Friends of Elliston Environment & Conservation Inc v State of South Australia

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Application)
FRIENDS OF ELLISTON - ENVIRONMENT & CONSERVATION INC v STATE OF SOUTH AUSTRALIA & ORS
[2007] SASC 19
Judgment of The Honourable Justice Bleby
19 January 2007
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - ERRORS OF RELEVANT AUTHORITY
― STANDING
Plaintiff an incorporated association formed to protect, preserve and enhance natural environment of Elliston and surrounding areas – Plaintiff claiming declaratory relief - Alleged lapse of development authorisation – Alleged invalidity of extension of operation of authorisation – Alleged invalidity of developer’s aquaculture base and licence – Alleged invalidity of regulations excepting developer’s and others' aquaculture lease applications from compliance with certain statutory requirements – Alleged invalidity of regulations affecting category of development - Whether plaintiff has standing to seek declaratory orders – Whether in respect of each declaration sought plaintiff had a relevant special interest – Plaintiff denied standing other than in respect of limited aspects of alleged invalidity of regulations.

ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - SUPREME COURT - ERRORS OF RELEVANT AUTHORITY
Aquaculture lease and licences issued under the Aquaculture Act 2001 (SA) – Site not within an aquaculture zone – Production lease not converted from development lease – Whether original purported grant of production lease valid – Whether capable of assignment – Purported lease invalid – Not issued in compliance with Act – No valid lease to assign – Invalid lease could not support purported grant of licence – Defect cured by subsequent grant of development lease – Declaration refused.
Consideration of aquaculture development authorisation – Whether development authorisation had lapsed – Condition imposed that development be established in accordance with the details and plans submitted – Whether substantial work done on site within 12 months – Development authorisation held to have lapsed after 12 months – Authorisation revived by subsequent extension – Declaration refused.
Extension of time by planning authority to commence development – Whether extension valid – Whether power to extend affected by invalid lease – Consideration of power to extend time under Development Act 1993 (SA) – Whether affected by Environment Protection and Biodiversity Conservation Act 1999 (Cth) – Extension of time valid – Declaration refused.
Whether works undertaken on aquaculture site in establishing aquaculture activity authorised by the development authorisation – Outstanding applications to vary development authorisation and for fresh development authorisation – Inappropriate to make findings or declaration pending determination of applications – Declaration refused.

STATUTES - BY-LAWS AND REGULATIONS - VALIDITY - ULTRA VIRES IN GENERAL - MOTIVES OF BY-LAW-MAKING BODIES
Challenge to validity of regulations made under the Development Act 1993 (SA) – Regulations affecting assigning of developments to various categories – Various categories have differing notice requirements and rights of representation and appeal – Whether regulation made for an improper purpose – Consideration of purpose of delegated legislation – Consideration of role of motive and political considerations – No evidence that regulation made for a purpose not contemplated by the Act – Declaration of invalidity refused.

STATUTES - BY-LAWS AND REGULATIONS - VALIDITY - REPUGNANCY
Challenge to validity of regulations made under Aquaculture Act 2001 (SA) – Regulations exempting applicants who had been irregularly granted a purported production lease from certain procedural requirements of the Act – Whether regulation repugnant to the Act – Whether regulation purported to create a new class of lease without the authority of the Act – Construction of regulation – Whether within regulation making power conferred by the Act – Declaration of invalidity refused.
Associations Incorporation Act 1985 (SA); Crown Proceedings Act 1992 (SA) s 5; Aquaculture Act 2001 (SA) ss 3, 17, 19, 21, 24, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 49, 50, 53 54, 55, 91, Schedule s 3; Development Act 1993 (SA) ss 4, 38, 39, 40, 84, 85; Crown Lands Act 1929 (SA); Fisheries Act 1982 (SA); Environment Protection Act 1993 (SA); Environment Protection and Biodiversity Conservation Act 1999 (Cth) ss 18, 67, 68, 178, 179, 181; Environment Protection (Impact of Proposals) Act 1974 (Cth); Planning Act 1982 (SA); Metropolitan Region Town Planning Scheme Act 1959 (WA); Act Interpretatin Act 1915 (SA) s 14C; Wages Boards Act 1920-1946 (Tas); Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5; Aquaculture Variation Regulations 2006 (SA) reg 6; Development (Aquaculture Development) Variation Regulations 2006 (SA); Development (Aquaculture Development No 2) Variation Regulations 2006 (SA) reg 4; Development Regulations 1993 (SA) reg 48; Aquaculture Regulations 2005 (SA) reg 31, referred to.
Australian Conservation Foundation Incorporated v The Commonwealth of Australia (1980) 146 CLR 493; Australian Conservation Foundation Inc & Anor v State of South Australia & Anor (1990) 53 SASR 349; Xenophon v State of South Australia (2000) 78 SASR 251; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; North Coast Environmental Council Inc v Minister for Resources (1994) FCR 492; Defence Coalition against RCD Inc v Minister for Primary Industries and Energy (1997) 74 FCR 142; Hall & Anor v City of Burnside and City Apartments Pty Ltd (2005) 92 SASR 579, applied.
Ex parte Helena Valley/Boya Association (Inc); State Planning Commission and Beggs (1990) 2 WAR 422, not followed.
Australian Conservation Foundation Inc & Anor v State of South Australia & Anor (1989) 52 SASR 288; R v The Corporation of the City of Burnside; Ex parte Ipswich Properties Pty Ltd (1987) 46 SASR 81; Brownells Ltd v The Ironmongers’ Wages Board; Brownells Ltd v The Drapers’ Wages Board (1950) 81 CLR 108; South Australian River Fishery Association Inc & Warrick v South Australia (2003) 85 SASR 373, discussed.
Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247; Tasmanian Conservation Trust Inc v Minister for Resources (1995) 55 FCR 516; Hackney Hotel Pty Ltd v Corporation of the Town of St Peters, Bleechmore & Ors (1983) 32 SASR 145; Hackney Hotel Pty Ltd v Corporation of the Town of St Peters, Bleechmore & Ors (1984) 36 SASR 265; Gentel v Rapps [1902] KB 160; Macris v Lucas [1971] SASR 329; Morton v Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402; In re Metropolitan Abattoirs Acts 1908-1930; Ex parte George Chapman Ltd [1932] SASR 184; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, considered.

FRIENDS OF ELLISTON - ENVIRONMENT & CONSERVATION INC v STATE OF SOUTH AUSTRALIA & ORS
[2007] SASC 19
Land and Valuation Division
BLEBY J:
The parties

