Corp City of Adelaide v City of Salisbury & Anor No. Scgrg-97-6 Judgment No. S6914

[1998] SASC 6914

THE CORPORATION OF THE CITY OF ADELAIDE  v  THE CITY OF SALISBURY AND THE CITY OF PORT ADELAIDE ENFIELD
 [1998] SASC 6914

Land and Valuation Division
Bleby J

Background

1. The plaintiff is the registered proprietor of an estate in fee simple in the whole of the land comprised in Certificate of Title Registered Book Volume 5268 Folio 482, being part of Section 450 of the Hundred of Port Adelaide.  It is a large irregularly shaped piece of land, having its northern and southern boundaries substantially in excess of one kilometre, the combination of its eastern and north‑eastern boundaries also exceeding one kilometre and its western boundary approaching half a kilometre.  On that land the plaintiff operates the Wingfield Waste Depot, which is a sanitary landfill, at which domestic and industrial waste from many parts of the Adelaide metropolitan area is placed and covered with soil.

2. The land has not always been owned by the plaintiff.  It was purchased by the plaintiff from the Australian Government on 15 September 1986.  Prior to that, the land had been leased by the Australian Government to the plaintiff from 21 September 1955 for the purpose of operating a waste depot by way of sanitary landfill, and it appears that it has been so operated by the plaintiff since that time.  The waste depot is a substantial operation, now receiving approximately one half of the solid waste generated by metropolitan Adelaide.  Whilst the operation is described as a sanitary landfill, the land was originally flat land, with the waste now being stored at increasingly high levels.

3. It would appear that in 1970 only portion of the land was being used by the plaintiff as a waste depot.  The land was then in the council area of The Corporation of the City of Salisbury (“the Salisbury Corporation”), and that council apparently took the view that if there were to be an expansion of the operation it would require the consent of the Salisbury Corporation in accordance with the requirements of the Planning and Development Act 1966 (“the Planning and Development Act”) and in particular the Metropolitan Development Plan (Corporation of the City of Salisbury) Planning Regulations - Zoning.  Such an application was duly made and consent was given subject nevertheless to eleven conditions.  Condition (6) read as follows:

   “(6).. The landfill being carried out to a final level prescribed by Salisbury Council and a suitable cover over all refuse being not less than 12” in depth.”

4. No point is taken that the land was then owned by the Australian Government for public purposes or that the plaintiff could gain any benefit from Commonwealth immunity from State laws such as might render the consent or any conditions attached to such consent invalid.  Cf Kangaroo Point East Association Inc v Balkin (1993) 119 ALR 305; Ventana Pty Ltd v Federal Airports Corporation (1997) 147 ALR 200. There is now a challenge to the validity of condition (6), but it is on other grounds to which I shall refer in due course.

5. By proclamation of the Governor dated 30 July 1987 there was an alteration of boundaries of council areas of the City of Salisbury and the then City of Enfield (see Sections 12 and 15, Local Government Act 1934 as then in force). That had the effect of placing the waste depot within the council area of the City of Enfield. With effect from 23 March 1996 the City of Enfield and the City of Port Adelaide were amalgamated to form the City of Port Adelaide Enfield, the second defendant. As a result, the waste depot is now situated in the council area of the second defendant (“the Council”).

6. Not only have there been changes to the relevant local government bodies having responsibility for the area in which the waste depot is situated, there have also been substantial changes to planning legislation and to environmental protection legislation since the granting of the original consent to the plaintiff on 17 November 1970.

7. As from 20 May 1982 the Planning and Development Act was repealed and was replaced by the Planning Act 1982 (“the Planning Act”). The Planning Act itself was repealed by the Development Act 1993 (“the Development Act”) with effect from 15 January 1994. It is the Development Act which now governs the carrying out of any form of development in the State. It will be necessary in due course to refer to the several transition provisions contained in or associated with the Planning Act and the Development Act.

8. As from 1 July 1980 the waste depot became subject to the provisions of the South Australian Waste Management Commission Act 1979.  The plaintiff was required to be and was in fact licensed to operate the depot by the then South Australian Waste Management Commission (“the Waste Management Commission”) pursuant to that Act whilst it remained in force.  That Act was repealed with effect from 1 July 1988 upon the commencement of the Waste Management Act 1987.  The depot then became subject to the controls imposed by that Act.  The plaintiff was required to be and was licensed to operate the depot under that Act whilst it was in force.  On 1 May 1995 that Act was repealed by the Environment Protection Act 1993. Since then the plaintiff is required to be and has been licensed to operate the waste depot under the provisions of the Environment Protection Act.

9. It is not necessary to refer to all the conditions associated with licences issued from time to time under the Environment Protection Act and its predecessors.  The conditions contained in the annual licence issued by the Waste Management Commission prior to 1995 contained a condition that the licensee was required to construct, operate and maintain the depot in accordance with the management plan approved by the Commission.  The management plan was contained in a report dated December 1984 prepared by Fargher Maunsell.  That plan specified that the maximum height of the landfill should be 15 metres AHD.  On or about 24 January 1992 the plaintiff applied to the Waste Management Commission for approval of a revised management plan which, among other things, provided for a maximum height of the landfill to be 40 metres AHD.  For various reasons the matter had not been dealt with by the Waste Management Commission, and on 26 April 1995 it referred the application to the Environment Protection Authority constituted under the Environment Protection Act which took effect on 1 May 1995.  The licence issued by the Environment Protection Authority for the period 1 May 1995 to 31 March 1997 contained the following conditions:

   “5.(b)..... The Licensee shall ensure that the depot is constructed and operated in accordance with the plan entitled ‘Wingfield Area Waste Management Study - Final Report December 1984 - Fargher Maunsell’ (‘the Plan’).

