Frankham v Adelaide City Council

[2004] SASC 263

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

FRANKHAM v ADELAIDE CITY COUNCIL

Judgment of The Full Court

(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Besanko)

31 August 2004

ENVIRONMENT LAW - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - CLASSIFICATION OF USES - PROHIBITED USES

Appeal from a judge of the Environment, Resources and Development Court - where the appellant applied to the respondent for development approval for a use of land described in the application as a "shop" - the respondent determined that the proposed development involved a change of use to an adult products and services premises which was a non-complying development in the relevant precinct - where the respondent refused development plan consent because the proposed development was non-complying without proceeding with an assessment of the development application - whether the respondent's determination that the nature of the development proposed by the appellant is a change of use to an adult products and services premises was incorrect - whether the definition of "adult products and services premises" in a schedule in the relevant development plan applies to the kind of development referred to in the Principles of Development Control in the relevant development plan as "adult products and services" - whether the judge erred in holding that the proposed use falls within the definition of "adult products and services premises" in the relevant development plan - whether the relevant development plan, insofar as it provides that adult products and services is a kind of development which is non-complying, is ultra vires the power to specify that kind of development as non-complying - appeal dismissed.

Environment, Resources and Development Court Act 1993 ss 30, 21; Classification (Publications, Films and Computer Games) Act 1995 ss 81, 82; Development Regulations 1993 regs 16, 17; Development Act 1993 ss 39, 86, 84, 32, 33, 23, 35, 38, 3; Acts Interpretation Act 1915 s 4, referred to.
R v Di Maria (1996) 67 SASR 466; Wentworth Securities Ltd v Jones [1980] AC 74; Williams v Melbourne Corporation (1933) 49 CLR 142, discussed.
Adelaide City Council v Frankham [2002] SASC 162; St Ann's College v Corporation of the City of Adelaide [1999] SASC 479; Telstra Corporation Ltd v Corporation of the City of Mitcham (2001) 79 SASR 509; R v Young (1999) 46 NSWLR 681; Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297; Smith v Mt Barker Products Pty Ltd (2000) 77 SASR 157; Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512; Epstein v WorkCover Corporation of South Australia (2003) 85 SASR 561; South Australia v Tanner (1989) 166 CLR 161, considered.

FRANKHAM v ADELAIDE CITY COUNCIL
[2004] SASC 263

Full Court: Nyland, Gray and Besanko JJ

1. NYLAND J:          I agree that the appeal should be dismissed for the reasons expressed by Besanko J.

2. GRAY J:                I agree with the reasons and conclusions reached by Besanko J.  This appeal should be dismissed.

   BESANKO J:           

   Introduction

3. This is an appeal from the decision of a Judge of the Environment, Resources and Development Court (“ERD Court”) pursuant to s 30 of the Environment, Resources and Development Court Act 1993. The appeal referred to in that section is an appeal as of right on a question of law, and an appeal by leave on a question of fact (s 30(2)). The appellant did not apply for leave in relation to any of its grounds of appeal. The respondent does not argue that any of the grounds raised by the appellant require leave and, having regard to the issues raised by the appellant, it is appropriate that this Court proceed on that basis.

4. The appellant is Mr Craig Frankham and the respondent is the Adelaide City Council.  On 18^th June 2002, the appellant made an application to the respondent for development approval for a use of land described in the application as a “shop” at 137 Hindley Street, Adelaide, in the State of South Australia (“the property”).  There is a building on the property and the proposal was for the use to be carried out on the ground floor of the building.  The plan accompanying the application showed the ground floor was to be divided into four areas as follows:

   1.        Area A  Shop

   2.        Area B  Print Shop

   3.        Area C  Shop including adult products

   4.        Area D  Staff amenities and store

5. After the application had been lodged there was correspondence between the appellant and the respondent as to the precise use of each area.  This correspondence continued after the respondent had refused consent, and by the time the matter came to be considered on appeal by the Judge of the ERD Court, the proposed separate use of Area B had been abandoned.  For the purposes of the appeal before the Judge and the appeal before this Court, the proposed use of each area was as follows:

   1.Area A which comprised approximately 43% of the floor area was to be used for the display and sale of items which the law did not require to be kept in a restricted publications area including costumes, lingerie, clothing, videos, unrestricted publications and novelty items.  For reasons which will become apparent, it is important to note that the items to be on display in Area A include aphrodisiacs, vibrators, dildos, other body stimuli apparatus or equipment and devices, inflatable toys and dolls, other sex toys, rings and other devices intended to be applied directly to parts of the human anatomy (other than the head) and handcuffs.  Similar items will also be on display in Area C.