The plaintiff is an association incorporated under the Associations Incorporation Act 1985 (SA). It was incorporated on 2 May 2005. Its principal object is to protect, preserve and enhance the natural environment of Elliston and surrounding areas. Elliston is a small town on the west coast of South Australia. In due course it will be necessary to refer in more detail to the nature and objects of the association.
The State of South Australia was joined at the time of trial and sued pursuant to s 5 of the Crown Proceedings Act 1992 (SA) in two capacities. The first is as representing the Minister for Agriculture, Food and Fisheries, being the minister responsible for the Aquaculture Act 2001 (SA). The reason for the joinder in this capacity is that certain Aquaculture leases held by and a licence issued to the third defendant under the Aquaculture Act are said to be invalid. They were issued in the name of the Minister by the Aquaculture Division of the Department for Primary Industries and Resources SA, commonly known as “PIRSA Aquaculture”. The plaintiff also challenges the validity of the Aquaculture Variation Regulations 2006 made on 19 January 2006, being regulations made under the Aquaculture Act.
The second capacity in which the State of South Australia is sued is as representing the Minister for Urban Development and Planning as a result of a challenge to the validity of reg 4 of the Development (Aquaculture Development No 2) Variation Regulations 2006 made on 16 February 2006 under the Development Act 1993 (SA).
The second defendant, the Development Assessment Commission (“the DAC”) is a body constituted under the Development Act as a planning authority. It was the relevant planning authority which, on 28 January 2003, gave development authorisation to a proposed Aquaculture development to take place in a designated area of coastal water near Elliston (“the Aquaculture site”), the benefit of which is now claimed by the third defendant, but which the plaintiff claims has now lapsed. The DAC has taken no active part in the proceedings and is content to abide the result of the action.
The third defendant, Australian Bight Infrastructure Pty Ltd (“ABI”) is a wholly owned subsidiary of Australian Bight Abalone Ltd. On 5 October 2004 it purchased the rights associated with the Aquaculture site from its parent company, which in turn, on 9 September 2004 had acquired those rights from Mr Peter Hitchcock, to whom the original development authorisation had been granted. The rights associated with the Aquaculture site included the right as lessee under a certain Aquaculture production lease purportedly issued to Mr Hitchcock under Pt 6 Div 4 of the Aquaculture Act, being one of the leases which the plaintiff claims is invalid.
The proceedings
The trial proceeded on affidavits with only one deponent, Mr AJW Ferguson, Chief Executive Officer of Australian Bight Abalone Ltd, being cross-examined by counsel for the plaintiff.
As the first issue to be determined is the standing of the plaintiff to bring this action, it is necessary to understand the nature of the proceedings and the relief sought by the plaintiff. For that purpose it is also necessary to undertake a brief historical survey of the events giving rise to the proceedings and to various amendments to the relief claimed which have been made since the proceedings were instituted. It is also necessary to understand some of the relevant provisions of the Development Act and the Aquaculture Act.
The Aquaculture Act was assented to on 6 December 2001 but did not take effect until 1 July 2002. By application dated 1 March 1997, Peter William Hitchcock made what was described as an Aquaculture Development Application. It was a joint application relating to the requirements of the Development Act, the Crown Lands Act 1929 (SA) for the purpose of granting a Crown lease of the proposed Aquaculture site and the Fisheries Act 1982 (SA) for the purpose of granting a licence under that Act. It was lodged with the District Council of Elliston on 5 March 1997 and was, in due course, referred to the DAC as the relevant authority under the Development Act. The proposed development was described as “in water abalone Aquaculture”. It will be necessary in due course to refer in greater detail to the nature of the application, but it involved an area of the sea within 50 metres of the high water mark towards the southern end of Anxious Bay, near Elliston.
Because of the combined nature of the application and by virtue of the Development Regulations 1993, the application had to be referred to a number of authorities, principal of which was PIRSA Aquaculture, which was also responsible for granting a licence under the Fisheries Act. For various reasons which it is not necessary presently to describe, the application was subject to a great many requisitions and ultimately involved re-siting the proposed Aquaculture venture further away from the coast. For the purposes of s 38 of the Development Act, the development was a category 3 development and therefore required public notification, with the opportunity for representations to be made in accordance with that section. In due course, one such representation was made opposing the application. The person who made that representation is not a party to these proceedings.
PIRSA Aquaculture was a body which, under the Development Regulations, had the ability to direct the DAC to refuse the application or, if it was to be approved, to direct the imposition of certain conditions. The DAC was therefore not in a position to approve the application until PIRSA Aquaculture had indicated approval and its intention to grant the necessary licence.
It was not until 24 May 2002, more than five years after Mr Hitchcock made his application, that PIRSA Aquaculture wrote to Mr Hitchcock, informing him that a draft licence and advice had been forwarded to the DAC recommending that the application be granted subject to conditions to be specified in the proposed licence. That date was after the Aquaculture Act had been assented to but before it came into operation. Among other things the letter said:
PIRSA Aquaculture will issue a licence if the Development Assessment Commission issues development approval on the site.
The letter informed Mr Hitchcock that further correspondence about the progress of his application should be forwarded to the DAC.
Attached to the letter was a form of Marine Shellfish (Subtidal Aquaculture) Licence No FS00046 showing Mr Hitchcock as licensee for the period commencing 1 July 2002 and ending, subject to any earlier termination, on 30 June 2003 (“the 2002 licence”). The licence area was described in this and subsequent licences and leases issued by PIRSA Aquaculture by referring to coordinates different from those shown in the development authorisation. However, I am satisfied that both sets of coordinates relate to the Aquaculture site. The licence was dated 1 July 2002 in the name of the Minister for Agriculture, Food and Fisheries. It was in the form of licences subsequently issued by PIRSA Aquaculture and purported to be a licence under the Aquaculture Act.
As earlier mentioned, on 1 July 2002 the Aquaculture Act was proclaimed to commence. Among other things, the Act amended the Fisheries Act by deleting from it all provisions relating to fish farming and aquaculture and the licensing of such activities. New licensing provisions were enacted in the Aquaculture Act. The Act also provided for the granting of different types of aquaculture leases in lieu of leases previously granted under the Crown Lands Act.
Development authorisation was eventually granted to Mr Hitchcock in respect of the Aquaculture site by the DAC on 28 January 2003. It will be necessary in due course to refer in more detail to the nature of the approval.
Although it was an application for a category 3 development, the one objector did not appeal to the Environment Resources and Development Court against the granting of the approval. In accordance with the provisions of s 38 of the Development Act, the development authorisation therefore took effect after the expiry of 15 business days after the date of the decision.
On 11 February 2003 the Minister for Agriculture, Food and Fisheries purported to issue Aquaculture lease No AL00338 to Mr Hitchcock, being a Production Lease granted under the Aquaculture Act “pursuant to s 3(2) of the Schedule to the Act and Division 4 of Part 6 of the Act” (“the February 2003 lease”). The validity of that lease is under challenge in these proceedings. The lease was for a period of 12 months in respect of the Aquaculture site.
On 1 July 2003 the Minister granted under the Aquaculture Act a further Marine Shellfish (Subtidal) Aquaculture Licence, also numbered FS00046, to Mr Hitchcock for the purpose of undertaking aquaculture of green lip abalone at Aquaculture site for a period of 12 months from 1 July 2003 (“the 2003 licence”). This licence was in similar form to that of the 2002 licence.
On 5 August 2003 the Minister purported to grant to Mr Hitchcock a further Aquaculture lease also numbered AL00338 for the period commencing 1 July 2003 for a period of 3 years in respect of the Aquaculture site (“the August 2003 lease”). Although this was still during the currency of the February 2003 lease, it appears to have been in substitution for that lease and was expressed to be a production lease granted under the Aquaculture Act “pursuant to Division 4 of Part 6 of the Act”.
On 1 July 2004 the Minister issued a further Marine Shellfish (Subtidal Abalone) Aquaculture Licence to Mr Hitchcock for a period of 12 months, this one being numbered FA00019 (“the 2004 licence”). It was in similar terms to the previous licences.
As mentioned above, on 9 September 2004 Australian Bight Abalone Ltd purported to acquire the production lease from Mr Hitchcock. It was, in due course, assigned to ABI, and the August 2003 lease was transferred accordingly by PIRSA Aquaculture.
It will be necessary to refer in due course to activities carried out by Mr Hitchcock towards development of the project. However, after acquisition of the site by ABI, development proceeded apace. The Minister granted Marine Shellfish (Subtidal Abalone) Aquaculture Licence also numbered FA00019 to ABI on 5 October 2004 for the period ending 30 June 2005 in respect of the Aquaculture site (“the ABI Licence”).
As mentioned above, the plaintiff was incorporated on 2 May 2005.
These proceedings were commenced on 12 August 2005. At that stage the plaintiff, in its inter partes summons, sought the following relief:
1    A declaration that the development approval granted by the [DAC] on the 28^th day of January 2003 to [Mr] Hitchcock … has lapsed.
2    A declaration that the development activity conducted within the [Aquaculture site] is not an approved development.
3    In the alternative to paragraph 1 … in the event that the said development approval has not lapsed a declaration that the works undertaken by [ABI] in establishing an aquaculture activity [at the Aquaculture site] are not authorised by the said development approval being works not in accordance with the said development approval and nor (sic) authorised by any valid variation thereof.
4    In the alternative to paragraph 1 … a declaration that no development approval has been granted to [ABI] permitting the activity undertaken by [ABI] [at the Aquaculture site] purporting to establish an aquaculture site.
5 In the alternative a declaration that Marine Shellfish (Subtidal Abalone) Aquaculture Licence FA00019 … granted by the [Minister] pursuant to Part 7 of the Aquaculture Act to [ABI] is nugatory and does not authorise development work [at the Aquaculture site] and that any lease granted or assigned to [ABI] by the [Minister] does not authorise development work [at the Aquaculture site].
6    An injunction restraining [ABI] from continuing the activity which purports to establish, cultivate, maintain and harvest Green-Lip or Black-Lip Abalone [at the Aquaculture site].
I refer to these paragraphs as “the primary relief”. I have altered the various terms used in the summons to accord with the terms used in these reasons.
The thrust of the primary relief was based upon the alleged lapse of the development authorisation granted to Mr Hitchcock, the plaintiff alleging that no substantial work at the Aquaculture site had been commenced within 12 months from the operative date of the approval. It was also alleged that, if the authorisation had not lapsed, the actual activity being carried on by ABI was not in accordance with that authorisation. Paragraph 5 of the prayer for relief, as I understand it, merely alleges that the lease granted to ABI is nugatory without a valid development authorisation, and does not in itself authorise the aquaculture activity being carried out at the Aquaculture site. So much was not in dispute.

