Ilic v City of Adelaide
[2010] SASC 139
•12 May 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Application for Judicial Review)
ILIC v THE CITY OF ADELAIDE & ANOR
[2010] SASC 139
Judgment of The Honourable Justice Kourakis
12 May 2010
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
ENVIRONMENT AND PLANNING - HERITAGE CONSERVATION - JUDICIAL REVIEW OF HERITAGE DECISIONS - GENERALLY
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL - HERITAGE PROTECTION
Plaintiff purchased residence in 2003 – plaintiff notified of proposal to designate residence local heritage place in 2006 – proposal resulted from heritage survey – plaintiff took no steps to lodge written objection – residence then designated local heritage place – between 2007 and 2009 plaintiff applied several times for demolition of residence and consent for new development – first defendant refused development approval – plaintiff obtained two opinions and first defendant obtained a further opinion all concluding that residence did not warrant listing as local heritage place – first defendant and plaintiff each requested heritage designation of residence be removed by second defendant, who refused both requests – plaintiff sought judicial review of first defendant’s refusal of development approval.
Whether lawfulness of designation of place as local heritage place turns on court’s finding that place satisfies one or more of criteria specified in Development Act 1993, s 23(4) or whether it turns on Minister’s opinion that place satisfied one or more of those criteria – held: power to designate a place as a local heritage place is administrative not legislative – lawful designation of a place as local heritage place turns on Minister’s opinion that one or more of the criteria specified in Development Act 1993, s 23(4) are satisfied – unnecessary in this case to go on to consider the grounds on which the opinion of the Minister may be reviewed.
Whether designation of residence as local heritage place ineffective because of erroneous description in Development Plan – held: description of residence in Development Plan sufficiently clear and certain for designation as local heritage place to be effective.
Whether first defendant’s refusal of development approval invalid because of Wednesbury unreasonableness and failure to have regard to the requests to remove heritage designation of residence – held: although residence of insignificant heritage value, first defendant’s decision to proceed on the basis that residence correctly designated as heritage place notwithstanding opinions to the contrary not perverse or unreasonable – first defendant’s refusal of development approval valid.
Development Act 1993 s 3, s 4, s 23, s 24, s 25, s 29, s 33, s 35; Development Regulations 2008 cll 1(4) and 12(1) of Sch 1A, cl 2 of Sch 2, cl 4(1) of Sch 3, Sch 4, referred to.
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297; Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120; Arthur Yates and Company Pty Ltd v The Vegetable Seeds Committee (1946) 72 CLR 37, applied.
RG Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615; The Victorian Stevedoring and General Contracting Company Proprietary Limited v Dignan; Meakes v Dignan (1931) 46 CLR 73, discussed.
South Australia Fire and Emergency Services Commission v Workers Compensation Tribunal (2009) 105 SASR 213; Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557; Willingdale v Norris [1909] 1 KB 64, considered.
ILIC v THE CITY OF ADELAIDE & ANOR
[2010] SASC 139Summons for Judicial Review
KOURAKIS J: The plaintiff (Mr Ilic) seeks orders against the first defendant (the City of Adelaide) setting aside or declaring invalid a decision made by it to refuse to approve a proposed development of the plaintiff’s land at Molesworth Street, North Adelaide (the land). The proposed development was for the construction of two semi-detached dwellings (the duplex) and therefore required the demolition of an existing dwelling on the land (the residence). The plaintiff also seeks a declaration that the purported designation of the residence as a Local Heritage Place in the Adelaide (City) Development Plan (consolidated 21 May 2009) (the Adelaide Development Plan) is ultra vires and of no effect.
Mr Ilic purchased the residence in late 2003 at a time when it was not heritage listed. By an amendment to the Adelaide Development Plan, effective from 30 March 2006, the residence was designated as a place of local heritage value (a Local Heritage Place) pursuant to s 23(4) of the Development Act 1993 (the Act). The plaintiff was first notified of the proposal to designate the residence a Local Heritage Place by letter from the City of Adelaide dated 28 September 2004 (the notification letter). He telephoned an officer of the City of Adelaide and made an oral objection. In that telephone conversation he was led to believe that a form would be sent to him on which he could make a written objection. He never received that form and took no other steps to lodge a written objection. The notification letter complied with the provisions of s 24(12) of the Act; it informed Mr Ilic of the proposed amendment to designate the residence a place of Local Heritage value and it invited him to make submissions on the amendment within the prescribed period. The notification letter did not provide any other information about how such an objection might be made; attachments which contained that information and to which the letter referred were not in fact enclosed with it. However, there was no obligation to provide that information. The Minister for Urban Development and Planning (the Minister) made the amendment to the Adelaide Development Plan which listed the residence as a Local Heritage Place on 30 March 2006. The Minister is the second defendant in these proceedings.
