation of the period under subsection (17).
(19)The Minister may, after receipt of the report of the Commission under this section (and after taking such action (if any) as the Minister thinks fit)—
(a)     approve the development; or
(b)     refuse to approve the development.
(20)An approval may be given—
(a)for the whole or part of a proposed development;
(b)subject to such conditions as the Minister thinks fit.
(21)An approval under this section will be taken to be given subject to the condition that, before any building work is undertaken, the building work be certified by a building certifier, or by some person determined by the Minister for the purposes of this provision, as complying with the provisions of the Building Rules to the extent that is appropriate in the circumstances.
(22)A person acting under subsection (21) must—
(a) seek and consider the advice of the Commission before giving a certificate in respect of building work that would be at variance with the performance requirements of the Building Code; and
(b)     take into account the criteria, and comply with any requirement, prescribed by the regulations before giving a certificate in respect of building work that would otherwise involve a variance with the Building Rules,
and if the person gives a certificate that involves building work that is at variance with the Building Rules then the person must, subject to the regulations, specify the variance in the certificate.
(23)A person engaged to perform building work for a development approved under this section must—
(a)     ensure that the building work is performed in accordance with technical details, particulars, plans, drawings and specifications certified for the purposes of subsection (21); and
(b)     comply with the Building Rules (subject to any certificate under subsection (21) that provides for a variance with the Building Rules), and any other requirements imposed under this section.
Maximum penalty: $30 000.
(24)If the Minister approves a development under this section, no other procedure or requirement relating to the assessment of the development under this Act applies and no other development authorisation (including a certificate or approval under Part 11) is required under this Act, although the Minister may, if necessary for the purposes of any other Act, issue any other development authorisation under this Act (which will then be taken, for the purposes of that other Act, to have been issued by a relevant authority under this Act).
(25) Despite a preceding subsection, if the Minister directs that an EIS be prepared with respect to a development otherwise within the ambit of this section, then—
(a)     this section ceases to apply to the development; and
(b)     the State agency must not undertake the development without the approval of the Minister under section 115 (as if the development were classified as impact assessed development); and
(c)     unless section 115(2)(a) applies, the development becomes subject to the procedures under this Act with respect to the preparation and consideration of an EIS.
(26)No appeal lies against a decision of the Minister under this section.
(27) – (31) inclusive (Not applicable).
For the purposes of the proceedings, the parties agreed that Uniting Communities Inc is a “person” and the Minister is a “State Agency” for the purposes of the definitions in s 131.
It can be seen that s 131 mandates lodgement of an application for approval to the Commission in the three circumstances that characterise a development as “Crown development” set out in s 131(2) above.
There is a distinction to be drawn between the three circumstances that invoke the Crown development process. Section 131(2)(a) describes any development that is undertaken by the Crown alone. It operates whether the development is significant or minor and wherever located in the State. Section 131(2)(b) describes proposals by a State Agency for the provision of essential infrastructure and mandates the process in s 131 even if another party is undertaking the development in partnership or joint venture with the State Agency. Section 131(2)(c) is distinct because it entails a decision by a State agency to endorse a proposal advanced by a non-State agency. The distinction between (a) and (b) on the one hand, and (c) on the other, is that (c) requires a decision to be made to endorse a proposal for development for the provision of essential infrastructure by a non-Crown entity, in order for it to assume the “Crown development” character. Having done so, it is then assessed as Crown development. Once the conditions precedent are met for (a), (b) or (c), the process described in s 131 is mandatory.
Key to two of the circumstances that bring development within the meaning of “Crown development” is that the development entail “essential infrastructure”. That term is central to the applicant’s case. A proposal for development that is “essential infrastructure” will, if not having the character of Crown development (for example, if the proponent is a non-Crown entity and the proposal is not endorsed by a State agency), fall to be assessed by a relevant authority determined by the proposal’s other characteristics, such as the location in which the development is to occur.
It was common ground that the Minister’s endorsement of the proposal was a decision that was intended to have the effect of meeting the conditions precedent in s 131(2)(c) such that the proposal would be Crown development.
What is essential infrastructure?
The first of the applicant’s two primary arguments is that the proposal is not “for the provision of essential infrastructure”. The words “essential infrastructure” are defined in s 3 of the PDI Act as follows:
essential infrastructure means—
(a)infrastructure, equipment, structures, works and other facilities used in or in connection with—
(i)the generation of electricity or other forms of energy; or
(ii)the distribution or supply of electricity, gas or other forms of energy; and
(b)water infrastructure or sewerage infrastructure within the meaning of the Water Industry Act 2012; and
(c)transport networks or facilities (including roads, railways, busways, tramways, ports, wharfs, jetties, airports and freight‑handling facilities); and
(d)causeways, bridges or culverts; and
(e)embankments, walls, channels, drains, drainage holes or other forms of works or earthworks; and
(f)testing or monitoring equipment; and
(g)coast protection works or facilities associated with sand replenishment; and
(h)communications networks; and
(i)health, education or community facilities; and
(j)police, justice or emergency services facilities; and
(k)other infrastructure, equipment, buildings, structures, works or facilities brought within the ambit of this definition by the regulations;
The applicant contends that the proposal does not constitute “essential infrastructure” when that term is properly construed. The applicant, through his counsel Mr Roder KC, invited the Court to give full effect to the concepts embodied in the words “essential” and “infrastructure”. Neither is separately defined, but each has an ordinary meaning. “Essential” means absolutely necessary, or indispensable.[25] The Online Macquarie’s definition of “infrastructure” is:
1.The basic framework or underlying foundation (as of an organisation or a system;
2.The roads, railways, schools and other capital equipment which comprise an underlying system within a country or region.
3.The buildings or permanent installations associated with any organisation, operation etc.[26]
[25] Macquarie Dictionary (online at 22 January 2024) ‘essential’ (def 1).
[26] Macquarie Dictionary (online at 22 January 2024) ‘infrastructure’.
The issue is whether and how these concepts inform the proper construction of the term where a definition has been provided in the legislation. Counsel for the applicant relied on Hastings Co-operative Ltd v Port Macquarie Hastings Council and Another[27] as an authority that provided an appropriate approach to be taken to the construction of a defined term. In that case, the New South Wales Court of Appeal was required to consider whether the New South Wales Land and Environment Court had correctly interpreted the definitions of “general store” and “shop” for the purpose of the Hastings Local Environmental Plan 2001 (NSW). The Plan established zones. Restrictions on developments applied to each zone depending on its classification. Prohibited developments for each zone classification were listed under clause 9 of the Hastings Local Environmental Plan 2001 (NSW). Hastings Co-operative Ltd challenged the decision of the Port Macquarie Hastings Council to characterise the development of a supermarket as a “general store” which had the effect that it was permissible development for the relevant zone.[28] Hastings Co-operative Ltd argued that the development was a “shop”, which was prohibited from being developed in that zone. The term “general store” under the dictionary of terms within the Hastings Local Environmental Plan 2001 was defined as ‘a shop used for the sale by retail of general merchandise and which may include the facilities of a post office’.[29] “Shop” meant ‘a building or place used for the purpose of selling, exporting or offering for sale by retail, goods, merchandise or materials’, but (in the table to clause 9) did not include a building or place elsewhere specifically defined in the dictionary or a building or place used for a land use elsewhere specifically defined in the dictionary.[30] Clause 9 made no reference to “general store”.[31]
[27] (2009) 171 LGERA 152; [2009] NSWCA 400. (“Hastings Co-operative”).