No doubt as a result of the commencement of the proceedings, on 17 November 2005 ABI, through its solicitors, while maintaining that there had been no lapse of the development authorisation, for the avoidance of doubt, applied for an extension of time within which the development authorisation would lapse to 28 January 2006, being 3 years from the date of the development approval granted by the DAC. At its meeting on 8 December 2005 the DAC approved the extension of time to 28 January 2006 within which ABI was required to have substantially commenced the development.
It seems that ABI also had become aware that its production lease, for reasons which will become apparent, might not be a valid lease. Accordingly ABI, by application dated 7 December 2005, received by PIRSA Aquaculture on 15 December 2005, applied for the grant of a pilot lease under the Aquaculture Act in respect of the Aquaculture site. At the time of trial the application had not been granted, but may well have become subsumed in other events which I am about to describe.
On 19 January 2006 the Aquaculture Variation Regulations 2006 (No 11 of 2006) made under the Aquaculture Act came into effect. These had the effect of amending the Aquaculture Regulations 2005 by providing that certain production leases purportedly granted under clause 3 of the Schedule to the Act (of which Mr Hitchcock’s production lease was one) should be known for the purpose of the Regulation as a “transitional lease”, and that the holder of a transitional lease or of a lease derived from a transitional lease (which would include ABI) was exempt from certain named provisions of the Aquaculture Act in respect of any subsequent application by it for a development lease and licence in respect of the same area.
Consequent upon the passing of that regulation, on 21 January 2006 ABI applied to PIRSA Aquaculture for a development lease over the Aquaculture site in reliance on those amendments. On 15 February 2006 the Minister granted the application and issued to ABI Aquaculture Development Lease No LA00008, together with a corresponding Marine Aquaculture Abalone Licence No AQ00029 in respect of the Aquaculture site. The lease was dated 15 February 2006 and the licence 14 February 2006.
In view of the fact that the plaintiff alleged that work carried out at the Aquaculture site was not in accordance with the original development authorisation (assuming that it had not lapsed), on 21 December 2005 ABI lodged an application with the DAC for a variation to the development authorisation for the Aquaculture site (“the first variation application”). At the time of trial that application had not been processed. It will be noted that, as with the original application, at the time of the first variation application, the variation constituted a category 3 development, requiring public notification and allowing for the possibility of objector representation and, in the event of a grant of the application, objector appeals to the Environment Resources and Development Court.
On 9 February 2006 the Development (Aquaculture Development) Variation Regulations 2006 (No 24 of 2006) made under the Development Act came into effect. These Regulations varied the Development Regulations by making development applications for aquaculture within certain designated areas subject only to category 1 public notification requirements.
ABI obviously considered that the Aquaculture site fell within one of these designated areas because on 10 February 2006 ABI re-lodged the first variation application with the DAC (“the second variation application”). However, for reasons which follow, nothing now turns on these Regulations and the second variation application which followed.
On 16 February 2006 the Development (Aquaculture Development No 2) Variation Regulations (No 38 of 2006) made under the Development Act came into force. These Regulations revoked the description of the areas referred to in the 9 February Regulations and substituted for them differently described areas. The Aquaculture site is within one of the areas so specified.
On 23 February 2006 ABI again re-lodged the first application with the DAC (“the third variation application”) in respect of the Aquaculture site.
Finally, on 24 February 2006 ABI lodged a fresh development application in respect of the Aquaculture site (“the final application”) which, if granted, would have the same effect as any of the first and third variation applications.
As a result of these various manoeuvrings, the relief sought by the plaintiff in its inter partes summons has been extended to include the following additional paragraphs:
5AA declaration that the purported Aquaculture Lease No AL00338 dated February 2003 and styled “Production Lease” is null and void and of no effect.
5BA declaration that the purported licence FS0046 dated 1 July 2002 and provided on 11 May 2002 and subsequently continued with the designation FA 00019 is null and void and of no effect.
5CA declaration that the purported extension by the [DAC] at its meeting on 8 December 2005 of the [original development] approval was null and void on the grounds that:-
(a)     The original development approval had previously ceased to exist.
(b)     In circumstances where a prior approval did not relate to any validly leased land and did not relate to any activity which could lawfully be carried on the original development approval could not properly be extended.
(c) The purported extension was a controlled action for the purposes of Section 68 of the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth).
(d)     No application for an extension of the original development approval had been made by a person who had the benefit of that approval.
(e)     Neither the applicant for the original development approval [Mr Hitchcock] nor the applicant for the extension of that approval [ABI] had any proper or valid interest in any land which was the subject of such approval.
5DA declaration that Regulation 6 of the Aquaculture Variation Regulations 2006 gazetted on 19 January 2006 and purporting to vary Regulation 31 of the Aquaculture Regulations 2005 is invalid on the grounds that:
(a)     The said Regulation is ultra vires the Aquaculture Act 2001 and in particular is not authorised by Section 91 of the Aquaculture Act 2001;
(b) Is repugnant to sections 3, 8, 13, 17, 19, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 37, 49, 50, 59, 80, 91 and Schedule Part 2 of the Aquaculture Act 2001.
5EA declaration that Regulation 4 of the Development (Aquaculture Development No 2) Variation Regulations 2006 is invalid on the grounds that:
(a)     the said Regulation was made for an improper purpose and is not required for the purposes of the Act.
I will refer to these paragraphs as “the additional relief”.
Paragraphs 5A and 5B allege invalidity, on other and separate grounds, of the original production lease and licence granted to Mr Hitchcock. If the plaintiff succeeds on para 5A, there was no valid lease to assign to ABI, and ABI had no valid lease or corresponding licence. Paragraph 5C is self-explanatory and challenges the validity of the extension of time of the development authorisation by the DAC in December 2005. Paragraph 5D, if successful, would render ineffective the grant to ABI of the Aquaculture Development Lease No LA0008 and the corresponding licence granted in February 2006. Thus, if Mr Hitchcock’s original lease was also invalid, ABI would have no valid lease or corresponding licence.
If the plaintiff succeeds in respect of para 5E of the additional relief, it means that ABI’s third variation application and final application, if they are necessary and if they proceed, must be treated as applications in respect of a category 3 development, thereby according to the plaintiff rights of representation on the applications and rights of appeal to the Environment and Resources and Development Court if either application is granted.
By way of response to the plaintiff’s claims the State of South Australia and ABI allege that the plaintiff has no standing in law to bring these proceedings. They also deny entitlement to any of the declarations sought as a matter of law or, in the alternative, as a matter of the exercise of the Court’s discretion to grant declaratory and injunctive relief.
The relevant legislative background
Before turning to the plaintiff’s standing to seek the relief claimed and to the relevant facts on which the plaintiff relies to give it standing, it is necessary to consider the relevant conditions under which a development authorisation, once granted under the Development Act, will lapse, the process involved in extending the period for which a development authorisation remains operative and the process involved in variation of a development authorisation. It is also necessary to consider the nature of leases and licences issued under the Aquaculture Act and the processes involved in their issue. These various matters will also be relevant to a consideration of the merits of the plaintiff’s claims.
Development authorisations under the Development Act
There is not and never has been any challenge to the grant of the development authorisation by the DAC to Mr Hitchcock on 28 January 2003. One of the plaintiff’s claims is that that authorisation had lapsed by the time the purported lease was assigned to ABI.
Section 40(2) of the Development Act provides that a development authorisation remains operative for a period prescribed by the Regulations. Subsection (3) provides that a relevant authority may “on its own initiative or on the application of a person who has the benefit of any relevant development authorisation”, extend a period prescribed under subsection (2).
Regulation 48 of the Development Regulations provides:
(1) Subject to this or any other regulation, any consent or approval under Part 4 of the Act (whether subject to conditions or not) will lapse at the expiration of-
(a)subject to the operation of paragraph (b)—12 months from the operative date of the consent or approval;