As will shortly be seen the preponderance of expert opinion obtained after the listing of the residence as a Local Heritage Place is that it does not exhibit any architectural features warranting the listing. In fact the City of Adelaide itself at one time requested the Minister to remove the designation but to no avail.
The demolition of a dwelling designated as a Local Heritage Place by the Adelaide Development Plan is a non-complying development.[1] The presently relevant statutory effects of that categorisation are that the City of Adelaide can refuse to approve the demolition without assessing the merits of the development and no appeal lies to the Environment Resources and Development Court from such a refusal.
[1] Adelaide Development Plan, North Adelaide Historic (Conservation) Zone, PDC 25(b).
Mr Ilic first applied for development approval for the duplex development on 22 February 2007. When that application was considered by the City of Adelaide’s Development Assessment Panel (the Assessment Panel) on 17 November 2007, it assessed the merits of the development even though it was not required to do so. It refused to approve the development on a number of grounds: it involved the demolition of a Local Heritage Place within the North Adelaide Historic (Conservation) Zone, it did not complement the context and pattern of development adjacent to the State Heritage Places and it was not sufficiently sympathetic to the fabric of the Molesworth Street townscape. It is, I think, implicit in the fact that the Assessment Panel proceeded to a merits assessment, and in the reasons of the Assessment Panel, that it had regard to the designation of the dwelling as a Local Heritage Place but did not treat that fact as decisive.
Mr Ilic made a second application for development consent limited to the construction of the duplex in March 2008. On the application Mr Ilic did not seek approval to demolish the residence. In that way, Mr Ilic sought to have the merits of the construction of the proposed duplex assessed as of right independently of the merits of the demolition of the listed residence. In August 2008 the City of Adelaide informed Mr Ilic that his application was ineffective because it related to only part of the development he proposed. The City of Adelaide took the position that the development necessarily included the demolition of the heritage listed residence and was therefore a non-complying development. The City of Adelaide refused to consider the application for approval of the proposed duplex development unless and until an application for approval of the demolition of the residence was also made.
In response, on 25 August 2008 Mr Ilic made a third development application seeking approval for the demolition of the residence. The planning officers recommended against approval on the grounds that the demolition of a structure without a proposal to replace it was not supported by the Adelaide Development Plan. The third application was refused by the Assessment Panel on 7 October 2008 on the grounds that it was a non-complying development and that no further assessment was warranted. The Assessment Panel did not undertake a merits assessment of the proposed duplex.
Mr Ilic then informed the City of Adelaide that he desired his second application for development approval of the duplex to be considered on the basis that consent for the demolition of the residence was also sought. On 19 January 2009 that application was considered by the Assessment Panel, which again determined not to proceed with a merits assessment of the proposal and refused development approval. That is the decision which is challenged in these proceedings.
The issues
At the request of the parties I agreed to hear and determine the following issues as preliminary issues before determining the final disposition of the proceedings:
1.Whether on the true construction of section 23(4) of the Development Act 1993 (SA) the lawfulness of the designation of a place as a place of local heritage value turns on:
1.1 the Court’s finding that the place satisfies one or more of the criteria specified in section 23(4)(a)-(g); or
1.2 the Minister’s opinion that the place satisfied one or more of such criteria;
1.3 some other test.
2.On the assumption that the facts set out in the Plaintiff’s affidavit and its exhibits are accepted, does the description of the elements of Heritage Vale of the Plaintiff’s dwelling in the Development Plan render ineffective the purported designation of the dwelling as a place of local heritage value;
3.Was the Council’s decision to refuse the Plaintiff’s application under section 39(4)(d) invalid on the grounds set out in paragraph 51 of the Plaintiff’s affidavit of 15 June 2009.