   As I understand it, access to Area A will not be restricted.

   2.Area C which comprised approximately 37% of the floor area was to be used for the sale of publications which have restricted classifications under the Classification (Publications, Films and Computer Games) Act 1995. The Act applies to publications, films and computer games and it provides for their classification by the South Australian Classification Council. Category 1 restricted publications and Category 2 restricted publications may only be sold, displayed or delivered in a restricted publications area. In relation to a restricted publications area, s 81 of the Act provides:

   “81. (1) A restricted publications area must be so constructed that no part of the interior of the area is visible to any person outside the area.

         (2)  Each entrance to a restricted publications area-

   (a)must be fitted with a gate or door capable of excluding persons from the area; and

   (b)     must be closed by means of that gate or door when the area is not open to the public.

         (3) A restricted publications area must be managed by an adult who must be in attendance in or near the area at all times when the area is open to the public.

         (4) The manager of a restricted publications area must cause a notice containing the following words, in legible letters or numerals not less than 15 millimetres in height and of a colour that contrasts with the background colour of the notice, to be displayed in a prominent place on or near each entrance to the area, so that it is clearly visible from outside the area:

   RESTRICTED PUBLICATIONS AREA - PERSONS UNDER 18 MAY NOT ENTER.

   THE PUBLIC ARE WARNED THAT SOME PUBLICATIONS DISPLAYED HEREIN MAY CAUSE OFFENCE.”

   Section 82 provides that the manager of a restricted publications area must not must not permit a minor to enter that area.

   Under the proposal, Area C would be separated from the balance of the property by an opaque wall with a door in it.

   3.Area D, comprising the balance of the ground floor, would be used for staff amenities.

6. On 9^th January 2003 the respondent advised the appellant that it had made a determination under reg 16 of the Development Regulations 1993 (“DR”) as to the nature of the proposed development to the effect that the proposal involved a change of use from a restaurant to an adult products and services premises.  The respondent advised the appellant that the property was in the CA3 Hindley Street Precinct, and that Principle of Development Control 26(a) provided that a change of use to an adult products and services premises was a kind of development which was non-complying.  The respondent asked the appellant for a brief statement in support of the application (reg 17(1)).  It seems that the appellant did not submit such a statement.  On 31^st January 2003 the respondent refused provisional development plan consent advising the appellant that pursuant to s 39(4)(d) of the Development Act 1993 (“DA”) the application was a non-complying form of development and that it had determined not to proceed with an assessment of the application.

7. By notice of appeal dated 11^th February 2003 the appellant appealed to the ERD Court against the decision to treat the application as an application for a non-complying kind of development. The appeal was brought pursuant to s 86(1)(a)(iii) of the DA.

8. I should mention that there was earlier litigation between the parties concerning an enforcement notice under s 84 of the DA served by the respondent on the appellant in relation to the property.  That resulted in an appeal to this Court (Adelaide City Council v Frankham [2002] SASC 162)

   Relevant Legislative Provisions

9. Before discussing the issues on the appeal, it is convenient to identify the relevant legislative provisions.

10. Section 32 of the DA provides that no development may be undertaken unless the development is an approved development.  “Development” includes a change in use of land (s 4).  A development is an approved development only if it has (among other things) been assessed against the provisions of the appropriate Development Plan and a provisional development plan consent has been granted (s 33(1)(a)).  A Development Plan is a public document of which a court or tribunal is to take judicial notice without formal proof of its contents (s 23(6)).  I will not go through each step whereby a Development Plan is made.  It is sufficient to say that it is a detailed process which includes public consultation (ss 24 – 27).  A Development Plan may be prepared by a council, but it must be approved by the relevant Minister before it comes into operation.