(b)     if-
(i)the relevant development has been lawfully commenced by substantial work on the site of the development within 12 months from the operative date of the approval—three years from the operative date of the approval, unless the development has been substantially or fully completed within those three years (in which case the approval will not lapse); or
(ii)if the relevant development involves the division of land and an application for a certificate under section 51 of the Act has been lodged with the Development Assessment Commission within 12 months from the operative date of the relevant consent—three years from the operative date of the consent.
(2) A period prescribed by subregulation (1) may be extended by a relevant authority-
(a)    when the relevant consent or approval is given; or
(b)    at such later time as may be appropriate.
(3) Where an approval is given, any consent which was necessary for that approval will not lapse unless or until the approval lapses.
(4) In this regulation-
"the operative date" of a consent or approval means-
(a)       the date on which the consent or approval is given; or
(b)if the decision to grant the consent or approval has been the subject to an appeal under this Act, the date on which any appeal is dismissed, struck out or withdrawn, or all questions raised by any appeal have been finally determined (other than any question as to costs),
whichever is the later.
There is no provision in the Development Act or in the Regulations, no matter into which category the development fell, which requires public notification of an application to extend a prescribed period or of the consideration by a relevant authority of such an extension. There is therefore no right on the part of anyone other than an applicant to be heard in relation to such extension. Section 86 of the Development Act confers on a person who has applied for a development application (but no-one else) a right of appeal to the Environment Resources and Development Court against the decision of a relevant authority, among other things, to refuse an extension of time under s 40(3) of the Development Act.
By virtue of s 39(7) of the Development Act, an application to vary an existing development authorisation can be made if the authorisation is still operative but, to the extent of the proposed variation, it must be treated as a new application for development authorisation. It will therefore be subject to the same notification and other requirements as a new application.
The first variation application of ABI lodged on 21 December 2005 was therefore required to be treated as an application for a category 3 development. If the Development (Aquaculture Development No 2) Variation Regulations (No 38 of 2006) is valid, the third variation application lodged by ABI on 23 February 2006 is to be treated as an application in respect of a category 1 development, and none of the public notification and consultation provisions of s 38 of the Development Act will apply. As will be seen, however, that does not exclude the plaintiff from participation. Whether the development is category 1 or category 3, s 39(2) of the Development Act enables a relevant authority to request an applicant to consult with an authority or body prescribed by the Regulations and requires the relevant authority to comply with any other requirement prescribed by the Regulations.
Part 5 of the Development Regulations requires the relevant authority in respect of certain classes of development prescribed under Schedule 8 to refer the application to the relevant body prescribed in that Schedule. The relevant authority must not make a decision until it has received a response from that body. In some cases the application can only be granted with the concurrence of that body and on conditions prescribed by that body. In the case of an aquaculture development other than development which, in the opinion of the relevant authority, involves a minor alteration to an existing or approved development, the application must be referred to the Minister administering the Aquaculture Act, who is able to give a direction to refuse the application or to require the imposition of conditions. The relevant authority must comply with any such direction. It follows that ABI’s first and third variation applications and its final application must be referred to the Minister accordingly, unless the DAC is of the opinion, in the case of the variation applications, that the development involves a minor alteration to an existing or approved development. What the Minister must do is governed by relevant provisions of the Aquaculture Act.
The Aquaculture Act 2001
Under Part 4 of the Aquaculture Act the Minister may make aquaculture policies for any purpose directed towards securing the objects of the Act. Among other things an aquaculture policy may identify a zone within State waters as an aquaculture zone, in which specified classes of aquaculture will be permitted and an aquaculture exclusion zone in which no aquaculture will be permitted. Certain procedures must be observed in the making of aquaculture policies.
Section 17 of the Aquaculture Act provides that a person is not to carry on aquaculture except as authorised by an aquaculture licence granted by the Minister. It follows that, if the Minister refuses to grant an aquaculture licence on grounds not related to the personal attributes of the applicant,[1] the Minister is likely to direct a relevant authority to refuse any necessary development authorisation in respect of the same activity. Conversely, the granting of an aquaculture licence in respect of a particular aquaculture activity subject to certain conditions is tantamount to the Minister consenting to the application under the Development Act subject to the imposition of the relevant conditions.
[1] See Aquaculture Act 2001 (SA), s 50(4).
Part 6 of the Aquaculture Act relates to aquaculture leases. Section 19 relevantly provides that an aquaculture licence may not be granted in respect of an area unless the area is the subject of an aquaculture lease. An aquaculture lease may not be granted in respect of an area within an aquaculture exclusion zone,[2] and the Minister may not grant an aquaculture lease unless a decision has been made by the Minister that a corresponding licence will be granted containing specified conditions.[3]
[2] Ibid s 21.
[3] Ibid s 24.
The Aquaculture Act provides for four classes of aquaculture lease. Three of them are relevant for present purposes.
A pilot lease may only be granted in respect of an area outside of an aquaculture zone.[4] A pilot lease within what is known as a prospective aquaculture zone is granted by an allocation process provided for in the Act.[5] A pilot lease may only be granted for a maximum of 12 months and is renewable for successive terms, but for no more than an aggregate of 3 years.[6] A pilot lease is not transferable,[7] and only the lessee under a pilot lease may hold the corresponding licence.[8]
[4] Ibid s 27.
[5] Ibid s 28.
[6] Ibid s 29.
[7] Ibid s 30.
[8] Ibid s 31.
A development lease may only be granted for an area within an aquaculture zone.[9] Leaving aside for the moment the Schedule to the Act, there are two ways in which a development lease may be acquired. One is by way of grant through an allocation process involving tendering or some similar competitive process.[10] The other is by way of conversion of a pilot lease on application by the holder of the pilot lease if, at the time, the pilot lease is within an aquaculture zone and the Minister is satisfied that certain performance criteria specified by the conditions of the pilot lease have been met.[11] A development lease may only be granted for a maximum of 3 years and is renewable for successive terms, but for no more than an aggregate of 9 years.[12] A development lease may be transferred by the lessee with the consent of the Minister.[13]
[9] Ibid s 32.
[10] Ibid s 33.
[11] See generally ibid s 34.
[12] Ibid s 35.
[13] Ibid s 36.
Again, leaving aside for the moment the Schedule to the Act, a production lease may only be acquired by conversion of a development lease on application of the holder of the development lease and subject to certain conditions having been fulfilled.[14] The term of a production lease is 20 years or a lesser period specified in the lease. The lease is renewable[15] and transferable.[16]
[14] See generally ibid s 37.
[15] Ibid s 38.
[16] Ibid s 39.
A person must not carry on aquaculture except as authorised by an aquaculture licence.[17] An aquaculture licence is now only granted under the Aquaculture Act,[18] and may be granted in connection with an application for an aquaculture lease[19] (a “corresponding licence[20]). A corresponding licence will generally be extended to be co-extensive with a converted lease.[21] A corresponding licence will only be granted if (among other things) the Minister is satisfied that the grant of the licence would be consistent with the objects of the Act and any prescribed criteria or other relevant provisions of an applicable aquaculture policy, and after public notice of the application and consideration of written submissions by interested persons.[22]
[17] Ibid s 17.
[18] Ibid s 49.
[19] Ibid s 50.
[20] Ibid s 3.
[21] Ibid ss 34 & 37.
[22] Ibid s 50(1).
It follows that, if a proposed aquaculture development is a category 1 development for the purposes of the Development Act and does not require public consultation, an interested person may nevertheless make a submission to the Minister in respect of the granting of the necessary licence to carry out that activity. Matters to be taken into account by the Minister may not necessarily be the same as those taken into account by a relevant authority in dealing with a category 3 development under the Development Act. However, there would undoubtedly be substantial areas of overlap, including areas of environmental concern.