The grounds referred to in the statement of the third issue are: a failure to take into account the information in the City of Adelaide’s letters to Mr Ilic dated 17 April 2008 and 25 August 2006; a failure to take into account the fact that the Council had itself requested the Minister to remove the heritage designation of Mr Ilic’s dwelling; and Wednesbury unreasonableness.
I would answer the questions as follows:
1The lawfulness of the designation of a place as a place of local heritage value turns on the Minister’s opinion that one or more of the s 23(4) criteria are satisfied.
2No.
3No.
My reasons for so concluding follow.
The validity of the council’s decision to refuse the application
A Local Heritage Place?
Schedule 2 to the Adelaide Development Plan contains a discussion of the various architectural styles which are reflected in Adelaide’s building heritage. The old English Revival style is said to describe homes exhibiting Elizabethan Tudor architectural details such as brick or white rendered walls, steeply pitched roof form and tall chimneys.
The actual designation of the residence appears in a table headed Local Heritage Places at the foot of that part of the Adelaide Development Plan applicable to the Hill Street Policy Area:
Address Description of Place and Elements of Heritage Value Certificate(s) of Title Section 23(4) Criteria [Number omitted]
Molesworth StreetHouse
Inter-war Old English revival style residence[Number omitted] a,d
Section 23(4) of the Act is set out in [39] below. For now it suffices to observe that the criteria specified by s 23(4) of the Act which are referred to in the last column of the listing set out above are s 23(4)(a) “historical social and economic themes” and s 23(4)(d) “aesthetic merit, design characteristics or construction techniques”.
The designation of the residence resulted from a heritage survey of North Adelaide buildings conducted by McDougall and Vine. The survey described the dwelling in these terms:
STATEMENT OF HERITAGE VALUE:
This house is an important example of the Inter-War Old English revival style of residences constructed in North Adelaide during the 1920s – 1930s, and reflects the design, details and building materials commonly in use at that time.
The significant number of stone and brick residences, like this house, constructed in the Inter War period between 1920 and 1940 throughout this section of the city, are an important element of the distinctive historic residential character of North Adelaide. (emphasis in original)
The plaintiff subsequently obtained two opinions on the heritage value of the residence. The first was a report from the architects Danvers Schulz Holland dated August 2006. The author, Mr Schulz, stated that:
the subject building is not an ‘excellent’ or ‘important’ example of the inter-war Old English style, … and further does not represent important historical and social themes typical to the locality.
Mr Schulz’s opinion was that the residence is:
not a fine or exceptional example of inter-war Old English but is rather a mix of various styles of the day, including Spanish Mission. The subject building fails to display ‘typical’ characteristics of the inter-war Old English [style].
Mr Schulz concluded that the residence did not display sufficient aesthetic merit and design characteristics of significance to North Adelaide to warrant its listing as a Local Heritage Place.
In 2006, before Mr Ilic obtained the second of his two heritage reports, the City of Adelaide requested a heritage report from Peter Bell. Mr Bell dismissed the basis for the listing given in the McDougall and Vine survey as being little more than the fact that the residence demonstrates that houses were being built in the inter-war period. Mr Bell described the residence as “eclectic, as much Spanish as Old English”. It was his view that the dwelling “is by no means an ‘excellent’ or ‘important’ example of the Old English style”. In Mr Bell’s opinion neither Elizabethan nor Tudor details were evident. He recommended that the residence be removed from the schedule of Local Heritage Places.
In September 2006, after receiving Mr Bell’s report, the City of Adelaide asked the Executive Director of Planning SA to correct the Development Plan by removing of the residence pursuant to s 29 of the Act. On 18 August 2007 the Minister replied that insufficient evidence was presented to warrant an exercise of his power to correct errors. On 19 December 2007 the plaintiff’s solicitors also wrote to the Minister asking him to exercise the same power. The Minister replied on 3 April 2008, saying:
It is my understanding that Mr Ilic was advised by letter during the public consultation period of Council’s intention to consider the property for heritage listing and that Mr Ilic chose not to provide any submission to Council advising of his objections within the prescribed period.
I have sought the advice of the Crown Solicitor and do not consider that section 29 of the Development Act, 1993 is applicable in this case. In particular the heritage survey commissioned by Mr Ilic presents a difference in professional opinion regarding the heritage merit of the subject property. On this basis, there does not appear to be any error to correct and therefore any jurisdiction for me to intervene.