11. The provisions of the DA envisage that the regulations or the relevant Development Plan may specify a kind of development as complying and that the relevant Development Plan may specify a kind of development as non-complying (s 35(1) and (3)).  A kind of development which is neither complying nor non-complying, is sometimes called an “on merit development” although that is not a term used in the DA.  A kind of development which is non-complying faces significant hurdles in terms of the granting of provisional development plan consent.  The concurrence of another authority is required (s 35(3)), and there is a special procedure under the DR for the processing of an application for consent for a non-complying kind of development.  Subject to exceptions not presently relevant, there is no appeal against a refusal of consent or concurrence or against conditions imposed (s 35(4)).

12. In considering an application for provisional development plan consent, the first step for the relevant authority is to determine the nature of the development and to deal with the application according to that determination (reg 16(1)).  If the relevant authority is of the opinion that the application relates to a kind of development that is described as non-complying in the relevant Development Plan and the applicant has not identified the development as such then the authority must inform the applicant of that fact.  The authority must then decide whether it will proceed with an assessment of the application.  It may resolve not to do so in which case it refuses the application without proceeding to make an assessment of the application (s 38(4)(d); reg 17(3)(a)).  If, on the other hand, it resolves to proceed with an assessment of the application it must seek a statement of effect from the applicant (s 38(2)(d); reg 17(4) – (6)).  In this case the respondent resolved to refuse the application without proceeding to make an assessment of the application.  However, the appeal to the ERD Court is against the respondent’s determination as to the nature of the development, that is to say, its determination that the nature of the development proposed by the appellant is a change of use to an adult products and services premises.

13. The Adelaide (City) Development Plan divides the city area as defined in the Plan into a number of precincts, one of which is the CA3 Hindley Street Precinct.  Two Principles of Development Control for that precinct are relevant to the issues on this appeal.  Principle 1 reads:

    “1.A diverse range of leisure and entertainment facilities, shops and eating establishments are desired to sustain the attractions of the Precinct as a centre of entertainment and to support the surrounding offices, visitor accommodation and educational facilities.  While existing legally established amusement machine centres, adult entertainment and adult products and services establishments are part of the character of the Precinct, further extension of these uses is inappropriate.

    …

    NON-COMPLYING DEVELOPMENT

    26The following kinds of development are non-complying in the Hindley Street Precinct:

    (a)      A change of use to any of the following:

Adult entertainment premises	Passenger terminal
Adult products and services	Primary school
Amusement machine centre	Road transport terminal
Detached dwelling	Saleyard
Industry	Transport depot
Light industry	Warehouse
Open lot parking”

1. There is a schedule to the Adelaide (City) Development Plan and under the heading “Schedule 1: Definitions” the following appears:

   “adult products and services premises: the use of land for a tattooist, or for any premises to which access by minors is restricted by law and which are used, or designed to be used, primarily for sale by retail or for the exchange, hire, exhibition, loan, delivery or display and offer of the following:

   (a)any publication, the sale, delivery, exhibition, advertisement or display of which is restricted or prohibited under the Classification (Publications, Films & Computer Games) Act, 1995;

   (b)material compounds, objects or devices which are designed to be used primarily in or in connection with any form of sexual behaviour or activities; and/or

   (c)films, video films or tapes, any other form of optical or electronic records from which a visual image may be produced or any other pictorial matter, the sale, delivery, exhibition, advertisement or display of which is restricted or prohibited under the Classification (Publications, Films & Computer Games) Act, 1995.

   It does not include premises used for prostitution.”

   Issues on Appeal

2. There are three main issues on the appeal.  The first is whether the definition in Schedule 1 of “adult products and services premises” applies to the kind of development referred to in Principle 26(a) as “adult products and services”.  The Judge held that it did and the appellant submits that she erred in so holding. 

3. The second issue is, assuming the definition in the Schedule does apply, whether the proposed use falls within the terms of the definition.  The Judge held that it did and the appellant submits that she erred in so holding.

4. The third issue, which probably as a matter of logic precedes the other two, is whether Principle 26(a), insofar as it provides that adult products and services is a kind of development which is non-complying, is ultra vires the power to specify that a kind of development is non-complying.  An argument to the effect that it was ultra vires, was put to the Judge but she does not deal with the argument in her reasons.