[28] Ibid, [7] per Basten JA (Allsop P agreeing, Handley AJA dissenting).
[29] Ibid, [14] per Basten JA (Allsop P agreeing, Handley AJA dissenting).
[30] Ibid, [14] per Basten JA (Allsop P agreeing, Handley AJA dissenting).
[31] Ibid, [15] per Basten JA (Allsop P agreeing, Handley AJA dissenting).
In dismissing the appeal, Basten JA (Allsop P agreeing) said:
The usual purpose of a definition in a statutory instrument is not to form an operative provision, but to identify some element of an operative provision and thus define its scope of operation.
…
In the present case, the definitions set out above raise separate problems of the construction which need to be addressed by reference to their own terms. Thus the definitions of “general store” indicates that it is a sub-category of “shop”. However, a difficulty does arise when the meaning of “shop” is incorporated into the operative provisions of the zoning table in cl 9. Once so included, those buildings or places elsewhere specifically defined in the Dictionary, which would include “general store” do not fall within the term “shop”. There is at least a theoretical difficulty in defining something as a member of a class which is not a member. The resolution of that conundrum is to recognise that the definitions operate separately from their context in the operative provisions; it is only in a particular context, namely the zoning table, that the conundrum arises. The logical difficulty is thus avoided by construing the definitions separately, as definitions, before notionally inserting their terms into the operative provisions. On that approach, a shop, not including a general store, is a prohibited development; a general store is not a prohibited development.[32]
[32] Ibid, [16] - [18] per Basten JA (Allsop P agreeing, Handley AJA dissenting).

In the present case, the issue that faced the Court in Hastings Co-operative does not arise. There is nothing incongruent as between the word “infrastructure” and the matters listed in (a) to (k) of the definition. Rather, the question is whether the word “infrastructure” informs or adds to the construction of the items listed, or whether on the other hand the items listed exhaustively describe what constitutes essential infrastructure for the purposes of the PDI Act.
The term “essential infrastructure” is used in the PDI Act in places other than s 131. In accordance with the statements of Mildren J in Kennedy v Anti-Discrimination Commissioner of the Northern Territory,[33] with whom Southward and Thomas JJ concurred, the construction given to a term should be one that gives coherent meaning to each of its uses in the Act, given that only a clear contrary intention will displace the principle that the term has consistent meaning throughout the Act. Mildren J said:
In Deputy Commissioner of Taxation (NSW) v Mutton (1988) 79 ALR 509 at 512-513, Mahoney JA discussed the circumstances in which it is permissible for a court to depart from the meaning to be given to a word or phrase by the Interpretation Act because a contrary intention appears. It is clear that a definition section and its application must be considered in the context of the Act as a whole. Clearly a contrary intention may be inferred from a particular provision if the provisions or the procedure established by the section would not appropriately work were the definition to be strictly applied. It is not necessary that the provision would be impossible of appropriate operation; it is sufficient if the result of the application of the definition would result in the operation of the section in a way which clearly the legislature did not intend.
There is however another aid to statutory interpretation which is of assistance in this case. It is a fundamental rule of construction that a word appearing in an Act should be given the same meaning wherever that word appears in the Act, especially where the word concerned appears in the same section of the Act.
The word “person” is used throughout the Act. It is plain that generally speaking the word “person” was intended to include a body corporate and it was clearly intended to include a body politic, namely the Northern Territory.
The appellants’ argument would require giving to s 41(2) a very limited meaning to the word “person” which is specific only to that subsection. Although it has been said that it does not take much to rebut the approach that words within a statute should be given a consistent meaning, I am unable to discern any reason by reference to the provisions of the Act as a whole why s 41(2) should be so confined. Clearly if the word “person” is given the meaning intended by the Interpretation Act, no unusual or unexpected consequences would flow such as to indicate that it was the intention of the legislature that the word “person” should be so narrowly confined.[34]
[33] (2006) 226 FLR 34; [2006] NTCA 9.
[34] Ibid, 29 – 32 (Mildren J, JJ Thomas and Southwood Agreeing).
The above statements provide a strong case for declining to depart from the principle that a term should be assumed to have a consistent meaning throughout an Act except where there is a clear indication to the contrary. Nothing in s 131 of the PDI Act indicates that the term was intended to operate differently there than its operation in other sections of the Act. The applicant’s contention that the term “essential infrastructure” should be read down to refer to the sort of infrastructure typically provided by government for the use of the whole of the community is not supported when the use of that term is considered in its context in other parts of the PDI Act such as in Part 8.
In Harvey v Minister for Primary Industry and Resources,[35] the High Court (Gageler CJ, Gordon, Steward and Gleeson JJ) addressed the distinction between an inclusive and an exhaustive definition in the following manner:
Two considerations suggest that the Full Court was incorrect to depart from the view adopted in South Australia v Slipper that the term "infrastructure facility" bears its ordinary meaning and is not confined to the items of equipment listed in the definition of that term. The first is the statement in the 1997 Explanatory Memorandum set out above that the term was to have "its ordinary meaning" in addition to the facilities listed in the table and referred to above. That table then refers to the "[t]hings specifically listed as infrastructure facilities". It is true that after this was written in 1997 a great many more amendments were made to what was then the Native Title Amendment Bill 1997 (Cth) (which subsequently became the Native Title Amendment Act 1998 (Cth)). Importantly, this included the introduction of s 24MD(6B)(b). However, nothing is said in the Supplementary EM that followed which contradicts what was said in the 1997 Explanatory Memorandum. If Parliament had wanted to reverse its earlier explanation of the meaning of the term "infrastructure facility" it could easily have done so.
Secondly, there is the statutory architecture employed in s 253. That provision contains 75 definitions. On 51 occasions Parliament uses the word "means" to indicate that what follows is an exhaustive definition. On 16 occasions the phrase "has the meaning given by" is used and there is a cross-reference to another section in the Native Title Act where the applicable meaning may be found. On seven occasions Parliament has used the word "includes" and on one occasion the phrase used is "has a meaning affected by" certain other sections. Throughout s 253 Parliament has thus made choices about how to express a given definition and uses the word "includes" in contrast to the word "means". The function served by using the word "includes" in contrast to the word "means" in a definition, as it was put in Corporate Affairs Commission (SA) v Australian Central Credit Union, "is commonly both to extend the ordinary meaning of the particular word or phrase to include matters which otherwise would not be encompassed by it and to avoid possible uncertainty by expressly providing for the inclusion of particular borderline cases".
In the case of the definition of "infrastructure facility", the word used is "includes", and there is no reason to doubt that this word was chosen with deliberation. The word signifies that what follows after it is not intended to be an exhaustive expression of meaning and that the words "infrastructure facility" must also bear their ordinary meaning. That signification is not altered by the addition of the words "any of the following".
The 1997 Explanatory Memorandum sufficiently expresses that ordinary meaning when it describes an infrastructure facility as a "facility (generally a fixture) necessary for the provision of services or to support the development and operation of major developments. The infrastructure can be provided either by a government or the private sector." Given that it is accepted that the DSEA would be an "infrastructure facility" as that term is ordinarily understood, it is unnecessary to consider whether the DSEA would fall within the ordinary and natural meaning of the words found in paras (f) and (g) of the definition.