It is difficult to see how Mr Ilic’s predicament could be dismissed as no more than a matter of a professional difference of opinion. The cogent criticisms made of the McDougall and Vine recommendation were never answered. The reports of Mr Schulz and Mr Bell spoke of an absence of the architectural details of an old English Revival style residence and not just of a different assessment of the relative importance of the residence. The Minister’s response appears to suggest that s 29 of the Act is inapplicable where there is no procedural irregularity or where different opinions about the heritage value of the place have been expressed. In my view there is every reason to read the power more widely than that. The listing of a dwelling as a Local Heritage Place derogates substantially from individual rights of property in the interests of preserving the amenity of the built environment. However, there is no public interest in maintaining a listing that is based on a false premise. For example, if McDougall and Vine had been asked to respond to the criticisms made by Messrs Schulz and Bell, they may have accepted that there were no Elizabethan or Tudor elements and that the dwelling was a mix of various styles. There would then have been a strong case for the exercise of the remedial power conferred by s 29(2)(b)(ii) of the Act. I accept that a mere change of view about planning policy or the social value of preserving elements of the natural or built environment can not be described as an error within the meaning of s 29(2)(b)(ii). However, where a listing proceeds on a false factual premise, like the presence of a non-existent architectural detail, it would seem perverse to allow the listing to remain. Be that as it may, McDougall and Vine were not asked to respond and the decision of the Minister is not challenged.
In March 2008 the plaintiff obtained from Bruce Harry & Associates, Architects and Heritage Consultants, the second of his heritage reports. The author, Mr Harry, concluded that the residence was not even a typical example of inter-war old English Revival style, let alone an excellent one. Mr Harry’s opinion was that the dwelling:
is in reality an eclectic design possibly closest in recognised style to ‘inter-War Mediterranean’, which is … derived from Georgian domestic architecture with features of ‘Spanish Mission’.
Mr Harry also concluded that the residence did not have sufficient merit to warrant listing as an individual dwelling.
On the evidence before me I would find that the architectural style of the residence is not “old English Revival style” and therefore its heritage value is insignificant. However, unfortunately for Mr Ilic, for the reasons that I give below my finding on that issue is of no relevance.
Planning consent refused
The City of Adelaide’s planning officers prepared a report for the consideration by the Assessment Panel of Mr Ilic’s second application for approval to demolish the residence and to build the duplex in its place. The report recommended that the Assessment Panel proceed with a merits assessment of the application, notwithstanding that the development was a non-complying development. The planning officers summarised Mr Bell’s opinion, attached his report and informed the Assessment Panel that reports obtained from Mr Schulz and Mr Harry had expressed similar opinions. The Assessment Panel was informed of the request made of the Minister for Urban Development and Planning to review the Local Heritage Listing and his refusal to do so. The planning officers also referred to Mr Ilic’s earlier application for development consent which had been refused despite their recommendation that the proposed development be approved. Their discussion paper in part advised as follows:
In essence, the question for the panel is is it possible that this proposal may be found to be sufficiently in accordance with the Development Plan?
If not, then assessment should not be undertaken. If yes, then the panel could allow an assessment to be undertaken. …
Whilst the proposed development constitutes a non-complying form of development, it does display a certain degree of merit and is therefore worthy of further consideration. For the purposes of the current decision, it is sufficient to note:
·The design has been amended to incorporate a pitched roof that is reflective of the traditional roof forms of the adjacent State Heritage listed buildings.
·A detailed Heritage Significance Report undertaken by a heritage architect, specifically with regards to assessing the heritage value or the existing dwelling has been submitted in the Supporting Statement which provides justification for the proposal.
·Independent heritage advice from Peter Bell Consulting Historian was gained by Administration shortly after the owner lodging a written objection to the property’s listing. The report concurs with the applicant’s heritage advisor, agreeing that the existing dwelling has limited heritage value as follows [extract from Mr Bell’s reports are then reproduced].
·Although not required at this preliminary stage of assessment, the State Heritage Branch of the Department for Environment and Heritage has been consulted in regards to adjacency of the new dwellings to the State Heritage Places either side of the site. Their feedback indicates conceptual support for the proposed development with further design discussion required regarding the elongated (forward sloping gable apex). It should be noted that the Branch has commented that a previous application (DA/70/2007) which incorporated flat roofs was in their opinion a superior design and is their preferred option insofar as the buildings relates to State Heritage Places.