   (c)The Licensee shall ensure that the finished height of the depot is limited to 15.0 metres AHD in accordance with the Plan.”

10. In the meantime the plaintiff had commissioned a new management plan which became the subject of a fresh licence application dated 5 March 1996.  That plan also contemplated increasing the height of the landfill to 40 metres at its highest point.

11. The Council and its predecessor, the Corporation of the City of Enfield, had consistently opposed any increase in permitted height of the landfill, but until June 1996, that opposition had been by way of commissioning further reports itself and making representations to the Environment Protection Authority and its predecessor, the Waste Management Commission, together with a public campaign against the proposal.  However, it was not until the Council’s Environmental Services Committee first raised the issue in a report for a council meeting to be held on 25 June that the question of the original planning consent first became a relevant issue.  At its meeting on that day the Council unanimously endorsed the following resolution:

    “1..... In accordance with condition 6 of the consent granted 17th November, 1970 the Port Adelaide Enfield Council declares that the height limit for the Adelaide City Dump shall be no higher than 15 metres AHD.

    2.The Environment Protection Authority, the Adelaide City Council and the Development Assessment Commission be advised of Council resolution with regard to the approval granted in 1970.”

12. The plaintiff had not been informed of the Council’s intention to consider such a resolution, and had not been invited to make any representations to the Council before it did so.  As will appear later in these reasons, the Council was not a relevant planning authority for the purpose of approving this type of development on the site, but it purported to act as the legal successor to the Salisbury Corporation, being the body named in condition (6) of the original planning consent given in 1970.  The Council notified the plaintiff of its resolution by letter dated 27 June 1996.

13. A copy of the resolution had, however, been quickly conveyed to the Environment Protection Authority, because at its meeting on 27 June 1996 the authority resolved to refuse the plaintiff’s application for a licence whereby the finished height of the landfill would be increased from 15 metres AHD to 40 metres AHD.  In its notice of decision it gave a number of reasons for the refusal which included the following:

    “The Authority has noted the decision on Tuesday 25 June, 1996 of the Corporation of the City of Port Adelaide Enfield to prescribe, pursuant to clause 6 of Adelaide City Council’s planning approval of November, 1970, the final level of the Site as 15 metres AHD.”

14. The Environment Protection Authority seems to have been influenced in its decision to some extent by the determination of the Council.  In the licence issued with effect from 1 April 1997 condition 5(b) read:

    “5.(b)..... The Licensee shall ensure that the finished height of the depot is limited to 15.0 metres AHD in accordance with the existing development consent issued by the Port Adelaide‑Enfield Council.”

15. The plaintiff subsequently appealed to the Environment Resources and Development Court against the refusal of the Authority to vary the conditions of the licence, but the appeal was later withdrawn.

16. In these proceedings the plaintiff seeks a declaration (inter alia) that the original condition (6) is void and of no effect.  It also seeks a declaration that the second defendant has no jurisdiction or power to determine the final level of the landfill at the waste depot under condition (6) of the planning consent on the ground that the Council is not the body entitled to act on the condition if it is valid.  It therefore calls into question the validity of the resolution of the Council passed on 25 June 1996 upon that ground but also on the ground that it was not afforded procedural fairness when the decision was made.  It also alleges that the Council acted under bias or apparent bias in passing the resolution.  It seeks an order quashing the decision and consequential relief to prevent the Council from acting on the resolution.

17. The Salisbury Corporation, although joined as a defendant, did not seek to be heard and submits to any order of the Court.

The validity of condition (6)

1. At the time when the Salisbury Corporation granted consent to the plaintiff to use the land for the purpose of refuse disposal by sanitary landfill, s36(8) of the Planning and Development Act provided:

   “(8) Where any provision of this Act provides that, in relation to any land, a thing may be done with the consent, permission or approval of a person or body or that a thing shall not or may not be done without the consent, permission or approval of a person or body, such consent, permission or approval may be given absolutely or subject to conditions imposed or expressed by the person or body concerned, including conditions limiting the operation or effect of the consent, permission or approval to a limited period or by reference to the applicant only or to the type of use which is made or to be made of the land by the applicant, or prescribing the type, size or kind of construction of any building or structure to be erected on the land or requiring the removal or alteration of any work or the re‑instatement of any land.”

2. It was in purported exercise of that power that condition (6) was imposed by the Salisbury Corporation.  There would seem to be little doubt that in the exercise of its powers under that sub‑section the Corporation could have specified a particular height or configuration with which the proposed refuse disposal had to conform.  It could have limited the use to a period of time.  The effect of condition (6), however, was to render the period of use and the height and configuration of the refuse disposal quite uncertain and subject only to a later determination of the Corporation.  According to condition (6) the Corporation could have effectively terminated the use consented to by specifying a level at any time and of any height.  In that sense the condition certainly lacked finality and certainty.

3. In Corporation of the City of Unley v Claude Neon Ltd and Dalgety Australia Ltd (1983) 32 SASR 329 (“the Claude Neon Case”)the subject matter of the consent was the erection of an office building.  The Council granted consent, subject to eleven conditions, one of which read:

   “That no signs be erected or displayed without prior consent of the Council.”

4. Wells J held that the condition was void.  He began by quoting what he had said about conditions generally in Twenty-Seven Properties Ltd v Corporation of Noarlunga (1975) 11 SASR 188. In that case he had referred to Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554 and the approval of that decision by the House of Lords in Fawcett Properties Ltd v Buckingham County Council [1961] AC 636. Based on those decisions he had concluded that “a condition will be too wide if the result of its enforcement cannot fairly and reasonably relate to the permitted development or to some policy of the planning expressly or impliedly established by or pursuant to the Act”. Of the condition which was then before him in the Claude Neon case Wells J said, at p332:

   “[I]t is essential to bear in mind that the granting of a consent is an act in law that is final in the disposition of the application: the consent must be either refused, or granted unconditionally, or granted subject to conditions.  A condition which imparts to a consent a quality in virtue of which it ceases to be final is not one, in my judgment, that falls within the structure of the Act.  A condition so annexed ought to be directed, and directed only, to circumscribing, with reasonable particularity, the acts of land use to which the Authority or tribunal has given its consent, which would otherwise be unlimited in its generality and effect.