If an aquaculture lease is cancelled or otherwise terminated, each corresponding licence is also terminated.[23] A licence may be transferred with the consent of the Minister, a right which may be exercised by the licensee if the licensee is no longer entitled under the lease to occupy the licence area.[24]
[23] Ibid s 54.
[24] Ibid s 55.
Environmental concerns relating to the grant of leases and licences will also come under close examination by the requirement in Part 8 of the Aquaculture Act to refer matters relating to the granting of licences, pilot leases and development leases to the Environment Protection Authority (“the EPA”) established under the Environment Protection Act 1993 (SA). For that purpose the EPA must have regard to and seek to further the objects of the Environment Protection Act. A corresponding licence may only be granted if the EPA approves the granting of the licence.[25] It is not clear on the evidence before me whether the EPA approved the granting of the licences or not. The point was not argued in these proceedings.
[25] Ibid s 50(1)(c). The granting of other aquaculture licences must also be approved by the EPA: Ibid s 50(3)(c).
The Schedule to the Aquaculture Act contains the following transitional provisions:
3 – Transitional provisions
(1)        This Act applies to aquaculture operations whether commenced to be carried on before or after the commencement of this clause.
(2)        The Minister must, without any requirement for an application or payment of a fee, grant an aquaculture licence, or an aquaculture lease and licence, as the case may require, to any person entitled to carry on aquaculture operations immediately before the commencement of this clause, being a licence, or lease and licence, that the Minister determines to be appropriate under this Act having regard to the person's entitlement to carry on aquaculture operations immediately before that commencement.
(3)        A person referred to in subclause (2) must, if the Minister so requires, surrender a licence or lease held by the person immediately before the commencement of this clause that was granted for aquaculture purposes.
Subclause (2) of those provisions relates to a person who was entitled under the Fisheries Act to carry on aquaculture operations at the time when the Aquaculture Act came into force. Such persons were entitled to an appropriate licence, or lease and licence, under the Aquaculture Act having regard to their entitlement to carry on aquaculture operations before the commencement of the Act.
The standing of the plaintiff
As mentioned above, the plaintiff was incorporated on 2 May 2005 following an application for incorporation lodged with the Office of Consumer and Business Affairs on 18 April 2005. The decision to incorporate the association was made after several public meetings held at Elliston in the preceding weeks. It is apparent from notes of those meetings that, while various environmental concerns were expressed about ABI’s development, many other issues of concern were also discussed, including the effects of the development on tourism and the fishing interests of both commercial and amateur fishers in the area, including commercial abalone fishers. There can be no doubt that the association was formed largely in response to activities being carried out by ABI at the Aquaculture site. This is the first offshore abalone aquaculture venture in South Australian waters.
The objects of the plaintiff are as follows:
a.   To protect, preserve and enhance the natural environment of Elliston and surrounding areas;
b.   To work towards the protection of ecological habitats for threatened species and other wildlife;
c.   To represent the residents of Elliston and surrounding areas in relation to environmental matters;
d.   To promote ecologically sustainable development;
e.   To promote dialogue between local community, business and government stakeholders on environmental matters;
f.    To engage in public interest environmental litigation when appropriate;
g.   To undertake community education to increase awareness within the community about the relationship between environmental, social and economic issues;
Membership of the association is open to any person who supports these objects and who applies in writing for membership, the signing of an application for membership being “regarded as a declaration of commitment to the objects of the association”.[26] The Management Committee has an absolute and unfettered discretion to accept or reject any application for membership. Upon acceptance of the application and payment of the annual subscription, determined by the members at the annual general meeting, the applicant becomes a member of the association.
[26] Rule 5.2 b.
The membership of the plaintiff comprises a diverse cross-section of the Elliston community and includes licensed fishers, abalone licence holders and persons concerned with the environment generally. As at 25 January 2006 the plaintiff association comprised 152 members, 109 of whom were residents of Elliston and 69 of whom were ratepayers of the District Council of Elliston. There were 5 members who were holders of commercial fishing licences. Its chairperson and one of its promoters hold an abalone licence to harvest abalone in the area.
There is no evidence that the association has undertaken any activities beyond the conduct of these proceedings.
The Aquaculture site is situated in Anxious Bay at a point approximately 12 kilometres northwest of the town of Elliston. Elliston is situated on Waterloo Bay. The site is not visible from Elliston. Indeed, it is some 5 kilometres from the nearest point of the mainland coast and is not visible from the coast. Visual amenity cannot therefore be of concern to residents of or near Elliston.
Some of the deponents to affidavits deposed to personal concerns over the siting of the development, but there is no serious suggestion of interference with fishing activities, and even this would not be a legitimate interest of the plaintiff. There is no suggestion on the part of the plaintiff that ABI’s activities are environmentally harmful in themselves. There is evidence that, after a heavy storm, one deponent was concerned that some parts of ABI’s equipment were washed ashore after having been detached from moorings at the Aquaculture site. It is not clear how or whether that became the concern of the plaintiff.
Mr Custance deposes that the members of the plaintiff “are concerned” about the activities of ABI in relation to the Aquaculture site. Nowhere else is that concern explained or elaborated.
Some who were responsible for forming the association expressed concern about the impact of the development on the abalone industry and on their own commercial interests. However, these do not translate to concerns of the plaintiff. Nowhere is there an assertion on behalf of the plaintiff that it objects to the conduct of abalone aquaculture at the Aquaculture site or a statement of the grounds of such objection.
The plaintiff points to the enactment by the Commonwealth Parliament of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Provision is made in that Act for the listing (among other categories) of “vulnerable” threatened species[27] and of “vulnerable” threatened ecological communities.[28] On 14 February 2005 the Australian sea lion was listed as a threatened species in the “vulnerable” category. There is a colony of Australian sea lions on West Waldegrave Island, several kilometres to seaward of the Aquaculture site which is located a little over 1 kilometre north of East Waldegrave Island. There is no evidence that the colony of sea lions is listed as a threatened ecological community in the vulnerable or any other category.
[27] Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 178 and 179.
[28] Ibid s 181.
The consequences of such listings are to be found in Part 3 of the Act. Relevantly, a person, on pain of a civil penalty, must not take action that has or will have a significant impact or is likely to have a significant impact on a species included in the “vulnerable” category.[29] Such action is defined as a “controlled action”.[30] There are provisions in the Act for referring proposals to the Minister for decision as to whether the action or proposed action is a controlled action. That is assessed under Part 8, and the various methods of assessment available to the Minister each include the obtaining of public comment on the proposal. Under Part 4 the Minister may approve the action, in which case there will be no contravention of s 18.
[29] Ibid s 18(4).
[30] Ibid s 67.
It is asserted on behalf of the plaintiff that no such assessment of the aquaculture activities of ABI has taken place with respect to its effect on the Australian sea lion. However, at the time when the original approval was granted to Mr Hitchcock, the Act was not in operation. At the time when ABI acquired the lease and began its present operations, the Australian sea lion had not been listed, and the Act had no relevant operation. No approval under that Act was necessary. That does not mean to say that ABI is not now contravening s 18 of the Act. The material before me does not enable me to make a finding that the development has, will have or is likely to have a significant impact on the relevant colony of sea lions, let alone on the species. That is a matter for ABI and the relevant Commonwealth Minister. The point is that at no time has the plaintiff been deprived of any right it might be said to have to comment on ABI’s proposed aquaculture activities in relation to any assessment of the proposal by the Minister under the Environment Protection and Biodiversity Conservation Act. If ABI were to refer the matter as to whether its activity constitutes a controlled action and the Minister were to proceed with a form of assessment under Part VIII of the Act, the plaintiff could no doubt then exercise such rights as may be open to it under the Act.
The starting point for the consideration of the standing of the plaintiff is Australian Conservation Foundation Incorporated v The Commonwealth of Australia.[31] The principal objects of the plaintiff in that case were:
(i)to make every effort to ensure that the air, land and waters of Australia are used with wisdom and foresight and that competing demands upon them are resolved in the best long-term interests of the nation;
(ii)to foster the conservation of the distinctive vegetation and fauna and important natural and archaeological features of Australia.
[31] (1980) 146 CLR 493.
The plaintiff had some 6,500 members and had a history of making submissions to governments and public authorities in respect of environmental matters. It had been paid annual grants by the Commonwealth Government for its purposes, including for the making of comments by it as an interested person in respect of draft environmental impact statements made pursuant to the provisions of the Environment Protection (Impact of Proposals) Act 1974 (Cth) and in respect of the administrative procedures approved under that Act. The Minister for Environment, Housing and Community Development had directed the preparation, obtaining and submission to him of an environmental impact statement in relation to the making of a decision by the Reserve Bank of Australia whether to approve certain exchange control transactions by an overseas company to establish and operate a resort and tourist area in what was said to be an environmentally sensitive area in Queensland. The plaintiff made written comments on the proposal and complained that the draft environmental impact statement did not comply with the requirements of the administrative procedures. The plaintiff sought a declaration that the decision to approve the exchange control transactions was invalid and a nullity by reason of the fact that the administrative procedures were not observed. Other incidental relief was sought. It was held by the trial judge, Aickin J, and by majority of the High Court on appeal[32] that the plaintiff did not have standing to maintain the action.
[32] Gibbs, Stephen, and Mason JJ, Murphy J dissenting.
In his judgment, Aickin J considered that he was constrained by authority to hold that it was an essential requirement for locus standi that it must be related to the relief claimed. He continued:[33]
The “interest” of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed. I do not mean that, where the relief is discretionary, locus standi depends on showing that the discretion must be exercised favourably. What is required is that the plaintiff’s interest should be one related to the relief claimed in the statement of claim.
[33] Ibid at 511, a passage cited with approval in Bateman’s Bay LocalAboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 by Gaudron, Gummow and Kirby JJ at 266, [47] and by McHugh J at 282, [97].
It follows that the plaintiff must be able to demonstrate that it has what Gibbs J described as “a special interest in the subject matter of the action”. [34] It must be “an interest which members of the public generally do not have”.[35]
[34] (1980) 146 CLR 493 at 527.
[35] Xenophon v State of South Australia (2000) 78 SASR 251 at 268, [75], Bleby J, and see the discussion on this topic generally at 265 – 268 and the cases cited therein.
In a well known passage reflecting the judgment of the majority of the Full Court in the Australian Conservation Foundation Case, Gibbs J said:[36]
I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.
[36] (1980) 146 CLR 493 at 530-531.
Pertinent to the present case, Gibbs J continued:[37]
Counsel for the Foundation sought to show an interest in two alternative ways – first, because of the nature of the Foundation and its objects and, secondly, because of the fact that it had sent written comments when the draft environmental impact statement was made available for public comment. The fact that the Foundation is incorporated with particular objects does not strengthen its claim to standing. A natural person does not acquire standing simply by reason of the fact he holds certain beliefs and wishes to translate them into action, and a body corporate formed to advance the same beliefs is in no stronger position. If it is the fact that some members of the Foundation have a special interest – and it is most unlikely that any would have a special interest to challenge the exchange control transaction – it would not follow that the Foundation has locus standi, for a corporation does not acquire standing because some of its members possess it: see Victorian Chamber of Manufactures v The Commonwealth (“Prices Regulations”);[38] Real Estate Institution of N.S.W v Blair;[39] British Medical Association v The Commonwealth.[40]
[37] Ibid at 531.
[38] (1943) 67 CLR 335 at 343.
[39] (1946) 73 CLR 213 at 224, 226, 228.
[40] (1949) 79 CLR 201 at 257.
The concept of special interest was developed further by the High Court’s decision in Onus v Alcoa of Australia Ltd.[41] The descendants and members of a particular group of Aboriginal people were custodians of the relics of those people. It was held that they had standing to bring proceedings to restrain the defendant from carrying out work which would interfere with the relics of their people, allegedly in breach of the Archaeological and Aboriginal Relics Preservation Act1972 (Vic). As guardians of the relics according to their laws and customs the appellants had a special interest in their preservation. Stephen J made the following observations concerning special interest:[42]
Thirdly, the distinction between this case and the A.C.F. Case is not to be found in any ready rule of thumb, capable of mechanical application; the criterion of “special interest” supplies no such rule. As the law now stands it seems rather to involve in each case a curial assessment of the importance of the concern which a plaintiff has with particular subject matter and of the closeness of that plaintiff’s relationship to that subject matter. The present appellants are members of a small community of aboriginal people very long associated with the Portland area; the endangered relics are relics of their ancestors’ occupation of that area and possess for their community great cultural and spiritual significance. While Europeans may have cultural difficulty in fully comprehending that significance, the importance of the relics to the appellants and their intimate relationship to the relics readily finds curial acceptance. It is to be distinguished, I think, and will be perceived by courts as different in degree, both in terms of weight and, in particular, in terms of proximity, from that concern which a body of conservationists, however sincere, feels for the environment and its protection. Courts necessarily reflect community values and beliefs, according greater weight to, and perceiving a closer proximity to a plaintiff in the case of, some subject matters than others. The outcome of doing so, however rationalized, will, when no tangible proprietary or possessory rights are in question, tend to be determinative of whether or not such a special interest exists as will be found standing to sue.
[41] (1981) 149 CLR 27.
[42] Ibid at 42.
Brennan J[43] noted that a special interest, being neither a legal nor equitable right, nor a proprietary or pecuniary interest, could arise in respect of non-material interests such as the environment, historical heritage and culture. He said that to deny standing “would deny to an important category of modern public statutory duties an effective procedure for curial enforcement”. At the same time, however, he noted[44] that a plaintiff does not acquire standing to sue for relief “merely by proclaiming before he sues that he has an interest in obtaining relief. … Where a plaintiff seeks to enforce compliance with a public duty, standing is to be found in some affection or threatened affection of the plaintiff’s interests by the defendant’s breach or apprehended breach of the duty.”
[43] Ibid at 73.
[44] Ibid at 74.
A case where the Australian Conservation Foundation was held to have standing in this jurisdiction is Australian Conservation Foundation Inc & Anor v State of South Australia & Anor.[45] The plaintiffs sought an injunction to prevent development of a tourist resort on portion of the Flinders Ranges National Park, alleging that the proper procedures required by the Planning Act 1982 (SA) had not been followed in respect of the proposed development. At first instance[46] Jacobs J noted that the plaintiffs asserted a special interest in the Flinders Ranges and the Flinders Ranges National Park. He considered that there were “strong grounds for according ‘locus standi’ to a responsible and representative body such as the first plaintiff to insist that development in an area which is demonstrably within its sphere of interest should be undertaken according to law.”[47] On that basis his Honour was prepared to hold that the plaintiffs had standing to bring the application.
[45] (1990) 53 SASR 349.
[46] (1989) 52 SASR 288 at 302 – 303.
[47] Ibid at 303.