The test proposed by the planning officers in the first of the paragraphs I have reproduced is whether Mr Ilic’s development proposal is sufficiently in accordance with the Development Plan. I shall refer to that test as the reasonable prospects of approval test. The officers recommended that the assessment Panel determine to proceed with a merits assessment of the application.
A refusal of merits assessment was not unreasonable
There is an obvious inconsistency between the request of the City of Adelaide that the designation of the dwelling as a Local Heritage Place be revoked and the decision to refuse to approve the proposed development on its merits. Be that as it may, estoppel does not bind the hands of the Assessment Panel in exercising the planning discretions delegated to it pursuant to the Act. Those discretions must be exercised conformably with the dictates of the Act and the Assessment Panel’s own assessment of the merits of the development against the provisions of the Development Plan. The members of the Assessment Panel were duty bound to make their own judgment based on the material before them and their assessment of the relative weight of the relevant considerations. That assessment involves a question of fact with which this Court cannot interfere unless it is irrational.
I have concluded that the Assessment Panel’s implicit decision to proceed on the basis that the dwelling was correctly designated a Local Heritage Place, notwithstanding the opinions to the contrary expressed by Messrs Schultz, Bell and Harry, can not be described as irrational. On the face of those written opinions I would, as I have said, find that the McDougall and Vine survey is mistaken but, as I have already observed, the authors of that survey were not asked to comment on the opinions of Messrs Schultz, Bell and Harry; at least their comments do not appear in the material before me. I cannot say that it was unreasonable of the Assessment Panel not to seek for itself a response from McDougall and Vine; it was entitled to take the view that it was for Mr Ilic as the proponent of the development to make that enquiry. Moreover, in the absence of any acknowledgement of mistake by McDougall and Vine, the recommendation made in the survey continued to be material on which the Assessment Panel could reasonably act. It may also be the case that the Assessment Panel members relied on their own experience on the questions of architectural history raised by the reports. I must defer to some extent to that experience in deciding whether their determination is manifestly unreasonable.
For all of these reasons, I am not persuaded that it would have been manifestly unreasonable for the Assessment Panel to have preferred the opinion expressed in the McDougall and Vine survey even though it appears to be against the weight of other architectural opinion.[2]
[2] See South Australian Fire and Emergency Services Commission v Workers Compensation Tribunal (2009) 105 SASR 1 at 14-17 [52]-[57].
Moreover, even if the Assessment Panel preferred the contrary opinions, to the point that it was persuaded that the listing was mistaken, it was open to the Assessment Panel to refuse to proceed to a merits assessment for two reasons. First, it could properly take the position that it should proceed on the basis that the dwelling was a Local Heritage Place unless and until the Adelaide Development Plan was amended. The Assessment Panel was entitled, but not bound, to take the view that the designation of a place as a Local Heritage Place was a matter which was best addressed by amendment of the Adelaide Development Plan pursuant to the procedure set out in Part 3, sub-division 2 of the Act. Nor was the Assessment Panel bound to accept the reasonable prospects of approval test proposed by the planning officers as the appropriate criterion against which to decide whether to proceed with a merits assessment pursuant to ss 33 and 35 of the Act. It was equally entitled to take the view that exceptional circumstances were required, or that an overwhelming case for approval should be established, before proceeding to a merits assessment of a non-complying development. If the latter tests were applied, it could not be said that it was manifestly unreasonable to refuse to proceed with a merits assessment.
I can readily understand that Mr Ilic might regard the preference on a factual basis of the McDougall and Vine survey over the other opinions as plainly wrong and a restrictive approach to the exercise of the s 35 discretion as overly bureaucratic. However, I am unable to characterise either position as perverse or unreasonable in the Wednesbury sense.
Failure to take into account relevant material
The material before the Assessment Panel disclosed the fact of the City of Adelaide’s application to the Minister and the information in the letters to Mr Ilic concerning the opinions of the heritage experts he had engaged. Mr Ilic has therefore failed to prove the factual foundation for this aspect of his challenge. It is not open to find that the Assessment Panel ignored information which was before it in the absence of clear evidence to that effect.