   The condition impugned by the respondents, however, is not of that description.  It lacks finality; it is wanting in particularity; it does not define or limit in any way the acts of land use that are permitted.  It, in effect, purports to reserve the right to pronounce on these matters when the question of erecting a sign is later raised.  When it will be raised is unknown‑speculative.”

He went on to hold that the condition was not one which was within the power of the Council to impose.

1. In Eastern Waste Management Authority Inc v City of Tea Tree Gully (1996) 92 LGERA 1 a local council gave consent pursuant to the same Act for the operation of a waste depot subject to a condition which read:

   “The term of approval to be initially for a period of twenty-five years and subject to extension by agreement between the applicant and the Council under such conditions as may be agreed upon at that time.”

One of the points for decision in that case was the validity of that condition.  The Full Court of this Court held that the specification of 25 years was valid but that provisions relating to extension were not.  Perry J, delivering the judgment of the Court, relied on the phrase in sub‑section (8) “including conditions limiting the operation or effect of the consent... to a limited period” as justifying a condition terminating the activity after a specified period of time.  As to that part of the condition relating to renewal, however, the Court considered that it gave rise to “unacceptable uncertainty as to the position of the expiration of the term of 25 years”, as it would constitute a short circuit of the processes of obtaining proper planning approval for a further period of time (supra at p9).  In the course of their reasons the Court (at p8) expressly approved the decision of Wells J in the Claude Neon Case, and considered that there was no reason to question the soundness of the observation which I have quoted from that decision.  Although that approval was not necessary for the decision itself in Eastern Waste Management Authority Inc v City of Tea Tree Gully, it is one with which I would respectfully agree.

1. The condition in this case suffers from the same defect as the condition struck down in the Claude Neon Case.  Whilst it may be said to be fairly and reasonably related to the development in the sense discussed by Wells J in Twenty-Seven Properties Ltd v Corporation of Noarlunga (supra), it fails the requirement of certainty or finality which s36(8) of the Planning and Development Act also required.

2. That is not to say that the condition lacked certainty in its terminology so that the standard imposed was vague or lacking in precision: Compare Television Corporation Ltd v The Commonwealth (1963) 109 CLR 59 per Kitto J at 69-71. The lack of certainty or finality in this case was an uncertainty as to how long the consent would continue in operation and the lack of any standard against which the intended duration could be measured. The Corporation had no power to impose it, and it was void and of no effect.

Whether the condition can be severed

1. The question of severance of invalid conditions attached to planning approval of this nature has attracted a wide and divergent range of judicial approaches.  Where a condition can be severed the planning approval remains intact but without the invalid condition.  Where a condition has been held to be inseverable, it affects the validity of the whole consent, which is then set aside.

2. On the one hand there are the views of Hodson LJ in dissent in Pyx Granite Ltd v Ministry of Housing and Local Government (supra) at 578-579 where he said it was “impossible to mutilate the Minister’s decision by removing one or more of the conditions”.  A similar view was expressed by Pearson LJ in Hall and Co Ltd v Shoreham-By-Sea Urban District Council [1964] 1 WLR 240 at 261. He considered that only unimportant or trivial conditions could be severed. However, as was later pointed out by Lord Upjohn in Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72 at 113, the invalid conditions in those cases went to the root of the planning permission itself and severely restricted the permission applied for. Those observations should be read in that light. However, a similar view was expressed by Lord Guest in Kent County Council v Kingsway Investments (Kent) Ltd (supra) at 107. He considered that a planning permission was entire, and if one condition were invalid, the whole planning permission must go. In the same case Lord Morris of Borth‑y‑Gest, with whom Lord Donovan concurred, expressed a similar view at pp102-103. He spoke of being able to sever one or two trivial conditions which might be held to be ultra vires, but not conditions which are “fundamental to the whole of the planning permission”.

3. The views expressed by Lord Morris and Lord Guest in that case were not strictly necessary for the decision, because they held that the condition in question was not ultra vires.  On that point Lord Upjohn and Lord Reid dissented, and so for them the question of severance became a live issue.

4. The condition which Lord Upjohn and Lord Reid considered to be invalid read as follows:

   “The permission shall cease to have effect after the expiration of three years unless within that time approval has been notified to those matters referred to in condition (i)...”

Condition (i) required details of proposals to be submitted to and approved by the Authority before any work began.  Whilst it was a time condition which, if not fulfilled, prevented the permitted development from going ahead, it has an obvious analogy with a condition, the effect of which may be to prevent the development in question from proceeding further.  I have already referred to one of the comments of Lord Upjohn.  Having made that comment he continued at pp113-114:

“But a condition as to time does not go to the root of the permission itself; it is purely collateral and could be altered without affecting the actual grant of the permission.

In complete contrast to the Pyx Granite and Shoreham cases, the condition as to time in this case formed no component part of the permission itself.

Lord Denning M.R. and Lyell J. (in the Court of Appeal) really tested this question of severance by posing the question would the council have granted the outline permission in perpetuity, and the plain answer to that is of course not.  With all respect, that seems to me to be the wrong question to pose for the purpose of this test.  That is only stating a possible effect of invalidity; it certainly cannot be a test of severability because that prejudges the matter.  The correct question to the council is do you realise that the time condition as drawn is invalid, to which the answer would be: that is my mistake, I must alter it as I only want to impose a reasonable limitation as to time for the purpose of my planning policy.