On appeal to the Full Court, however, while the standing of the plaintiffs was confirmed, the grounds were expressed much more narrowly. King CJ, with whom Cox and Duggan JJ agreed, said:[48]
I would have no difficulty about affirming that the principle that a plaintiff must have an interest in the subject matter of the action beyond that which exists in the public at large, would justify the denial of standing to members of the community who, although possessing theoretical rights to make representations and to appeal if the proposed development were the subject of an application for planning authorisation, have no serious intention of exercising those rights. I cannot see any valid reason, however, for denying standing to maintain an action to prevent a development without compliance with the proper planning process, to a person who seriously intends, if the proper process is followed, to make representations and perhaps appeal against an adverse decision. A person who entertains such a serious intention seems to me to have an interest beyond that of the interest of members of the public generally in the enforcement of the law.
The special interest in such a case arises not from the impact which the proposed development will have on the plaintiff but from the threatened deprivation of the right to oppose by representations and appeal which right is conferred upon him by statute irrespective of the impact, if any, of the proposed development upon him. I think that such an interest goes beyond “the satisfaction of righting a wrong, upholding a principle or winning a contest”: Australian Conservation Foundation Inc v Commonwealth per Gibbs J at 530; it relates to the preservation of the right conferred by statute to take the measures authorised by the statute to oppose the development. Parliament has seen fit to confer such rights on all persons without distinction and irrespective of whether the proposed development will have any special impact upon them. The special interest justifying locus standi is the interest which a person, seriously desirous of exercising those rights, has in preserving them by preventing the development from proceeding without compliance with the process which enables the rights to be exercised.
The statement of claim, although it alleges that the plaintiffs would have been entitled to make representations if the proper process had been undertaken, does not allege in terms that the plaintiffs would have availed themselves of the entitlement. It would be unduly technical, however, to base a decision upon such an omission. There can be no doubt the earnestness of the plaintiffs’ determination to oppose the proposed development and no doubt that they would exercise their rights under s 53 if the opportunity existed. That being so, I consider that the plaintiffs have locus standi to maintain the action ….
[48] (1990) 53 SASR 349 at 354 – 355.
In other words, the only interest which provided standing to the plaintiffs to sue was the deprivation of the alleged right of the plaintiff under s 53 of the Planning Act to make representations to the planning authority in respect of the granting or refusing of the developer’s application, and its subsequent right of appeal to the Planning Appeal Tribunal by reason of the alleged non-observance of the procedures prescribed under the Planning Act. The Full Court did not hold that locus standi existed merely because of an alleged breach of the requirements of the Planning Act and of the plaintiffs’ interest in the environment in question, but because those alleged breaches deprived the plaintiff of rights of representation.
Notwithstanding the narrow basis on which the Full Court granted standing in the ACF Case, the Court has recognised other situations where a legal challenge to a development authorisation may be brought notwithstanding the absence of any right on the part of the plaintiff to be heard in respect of the development authorisation. In R v The Corporation of the City of Burnside; Ex parte Ipswich Properties Pty Ltd[49] a majority of the Full Court, in denying standing to an objector to a particular development, said:[50]
It cannot have been the intention of the legislature, when it took away the right of public objection to a vastly wider range of developments, that members of the public who, for one reason or another disapproved of the proposal, should have an easy right of access to this Court to challenge the planning decision which they could no longer challenge under the Planning Act 1982. It would, in short, defeat the purpose of the legislation if this Court were to exercise its discretion to concede locus standi to such persons, save perhaps in exceptional cases. Such a case might arise, for example, if it were plain beyond argument that the planning process was unlawful, or had otherwise miscarried, so that the Court may readily assume that the Attorney-General would have intervened at the suit of a relator, had he been asked to do so.
[49] (1987) 46 SASR 81.
[50] Ibid at 84, Jacobs J; Legoe J agreeing.
The only planning process under challenge in these proceedings is the decision of the DAC on 8 December 2005 to extend the time within which substantial work on the site of the development should be commenced under the development authorisation granted to Mr Hitchcock. That is the relief claimed in para 5C of the prayer for relief. As will be seen there was, in my view, nothing unlawful about that decision which would justify affording standing to the plaintiff in these proceedings.
The plaintiff in this case relied on the decision of the Full Court of the Supreme Court of Western Australia in Ex parte Helena Valley/Boya Association (Inc); State Planning Commission and Beggs.[51] That case involved an amendment to a planning scheme under the Metropolitan Region Town Planning Scheme Act 1959 (WA) where the plaintiffs alleged non-compliance with the requirements of the Act. One of the plaintiffs was an incorporated association of residents and ratepayers of the relevant locality, concerned to protect the environmental condition of the land in the vicinity of their property. Ipp J, with whom Pidgeon J agreed, in holding that the association had standing, relied heavily[52] on the judgment of Jacobs J at first instance in Australian Conservation Foundation Inc v South Australia[53] to which I have already referred. At that time the appeal against the decision of Jacobs J had not been heard by the South Australian Full Court. The Western Australian Court therefore relied upon a dictum which the Full Court of this Court did not endorse. Accordingly, the reasoning of the Western Australian Court, insofar as it relied on the dictum of Jacobs J, cannot be followed in this jurisdiction.
[51] (1990) 2 WAR 422.
[52] Ibid at 437.
[53] (1989) 52 SASR 288.
That is not to say, however, that a denial of a statutory right will be the only ground on which a conservation or environmental group may be able to challenge a decision permitting a development to which it objects. As has been seen, the door was opened to allow a broader kind of special interest with the decision of the High Court in Onus v Alcoa of Australia Ltd.[54]
[54] (1981) 149 CLR 27.
In North Coast Environment Council Inc v Minister for Resources[55] Sackville J undertook a comprehensive survey of the development of the authorities on standing since and including Australian Conservation Foundation Inc v the Commonwealth.[56] While many of the authorities cited relate to the statutory provisions of s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), they are relevant to the developing concept of special interest. Based on that survey, Sackville J identified a number of principles with which I respectfully agree.[57] In summary, those principles are:
·   The plaintiff must demonstrate a “special interest” in the subject matter of the action. A “mere intellectual or emotional concern” for the preservation of the environment is not enough to constitute such an interest. The asserted interest “must go beyond that of members of the public in upholding the law … and must involve more than genuinely held convictions”.
·   A plaintiff may be able to demonstrate a special interest in the preservation of a particular environment. An intellectual or emotional concern is no disqualification from standing to sue.
·   An allegation of non-compliance with a statutory requirement or an administrative procedure is not enough of itself to confer standing.
·   The fact that a person may have commented on environmental aspects of a proposal does not of itself confer standing to complain of a decision based on an environmental assessment process.
·   An organisation does not demonstrate a special interest simply by formulating objects that demonstrate an interest in and commitment to the preservation of the physical environment.
[55] (1994) 55 FCR 492 at 502-511.
[56] (1980) 146 CLR 493.
[57] (1994) 55 FCR 492 at 512.
The factors which lead Sackville J to conclude that the plaintiff, an incorporated environmental protection group, did have standing in that case were the following:[58]
·First, North Coast is the peak environmental organisation in the north coast region of New South Wales, having 44 environmental groups as members. Its activities relate to the areas affected by the operations generating the woodchips that are the subject of the expert licence granted to Sawmillers.
·Secondly, North Coast has been recognised by the Commonwealth since 1977 as a significant and responsible environmental organisation. This recognition has taken the form of regular financial grants for the general purposes of the organisation. While the grants have been modest, they have been recurrent and reflect acceptance by the Commonwealth of the significance of the role played by North Coast in advocating environmental values.
·Thirdly, North Coast has been recognised by the Government of New South Wales as a body that should represent environmental concerns on advisory committees. The most important form of recognition for present purposes has been membership of North Coast’s nominees on the Forestry Policy Advisory Committee, the role of which is to advise the State Minister on forestry matters, including the management of State forests. This and other forms of participation in official decision-making processes show that the State government has accepted North Coast as a representative of environmental interests.
·Fourthly, North Coast has conducted or co-ordinated projects and conferences on matters of environmental concern, for which it has received significant Commonwealth funding. While these have not specifically concerned forest management or woodchipping, they reflect North Coast’s standing as a respected and responsible environmental body.
·Fifthly, independently of North Coast’s long involvement with successive licences granted to Sawmillers, it has made submissions on forestry management issues to the Resource Assessment Commission and has funded a study on old growth forests, focusing upon the Wild Cattle Creek State Forest.
[58] Ibid at 512 – 513.
Similar principles were applied by Sackville J in Tasmanian Conservation Trust Inc v Minister for Resources.[59]
[59] (1995) 55 FCR 516. See also Defence Coalition against RCD Inc v Minister for Primary Industries and Energy (1997) 74 FCR 142 at 149 – 151.
Against that background I turn to a consideration of the plaintiff’s position in this case in respect of the various claims for relief contained in the amended inter partes summons.
In relation to the primary relief concerning the alleged lapse of the original development authorisation and the allegation that the development being carried out is not an authorised development, the plaintiff does not point to the infringement of any private right which is said to be denied to it and it has no relevant commercial interest which is affected. It had no right to be heard in relation to the application to the DAC to extend time. The plaintiff does assert by its objects a special interest in the preservation of the natural environment of Elliston and surrounding areas. However, that in itself is insufficient. It does not bear any of the features which might demonstrate a relevant special interest in the preservation of that environment. It is not a peak environmental organisation. It has not been recognised by any government as being a relevant body to express opinions on environmental aspects of development. It has not received any financial grants from governments. It has not been represented on advisory committees or the like nor made submissions to government or other bodies concerning the environment of Elliston and its surroundings. In short, it appears to have been incorporated principally for the purpose of instituting these proceedings. There is no evidence that it has done anything else. I respectfully adopt the words of R D Nicholson J in Defence Coalition against RCD Inc v Minister for Primary Industries and Energy[60] as being appropriate to this plaintiff in respect of the primary relief claimed:
The present case is not a case where there is any evidence of funding or other government recognition of the applicant, such as would give rise to the requisite special interest. The evidence shows only that the applicant here is an association of individuals having like views.
The true position is the decision does not effect the members of the applicant differently from ordinary members of the public except in relation to their emotional and intellectual interest in the subject matter of the decision. On the applicant’s case it is not shown that success in the action would relieve it of a detriment or disadvantage to which it would otherwise have been subject to an extent greater than an ordinary member of the community.
[60] (1997) 74 FCR 142 at 153.
The same comments apply to paras 5A, 5B and 5C of the additional relief claimed.
The position is different in respect of the relief claimed in paras 5D and 5E of the additional relief. Paragraph 5D attacks the validity of the whole of reg 6 of the Aquaculture Variation Regulations 2006. The text of that regulation is set out below. It is sufficient to note that it inserts two additional sub-regulations at the end of reg 31. Those sub-regulations prescribe three exemptions from the provisions of the Aquaculture Act in respect of the granting of certain development leases and a corresponding licence. Two of the exemptions relate to the granting of a development lease. One of them[61] relates to the granting of a corresponding licence. In relation to the two exemptions from compliance with the Act in relation to the granting of leases, for reasons previously given the plaintiff can have no relevant special interest. However, in relation to the granting of the licence, the regulation prescribes that s 50(1)(b) of the Act does not apply to the granting of corresponding licences of the type granted to ABI on 14 February 2006. Section 50(1)(b) of the Act contains the provision that requires the Minister to cause public notice of the application for the licence to be published and to invite interested persons to make written submissions on the application, and which requires the Minister to take such submissions into account. The plaintiff would qualify as an interested person for the purposes of that subsection. The regulation under challenge, if valid, would remove that right. In this respect the situation is analogous to that which allowed the plaintiffs’ standing in Australian Conservation Foundation Inc v State of South Australia, [62] and the plaintiff would have standing to challenge that part, but only that part, of the regulation. As King CJ observed in the ACF Case,[63] to base a decision on the fact that the plaintiff has not asserted that it would avail itself of the opportunity to make a submission would be unduly technical. I accept that the plaintiff would make a submission if the opportunity existed. As the prayer for relief presently stands, I would not grant the plaintiff standing because the relief sought goes way beyond any special interest that the plaintiff might have. If the declaration of invalidity was limited to reg 31(4)(c), I consider that the plaintiff would have standing. However, for reasons which appear below, I do not consider that the regulation is invalid.
[61] Sub-regulation (4)(c).
[62] (1990) 53 SASR 349.
[63] Ibid at 355.
Similar considerations apply to para 5E of the additional relief claimed. The regulation under attack is a variation of the Development Regulations which has the effect of including in the list of category 1 developments any form of aquaculture development in three defined areas, one of which is the Aquaculture site. The other two are remote from it and can be of no concern to the plaintiff. To the extent that the regulation, by including the Aquaculture site as a category 1 development, removes the plaintiff’s right to make representations to the DAC in respect of ABI’s third variation application and the final application, the plaintiff does have a relevant special interest, but only to that extent. For similar reasons as expressed in relation to para 5D of the prayer for relief, I would not grant the plaintiff standing to claim the relief sought in its present form. If the relief claimed were amended to relate only to the inclusion in the regulation of the Aquaculture site, the position would be different. However, for reasons which appear below, the relief claimed must be denied in any event.
Whether the development authorisation had lapsed
In view of my conclusion that the plaintiff has no standing to seek this and related declarations, it is not strictly necessary that I express a conclusion on this question. However, in case I am wrong as to the plaintiff’s standing, it is desirable that I do so.
The approval granted by the DAC on 28 January 2003 described the nature of the proposed development as:
Establishing a 20 hectare sub-tidal aquaculture site for the farming (sic) Greenlip Abalone and Blue Mussel.
Unlike a conventional on-land development approval involving the erection of a building or structure, the authorisation did not follow the three-stage process of provisional development plan consent, provisional building rules consent and final development approval. There was just the one process of final development approval. However, there had been an exhaustive analysis by PIRSA Aquaculture of the nature of the proposed anchors, buoys, lines, barrels and cages to be employed in the aquaculture operation at the site.
The approval was subject to ten conditions. Those relevant for present purposes are conditions 1 and 5:
1.That except where minor amendments may be required by other relevant Acts, or by conditions imposed by this application, the development is to be established in strict accordance with the details and plans submitted in development application number 933/0011/97. Any additional structures for the approval site will require an additional development application and a separate development approval.
5.That the longlines be kept taut with trailing ends trimmed at all times.
It is clear that the project as approved involved the installation and anchoring of a series of longlines from which were to be suspended, and suitably buoyed, a series of barrels and cages which would house the abalone.
One of the advisory notes which immediately followed the conditions was as follows:
·The development approval must be substantially commenced within 12 months and completed within 6 years of the date of the Approval, unless this period has been extended by the Development Assessment Commission or varied by the information supplied with the application.
It will be noted that the DAC required completion of the development within 6 years of the date of approval. That was in accordance with the powers of the DAC conferred by reg 48(2) of the Development Regulations to extend the time prescribed by reg 48(1) (3 years) at the time when the relevant consent or approval is given.