Conclusion on validity of the council’s decision to refuse the application
For all of these reasons, I must therefore answer the third question: No.
Local Heritage Value – Objective fact or Ministerial opinion
It is Mr Ilic’s contention that the power to designate a place as a Local Heritage Place in a Development Plan is an administrative power which is enlivened only if the place meets the statutory criteria for designation as a matter of objective fact. The Council contends that the opinion of the Minister that the criteria are satisfied is sufficient to enliven the power. The Minister contends that the power is legislative and its exercise is, for that reason, not reviewable. I will first explain why in my view the Council’s submission should be accepted and will then deal with why I reject the Minister’s contention.
Statutory context
It will be remembered that the residence was listed as a Local Heritage Place by an amendment of an existing Development Plan. The power to make an amendment is vested in the Minister. The nature of that power, and in particular the extent to which it can be reviewed judicially, must be determined from the statutory context in which it is given.
Section 23 of the Act describes in general terms the matters that may or should be included in a Development Plan. It provides, for example, that a Development Plan should seek to promote the provisions of the Planning Strategy formulated in accordance with the provisions of the Act. The section also provides that a Development Plan may include planning and development objectives or principles which relate to the natural and constructed environment, social or socio-economic issues and urban or regional planning.[3] The nature of the matters prescribed by s 23(3) are not precisely defined for obvious reasons. Development Plans may, at different times or for different zones, reflect very different planning policies and may be drawn in a variety of ways. Section 23 is, for that reason, clearly intended to be facultative rather than restrictive.
[3] Development Act 1993 s 23(3).
Section 23(3a) of the Act provides that Development Plans may set out objectives or principles which describe the characteristics and other aspects of the natural or constructed environment that are desired within the community in order to provide clear directions with respect to development in the relevant areas.
Section 23 then provides in sub-ss (4) and (5):
(4) A Development Plan may designate a place as a place of local heritage value if—
(a) it displays historical, economic or social themes that are of importance to the local area; or
(b) it represents customs or ways of life that are characteristic of the local area; or
(c) it has played an important part in the lives of local residents; or
(d) it displays aesthetic merit, design characteristics or construction techniques of significance to the local area; or
(e) it is associated with a notable local personality or event; or
(f) it is a notable landmark in the area; or
(g) in the case of a tree (without limiting a preceding paragraph)—it is of special historical or social significance or importance within the local area.
(4aa) For the purposes of subsection (4):
(a) a place will be taken to be any place within the meaning of the Heritage Places Act 1993; and
(b) a designation of a place as a place of local heritage value may include any component or other item, feature or attribute that is assessed as forming part of, or contributing to, the heritage significance of the place; and
(c) the Minister may, after seeking the advice of the South Australian Heritage Council, develop or adopt guidelines that are to be used in the interpretation or application of the criteria set out in that subsection.
I shall refer to the matters prescribed by s 23(4) of the Act as the heritage criteria.
The designation of a place as a Local Heritage Place has several consequences. First, the Development Regulations 2008 anticipate the designation of places pursuant to s 23(4) of the Act and expand the definition of “development” with respect to such places so that building work which would not otherwise require planning consent is prohibited without it.[4] Secondly, some building work which does not generally require approval is prohibited unless approved in the case of Local Heritage Place.[5] Thirdly, a Development Plan itself may, as in the case of the Adelaide Development Plan, list the demolition of a Local Heritage Place as a non-complying development.[6]
[4] Development Act 1993 s 4. See also Development Regulations 2008 Sch 2 cl 2.
[5] See, eg, Development Regulations 2008 Sch 1A cll 1(4) and 12(1), Sch 3 cl 4(1) and Sch 4.
[6] Adelaide Development Plan, North Adelaide Historic (Conservation) Zone, PDC 25(b).
The applicable procedure where an amendment of a Development Plan is moved by a Council is prescribed by s 25 of the Act. Three alternative consultative procedures are described.[7] The particular procedure adopted depends on an agreement reached between the Minister and the Council.[8] The processes require consultation with both government departments and the public. Section 25(11) of the Act requires the moving Council to allow interested persons to make representations in writing as part of the public consultation process and obliges it to hold at least one meeting where members of the public may attend.
[7] Development Act 1993 s 25, sub-ss (7)-(9).
[8] Development Act 1993 s 24.