5. I will deal with the arguments in the order in which they were put to this Court.

   1.  Does the definition in the Schedule apply?

6. The appellant points to the fact that Principle 26(a) describes the non-complying kind of development as “adult products and services”, and not “adult products and service premises”, and that in any event there is no statement in the body of the Development Plan linking it to the Schedule 1 definition or vice versa. 

7. As to the first point, there is a question at the outset as to the status of the Development Plan.  Counsel for the respondent referred to authority in this Court to the effect that the Development Plan is not a statute and the Court is not to approach the task of construing the Development Plan as if it was a statute (St Ann’s College v Corporation of the City of Adelaide [1999] SASC 479; Telstra Corporation Ltd v Corporation of the City of Mitcham [2001] SASC 166; (2001) 79 SASR 509). As against that, I note that there is a wide variety of provisions in the Development Plan not all of which call for precisely the same process of construction. Some provisions, such as those under consideration in this case, namely, where a term is used and then defined, have a significant effect on the rights of parties who are subject to them. Furthermore, it may be that the Development Plan is a statutory instrument by virtue of the provisions of s 4 of the Acts Interpretation Act 1915. I am prepared to approach the provisions under consideration in this case as if the ordinary canons of statutory construction applied without finally deciding the question.

8. The Court may correct printing and drafting errors, and in certain very limited circumstances it may imply words into legislation.  I am by no means convinced that it is not appropriate to characterise the omission or error in this case as simply a drafting error of the type discussed by Pearce and Geddes at [2.24] of their text, Statutory Interpretation in Australia, 5^th ed (2001) (“Pearce and Geddes”) but I will also consider the question on the basis that the Court is being asked to imply a word into the Development Plan.

9. The use of the expression “reading words into legislation” can be misleading because the process from start to finish is a process of construction.  I agree with Pearce and Geddes at [2.27] that the expression is “nothing more than a metaphor for implying words in legislation, to give effect to its underlying purpose or object” (see also the discussion of this issue by Spigelman CJ in R v Young (1999) 46 NSWLR 681 at 685 – 691).

10. The question of when a court may imply words into legislation was considered by the Court of Criminal Appeal in this State in R v Di Maria (1996) 67 SASR 466 (per Doyle CJ, with whom Prior and Nyland JJ agreed, at 471 – 475). I refer in particular to the Chief Justice’s discussion of the decision of the High Court in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 and his Honour’s approval of the approach of Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105 – 106. In the latter case, Lord Diplock identified three factors which must be present before a court is justified in reading words into an Act. Adapted to the circumstances of this case the three factors are:

    1.Can the Court be satisfied from reading the Development Plan as a whole that the definitions in Schedule 1 were intended to remove any uncertainty that might otherwise arise from the use of the various terms in the body of the Plan?

    2.Can the Court be satisfied that by inadvertence the makers of the Plan overlooked including the word “premises” in the expression “adult product and services” in the body of the Plan?

    3.Can the words to be implied be stated with certainty in the sense that it is clear what the makers of the Plan would have inserted had their attention been drawn to the omission?

1. The body of the Plan does not use the expression, “adult products and services premises”, and the Schedule does not define, “adult products and services”.  I have no hesitation in answering the three questions referred to above in the affirmative.  In fact, as I said at the outset I am by no means convinced that it is not appropriate to characterise the omission or error in this case as simply a drafting error.

2. I would read the expression “adult products and services” in the body of the Plan as if the word “premises” was included.

3. As to the second point, I do not think there is anything in the point.  Clearly, the definitions in Schedule 1 are intended to relate to the use of the corresponding terms in the body of the Development Plan.

4. As I have reached the conclusion that the definition in Schedule 1 applies, it is unnecessary to consider the appellant’s arguments as to the difficulties of defining the scope of the description “adult products and services” assuming the definition does not apply.

   2.  Does the proposed development  fall within the definition of adult products and services premises?

5. The appellant submitted that the proposed development did not fall within the definition for two reasons.  First, he submitted that access to the premises by minors was not restricted by law because it is access to only part of the premises which will be restricted.  In other words, minors may enter the property and Area A but they may not enter Area C.