Unfortunately the courts have no power to substitute a reasonable time limit.

By way of contrast, in the Pyx Granite and Shoreham cases I would suppose that the proper question is, do you realise that those conditions are invalid, to which the answer would have been: but they are absolutely essential restrictions upon my grant of permission, and if invalid the applicant cannot have any permission to do what he wants.

...

It would, in my opinion, be most unjust, unless there is some compelling principle of law which makes it necessary to impose such injustice, to reach the conclusion that because the planning authority seeks to impose upon a planning permission which is otherwise entirely good an invalid time limit that the whole permission should fail.  The applicant, who may have acted upon the permission, suddenly finds through no fault of his own that, after all, he has not and never has had any valid permission at all.  Let me say that in putting it in that way I am not introducing any concept of estoppel nor any doctrine of contra proferentes - see the observations of Singleton L.J. in Crisp from the Fens Ltd. V. Rutland County Council (1950) 114 J.P. 105.  I am only pointing out the injustice which is inflicted upon one of Her Majesty’s subjects if the matter is merely seen through the spectacles of the local planning authority.”

1. Lord Reid, at p91, expressed a similar view.  He said:

   “I do not think that striking out the time conditions would alter the character of these permissions.  And there is a further point of some importance.  A multitude of these permissions containing invalid time conditions have been followed by development within the three years and it would be rather absurd if all those permissions were held to have been invalid ab initio so that all those apparently lawful operations now turn out to have been in breach of planning legislation.  On the other hand, if these conditions are severable all that will happen will be that some outline permissions thought to have expired will still be in force and the planning authority will have to consider whether circumstances have so altered that it is now necessary to revoke them.”

2. The questions discussed by Lord Upjohn as being relevant to the question of severability of necessity raised the question of the intention of the planning authority if the question of invalidity had been drawn to its attention at the time.  They require an attempt to be made to define the intent of the planning authority in circumstances where that may be quite impossible to answer.  In those circumstances the law of contract has devised another test.  In McFarlane v Daniell (1938) 38 SR (NSW) 337 Jordan CJ said (at p345):

   “When valid promises supported by legal consideration are associated with, but separate in form from, invalid promises, the test of whether they are severable is whether they are in substance so connected with the others as to form an indivisible whole which cannot be taken to pieces without altering its nature: Horwood v. Millar’s Timber & Trading Co. Ltd. [1917] 1 K.B. 305 at 315. If the elimination of the invalid promises changes the extent only but not the kind of the contract, the valid promises are severable: Putsman v. Taylor [1927] 1 K.B. 637 at 640-1. If the substantial promises were all illegal or void, merely ancillary promises would be inseverable.”

3. That test has been approved in other cases.  See for example Thomas Brown and Sons Ltd v Fazal Deen (1962) 108 CLR 391 at 411; Carney v Herbert [1985] AC 301.

4. Just as in the case of contract one may ask whether the nature of the contract is changed by severance, one may in this case ask whether the nature of the development is changed by severing the condition.  If the answer is that it is not, but that only the extent of the development or the period during which it may be carried out is affected, then it may be severed.

5. Questions of severance also arise in relation to subordinate legislation, some part of which is held to be invalid.  The Full Court of the Supreme Court of Victoria in Olsen v City of Camberwell [1926] VLR 58 took the view that, so far as possible, the expressed intentions of the legislative body should be preserved, and before striking down the whole of the subordinate legislation, the Court would have to be satisfied that the offending parts are so interwoven that the rest should fall with the invalid part. That case concerned a by‑law which specified a number of obligations upon those undertaking building within a municipality. The obligations imposed by the by‑law could be dispensed with by the council. It was that provision which was invalid. Severance was held to be possible, leaving intact the requirements of the by‑law. It did not become “so radically or substantially different a law as to the subject‑matter dealt with by what remains from what it would be with the omitted portions forming part of it as to warrant a belief that the legislative body intended it as a whole only...” (at p68).

6. Maggs v The City of Camberwell (1925) 31 ALR 226 was a case where a by‑law described the whole of a municipality as a residential area with the exception of certain streets set out in a schedule. The by‑law also provided that any other streets might be excepted if the council, by resolution, so determined. That power was held to be invalid. The test adopted by Irvine CJ was whether the by‑law which provided for such alterations by resolution of the council was a “totally different one from one which absolutely fixes the area” (p227).

7. In re By‑law No XXIII of the Corporation of the Town of Glenelg; Ex parte Madigan [1927] SASR 85 the Full Court was concerned with a scheme contained in a by‑law prohibiting the use of motor vehicles for hire unless the vehicle and its driver were licensed by the appropriate licensing officer. He had power to refuse to grant licences and to renew or revoke licences. Those powers were held to be invalid. Murray CJ and Richards J adopted the test formulated by the majority of the High Court in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow (1910) 11 CLR 1 at 27, namely whether the by‑law, with the invalid portions omitted, would be “substantially a different law, as to subject matter dealt with by what remains, from what it would be with the omitted portions forming part of it” (p92). Applying that test to one particular section of the by‑law, the section was capable of severance, but when applied to the whole of the by‑law, so much had to be excised that it became a different law, and nothing could be severed.

8. Therefore, it seems to me that if the contract cases and the subordinate legislation cases provide any guide, the consistent theme emerging and to be applied in this case would be whether severance will alter the nature of the consent, whether it would be a “totally different scheme” or “substantially different a scheme” from that contemplated by the council, or whether the severed condition goes to the root of the permission itself or is merely collateral.