Section 25(12) of the Act provides:
(12)If a proposed amendment designates a place as a place of local heritage value, the council must, at or before the time when the DPA is released for public consultation, give each owner of land constituting the place proposed as a place of local heritage value a written notice—
(a) informing the owner of the proposed amendment; and
(b) inviting the owner to make submissions on the amendment to the council within the period provided for public consultation under the regulations.
Following the consultation process, the moving Council must prepare a report containing the matters raised with it during the consultation period and any recommended alteration to the proposed amendment it recommends as a result of those consultations.[9] Section 25(15) of the Act then provides:
[9] Development Act 1993 s 25(13)(a).
(15) On the receipt of a report under subsection (13)(a)—
(a) the Minister must seek the advice of the Advisory Committee if the Minister is of the opinion that the proposed amendment would not be in accordance with the Planning Strategy (and may seek the advice of the Advisory Committee with respect to any other matter that should, in the opinion of the Minister, be referred to the Advisory Committee for advice); and
(b) in the case of an amendment that designates a place as a place of local heritage value—the Minister must seek the advice of the Advisory Committee if the owner of the land objects to the amendment (and, in such a case, the owner of the land must be given a reasonable opportunity to make submissions to the Advisory Committee (in such a manner as the Advisory Committee thinks fit) in relation to the matter before the Advisory Committee reports back to the Minister),
and thereafter the Minister may—
(c) approve the amendment; or
(d) after consultation with the council, alter the amendment and approve the amendment as altered; or
(e) decline to approve the amendment (and, in such a case, the Minister must provide the council with written reasons for the Minister's decision); or
(f) after consultation with the council, divide the amendment into separate amendments (with or without alterations) and approve one or more of those amendments and, as to the remaining amendment or amendments, undertake consultation with the council in relation to the matter (and, in such a case, the Minister may then reconsider the amendment or amendments (with or without alterations) and exercise, in relation to the amendment or amendments, any power conferred on the Minister under this subsection to approve, alter or decline to approve the amendment or amendments).
The validity of the listing of the residence as a Local Heritage Place depends in the first place on a determination of the extent of the power in s 25(15) of the Act. The first question is whether the power to so designate a place is limited to a place which in fact, or at the least which in the opinion of the Court in which the question arises, meets the heritage criteria in s 23(4) or whether the opinion of the Minister is sufficient to enliven the power. That question of statutory construction is often problematic, as can be seen from the following authorities.
The authorities
In Timbarra Protection Coalition Inc v Ross Mining NL,[10] the extent of the jurisdiction of a Shire Council (the planning authority) to approve a development application with respect to the operation of a mining lease was in question. Section 77(3) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act) provided:
A development application shall:
…
(d)where the application is in respect of a designated development, be accompanied by an environmental impact statement in the prescribed form prepared by or on behalf of the applicant; and
(i)if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.
[10] (1999) 46 NSWLR 55.
Section 90(1)(C3) of the EPA Act provided that the planning authority must have regard to effect of the development on a critical habitat and whether there is likely to be a significant affect on a threatened species.
Spigelman CJ explained:
[37]The issue of jurisdictional fact turns, and turns only, on the proper construction of the statute: see, eg, Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122 at 125; 63 WN (NSW) 31 at 33. The parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality): Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 859-861; 153 ALR 490 at 515-517.
[38]‘Objectivity’ and ‘essentiality’ are two inter-related elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are inter-related because indicators of ‘essentiality’ will often suggest ‘objectivity’.
…
[40]Where the process of construction leads to the conclusion that parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.
[41]Where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of parliament, or as the application of a rule of the common law to the exercise of a statutory power — it is not necessary to determine which, for present purposes — a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.
[42]Where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker — ‘opinion’, ‘belief’, ‘satisfaction’ — the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact: see Craig, Administrative Law, 3rd ed (1994) at 368-370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 198C. Where such words do not appear, the construction is more difficult.
…
[44]The authorities suggest that an important, and usually determinative, indication of parliamentary intention, is whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker of the exercise of such a power. Such a factual reference is unlikely to be a jurisdictional fact. The conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The present case is, so far as I have been able to discover, unique in that the one statutory regime contains the same factual reference in both kinds of provisions.[11]
[11] Timbarra Protection Coalition Inc v Ross Mining NL and Others (1999) 46 NSWLR 55 at 63-65 [37]-[38], [40]-[42], [44].