6. Part 9 of the Classification (Publications, Films and Computer Games) Act 1995 specifies a number of requirements in relation to a restricted publications area. I have already set out s 81 of the Act and referred to s 82. A person may not sell category 1 or category 2 restricted publications in an area other than a restricted publications area. In one sense the definition is not entirely apt in that it uses the word, “restricted” when in fact minors are not permitted to enter a restricted publications area. However, the definition must be construed broadly and having regard to its clear intent. I think it is appropriate to construe the definition in either of two ways. It either applies here because premises includes part of the premises and restricted includes prohibited or because, approaching the question having regard to the clear intent of the definition, access to the premises by minors is restricted by law because access to a part of the premises is prohibited. I prefer the latter approach, but on either approach the appellant’s submission must fail.

7. Secondly, the appellant submitted that the premises were not to be used “primarily” for sale by retail of the items listed in paragraphs (a), (b) and (c) of the definition.  As I understood the argument it was that only the items to be displayed and sold in Area C fell within the terms of the definition and Area C comprises only 37% of the floor area.  The Judge said that she took a view of the property and she had before her extensive documentation concerning the items offered for sale at the premises.  Having made those statements, she said:

   “I am satisfied that the stock to be displayed and sold on the premises is such that the premises will be used ‘primarily’ for the sale by retail of the items listed in (a), (b) and (c) of the definition.  It is true that some of the stock might also be able to be purchased in department stores and newsagencies, but it seems to me that the proposed development draws its character from the display of items which are listed in the definition.  They are at the heart of the purpose of the shop.”

8. The appellant seemed to submit to this Court that the Judge erred in relying on matters she saw on the view.  It is not clear the Judge used what she saw on the view as evidence or merely as assisting her understanding of the evidence.  The former approach would not necessarily be an error because the ERD Court is not bound by the rules of evidence (s 21 Environment, Resources and Development Court Act 1993). However, I think if a Judge does rely on matters seen on the view, other than simply as an aid to understanding the evidence, then the Judge should state her findings in that respect in her reasons.

9. Irrespective of what use the Judge made of what she saw on the view, I think there was ample evidence to support the conclusion which she reached and I agree with her approach.  To my mind it is not simply a matter of floor area.  The overall character of the use must be considered.  However, even if this be wrong, I have already listed a number of items which are to be displayed in Area A which clearly fall within paragraph (b) of the definition, and it cannot be said that only the activities proposed for Area C fall within the terms of the definition.

   3.  Is Principle 26(a) ultra vires insofar as it provides that Adult Products and Services is Non-Complying use?

10. The appellant argued before the Judge that Principle 26(a) was ultra vires insofar as it provided that a change in use to adult products and services was a non-complying use.  In addition to disputing this proposition, the respondent submitted that a collateral challenge to a provision in the Development Plan was not permitted.  As I have said, the Judge did not deal with this argument in her reasons.

11. The issue as to the circumstances in which a collateral challenge is permitted is a difficult one which involves a number of issues including questions as to the scope of the jurisdiction of the ERD Court (Smith v Mt Barker Products Pty Ltd [2000] SASC 164; (2000) 77 SASR 157), whether the act under consideration is a legislative or administrative one, the ratio decidendi of the decision of this Court in Hinton Demolitions Pty Ltd v Lower (No 2) (1971) 1 SASR 512 (see Epstein v WorkCover Corporation of South Australia and Others [2003] SASC 231; (2003) 85 SASR 561), whether all necessary parties are before the Court and no doubt other considerations. However, the parties did not address the Court on these issues, but rather concentrated on the merits of the argument. As I have reached the view that the appellant’s argument fails on the merits it is not necessary for me to consider whether the appellant’s challenge is an impermissible collateral challenge.