The reasons of the Full Court do not sufficiently support a contrary conclusion. First, it is true that the items listed in paras (a) to (i) of the definition on occasion use specific qualifying words. Thus, para (f) describes a "storage or transportation facility" but only for "coal, any other mineral or any mineral concentrate". The Full Court reasoned that any other type of storage or transportation facility would surely be excluded. This "drafting style" was, their Honours said, difficult to reconcile with an inclusionary definition. The better view, however, is that the use of specific qualifying words serves the purpose of putting beyond any doubt the status of particular infrastructure.
Secondly, the Full Court relied upon the content of para (i), which confers on the Minister a power to determine that a thing "similar to any or all of the things mentioned in paragraphs (a) to (h)" is also an infrastructure facility. If the definition was inclusive, it was said, para (i) would not have been needed. But, if the function or purpose of listing specific items of infrastructure was for the sake of greater clarity and certainty, then it follows that the existence of the power conferred by para (i) is to serve the same end. It permits miners to seek clarification about particular items of possible infrastructure associated with mining. As such, the presence of this power is not inconsistent with a definition which is inclusive.
Thirdly, the Full Court observed that the term "infrastructure facility" is used only three times in the Native Title Act: as part of an exception to each of s 26(1)(c)(i) and (iii) and in delineating the application of s 24MD(6B)(b). After noting the explanation given in the Supplementary EM for the exclusion from Subdiv P for rights to mine which permit the construction by non-government entities of "roads, gas pipelines and the like", the Full Court said that it was "understandable" that Parliament would wish to deploy a definition of "infrastructure facility" that would be "exhaustive" in nature. But again, that assumed understanding is directly contrary to the ordinary meaning of the word "includes" and the language of the 1997 Explanatory Memorandum. Moreover, there is nothing in the language of the Supplementary EM, or in any other extrinsic materials, that supports such an understanding. Rather, it makes more sense that Parliament would want to use an open-ended definition that would permit it to include all of the various types of infrastructure that might be needed, now and in the future, associated with mining. The cornucopia of different mining tenements, described above, which presently under State and Territory laws authorise ancillary works for a mining project supports that conclusion.
It follows that the term "infrastructure facility" serves to identify circumstances in which native title holders have the right to negotiate and when they have the different rights conferred by s 24MD(6B). The purpose of providing for the different rights was to ensure that the special rights of native title holders were adequately protected but without affording the right to negotiate, which was considered inappropriate in the case of the creation of a right to mine for the sole purpose of the construction of an infrastructure facility associated with mining. Treating the definition of "infrastructure facility" as inclusive is congruent with that purpose.[36] (citations omitted)
[35] (2024) 98 ALJR 168; [2024] HCA 1.
[36] Harvey v Minister for Primary Industry and Resources (2024) 98 ALJR 168; [2024] HCA 1, [75] – [82].
The significant aspect of the above passage is not that the High Court was considering a definition that included the word “infrastructure”, but that the Court affirmed that the approach to be taken to “means” when used in a definition. Nevertheless, there is nothing in the Court’s consideration of the concept of “infrastructure” that is inconsistent with Minister’s contentions and the reasoning set out above.
The applicant further contended that the proposal could not come within the meaning of “essential infrastructure” because it does not entail the provision of any infrastructure, but rather concerns the provision of services.
That approach, which assumes that the word “infrastructure” conveys something over and above that which is contained in the definition, should be rejected. There is no reason to depart from the orthodox approach to construction, which is to accept that the legislature determined an exhaustive list of the items that meet the definition.[37] Those items are listed from (a) to (k) inclusive in s 3. The list should be assumed to be exhaustive, consistent with the usual construction of a definition structured by way of an enumerated list following the word “means”.[38] The word “means” (as opposed to “includes”) provides an exhaustive descriptor of the class of items addressed by the definition and excludes things or characteristics that might otherwise be found to be caught if the list were not provided. For example, permanence features as a characteristic of “infrastructure” in the dictionary definition, but not in the listed items. There is no principle of statutory interpretation that supports the inclusion of permanence as a feature of essential infrastructure as it is used in the PDI Act.
[37] PMT Partners Pty Ltd v National Parks and Wildlife Service (1995) 184 CLR 301; [1995] HCA 36; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1 at [61]-[62], [77].
[38] Sherritt Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342 at 353; Public Trustee v O’Donnell (2008) 101 SASR 228, 246; [2008] SASC 181, [46] (Gray J).
Further, “essential infrastructure” as it appears in s 131 should be understood as employing that term as defined in s 3.[39] There is no basis for concluding that the term is not to be given its defined meaning in that particular provision.
[39] Qantas Airways Ltd v Chief Commissioner of State Revenue [2008] NSWSC 1049, [38] (per Handley AJ).
A similar approach should be taken to the meaning to be given to “essential”. The applicant contended that even if the proposal constitutes a proposal for infrastructure, to be “essential”, the infrastructure must relate to things that create the basic foundation for a community as provided by the State. It was the applicant’s position that even if the proposal was to create or provide infrastructure for these services, they are not as a matter of fact, “essential”. This too must be rejected. Section 3 provides a list of items that the legislature has regarded to meet the definition of “essential infrastructure”. There is no basis to read that down by importing other senses of the word, even if those senses represent the more common meanings conveyed by those words.[40] If those words were not to have a specific meaning, they would not have been defined. Nor does the context require such reading down. It is consistent with the planning regime that there will be a tolerably clear class of items that attract the operation of particular provisions of the scheme, to provide certainty to those working within the scheme and affected by it. The fact that the specificity of a definition may sometimes give rise to matters falling within or outside of a defined class where such matters would be differently classed if the ordinary meanings of the defined words were applied, is not determinative of the manner in which the definition is to be construed.
[40] PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; [1995] HCA 36.
The question of whether the development constitutes essential infrastructure is therefore determined by reference to whether it comes within one of the enumerated matters in the definition.
The applicant’s contention that the development consisted of neither a health facility nor a community facility.
Accordingly, it is necessary to consider whether the proposal is properly described by either of the terms “health facility” or “community facility”. The parties agreed that these were the only descriptors in the definitional list relevant to the development’s classification. The Minister’s descriptor of the development is the provision of a “community health facility”, which may be understood to mean a sub-category of health facility, being a health facility that provides services to a local community as opposed, for example, to a hospital that provides services across a broad section of, or the whole of, the State.
The applicant’s contention was that the proposal does not concern either a health or a community facility. The applicant contended that the development did not propose the provision of a facility at all, and further that the services were not sufficiently connected to health services to characterise the premises as a “health facility”. The applicant further contended that the services were not being provided to the community but to particular persons, and could not be described as a community facility, in contrast to a infrastructure such as a playground or library.