9. I return to some of the planning cases.  In Twenty-Seven Properties Ltd v Corporation of Noarlunga (supra) Wells J adopted the dissenting views of Lord Upjohn and Lord Reid in Kent County Council v Kingsway Investments (Kent) Ltd and rejected the strict approach of Lords Morris and Guest.  However, the condition in question in Twenty-Seven Properties was held to have no real connection with the proposed development or with the use of the subject land.  It was therefore, perhaps, more readily severed than other conditions might be.  However, His Honour also noted in passing the decision of Stephen J in Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1 where, after analysing the judgments in the Kent County Council case he concluded that the severance of the condition in question “cannot affect in any way the operation of the determination of the tribunal.  This is therefore a case where severance will not alter the substantial intended effect of the tribunal’s determination”.

10. The test ultimately adopted by Wells J in Twenty-Seven Properties appears in the following passage at 200:

    “It would, in my view, be simple enough and I think wholly correct, to offer the simple reply (to counsel for the respondent), that the offending conditions are so remote in point of time, that they have no real connection with the impending development, with the use of the subject land, or with any of the Board’s powers to act upon the appeal.

    They could, therefore, in my opinion, as a matter of strict law, be written right out of the Board’s order, and so far from adversely affecting it, leave it as one coherent whole.  I say coherent, having regard to the structure, the purpose and the policy of the Act, and the Board’s powers, in particular.”

As I mentioned before, that was perhaps a relatively straightforward case once the invalidity was determined.  However, in the Claude Neon Case (supra) at p333 he also considered that the condition regarding advertising signs was severable.  He said:

“[T]he purported condition was not, in my judgment, so closely integrated with the other conditions, or with the parent consent itself, that the conditions as a whole, or the consent to which they were annexed, would be fundamentally changed in character by striking it out.” (Emphasis added.)

1. In my opinion these cases merely confirm the approach to be taken namely to ask oneself whether severance would fundamentally alter the nature or character of the consent; whether the severance would constitute a totally different scheme from that contemplated.

2. The use permitted by the consent was refuse disposal by sanitary landfill.  The invalid condition purported to provide a mechanism by which the activity of further depositing waste on the site could be stopped at some indefinite time in the future.  The consent contemplated the indefinite storage on the site of whatever had been deposited there.  Being a condition which purported to regulate the period during which depositing could occur, it was not, in my opinion, a condition which, if severed, would change the fundamental nature of the consent, and I would hold that the condition is severable.  I am fortified in that view by the fact that the Salisbury Corporation plainly intended to and did allow such landfill to occur and that that Corporation and its lawful successors, whoever they may have been, have allowed that activity to continue for some 28 years.  It would be an odd situation, and one plainly not intended by the Salisbury Corporation, if the invalidity of the condition were to require a finding that the consent was invalid and the activity for the past 28 years illegal.

3. I therefore hold that the invalid condition is severable and that the Council, with the remaining conditions intact, is a valid consent.

4. I was asked to retain that part of condition (6) relating to the provision of 12” cover over the refuse.  The Court’s only power is to sever, not to rewrite.  It is difficult to sever the condition internally and to make sense of what remains.  In those circumstances the whole condition must fall.  However, that does not mean that there can now be no regulation concerning covering of the refuse.  If the Environment Protection Authority considers it desirable, it can impose similar and many other conditions of its licence.

Whether the challenge is too late

1. The Council nevertheless argues that it is now too late for the plaintiff to challenge the invalid condition.  The relief claimed by the plaintiff is principally declaratory, with a claim for an order in the nature of certiorari to quash the resolution of the Council passed on 25 June 1996 and a claim for an injunction to restrain the Council from relying on or seeking to enforce the resolution.  The non‑declaratory relief has as its foundation a number of grounds including the invalidity of the condition on which it was purporting to act, the fact that it is alleged that, if the condition were valid, the second defendant was not the appropriate planning authority to act under the condition, and a number of grounds based on denial of natural justice to the plaintiff in making its determination.

2. Rule 98.06 of the Supreme Court Rules 1987 requires a summons for judicial review to be issued within six months from the date when the grounds for the review first arose. The evidence showed that the plaintiff did not receive notification of the second defendant’s decision until 1 July 1996. The summons was issued on 2 January 1997. If the six months properly runs from the date of notification of the decision, the summons, in that respect, was within time, the 1st January being a public holiday. If time runs from the date of the decision itself, I would have no hesitation in extending the time within which the summons may be issued, and to the extent necessary I do so. As the plaintiff must succeed in obtaining a declaration that the condition is invalid, as to which there is no time limitation, the order for certiorari may be seen as little more than the perfection and means of implementation of the declaratory relief.

3. However, the second defendant goes further and argues that a similar time limit should be applied to the claim for declaratory relief, the plaintiff having been in a position where it could have sought such relief ever since it was notified of the invalid condition in 1970.  Furthermore, it is pointed out that the plaintiff could have appealed against the decision imposing the condition to the then Planning Appeal Board by virtue of s26 of the Planning and Development Act.

4. As to the declaratory relief itself, the Council accepted that this is not an equitable remedy and subject to equitable defences of, for example, laches.  The Council nevertheless argued that the declaratory relief should be refused on the ground of undue delay in challenging the validity of the condition: see reasons for judgment of Matheson J at first instance in Eastern Waste Management Authority Inc v City of Tea Tree Gully (supra) at p5.