12. During submissions before this Court the appellant abandoned an argument that the relevant part of Principle 26(a) was ultra vires because it was made for an improper purpose. The appellant’s ground for alleging the relevant part of Principle 26(a) was ultra vires was that it was not capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose (South Australia v Tanner (1989) 166 CLR 161 per Wilson, Dawson, Toohey and Gaudron JJ at 165). In Williams v Melbourne Corporation (1933) 49 CLR 142, Dixon J (as he then was) described this ground of challenge in the following way (at 155):

    “To determine whether a by-law is an exercise of a power, it is not always enough to ascertain the subject matter of the power and consider whether the by-law appears on its face to relate to that subject.  The true nature and purpose of the power must be determined, and it must often be necessary to examine the operation of the by-law in the local circumstances to which it is intended to apply.  Notwithstanding that ex facie there seemed a sufficient connection between the subject of the power and that of the by-law, the true character of the by-law may then appear to be such that it could not reasonably have been adopted as a means of attaining the ends of the power.  In such a case the by-law will be invalid, not because it is inexpedient or misguided, but because it is not a real exercise of the power. (Compare Widgee Shire Council v Bonney)”

13. One of the difficulties faced by the appellant is that the empowering provision is not subject to any express limits.  In fact, it assumes the power to designate a development as non-complying rather than expressly confers it.  The relevant provision is s 35(3) and it provides:

    “(3) A development that is of a kind described as a non-complying development under the relevant Development Plan must not be granted a provisional development plan consent unless-

    (a) where the relevant authority is the Development Assessment Commission- the Minister and, if the development is to be undertaken in the area of a council, that council, concur in the granting of the consent;

    (b) in any other case-the Development Assessment Commission concurs in the granting of the consent.”

14. In my opinion, the power to designate a development as non-complying is a very broad one.  It must be exercised for a proper planning purpose and the exercise of the power must be related to a proper planning purpose.  What is a proper planning purpose is to be determined by having regard to the overall purposes of the DA, and in particular the statement of the object and purposes of the DA in s 3, and the provisions which detail what may be included in a Development Plan in s 23.

15. The appellant put two arguments in support of the proposition that the relevant part of Principle 26(a) is ultra vires.

16. First, he submitted that the Adelaide (City) Development Plan provided that the use, adult products and services, was non-complying in all precincts in the Adelaide (City) area except the M5 O’Connell Precinct, and that in the case of that precinct it was clearly an error that adult products and services was not identified as non-complying.  I do not think this Court can go so far as to ignore the fact that adult products and services is not designated as non-complying in the M5 O’Connell Street Precinct, although I agree with the appellant that there are grounds to think from the other provisions relating to that precinct that it is an error.  Even assuming there is an error in the provisions relating to that precinct, it does not follow that the designation of a particular development as non-complying in all precincts is ultra vires the DA.  It must be remembered that a non-complying use may be given provisional development plan consent, although it faces the significant hurdles to which I have previously referred.  In my opinion, the appellant’s argument must be rejected because of the very wide ambit of the empowering provision (s 35(3)) and because I do not think that there can be a rule that a particular development must be designated as other than non-complying in at least one part of the area of a council.  It was open to the makers of the Development Plan to reach the view on proper planning grounds that a change of use to adult products and services should be designated as non-complying in all precincts.  That view might be said to be a severe one bearing in mind that the proposed use is otherwise lawful and is a kind of use which was being conducted in this precinct at the time Principal 1 was made.  However, in the circumstances of this case those considerations, whilst no doubt relevant to the policy which should be adopted, are not relevant to the question of whether the policy embodied in the Development Plan is ultra vires.

17. Secondly, the appellant submitted that the designation of the use, adult products and services as non-complying was not reasonably proportionate to the pursuit of the enabling purpose because it amounted to a prohibition of the use whereas other provisions in the Development Plan, and in particular Principle 1 make it clear that it is not the existing situation which is considered undesirable but rather an increase in the number of uses for adult products and services.  The Court was told that the appellant had recently moved from nearby premises and that therefore allowing the appellant’s proposed use would not result in an increase in the use of land for adult products and services.  It is not clear to me that these assertions are established on the evidence.  However, even assuming the appellant did use nearby premises for adult products and services and that those premises are no longer used for that purpose, I do not think the relevant part of Principle 26(a) is ultra vires.  No doubt existing uses for adult products and services are part of the character of the precinct as is recognised in Principle 1.  However, Principle 1 states no more than that, and the provisions relating to the precinct, and in particular Principles 1 and 26(a), must be read together.  The appellant’s proposal is for a new use of the relevant kind and it is designated as non-complying.

18. I reject the appellant’s argument that the relevant part of Principle 26(a) is ultra vires.

    Conclusion

19. The appeal must be dismissed.