Section 68 also relevantly provides:
(1)A person proposing to take an action that the person thinks may be or is a controlled action must refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action.
(2)A person proposing to take an action that the person thinks is not a controlled action may refer the proposal to the Minister for the Minister’s decision whether or not the action is a controlled action.
I am in no position in these proceedings to decide whether the action taken by ABI in reliance on the development authorisation was a controlled action for the purposes of sections 67 and 68 of the Act, and it is not necessary to decide that question to resolve the issues in this case. What is challenged by the plaintiff is the validity of the extension of the development authorisation. The act of applying for an extension by ABI and the act of granting the extension by the DAC were not controlled actions for the purposes of the Environment Protection and Biodiversity Conservation Act. Whatever may be the consequences of ABI’s actions under that Act, that Act cannot affect the validity of the decision of the DAC to extend time under s 40 of the Development Act.
The remaining grounds on which the validity of the extension of time is challenged have been sufficiently dealt with in the course of these reasons. If the plaintiff had standing to bring the application, I would refuse the declaration claimed in para 5C of the prayer for relief.
If the plaintiff had standing to seek the declaration claimed in para 5C of the inter partes summons, and if the extension by the DAC was, contrary to my opinion, null and void, I would nevertheless, as a matter of discretion, decline to grant the declaration.
On the one hand, it may be said that if ABI had applied due diligence to the acquisition of Mr Hitchcock’s interest in the development authorisation, the probable lapse of the authorisation would have been revealed. On the other hand, the plaintiff and those who were responsible for its formation and incorporation were also aware of Mr Hitchcock’s application and, I infer, of the development authorisation. If they were serious about opposing it, they could have taken action much earlier than they did in an endeavour to prevent the development from occurring. Even once they were aware of ABI’s activity at the Aquaculture site, they did nothing to warn ABI of the impending proceedings or to indicate that they considered that the development authorisation had lapsed. It was during this period up to the commencement of the proceedings that ABI expended substantial sums in developing the site, constructing the pontoon culture units, obtaining and maintaining suitable abalone stock, on further research and development of the aquaculture method itself and towards the processing and selling of the ultimate product. I accept the evidence of Mr Ferguson, Group Chief Executive Officer of Australian Bight Abalone Ltd and its related entities, without going into all the detail, that ABI would incur substantial and probably irreversible losses if it were forced to cease its present activity at the Aquaculture site.
Given that substantial expenditure and that ABI’s final application for development authorisation for its present activities is still outstanding, and the reasonable prospect that the application might well be approved, I would decline to take any action at this stage which would require cessation of the activity and the incurring of inevitable substantial losses. It would be premature to take such action until the present outstanding development application is resolved.
Validity of regulation 6, Aquaculture Variation Regulations 2006
When it became apparent to ABI that, through no fault of its own or of Mr Hitchcock, its aquaculture production lease might be invalid, it immediately applied for the only lease available in the circumstances, namely a pilot lease, in respect of the Aquaculture site. That is because no other lease could be granted in an area which was not within an aquaculture zone.
The irregular grant of the production lease to Mr Hitchcock is explained by Mr Nightingale, the Executive Director of PIRSA Aquaculture.
In mid April 2002, no doubt in anticipation of the coming into effect of the Aquaculture Act, PIRSA Aquaculture imposed a moratorium on dealing with further applications for aquaculture licences under the Fisheries Act. At that time there were between 160 and 200 applications still being assessed under the provisions of the Fisheries Act. By 1 July 2002 there were 13 applications outstanding, one of which was that of Mr Hitchcock. They had all been fully assessed under the Fisheries Act, and the consent of PIRSA Aquaculture to the grant of development approval had been conveyed to the DAC. As at 1 July they had not been formally granted DAC approval, and it was the practice of PIRSA Aquaculture not to grant a licence under the Fisheries Act before development authorisation had been granted. I have already referred to the rather confusing action of PIRSA Aquaculture in informing Mr Hitchcock on 24 May 2002 that a licence would be granted and enclosing a form of licence purporting to take effect from 1 July 2002. In the circumstances which happened, none of the 13 applicants in question received a licence under the Fisheries Act before 1 July 2002.
PIRSA Aquaculture considered that in those circumstances the transitional provisions of the Aquaculture Act applied without the applicants having to satisfy any further requirements of that Act. It was considered that the grant of a licence (and presumably a lease) was simply a formality under the Aquaculture Act once development approval was obtained. In the case of Mr Hitchcock, it was considered that the lease under the Aquaculture Act which most closely approximated the licence that Mr Hitchcock would have received under the Fisheries Act was a 12 month production lease. It was therefore granted on 11 February 2003. To add to the confusion of the 24 May 2002 letter, no licence was then granted as it seems to have been assumed that the licence enclosed with the letter was effective. The licence was renewed as from 1 July 2003. The other 12 applicants in the same situation were also granted production leases.
In order to redress the error made by PIRSA Aquaculture, the Governor, on the advice of the Executive Council, included reg 6 in the Aquaculture Variation Regulations 2006. That regulation added certain provisions to existing reg 31. Regulation 31 provides for certain exemptions from the operation of the Act. Regulation 6 is in the following terms:
Regulation 31—after subregulation (3) insert:
(4)The following exemptions apply in relation to an application by a transitional lessee for the grant of a development lease over the transitional lease area, and an application by a transitional licensee for the grant of a corresponding licence relating to such a development lease:
(a)section 32 of the Act does not apply—the development lease may be granted to the transitional lessee in respect of an area whether or not it comprises or includes State waters within an aquaculture zone;
(b)section 33 of the Act does not apply—the development lease may be granted to the transitional lessee without an allocation process being undertaken;
(c)section 50(1)(b) of the Act does not apply—the Minister may decide that a corresponding licence will be granted containing specified conditions in connection with the application by the transitional lessee for the development lease without causing public notice of the application to be published.
(5)For the purposes of this regulation—
(a)a transitional lease is a production lease purportedly granted under clause 3 of the Schedule of the Act to a person who was, immediately before the commencement of that clause, an applicant for a licence authorising aquaculture operations; and
(b)a transitional lessee is a person who, immediately before the commencement of this subregulation, held a transitional lease or a lease derived from a transitional lease (whether or not through a purported transfer of the lease and whether or not there has been any purported alteration of the boundaries of the lease area); and
(c)a lease will be taken to be derived from a transitional lease if the lease is one of a number of leases purportedly substituted for the transitional lease; and
(d)a transitional licensee is a person who, immediately before the commencement of this subregulation, held a corresponding licence purportedly granted in relation to a transitional lease or a lease derived from a transitional lease.
The plaintiff attacked the validity of this regulation on the basis that it purported to create, without any authority under the Aquaculture Act, a new class of aquaculture lease known as a “transitional lease”. It was said to be repugnant to the Act in the sense discussed by Channell J in Gentel v Rapps.[75] If that were in truth the effect of the regulation it would be invalid. However, that is not the effect of the regulation. The regulation uses the term “transitional lease”, “transitional lessee” and “transitional licensee” as convenient drafting terms to describe something which purported to exist under the Act but which in fact did not exist. The regulation did not purport to validate what the Minister had done in irregularly granting the production leases. It merely provided in effect that if a person who had been irregularly granted what purported to be a production lease but which was not, and the person subsequently applied for a development lease, ss 32 and 33 of the Act would not apply to the grant of such a development lease, and that public notice need not be given of an application for a corresponding licence. This was no doubt on the advice that all necessary criteria for the granting of such leases and licences had been met. The regulation does no more than exempt this group of 13 applicants from certain requirements of the Act should they apply for a development lease.
[75] [1902] 1 KB 160 at 166. See also Macris v Lucas [1971] SASR 329; Morton v Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402 at 410; In re Metropolitan Abattoirs Acts 1908 - 1930 : Ex parte George Chapman Ltd [1932] SASR 184.
The regulation making power in the Act is contained in s 91. Section 91(2) specifically provides that regulations may make provision for or relating to –
(c) exemptions (conditional or unconditional) from specified provisions of this Act.
Subsection (3) provides that the regulations may –
(a) be of general application or vary in their application according to prescribed factors.
It is inherent in the nature of an exemption that it will derogate from the Act insofar as it exempts an activity or person from the requirements of the Act. A person benefiting from an exemption will therefore enjoy an advantage that others who are not exempted do not have. It cannot be ultra vires a statute to enact a regulation allowing for exemptions which necessarily derogate from the provisions of the Act and to confer such advantages when the statute itself specifically contemplates such a regulation. The regulation is not inconsistent with the Act and falls within the regulation making power contained in s 91. It might be different if the exemption conferred by the regulations benefited a very large class of persons. There may come a point where such a regulation effectively varies the Act. But that is not this case.
The relief claimed in para 5D of the additional relief must be refused.
It follows that the subsequent grant of the development lease to ABI on 15 February 2006 is not invalid by reason of non-compliance with ss 32 and 33 of the Aquaculture Act. It also follows that the licence granted to ABI on 14 February 2006 is not invalid by reason of non-compliance with s 50(1)(b) of the Act. It would appear that there has been a technical breach of the Act in granting that licence in that it was granted one day before the lease, contrary to the provisions of s 19 of the Act. That would seem to be but a technical breach, but is a further indication of lax administration under the Act.
If the plaintiff were to have standing to seek a declaration as wide as that claimed in para 5D of the prayer for relief and if, contrary to my opinion, the regulation were invalid, I would not exercise my discretion to refrain from making the necessary declaration. There is a public interest in ensuring that, if delegated legislation is invalid and the plaintiff has sufficient standing to seek the declaration, the Court should so declare. Otherwise, the regulation might have an ongoing and misleading effect. The effect of such declaration in this case would be that ABI’s present development lease and licence would be invalid. However, that would not be the end of ABI’s venture. It also has an unprocessed application for a pilot lease which, in all probability, would be granted and which would be sufficient to sustain ABI’s present activity.
Validity of the Development (Aquaculture Development No 2) Variation Regulations 2006
The Development (Aquaculture Development No 2) Variation Regulations 2006, which took effect on 16 February 2006, were made under the Development Act. Regulation 4 of those regulations enacted a variation to Schedule 9 of the Development Regulations which had the effect of determining that development within an area delineated in any one of three specified areas of the State would be a category 1 development. One of those specified areas was the Aquaculture site. The other two areas appear also to be areas of coastal water, but there is no evidence of their nature or of the reason why they might have been included in the regulation.
Section 38(2) of the Development Act enables regulations made under the Act to assign a form of development to category 1 or category 2. Therefore, on the face of it, the regulation is within power. Prior to the passing of the regulation any development in any one of the three specified areas was a category 3 development, and any application for development approval or for amendment of an existing development approval was required to be treated as an application in respect of a category 3 development, thereby conferring on the plaintiff rights of representation in accordance with s 38 of the Development Act and potentially a right of appeal to the Environment Resources and Development Court against the granting of the development authorisation. The effect of the regulation is that in respect of ABI’s third variation application and its final application for development approval, the plaintiff now has no such rights. It is alleged that the regulation was made for an improper purpose, presumably to prevent the plaintiff from making such representations.
The Development Act and the regulations are silent as to any criteria which should govern the decision of the Governor to make regulations under reg 38 assigning a form of development to category 1 or category 2 and the decision of a council to do likewise under the terms of a relevant Development Plan. It is therefore the function of the Governor or the council as the case may be to decide which developments should fall into category 1 or category 2. The very purpose of making such a decision is to abrogate or restrict rights of representation and appeal in relation to a development application.
Whether or not a regulation has been made for an improper purpose can often be determined from the nature of the regulation itself. Brownells Ltd v The Ironmongers’ Wages Board; Brownells Ltd v The Drapers’ Wages Board[76] concerned not the validity of a regulation but the validity of a determination of a statutory wages board constituted under the Wages Boards Act 1920-1946 (Tas). Clause 5 of the Wages Board Determination fixed the maximum hours that could be worked in ordinary time and the spread of those hours between 8.00am and 5.45 pm Monday to Friday inclusive. Clause 6 provided for the payment of overtime in conventional terms but provided further that “if a shop is open for the sale of goods after the hour fixed in clause 5 for ceasing work”, certain additional and substantial penalty rates were to be paid. The provision was characterised by the High Court was being effectively a restriction on shop trading hours rather than a genuine provision for the payment of overtime. Latham CJ[77] considered that it “cannot be disputed that the Board has sought to use its powers to determine overtime rates for the purpose of bringing about the closing of shops at an hour other than that required by the Legislature in the Shops Act 1925-1945”, as the payment of the relevant penalties had no relation to work actually done and was not a genuine provision for overtime payment.
[76] (1950) 81 CLR 108.
[77] Ibid at 120.
Dixon J said:[78]
What is important is that the clause, having fixed a rate of overtime, proceeds by the proviso to fix minimum payments for that overtime, if and only if the shop remains open beyond the specified times. Further, it is not without importance that it fixes them at alternative amounts capable of operating as a heavy charge upon a shop-keeper who exceeds by say fifteen minutes the specified hour. Two things thus appear clearly upon the face of the proviso. One is that rates are fixed which will operate as a deterrent. The other is that the thing it would operate to deter the employer from doing is, not requiring the employee to work overtime simpliciter, but keeping his shop open in so doing. It is not a question of remuneration or reward for working overtime. That is dealt with by fixing time and a half. It is keeping open the shop.
[78] Ibid at 129 - 130.
No such improper purpose can be detected from the terms of the regulation under challenge. It was within the power of the Governor to make a regulation assigning particular types of development according to whatever criteria might be chosen as category 1 developments.
All delegated legislation will generally be enacted for a purpose. In cases like the Ironmongers’ Wages Board Case it was apparent from the terms of the delegated legislation that the purpose was outside the permitted purpose. But that will not always be the case. Motive may be examined. In R v Toohey:Ex parte Northern Land Council[79] Gibbs CJ said:[80]
[I]f the Crown in Council makes a regulation which appears on its face to be made for a purpose that was not authorized by the statute under which it purports to be made, the regulation will be invalid. It would be anomalous if a regulation which bore the semblance of propriety would remain valid even though it should be shown in fact to have been made for an unauthorized purpose; that would mean that a clandestine abuse of power would succeed when an open excess would fail.
[79] (1981) 151 CLR 170.
[80] Ibid at 192. See also Stephen J at 215, Mason J at 225 and Wilson J at 283.
If the empowering legislation specifies in some detail the purpose for which the delegated legislation may be enacted, and that purpose is not apparent from the delegated legislation itself, in the event of challenge it may be necessary to enquire, according to evidence of extraneous facts, whether the legislation was enacted for that purpose or for some other purpose. That will be a permissible enquiry. Where, as in this case, the only purpose of the delegated legislation is to restrict rights of representation and appeal in respect of particular development authorisations by labelling the development a category 1 development, the purpose is obvious and its achievement equally clear. There may, however, be evidence of a motive or motives which indicates that the regulation was made for some extraneous or improper purpose. However, that is a matter of proof which has not been forthcoming in this case. It is not sufficient that the regulation operates to the detriment or benefit of one particular individual.