5. The Full Court in Eastern Waste Management Authority Inc v City of Tea Tree Gully disagreed with Matheson J that the plaintiff should be refused a declaration, notwithstanding the invalidity of the condition, because the plaintiff had slept on its rights for so long.  It will be recalled that the condition under challenge was a condition that after 25 years operation the consent for the operation of the waste depot could be extended by agreement between the applicant and the council under such conditions that may be agreed upon at that time.  The Full Court said (at p5):

   “Whatever the history of the matter, as the 25 year period drew to a close, an important question arose as to the rights of the parties thereafter.  It involved a matter of no little importance to a number of suburban councils whose domestic refuse is disposed of by Eastern Waste in its dumping operation in question.  The question of destruction by the Council of what were described as ‘important and relevant records’ was hardly an important consideration, given that the central issue to be determined was a question of statutory construction.

   With respect to the learned trial judge, his action in indicating that in his view Condition 10 was beyond the power of the Council to impose, but then to deny declaratory relief giving expression to that view, was to leave the parties in the unsatisfactory position of not knowing precisely what the status of the licence is.”

6. The position is analogous to that in this case.  Until the Council took the action it did in June 1996, no‑one had considered that there was any real issue in relation to the planning consent or the conditions attached.  Despite a great deal of activity and public attention as to whether the height of the waste depot should be allowed to be increased by virtue of the conditions of the licence issued by the Environment Protection Authority, the issue of the validity of the condition had never been mentioned.  Indeed, it seems to have been assumed, with the land being taken out of the area covered by the Salisbury Corporation, and with the advent of the South Australian Waste Management Commission Act 1979 and its successors, that such matters would be thenceforth determined by the Waste Management Commission or the Environment Protection Authority, as the case may be, in accordance with whatever management plan was approved under the relevant Act.  In other words, the occasion for taking the proceedings only arose when the Council sought to rely on a condition which no‑one considered relevant for practical purposes.  Nothing has been put by way of suggested prejudice to the second defendant by the granting of declaratory or other relief.

7. In my opinion the plaintiff is entitled to the declaratory relief it seeks and to an order quashing the determination of the Council.  It should not be denied that relief merely because the invalid condition was imposed in 1970.  This also means that the future regulation of the use of the land for refuse disposal will be where it now properly belongs: with the Environment Protection Authority in the exercise of its powers under the Environment Protection Act without any constraints imposed by condition (6) of the planning consent.  Whether that Authority has power to regulate the height of the dump is a matter for consideration under the Environment Protection Act.

8. That is sufficient to dispose of the plaintiff’s application.  However, other matters were argued before me, and in case the matter should go further, it may be of assistance if I express my views on them.

Whether the second defendant is the relevant authority to exercise the power conferred by condition (6)

1. Assuming that the condition was valid, the plaintiff nevertheless argued that the second defendant was not the relevant authority capable of exercising the power to determine the final level of the landfill.  That is because by virtue of the provisions of the Development Act, the Council is no longer the relevant authority in relation to development of land for the purpose of the reception, storage, treatment or disposal of waste. Section 34(1) of the Development Act 1993 relevantly provides:

   “34. (1) Subject to this Act, the relevant authority, in relation to a proposed development, is ascertained as follows:

   (a)...

   (b)    where -

   (i).... the Development Assessment Commission is constituted by the regulations as the relevant authority in relation to a class of development in which the proposed development is comprised; ...

   then the Development Assessment Commission is... the relevant authority.”

1. Regulation 38 of the Development Regulations 1993 provides that pursuant to s34(1)(b)(i) of the Act the Development Assessment Commission is the relevant authority in respect of any development of a class prescribed in Schedule 10. Among the classes of development listed in Schedule 10 applicable to the areas of all councils is:

   “2(b) development of land for the purpose of the reception, storage, treatment or disposal of waste.”

Therefore, it is said that plenary powers in respect of such development activities are now vested in the Development Assessment Commission and not the Council.

1. In response, the Council argues that it stands in the shoes of the Salisbury Corporation by virtue originally of a change in boundaries and, more recently, amalgamation of councils lawfully conducted in accordance with the terms of the Local Government Act 1934. It relies on s35 of the Local Government Act:

   “35. A council is responsible for -

   (a)... the management of the affairs of the area in relation to which it is constituted;

   and

   (b)... the exercise, performance and discharge of the powers, functions and duties of local government conferred on the council by this or any other Act in, and in relation to, the area for which it is constituted.”

2. It claims that the power to grant or withhold consent was conferred on the Salisbury Corporation by the Planning and Development Act, and that in accordance with s35 of the Local Government Act that power can now be exercised by the Council. It argues furthermore that s34 of the Development Act only refers to a proposed development.  The enforcement of the condition does not relate to a proposed development but to the enforcement and maintenance of the consent for an already existing development now vested in the Council.  The Development Assessment Commission is therefore not the appropriate authority.

3. I do not accept those arguments.  In the first place, the alleged source of power on which the Council has purported to act is not conferred by either of the Local Government Act or the Planning and Development Act. The source of power is the resolution of the Salisbury Corporation itself in resolving to apply the conditions. The second defendant therefore derives no assistance from s35 of the Local Government Act.

4. The Salisbury Corporation was, in 1970, the relevant planning authority for the purpose of granting or withholding consent for that particular activity on the land in question. In naming itself in condition (6), it was naming itself as the relevant planning authority. It can hardly have had in contemplation at the time the change in local government boundaries that occurred on 30 July 1987 whereby it would cease to become a planning authority for any activity conducted on that land, nor can it have had in contemplation the provisions of s34 of the Development Act 1993. If it had directed its mind to the question as to who it intended, in those circumstances, to be the body authorised to act under condition (6), it would certainly not have designated itself, but would have designated the planning authority which, at the relevant time, had responsibility for granting or withholding consent to the development in question. In the present circumstances, that is the Development Assessment Commission.