Counsel for the applicant referred the Court to Adelaide City Mission and South Australian Housing Trust v South Australian Planning Commission; L.B. Adams and J.L. Neville,[41] in which the applicant sought planning approval for a for a boarding house or hostel. The South Australian Housing Authority wanted to develop particular parcels of land by constructing two multiple dwellings and a detached dwelling. The buildings were for homeless youth and a manager. The approval was affected by whether the development constituted a “welfare institution” under regulation 4 of the Development Control Regulations 1982. Consideration was required of the distinction between the nature of the developer’s business or character, and the purpose to which the land will be put. Debelle J said:
It is not the intention of the definition to state that the use of land or a building by a welfare institution has the consequence that the land or the building is a welfare institution. If that were so, the use of an office by a benevolent institution would mean that the office was a welfare institution even though it was used for no other purpose than an office. That proposition has only to be stated to be rejected. Similarly, if a benevolent institution owned land separate and apart from any building owned by it, which it developed and used as a grassed recreation area, the land would not be a welfare institution. It would always be a recreation area. In other words, the nature of a development will be determined by the features of the development and not by the features of the developer. It might be necessary to examine the nature of the activities conducted by the developer but only for the purpose of understanding the nature of the activities intended to be conducted on the subject land. The fact that the ACM is a benevolent institution does not necessarily mean that the proposed development will be used as a welfare institution.[42]
[41] (1993) 60 SASR 178.
[42] Ibid, 183 (per Debelle J).
This passage was said to support an approach that ensured that what the developer proposed to do at the site was the determinative factor. The applicant further contended that the proposed development falls squarely within the Planning and Design Code’s definition of “supported accommodation” which:
Means premises in which residential accommodation is provided to persons requiring/together with regular medical and/or personal care assistance, but does not include home care.[43]
Health or community facility - consideration
[43] Planning and Design Code, Land Use Definitions Table.
The decision in Chappel Investments Company Pty Ltd & Smallacombe Investment Company Pty Ltd v City of Mitcham[44] assists the Court’s task, which is to ascertain the “true character” of proposed development. The characterisation of a proposed development entails a “realistic appraisal and practical evaluation of what the proposed development entails”.[45] In this case, that entails asking whether the proposed development is one of the enumerated forms of essential infrastructure. As explained by Kourakis J (as his Honour then was):
A realistic appraisal of what the development entails is as important in deciding whether it is complying or non-complying as it is when assessing its merits. That is, I think, just another way of emphasising that it is the substance of the development for which approval is sought that is important, and not the mere form of the application or applications.[46]
[44] (2009) 103 SASR 184; [2009] SASC 23.
[45] Ibid, 192 at [27] (per Kourakis J, Doyle CJ and White J Agreeing).
[46] Ibid, 192 at [27] (per Kourakis J, Doyle CJ and White J Agreeing)). That approach was endorsed in District Council of Coober Pedy v Aboriginal Family Support Services Inc (2014) 206 LGERA 83; [2014] SASCFC 133 at [39].

A significant source of evidence as to the real nature of the development is contained in the affidavit of Dr Cock, the Clinical Director of Drug and Alcohol Services South Australia. Dr Cock described drug and alcohol addiction in the following terms:
Chronic alcohol or other drug dependence is a long-term relapsing remitting medical condition for which there are a variety of evidence-based treatment modalities and therapeutic options…. Residential rehabilitation is a voluntary, abstinence-based program utilised by consumers who experience chronic alcohol or other drug dependence…
The consequences of untreated or delayed access to treatment for alcohol and/or drug use are significant for the individual. Substance use results in significant morbidity and mortality. Substance use results in both acute and long term medical and psychiatric harms – directly and indirectly.[47]
[47] Affidavit of Dr Victoria Cock affirmed on 16 November 2023, [5].
From this evidence, it may be concluded that the condition experienced by those whom it is proposed will participate in the program, is a health condition. Further, the treatment for the health condition is participation in a program that has, as a core feature, participants’ adherence to a schedule of activities that are undertaken in the context of supervised abstinence from drugs and alcohol. The residential nature of the program is part of the treatment regime in two ways. Firstly, it ensures that the person remains supervised for abstinence. Secondly, the requirement to keep regular sleeping hours and assume a daily routine that is consistent with a healthy lifestyle that the program attempts to have the participants habituate.[48]
[48] Affidavit of Dr Victoria Cock affirmed on 16 November 2023, [8].
The applicant’s contention is that the appropriate characterisation of the proposal is for a change of use of the land to that of a residential accommodation facility, but that would be to place undue focus upon the provision of accommodation where the evidence indicates that accommodation is in fact an incident of a treatment program.
It is not difficult to draw the conclusion that the activity that will take place at the premises means that the land is to be used as a health facility. It entails the provision of a therapeutic model of care for a recognised medical condition.
The fact that the development proposal does not entail any construction is not a barrier to the characterisation of the existing premises as a “health facility”. It is consistent with the planning regime that the use to which land is put, including the use to which premises on the land are put, determines the character of the development. In this matter, the development is the change (by way of an additional use) to which the land is proposed to be put, from solely an aged care facility to that which also provides a health care facility. The land thereby becomes used for “essential infrastructure”.
This is reinforced, rather than undermined, by the use in s 131 of the words “the provision of…. [a facility]”. The applicant contended that the provision of a facility implied the construction of a facility. However, the better interpretation is one that recognises that development has a meaning broader than construction, and the present proposal is an example of development which is a change of land use. This is consistent with the observation of Debelle J in Adelaide City Mission & Anor v South Australian Planning Commission[49] that the character of development is derived from the proposal’s planning impact, not the development proponent’s purpose. In the present case, the additional land use is for provision of a health facility.
[49] (1993) 60 SASR 178, 183.
Notwithstanding that the health facility will only constitute one purpose to which the buildings on the land will be put, it is evident from the fact that a change of land use encompasses an additional use to which the land will be put, that the provision of a health facility that was not previously a use to which the land was put, constitutes a change of use for the purposes of the PDI Act. This is consistent with the reasoning of Kourakis CJ in District Council of Coober Pedy v Aboriginal Family Support Services Inc.[50] In that case, the Court considered that the determinative factor was whether it came within a type of building characterised by the Development Plan and whether that building character was a substantial use to which the building was put:
In describing “the true nature and character” of the Giles Street house as a community support facility, the ERD Court failed to recognise the use of Rooms 2, 3 and 7 as offices. In so doing, the ERD Court made the error described in [19] of Chappel Investment Company Pty Ltd v City of Mitcham. The relevant question was not whether the use of the Giles Street house or a significant part of it is better described as a community support facility. The question was, whatever other description might also be given to the Giles Street house, whether it fell within the scope of an office or consulting room as defined by the Development Plan.
Even though Rooms 2, 3 and 7 are not used when the AFSS employees concerned are in the field the rooms are dedicated exclusively to them for performance of their administrative tasks. Together with Room 4 they comprise a significant portion of the Giles Street house. I would therefore hold that the proposed development is a non-complying office development.[51] (my emphasis)
[50] (2014) 206 LGERA 83; [2014] SASCFC 133.
[51] Ibid, 94 at [39]-[40] (per Kourakis CJ, JJ Vanstone and Parker Agreeing).
Lastly, the effect of any specific definitions of those terms must be addressed. “Health facility” is not defined in the Act, regulations or Code. “Community facility” is not defined in the Act, but is defined in the Code:
Means premises used for the provision of social, artistic, educational or community support services to the public but does not include a child care facility, educational facility, place of worship or indoor recreation facility.[52]
[52] Planning and Design Code (Version 2024.1) p 4986.
However, absent an express provision to that effect, the Code may not be used to construe the legislation. As observed by French CJ in Plaintiff M4702012 v Director-General of Security,[53] ‘[A]n Act which does not provide for its own modification by operation of regulations made under it, is not to be construed by reference to those regulations’.[54] The question here, unlike in District Council of Coober Pedy v Aboriginal Family Support Services Inc,[55] is not whether the development attracts a particular provision of the Code, but whether the proposed development is essential infrastructure, by virtue of being a health facility, for the purpose of the PDI Act.