It is not unusual for political considerations to enter into the decision to exercise a particular regulation making power. However, that does not render the regulation invalid as being made for an improper purpose, and it is not for a court to judge whether some political influence has been brought to bear if the regulation on its face appears to be a valid exercise of the regulation making power.
In South Australian River Fishery Association Inc & Warrick v South Australia[81] the plaintiffs challenged certain regulations under the Fisheries Act which it was said prevented fishers from using gill nets and from taking callop and cod from the River Murray. It was said that the regulation abrogated a certain agreement between the Association and the State relating to the restructure of the fishery, and was entered into for the purpose of giving effect to a compact between the leader of the Labor Party and the member in the House of Assembly for the seat of Hammond before the Labor Party formed government with the assistance of the member for Hammond.
[81] (2003) 85 SASR 373.
In the circumstances of that the case the Court had to decide whether the regulations were reasonably capable of being regarded for the “conservation, enhancement and management of the living resources” of the waters of the River Murray. Doyle CJ said:[82]
Another way of putting it is that the court must decide whether the amending regulations go beyond what could be reasonably adopted for that purpose: Williams v Melbourne Corporation (1933) 49 CLR 142 at 152 per Dixon J; South Australia v Tanner (1989) 166 CLR 161 (at 165 and 175 – 176).
In this respect the court takes a broad approach. The court does not impose its view of the solution to an issue. The court does not substitute its decision as to how a matter should be dealt with. The question for the court is whether what is done by the amending regulations is reasonably capable of being regarded as made or adopted for the permitted purpose: Tanner (at 165 and 175). This formulation reflects the appropriate place of the exercise of judicial power in this respect. The role of the court is to consider whether the amending regulations have a sufficient relationship to the head of power, not whether the amending regulations embody what the court regards as the appropriate response to the circumstances in question.
[82] Ibid at 384, [55] – [56].
As to the relevant political considerations Doyle CJ said:[83]
Like the [trial] judge, I am prepared to accept that the Minister would not have brought the amending regulations to Cabinet but for the compact [between the leader of the Labor Party and the member for Hammond]. But to say that is only to say that political considerations played a part in the making of a decision that is apparently within power.
That conclusion is not an indicator of invalidity. The exercise by the Governor-in-Council of a statutory power will often have a political aspect. To put it bluntly, if two quite different but acceptable courses of action are open in a given case involving the exercise of a statutory power for a specified purpose, the government of the day is entitled to adopt the course which will secure a political advantage. That is, if a statutory power to make delegated legislation can validly be exercised to achieve either one of two quite different ends, the government of the day may make the choice according to political considerations.
[83] Ibid at 392 – 393, [115] – [116].
Likewise, Gray J said:[84]
The Government has the power under the Fisheries Act to take steps to protect and preserve the river and its resources in the general public interest. The power to make regulations is wide. The court is not the forum to determine whether the interests of one group should be preferred over those of another in the making of regulations.
[84] Ibid at 414, [208].
Besanko J also said:[85]
None of this is to deny the obvious point that political considerations may be relevant in a case where improper purpose is alleged. Political considerations may be the reason why the decision-maker seeks to achieve a collateral purpose. However, it is difficult to envisage a situation in which political considerations of themselves could constitute an improper purpose in circumstances where the exercise of power is otherwise valid.
[85] Ibid at 421, [241].
No-one has suggested in this case that there were political considerations dictating the making of the regulation of the type which was under consideration in the SA River Fishery Association Case. There may have been a decision to favour the interests of the aquaculture developers over those of the plaintiff, but that is mere speculation. In my opinion there is no evidence from which to infer an improper purpose and no rational basis for finding that the regulation was made for a purpose not contemplated by the Act. It follows that the plaintiff cannot succeed in para 5E of the additional relief.
If the plaintiff had standing to seek a declaration as wide as that claimed in para 5E of the prayer for relief and if, contrary to my opinion, this regulation were invalid, this is another case where I would not exercise my discretion to refrain from making the appropriate declaration in the public interest. Such a declaration would not mean the cessation of ABI’s activity. It would merely mean that ABI’s third variation application and final application to the DAC for development authorisation would be dealt with as a category 3 development by the DAC rather than as a category 1 development, and with some reasonable prospect of one or other application being granted.
Whether the works undertaken by ABI in establishing the aquaculture activity are authorised by the development authorisation
Paragraph 3 of the prayer for relief seeks a declaration, in the event that the development authorisation has not lapsed, that the activities of ABI at the Aquaculture site are not authorised by the terms of the approval. Once again, this is a matter on which it is not necessary to reach a conclusion, given my view that the plaintiff has no standing to seek this declaration.
The thrust of the plaintiff’s case is that, whereas the original approval granted to Mr Hitchcock was based on a system of aquaculture involving long lines from which barrels were suspended for the growing of abalone, the structures actually installed are different abalone pontoon culture units. These consist of 40 metre diameter surface rings or floating pontoons, from each of which is suspended a system of 100 millimetre tensioned netting into which a number of abalone culture units are woven. A change to the anchoring system is also intended. In addition, the original authorisation contemplated the development of mussel farming at the site, which is not now being proceeded with. Whilst ABI considers that this different of method of aquaculture falls within the terms of the original development authorisation, the third variation application and the final application presently before the DAC are made as a matter of precaution and to remove any doubt as to whether the present development varies from that which was approved.
There may be a question, given the terms of conditions 1 and 5 and the detail that was contained in Mr Hitchcock’s original application, as to whether there is strict compliance with the original development authorisation. That is not a matter on which this Court should express any view, at least at this stage, and without substantially more technical information. If, in dealing with the present applications before it, the DAC is satisfied that there is no material variation from the original development authorisation, it will do nothing. If it is satisfied that there is a variation from what was authorised and if it is satisfied that the authorisation should be varied to accommodate that, or that the fresh application for development approval should be granted, the question of compliance with the development authorisation will become academic. It is therefore inappropriate that I should accede to the request to make a declaration in terms of para 4 of the prayer for relief. I therefore decline to make such an order.
If, when the DAC has dealt with the applications before it, it is alleged that the activity being carried on by ABI is not in accordance with the development authorisation or the authorisation as amended, further application can be made to this Court. However, even then, there is no certainty that such a declaration would be made, given that there are other means contained in the Development Act of enforcing compliance with the terms and conditions of development authorisations.[86] Without expressing any view on the matter, it may be more appropriate for such questions to be determined by the specialist tribunal created to deal with issues arising out of those sections.
[86] Development Act 1993 (SA), ss 84 and 85.
Conclusion
For these reasons the plaintiff is unable to succeed in obtaining any of the relief claimed in the further amended inter partes summons. The plaintiff’s claim must therefore be dismissed.

[2007] SASC 19

19 January 2007

Key Legal Topics

Areas of Law

Environmental Law

Legal Concepts

Standing

Jurisdiction

Declaratory Relief