5. However, there is perhaps a more compelling reason why it is the Commission that should exercise the power under condition (6), and that is by the simple application of s34 of the Development Act, notwithstanding that it only has power in respect of a “proposed” development.  The land use for which consent was given in 1970 was for refuse disposal by sanitary landfill.  That included the reception and storage of waste to a height not then determined.  I agree with Mr Hayes QC for the plaintiff that the prescription of a height limit constitutes a change in the use of the land because it imposes a limitation on such use.  A change in the use of land constitutes “development” for the purposes of the Development Act 1993. The proposal to introduce the ceiling therefore became a proposed development for the purpose of s34 of the Development Act, and was one which was required to be determined by the Development Assessment Commission.

6. There is also another sense in which there was a change of use involved by such determination. Since 1970 the land had been used for both disposal and storage of waste by sanitary landfill. The imposition of the ceiling meant that upon attaining the ceiling, the disposal would cease. The storage would nevertheless continue either with or without other compatible uses. The development of the land or its change of use for the purpose of storage only of waste was a class of development in respect of which the Development Assessment Commission was constituted the relevant authority under s34 of the Development Act.  Whatever other activity might take place on the land upon cessation of dumping, it will include the continued storage of waste, and that is an activity over which the Development Assessment Commission should properly have an ongoing planning interest to ensure that only activities compatible with the continued safe storage of that waste should thereafter be conducted on the land.

7. I therefore conclude that even if the condition were valid, the second defendant had no power to make the determination it did.

Procedural fairness and bias

1. The plaintiff alleges that the process of the second defendant, in making its determination, miscarried both by failure to afford procedural fairness to the plaintiff, when it was entitled to be accorded procedural fairness, and by virtue of the fact that the second defendant was plainly biased against the proposal of the plaintiff to increase the height.

2. The question of bias can be simply disposed of. It is not necessary to go in detail into the facts other than to note, and this was not seriously disputed by the Council, that for many years it had vigorously opposed the extension of any height in the landfill activity of the plaintiff. It had done so publicly and had made representations to the Environment Protection Authority, and before that to the Waste Management Commission, vigorously opposing any extension to the height. Section 39 of the Environment Protection Act 1993 required the Environment Protection Authority to give public notice of an application of the type made by the plaintiff and to give “interested persons” the opportunity to make written submissions in relation to the application. Although the Council itself had no relevant powers conferred on it by the Environment Protection Act, there can be no doubt that, as the local government council for the area in which the land was situated, it came within the class of “interested persons”.  It was entitled to form and vigorously promote its own view in respect of an environmental authorisation.

3. If it also had power to act under condition (6) of the original planning consent, it was the only body authorised to do so.  The doctrine of necessity would have required that it and no‑one else exercise that power, notwithstanding its own expressed views as to how that power should be exercised.  See, for example, R v Corporation of the City of Whyalla; ex parte Kittel (1979) 20 SASR 386. So whatever the actual or apparent bias of the Council, it was not disqualified from making the determination on that account.

4. So far as procedural fairness is concerned, it was argued that by making its decision without affording any opportunity to the plaintiff to make representations to it, the second defendant denied the plaintiff the procedural fairness to which it was entitled.

5. The plaintiff was carrying out a substantial commercial operation in the acceptance and storage of waste.  It made a substantial profit out of the operation.  Its proprietary rights and interests would be significantly and adversely affected by the decision.  In my opinion, it had a legitimate expectation that the powers vested in the Council under condition (6) would not be exercised without at least giving the plaintiff reasonable notice of its intention to consider doing so, and without allowing the plaintiff to make appropriate representations to the Council before doing so.  See Kioa v West (1985) 159 CLR 550 per Mason J at 584-585; per Brennan J at 617-618.

6. The evidence shows that the Council was aware of the conditions attached to the Salisbury Corporation’s consent at least as early as 17 June 1992, if not before.  All the energies of both the plaintiff and the Council had been directed towards the applications made by the plaintiff to the Waste Management Commission and, later, the Environment Protection Authority for approval of the management plan which involved the increase in height of the dump.  In none of the reports or submissions generated by the Council was there any suggestion that it intended to act under condition (6).  It was apparent from the evidence before me of Mr Davos, the Council’s Director of Environmental Services, that the possibility of the Council acting under the condition was not raised until a member of his staff was contacted by a member of the staff of the Environment Protection Authority in June 1996, as a result of which the Council staff and ultimately, it seems, the Council were reminded of the condition and were asked if the Council was proposing to fix a height limit under that condition.  The Council was then aware that a decision on the plaintiff’s application by the Environment Protection Authority was imminent.  That communication prompted the report and recommendation of the Environmental Services Committee of the Council for the meeting of 25 June 1996, as a result of which the resolution was passed.  The plaintiff was unaware of the report.  Indeed it was unaware of the resolution until formally notified of it by a letter received on 1 July 1996, notwithstanding that the Environment Protection Authority had been informed of the resolution prior to making its decision to reject the plaintiff’s application on 27 June.  Not only did the report to the Council raise the possibility for the first time of the Council’s acting under the condition, but it also said:

   “The fact that recent reports indicate that the site has not been operated in the manner prescribed by the consent would further reinforce the argument that ongoing activities at the dump are inappropriate in the longer term.”

7. That is a matter which the plaintiff disputes, and yet it was a matter which the Council apparently took into account in making its decision.  It was also an observation which, incidentally, seems to have spilled over to the Environment Protection Authority’s decision two days later.  In the final paragraph of its published reasons it said:

   “The Authority has determined that it cannot grant a licence which represents in effect a significant extension of licensed waste disposal activities on the Site in circumstances where the (plaintiff) would appear to have had difficulty in complying with current licence and development authorisation requirements.”

8. To what extent that was the Authority’s own independently formed view or to what extent it merely reflected the Council’s view is difficult for me to say.  However, the possible ramifications of the Council’s observations did not necessarily stop with the Council’s decision.