[53] (2010) 251 CLR 1; [2012] HCA 46.
[54] Ibid, 42 at [56].
[55] (2014) 206 LGERA 83; [2014] SASCFC 133.
Conclusion as to characterisation
The application for development approval is amenable to assessment as Crown development. It constitutes an application for approval for the provision of essential infrastructure.
Errors of law
The applicant’s second tranche of challenges concern the basis on which the Minister’s decision to endorse the proposal was made.
The purpose of the State Director’s minute was stated to be to provide the Minister with options as to how the Minister could “assist with the development approval process for a new state-funded and Uniting Communities Inc run alcohol and other drug residential rehabilitation facility at Glenelg.”[56]
[56] Exhibit MB-7 to the affidavit of Maria Bowshall affirmed on 16 November 2023.
In its summary paragraph, the State Director advised that the options had been analysed and one option (consistent with the recommendation) was preferred. The first, and recommended, option was that the Minister “sponsor and lodge” a Crown development application. Three points were made about this option. Firstly, it was said that it would allow the development assessment process to be managed “at a state level” by the State Planning Commission. It was said that, “this will lead to a quicker assessment time, reduced involvement from Council and the community and a more overall streamlined process.” Secondly, the Minister was warned that the option “may be seen as the State Government using its powers to assess a development with minimal council and community involvement”. Thirdly, the Minister was warned that the adoption of this course “may be seen as unfairly using State Government powers to assist an NGO when other NGOs may not have been afforded the same benefit.”[57]
[57] Exhibit MB-7 to the affidavit of Maria Bowshall affirmed on 16 November 2023.
Three other options were canvased in the minute. The first was that United Communities Inc lodge an application after forming a partnership with a Government agency that engages in development, such as Renewal SA or the South Australian Housing Authority. It was observed that this would reduce the involvement of the Department for Health and Welfare and that the other agency may not prioritise the project. The second alternative option was for the Minister for Planning to directly appoint the State Planning Commission as the relevant assessing body for the application as an application of “state significance”. This option was observed to carry the consequences that the Department for Health and Welfare and the Minister for Health and Welfare would become removed from the approval process. Further, the Minister was warned that the Minister for Planning might not accept that the proposal entails a matter of state significance, and it may be seen as unfairly using Government power to assist a non-government organisation when other non-government organisations have not been similarly assisted. The third alternative course advised upon was that United Communities Inc lodge a development application for the council’s assessment. This was described as the “traditional process for organisations in the NGO sector wanting to undertake development and building works”.
The State Director recommended that the Minister adopt the first recommendation to ensure that the assessment occurred in a “fair and timely” manner by endorsing it such that it would be assessed by “the independent State Planning Commission”.[58]
[58] Exhibit MB-7 to the affidavit of Maria Bowshall affirmed on 16 November 2023.
The applicant’s contentions
The Minister must be understood to have relied on the State Director’s minute in providing the endorsement, as there was no other evidence before the Court from the Minister regarding the matters that were taken into account. There was a legal opinion annexed to the minute, but legal professional privilege over it was not waived so its content is unknown to the applicant and the Court. Counsel for the applicant argued that the State Director’s minute contained various erroneous propositions which should be accepted by the Court as having infected the Minister’s decision.
One asserted error was the statement or implication that if the Minister did not endorse the proposal such that it became amenable to be assessed as Crown development, it would be assessed by the Holdfast Bay Council pursuant to the “traditional process”, and that Council might delay the process. The significance of this was said to arise from the fact that the minute post-dated the scheduled starting date for the provision of the services. The applicant contended that, contrary to the suggestion in the minute, there was no basis for the assertion that the “traditional process” was slow, and no basis for the suggestion that the Council Assessment Panel would delay the process. It was submitted that the steps in the process were subject to statutory time limits and that there was no reason to believe that the Council Assessment Panel would not adhere to them.
A second alleged error was that the minute stated or implied that it was the Holdfast Bay Council that would determine the application if the endorsement was not given, whereas it would in fact be a Council Assessment Panel, comprised of one councillor and several independent professional planners. It was suggested that the erroneous description left it open for the Minister to believe that if the endorsement was not granted, the application would not be independently assessed on its planning merits.
A further alleged error was that the wording of the minute implied that the public consultation required for a Crown development assessment process was merely a reduced version of that which was required for a council assessment process, whereas there is no mandated public consultation process for a Crown development assessment. It was suggested that the Minister may have proceeded without a proper appreciation of the consequences of the decision.
The respondent’s contentions
The respondent contended that the minute could not be read as a set of legal propositions about the basis upon which the decision was required to be made. Rather, it was advice as to whether and why the Minister might wish to endorse the proposal, which would confer it with the character of Crown development with the consequence of a different development pathway. It was submitted that the statements in the State Director’s minute could not be used to conclude that the Minister proceeded to decide the matter by reference to wrong legal principle as required for judicial review to be available.
Consideration – errors of law?
In Kirk v Industrial Relations Commission of New South Wales,[59] the High Court endorsed the classic formulation of jurisdictional error as stated in Craig v State of South Australia:[60]
If... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.[61]
[59] (2010) 239 CLR 531; [2010] HCA 1.
[60] (1995) 184 CLR 163; [1995] HCA 58.
[61] Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, 573.
Clearly, those words do not mean that any error in the material upon which a decision-maker relies constitutes an error of law that will vitiate the decision. It will depend on the jurisdictional facts upon which the decision must be made. Where, for example, a decision-maker is required to reach a particular state of satisfaction about a matter before the decision is made, reliance on material that could not achieve that state of satisfaction about the matter may constitute an error.[62]
[62] Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 5) [2019] FCA 2073 at [41] (per Derrington J).
The nature of the decision and any statutory commands in respect of it must be identified. In this case, the decision is not constrained by any express statutory criteria. The decision to endorse a proposal must be understood to confer a wide discretion upon the Minister. That does not mean that it is incapable of being impugned. Stephen J’s statement in Murphyores Inc Pty Ltd v Commonwealth is apt:
It will be seldom, if ever, that the extent of the power cannot be seen to exclude from consideration by a decision-maker all corrupt or entirely personal and whimsical considerations, considerations which are unconnected with proper governmental administration; his decision will not be a bona fide one since these considerations will, on their face, not be such as the legislation permits him to have regard to. In other instances the task for the court will be to discern what restraints, if any, the legislation places upon considerations to which he may have had regard. [63]
[63] (1976) 136 CLR 1, 12; [1976] HCA 20, [9], (per Stephen J).
However, in the absence of a statutorily-expressed jurisdictional fact that conditions the making of the decision, the reasons available to a State agency for providing an endorsement are various, and need only to further or accord with the agency’s legitimate functions and purposes. It was not shown that this did not occur.
Reliance by the applicants upon factual propositions in the minute of advice, to support an assertion of a jurisdictional error, are misplaced. The applicants have not established that the propositions in the State Director’s minute were jurisdictional facts upon which the decision was required to be made.
Counsel for the Minister contended that, in any event, the propositions were neither false nor irrelevant. It is not necessary to reach any conclusions, except that they were not fanciful or manifestly beyond the realm of the proper factors. The propositions did not give rise to a possible finding that the Minister’s decision to endorse the proposal was vitiated by legal error by virtue of reliance upon them.