9. The need to inform the plaintiff of the Council’s intention to act becomes obvious.  The plaintiff had no reason to believe that its planning consent was in jeopardy.  The only issue with which it was concerned, and with which it believed the Council was concerned, was the licence to be issued under the Environment Protection Act and the conditions associated with that licence.  It could quite legitimately have formed the view that the Council, by its actions, never intended to make the determination it did.  It is no answer to the plaintiff’s contention to say that the plaintiff’s views had been made known to the Council through discussions which had previously taken place between representatives of the parties, and that all relevant considerations had been raised.

10. There were serious questions to be addressed in planning terms which were not necessarily relevant to the application before the Environment Protection Authority.  There was the question of whether the condition was valid in the first place; whether the Council had the power to make a determination under condition (6) even if it was valid; and the question of what other planning considerations, as opposed to environmental considerations, might be relevant.  Among those were substantial economic, planning and other considerations relevant to the future disposal of up to one half of the solid waste generated in the metropolitan area of Adelaide.  There were questions to be addressed as to the effect of any current development plan.  There were also questions to be raised as to whether, if the Council had the power to act under the condition, it ought nevertheless, in the present legislative environment (vastly different from that of 1970), to leave such matters to the determination of the Environment Protection Authority.  There were also issues of contention as to whether the plaintiff had properly managed the use of the land in accordance with the conditions specified in the original consent.  There could well have been other issues.  These were all issues on which the plaintiff was entitled to be heard.  However, none of these were adequately addressed by the Council, and the plaintiff was not given any opportunity to make submissions with respect to them.  The plaintiff was therefore denied the procedural fairness to which it was entitled in the circumstances.

11. The decision of the Council would therefore have to be set aside for that reason.

Planning legislation transitional provisions: whether condition (6) survived them

1. The plaintiff’s argument on this topic requires some analysis of the various transitional provisions which have accompanied changes in the planning legislation since 1970.  In 1982 the Planning and Development Act was repealed by s5(1) of the Planning Act.  Section 5(2) of that Act relevantly provided:

   “(2) Notwithstanding subsection (1) -

   (a)... the repeal effected by that subsection does not affect any rights accrued under the repealed Act, or the validity of any decision or planning authorization made or granted under the repealed Act, or of a condition attached to any such decision or planning authorization;

   ...

   (d)... a condition attached to a planning authorization granted under Part IV, Part V or Part VAA of the repealed Act shall, unless revoked by the Commission or a council by which it was imposed, remain in force and bind the owners and occupiers of the land to which the condition relates;...”

2. It was quite clear that following the repeal of the Planning Act, the plaintiff’s consent remained in force together with the conditions attached.

3. When the Planning Act was repealed and the Development Act 1993 took its place, the relevant transitional provisions were contained in the Statutes Repeal and Amendment (Development) Act, 1993.  Section 24(7) and (8) provided:

   “(7) A condition attached to, or applying in relation to, an approval or authorisation granted under the Planning Act 1982, the City of Adelaide Development Control Act 1976 or the Building Act 1971 will remain in force as if granted under the Development Act 1993 and bind the owners and occupiers of the land to which the condition relates.

   (8) The repeal of any Act by this Act does not affect any rights that accrued under the Act so repealed, the validity of any decision or authorisation made or granted under the Act so repealed, or any notice or order given or made under the Act so repealed.”

4. The plaintiff argues that subsection (7) only preserved conditions attached to an approval or authorisation granted under the Planning Act.  This approval was not granted under that Act.  It was granted under the Planning and Development Act.  The only thing that the 1993 transitional provisions preserved were the rights that accrued under the Planning Act. In this case that was the right of the plaintiff to use the land for the purpose of refuse disposal shorn of any conditions which had been imposed by the Salisbury Corporation in 1970. It was further argued that the condition in question was not a liability to which s16 of the Acts Interpretation Act 1915 applies on the repeal of any Act. In short, the plaintiff relied on what appears to be a material difference between the transitional provisions of the 1982 Act and those of the 1993 Act.

5. I do not accept the plaintiff’s argument.  There are obvious differences between the two sets of transitional provisions.  However, merely because the 1993 Act did not refer explicitly to the maintenance of conditions attaching to approvals granted under any predecessor to the Planning Act that, in my opinion, does not mean that the conditions were not preserved.  It would be an odd and, I suggest, unintended result if the effect of the 1993 transitional provisions was to preserve earlier consents to land use but to do away with any conditions attached to them at all.

6. Where s24(8) of the Statutes Repeal and Amendment (Development) Act 1993 spoke of “rights” that accrued under the earlier legislation, it included the right of the plaintiff to act under the planning authorisation granted in 1970, that right being qualified by the conditions attached. A right which is preserved by s16(1)(c) of the Acts Interpretation Act and equivalent legislation is nonetheless a right because it is conditional, inchoate or contingent: Esber v The Commonwealth (1992) 174 CLR 430 at 440-441. The plaintiff’s right was such a right, and I agree with the submission of Mr Besanko QC for the Council that the plaintiff’s interpretation would lead to the conclusion that s24(8) enlarged pre‑existing rights rather than preserving accrued rights. Plainly, that was not intended.

7. Therefore, if condition (6) was valid, it survived the relevant transitional provisions of the planning legislation.

Conclusion

1. It follows that, for the reasons I have given, there will be declarations as sought by the plaintiff in paragraphs 1 and 12 and an order as sought in paragraph 13 of its summons dated 2 January 1997. However, this decision should not be seen as authorising the plaintiff to continue its landfill without restriction. That is a matter which will now properly be subject to the terms of any licence granted by the Environment Protection Authority, should the Authority see fit to impose or incorporate such a condition in any licence it issues, and should such a condition be justified within the framework of the Environment Protection Act.