Relevant and irrelevant considerations
The applicant also contended that the State Director’s minute to the Minister contained irrelevant considerations upon which the Minister must be understood to have relied. The applicant acknowledged that the PDI Act does not disclose any mandatory or prohibited considerations in respect of the particular decision provided for in s 131, but said that it should be inferred that the Minister took into account the irrelevant consideration that a failure to endorse would lead to the development being subject to increased public consultation compared with the Crown development process. The applicant submitted that this was misleading as the Crown development path subjected the proposal to no public consultation at all. The applicant contended that, in addition to the fact that it was not disclosed that the Minister for Planning would not be required to assess the proposal against the Planning and Design Code, the erroneous account given to the Minister as to consultation led to the conclusion that the Minister had taken into account irrelevant considerations.
The applicant also submitted that it was a relevant consideration for the Minister, in determining whether to support the proposal for an ongoing change of use to the land, that the proposal was for a temporary service. This relevant consideration was said to have been overlooked.
Counsel for the Minister contended that the applicant had not shown that the considerations referred to were ones that the Minister was required to take into account, or refrain from so doing, for a proper exercise of the discretion.
Consideration
The extent to which a decision-maker must be aware of the legal framework and implications of the decision was considered by the Full Court of the Federal Court in Taulahi v Minister for Immigration and Border Protection[64]. The proceedings concerned a visa cancellation by the Minister on character grounds. The Full Court analysed the earlier decision of NBMZv Minister for Immigration and Border Protection,[65] in which the Full Court considered the exercise of a different discretion under the Migration Act. The Full Court said:
The fundamental principle that NBMZ confirms is that, in making a decision under the Migration Act, the Minister is bound to take into account the legal consequences of a decision because these consequences are part of the legal framework in which the decision is made. Indeed, in making any decision in exercise of a statutory power, the legal framework in which that decision is made must be taken into account. That framework includes the direct and immediate statutorily prescribed consequences of the decision in contemplation. Another expression of this fundamental proposition is the well-established principle that a broad statutory discretion is nonetheless limited by the subject matter, scope and purpose of the Act that creates it…..The fact that the legal consequences of a decision may be obvious or that “the applicable legal framework to s 501(3) may be less complex than that considered in NBMZ” (Roach [2016] FCA 750 at [108]) may bear on the question whether the Minister has in fact misconceived the power in question or failed to have regard to the statutory framework in which the decision has been made.[66] (emphasis in the original)
[64] (2016) 246 FCR 146; [2016] FCAFC 177.
[65] (2014) 220 FCR 1; [2014] FCAFC 38.
[66] Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146, 167 at [84]; [2016] FCAFC 177 at [80] – [89] (per Kenny, Flick and Griffiths JJ).

In Re Patterson; Ex parte Taylor,[67] Gummow and Hayne JJ discussed the resulting jurisdictional error and said:
The result of this misconception as to what the exercise of the statutory power entailed was that there was, in the meaning of the authorities, a purported but not real exercise of the power conferred by s 501(3). On that footing, prohibition and certiorari properly lay.
[67] (2001) 207 CLR 391; [2001] HCA 51.
The premise for the finding of jurisdictional error here is that, in order for there to be a lawful exercise of a discretionary statutory power, the decision-maker must have regard to the statutory framework in which the provision conferring the power sits. This framework includes the direct and immediate statutory consequences of an exercise of the power. [68]
[68] Ibid, 455 (per Gummow and Hayne JJ).
The Full Court in Taulahi v Minister for Immigration and Border Protection[69] went on to say:
It is well known that a vitiating error in decision-making may be characterised in more than one way. In Ex parte Taylor, the error with respect to the exercise of power under s 501(3) was characterised as a misconception of the nature of the statutory power, because the decision-maker did not properly appreciate the legal consequences of the decision, having regard to ss 501(6), 501C(3) and 501C(4). In another case, the same kind of error (i.e., a failure to have regard to these legal consequences) might, as in the case of Taulahi, be characterised as a failure to have regard to a consideration that the decision-maker was bound to take into account. The differences in characterisation do not diminish the fact of jurisdictional error in the making of the decision if the statutorily prescribed consequences are not properly understood and taken into account in decision-making under s 501(3).[70]
[69] (2016) 246 FCR 146; [2016] FCAFC 177.
The applicability of the High Court’s propositions in respect of jurisdictional error must be determined by reference to the similarities and difference between the nature of the decision and the framework within which it is made. The High Court’s statements in Patterson and Taulahi concern highly regulated decisions made under the Migration Act 1958 (Cth). That greater regulation invites an inference that error will be more readily found. The decision-making process under the Migration Act 1958 (Cth) bears some similarities with the substantive planning process under the PDI Act, but shares little with the ungoverned decision provided for in s 131 whereby endorsement may or may not be given to a project by a State agency.
Nevertheless, those decisions describe how a decision-maker may fall into error if unaware of the legal consequences of the decision being made. In these proceedings, the evidence supports the conclusion that the Minister was aware that the effect of the decision was to corral the development assessment onto the Crown development pathway. It should not be concluded that the Minister’s decision was vitiated by any imperfection in his understanding of each of the particular steps that may follow. The cautionary statements of the High Court (Brennan CJ, Toohey, McHugh and Gummow JJ) in Minister for Immigration & Ethnic Affairs v Wu Shan Liang,[71] must be borne in mind to avoid “turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision”.[72]
[71](1996) 185 CLR 259; [1996] HCA 6.
[72] Ibid, 272.
The applicant has not shown that the Minister has, or must be inferred to have, taken into account any matter that would vitiate the decision to endorse the proposal for the purposes of s 131, or failed to take any matter into account that was required to be.
Procedural fairness and natural justice
The statutory regime recognises the special position of adjacent landowners. Absent an express exclusion of the applicant’s right to be heard on the question of whether the Minister should endorse the proposal for the purposes of a determination by the Minister for Planning, the applicant submits he should have been given such an opportunity. The well-established obligation to afford procedural fairness was described by Mason J in Kioa v West[73] as follows:
When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.[74]
[73] Kioa v West (1985) 159 CLR 550; [1985] HCA 81.
[74] Ibid, 585 (per Mason J).
A more recent statement of the principle as applied to a statutory decision-making process was set out in Minister for Immigration and Boarder Protection v SZSSJ,[75] in which the High Court in a joint judgement said:
The common law principle, sufficiently stated for present purposes, is that a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual. The presumption operates unless clearly displaced by the particular statutory scheme.[76]
[75] (2016) 259 CLR 180; [2016] HCA 29 (per the Court: French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).
[76] Ibid, 205.
The applicant argued that by virtue of the Minister’s decision, he had been denied a right to be consulted in the manner he would have had if the development approval application had been made under the ‘traditional’ pathway, that is, to the Council Assessment Panel.
The Minister does not deny that the applicant’s interests were directly affected in the manner that enlivened the obligation to afford procedural fairness consistent with the reasoning in Kioa v West.[77] However, the Minister contended that the proper construction of the statutory scheme discloses a legislative intent to displace the applicant’s right to be heard in respect of Crown development.
[77] (1985) 159 CLR 550; [1985] HCA 81.
Consideration
It is not in dispute that Mr Cook has an interest in the outcome of the decision-making process by virtue of his special relationship, as a nearby land-owner, with the site of the development proposal. It is also evident that the development approval regime incorporates the consideration of such interests by mandating consultation with affected person. The question here is whether the legislature has displaced the consideration of those interests in respect of this particular type of decision under s 131.
That task requires a close consideration of s 131. Section 131 requires that when the State Planning Commission has the task of managing a Crown development application, it must undertake particular consultations in accordance with the section. It must consult with the relevant council and “prescribed bodies” in accordance with the regulations. Regulation 107 of the Planning, Development and Infrastructure (General) Regulations 2017 (“PDI Regulations”) provides that certain types of development must be the subject of consultation with prescribed bodies, but the development under consideration in these proceedings is not one of them.The only circumstances under s 131 that would give rise to the applicant being consulted is if it were a development involving construction work where the total amount to be applied to the work will, when all stages are completed, exceed $10,000,000.[78] Where a development meets this construction cost threshold, the State Planning Commission is required to invite interested persons to make written submissions to it on the proposal, allow those persons to appear before the Commission, and give due considerations in the assessment of the application to any submissions made by interested persons.[79] That was not the case here.
[78] PDI Act, s 131(13).
[79] Ibid, s 131(13)(a)-(c).
Accordingly, the only consultation that s 131 mandates in respect of this development is consultation with the council.
It is sufficient to dispose of the applicant’s contention by observing that the provisions made in s 131 for consultation with a council or prescribed body evince the legislature’s intention to exhaustively describe the information that the Commission must gather and assess before making its report to the Minister for Planning. There is no reference, in particular, to any obligation on the part of the Commission to incorporate into its report to the Minister for Planning, any outcomes of consultation with individuals, as might be expected if the process was intended to accommodate consultation beyond that which is prescribed by the section. From this alone, it can comfortably be concluded that the process in s 131 is exhaustive of the mandatory consultation required for Crown development and that the broader consultation obligations associated with “general pathway” approval, and the common law, have been displaced. As the High Court observed in Plaintiff S10/2011 v Minister for Immigration and Citizenship[80], an Act that has been passed since Kioa v West may be understood to have been drafted in a manner that recognises that an obligation to afford procedural fairness may be inferred from a statutory decision-making process affecting rights, and may exhaustively describe the circumstances and manner and limits of its operation.[81]
[80] (2012) 246 CLR 636; [2012] HCA 31.
[81] Ibid, [67] (per Gummow, Hayne, Crennan and Bell JJ).
The applicant submits that an obligation to consult attaches to the decision by a State agency to endorse a proposal. There is no textual or contextual basis for concluding that a State agency is obliged to consult with individuals affected by the proposal. In any event, it is difficult to see how the effect on an individual’s amenity could properly be incorporated into a State agency’s decision as to whether a project warrants endorsement in the sense contemplated by s 131. On the other hand, effect upon neighbours’ amenity is clearly a relevant factor in relation to a decision to grant planning approval, although in this case, the obligation to consult has been displaced for this particular class of decision.
Unreasonableness
The applicant maintained that the decision vitiated for unreasonableness, in the legal sense. To a large extent, the submissions made in this regard reframe the criticisms discussed earlier in this decision, as manifestations of legal unreasonableness. Accordingly, there is a degree of overlap in the considerations required for this ground of judicial review.
The applicant contended that the Minister’s decision was legally unreasonable because it was based on a false premise that if the development was not channelled into the Crown development approval route, the approval process would be undertaken by the Council which was negatively disposed to the proposal. It was contended that the decision was premised on a wrong assumption that members of the Holdfast Bay Council Assessment Panel, or the Council itself, could or would unfairly delay or refuse the application.
The applicant further submitted that the Minister’s failure to understand the statutory scheme or the effect of the decision upon the applicant’s interest in being consulted, led to the decision being unreasonable.
Counsel for the Minister, on the other hand, argued that the benefit of the approval route endorsed by the Minister was an expedited approval process, comparing a 60-day minimum time period which the Crown development assessment is required to assess the application, to the 74-day minimum that is subject to a council development assessment. This is referenced in the State Director’s minute to the Minister, which advised that choosing to endorse the project would “lead to a quicker assessment time, reduce involvement from Council and the community and a more overall streamlined process”.[82] It was argued that this provided an evident foundation for the decision such that it could not be considered legally unreasonable.
[82] Exhibit MB-7 to the affidavit of Maria Bowshall affirmed on 16 November 2023.
Consideration
The matters that must be established for a decision made in the exercise of discretion to be legally unreasonable were described in a variety of ways in the several judgements in Minister for Immigration and Citizenshipv Li[83]. Hayne, Kiefel and Bell JJ described it as follows:
Because [the legislation] contains a statutory discretionary power, the standard to be applied to the exercise of that power is not derived only from [the legislation], but also from a presumption of the law. The legislature is taken to intend that a discretionary power, statutorily conferred, will be exercised reasonably.
…
The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it – nor should Lord Greene MR be taken to have limited unreasonable in this way in his judgment in Wednesbury.
…
The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[84] (citations omitted)
[83] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.
[84] Ibid, 362 - 366 (per Hayne, Kiefel and Bell JJ).
French CJ observed that the requirement of reasonableness must be strictly separated from a merits review of the decision. His Honour said:
After all the requirements of administrative justice have been met in the process and reasoning leading to the point of decision in the exercise of a discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.
…
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.[85] (citations omitted)
[85] Ibid, 351 at [30] (per French CJ).
Gageler J (as he then was) put it in this way:
Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.[86]
[86] Ibid, 375 at [105] (per Gageler J).
In some cases, it will be possible to identify conditions that are required to be met for the decision to have been made properly. In Acquista InvestmentsPty Ltd v Urban Renewal Authority,[87] Vanstone and Lovell JJ as the majority in the Full Court (Debelle AJ dissenting) disagreed with a Judge’s earlier assessment of whether the decision to enter a contract was unlawful and legally unreasonable was available to be made. In relation to the decision made by the Minister, their Honours said:
More importantly, policy decisions of this type are quintessentially those of the Government or its Ministers. This Court is not in a position to evaluate competing policy considerations of this nature. These are ultimately decisions for Government, over which the electorate is the final arbiter. Again, the failure to give weight to the intrusion of a policy issue into the decision is, of itself, enough to bring down the Judge’s decision on unreasonableness.
The Judge went on to state at [552] that the matters earlier referred to by us as numbers 1 to 4 were such “fundamental prerequisites” that any decision made in ignorance of them would necessarily be legally unreasonable. We understand the Judge to mean that even if the ACP proposal promised larger economic and social benefits to the State than a mere sale of the Land, the failure of the cabinet submissions to measure those possible benefits against the drawbacks of the proposal (including that it was only an option agreement, that the development was contingent on investors being found, and that benefits would flow only in the longer term) meant that such policy considerations could not overcome the deficits referred to by the Judge as fundamental prerequisites. To put that differently, we think the Judge was saying, if the policy issue were to trump the absence of the fundamental prerequisites, then the cabinet submissions needed to address its drawbacks. We respectfully differ from that position. Not only was the decision-maker entitled to rely on the expressed opinion of the Board as to value, but even apart from that, it was entitled to give such weight as it saw fit to the fact that the ACP proposal was of an entirely different nature and calibre as compared with a mere sale of the Land for purposes which might not advance any wider governmental policy.[88]
[87] (2015) 123 SASR 147; [2015] SASCFC 91.
[88] Ibid, 168 (per Vanstone & Lovell JJ).
The analogy with the present case is apt. The nature of the Minister’s decision whether to endorse the proposal or not, is signalled by the absence of decisional controls in the legislation to be a matter properly decided by reference to prevailing Government policy.
In this case, the reasons for the decision must be inferred from the State Director’s minute. The minute contains an account of why the Minister might endorse Uniting Communities Inc’s development application. The account invites the Minister to advance the department’s agenda by assisting the development approval assessment in the proposed way. The applicant did not establish that the Minister’s decision to endorse the proposal lacked a rational foundation or an evident and intelligible foundation.
Bias
The applicant contended that a reasonable bystander might apprehend that the Minister might approach the recommendation for endorsement without impartiality. The reason provided for such apprehension was that the Minister’s department was contractually bound to fund the program that was to be delivered at the site, for $5.6 million dollars. The contract was already overdue to start. Counsel for the applicant argued that matter was analogous with the circumstances in Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources[89] and McGovern v Ku-ring-gai Council & Anor.[90]
[89] Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources (2023) 299 FCR 50; [2023] FCA 809.
[90] McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504, 509; [2007] NSWLEC 22.

Barngarla involved two applications for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) to declare a parcel of land as the site for the establishment and operation of a radioactive waste management facility, through amendments to the National Radioactive Waste Management Act 2012 (Cth). The Minister made various statements about the proposal in public interviews and on social media in the course of promoting a policy for the amendment of the Act. These statements were produced in the proceedings.
On the challenge of apprehended bias in the decision-making, Charlesworth J described the requirements of such a challenge, the balancing of evidence to make a finding, and exceptions to challenges. Her Honour said:
… Whilst the facts must be established to the civil standard of proof, the test to be applied to those facts is one that evaluates possibilities, not a probabilities: Ebner (at [7]).
The claimed apprehended bias in Ebner involved an allegation that the exercise of judicial power at a trial had been affected by jurisdictional error because of a financial interest the judge was said to have had in the outcome. Gleeson CJ, McHugh, Gummow and Hayne JJ said that the test for apprehended bias in such a case involved a two-step analysis (at [8]):
… First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
The rule against apprehended bias applies to administrative decision making just as it does to judicial processes. However, as McHugh J explained in Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 (at [70]), in the practical application of the test, the role of the decision-maker will assume significance:
While the test for a reasonable apprehension of bias is the same for administrative and judicial decision-makers, its content may often be different. What is to be expected of a judge in judicial proceedings or a decision-maker in quasi-judicial proceedings will often be different from what is expected of a person making a purely administrative decision. One difference arises when the decision-maker is a Minister who is accountable to the Parliament and the electorate. In Minister for Immigration and Multicultural Affairs v Jia Legeng, Gleeson CJ and Gummow J, Hayne J agreeing, said that ‘[t]here are … consequences that flow from the circumstance that a power is vested in, and exercised by, a Minister. Their Honours noted that, subject to any contrary indication in the legislative grant of power, a Minister would be entitled to act in accordance with governmental policy when making a decision. Thus, it will ordinarily be very difficult to impute bias or the reasonable apprehension of bias to the decision of a Minister who has considered all applications on their merits but made it clear that preference would be given to applicants who complied with government policy.[91]
[91] Barngarla Determination Aboriginal Corporation RNTBC v Minister for Resources (2023) 299 FCR 50, [146] – [149].
The applicant conceded that election commitments do not necessarily create a reasonable apprehension of bias. That concession is consistent with this Court’s decision in Corporation of the City of Norwood, Payneham and St Peters v Minister for Infrastructure and Transport,[92] in which Parker J found that a decision-maker within the Department for Infrastructure and Transport could not be inferred to have prejudged a decision by virtue of being aware of support for a particular outcome having been expressed by the Minister responsible for the Department, and the Premier.[93]
[92] [2021] SASC 97.
[93] Ibid, [269].
Consideration
The basis on which it may be concluded that there is reasonable apprehension of bias in an administrative decision-maker is not the same as that which applies to a judicial decision-maker.[94] An administrative decision-maker may draw upon policy considerations, knowledge and material from a variety of sources as long as those matters are not irrelevant to the decision. The statutory context in which the decision is made establishes what the decision-maker may bring to the process.[95]
[94] Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 538 quoting Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 343-344.
[95] McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504, 509; [2007] NSWLEC 22 per Spiegelman CJ at [6].
The Minister’s department had committed contractually to fund the program. It was submitted that this amounted to a basis upon which a reasonable bystander might apprehend that the Minister might not bring an impartial mind to the decision as to whether to endorse the project. In relation to such a charge, it is always necessary to consider the matters that might properly affect the decision and those which would be improper. The implication, not developed, is that there would be an adverse consequence for the Minister or his department if he did not support the proposal for the purposes of s 131 because the proposal would be more likely to fail to obtain approval if it was considered by the Council or the Council Assessment Panel, and the Department might become liable for contractual breach.
The facts necessary to provide a foundation for such an inference have not been established. Indeed, the only evidence before the Court on that issue was that United Communities Inc was suggested to have failed in its obligation to ensure that all relevant approvals were in place upon entering the funding agreement.[96] More significantly, however, the applicant did not establish that the Minister was motivated, or could reasonably be understood to have been motivated, to seek anything other than a fair assessment of the project on its planning merits. The minute of advice expressly refers to such an assessment.[97]
[96] Exhibit MB-1 to the affidavit of Maria Bowshall affirmed on 16 November 2023.
[97] Exhibit MB-7 to the affidavit of Maria Bowshall affirmed on 16 November 2023.
There is a further basis upon which that authority informs the matter before this Court. In Corporation of City of Norwood, Payneham and St Peters v Minister for Infrastructure and Transport, Parker J observed that the person’s position, the nature of the powers they are to exercise and the statutory context, are key. The developers in that case submitted that the decision to be made was one that was very different to a case where a body is required to adjudicate between competing positions involving a public hearing and to apply detailed statutory procedures.[98] It may be inferred that this comparison was between the decision under consideration and a decision in the planning context. The observation is apt in the current case. The Minister’s decision in relation to endorsement is not particularly amenable to the allegation of bias, because of the broad discretion it entails.
[98] [2021] SASC 97 at [257].
The reasonable observer can be expected to appreciate that the Minister will approach the decision with background knowledge and even a purpose. It is not a decision requiring a judicial approach, as Basten JA described in McGovern v Ku-ring-Gai Council with respect to a decision made by a councillor:
The real question is what, with the appropriate level of appreciation of the institution, the fair-minded observer would expect of a councillor dealing with a development application. The institutional setting being quite different from that of a court, the fair-minded observer will expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers.[99]
[99] McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504, 509; [2007] NSWLEC 22, [80] per Basten JA.
On the material before the Court, a reasonable apprehension of bias does not arise.
Conclusion
The applicant has not established that the first respondent’s decision to endorse the proposal such that it became “Crown development”, was a decision that was beyond power or made on an erroneous basis.
The proposal constitutes essential infrastructure within the meaning of that term in the PDI Act, and the decision to endorse it has not been shown to be wrong.
Order
The application for judicial review is refused.

[70] Ibid, 169 at [89].

[2024] SASC 40

21 March 2024