In Timbarra the Court of Appeal held the statutory requirement for a species impact statement to be a jurisdictional fact. The Court was influenced by the requirement that a species impact statement be attached to the very application which enlivened the planning authority’s power. Of equal importance was the effect that a failure to treat the development as affecting a critical habitat or threatened species had on the procedural rights of the public to comment and the power of the Director General of National Parks and Wildlife to veto the development.
In Woolworths Ltd v Pallas Newco Pty Ltd,[12] the validity of a development consent given by a municipal council (the Council) was contested. Pallas Newco Pty Ltd challenged the validity of that consent. The application for development related to land within the Council’s special business zone. The provisions of the Plan relating to that zone adopted a threefold structure: some developments could be undertaken without consent, others only with development consent and any other development was prohibited. A “drive-in take-away establishment” was listed as a development which may be permitted and the Council had accepted that the proposed development was for such an establishment. If the development proposed by Woolworths was not such an establishment, it was prohibited because the Plan prohibited any development undertaken for “any purpose other than a purpose which had been expressly permitted”. The issue was therefore whether the Council’s opinion that the proposed development was a drive-in take away establishment was sufficient to enliven the power to permit it or whether the objective nature (as determined by the Court) of the development was critical. The Court held that the Council’s assessment of the development as one which could be permitted was sufficient to enliven the power.
[12] (2004) 61 NSWLR 707.
Spigelman CJ again explained that the issue was one of statutory construction and that both the language and the “total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional” must be considered.[13]
[13] Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at 710 [6]
Spigelman CJ then enumerated the matters which suggested the objective existence of the jurisdictional fact.[14] The first indicator was the very nature of town planning, which suggested that it was intended to allow, within the segregated zones of the Plan, only that development which was in fact of the kind described. In this context, the absence of an express reference to the opinion of the planning authority was significant. The second indicator was the terminology of “prohibition” itself. A third indicator was found in provisions of the Act which increased the flexibility of the legislative scheme only in prescribed circumstances.
[14] Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at 715-8 [30]-[45].
On the other hand, Spigelman CJ recognised that the element of fact and degree involved in determining whether or not a particular proposal answers the statutory description suggested that the Council’s opinion was sufficient. Speaking generally, it is unlikely that Parliament would proclaim as jurisdictional complex “facts” which involve value judgments. However, Spigelman CJ recognised that Parliament did on occasion limit administrative powers by reference to facts which involved matters of judgment. His Honour referred to a number of authorities which have held the objective existence of the following facts to be jurisdictional even though evaluative judgments were involved:[15]
·A “substantially favourable” report.[16]
·A development which was “likely to significantly affect threatened species”.[17]
·An industry which was “likely ... to produce conditions which are, or may become, offensive or repugnant to the occupiers or users of land”.[18]
·A particular service “necessary” for the purpose of enabling the supply of a broadcasting service.[19]
·Property which “may be material as evidence in proving” an offence for which extradition is sought.[20]
·An electoral “irregularity”.[21]
[15] Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at 720 [60].
[16] See Sutherland Shire Council v Finch (1970) 123 CLR 657 at 663–6; Sutherland Shire Council v Finch (1970) 71 SR (NSW) 315 at 324-5 per Mason JA.
[17] Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55.
[18] Corporation of The City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 140 [6] fn 16 and 148 [28].
[19] Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at 395 [123]-[124].
[20] Cabal v Attorney General (Cth) (2001) 113 FCR 154 at 160 [19], 173 [74]–[76].
[21] R v Gray; Ex parte Marsh (1985) 157 CLR 351.
Ultimately, in Pallas Newco the determinative consideration was the uncertainty and inconvenience which would be caused if a development consent, which is valid on its face and is registered as such, could not be relied upon.
On the other hand, in Corporation of The City of Enfield v Development Assessment Commission,[22] the High Court unanimously held that s 35(3) of the Act, which provided that a “non-complying development” must not be approved without first obtaining certain consents, imposed a limit on power which was to be objectively determined by a court with jurisdiction to review the validity of the approval, notwithstanding the opinion of the planning authority that the development was not “non-complying”. I make two observations on the contrasting conclusions about the objectivity of the jurisdictional fact in a planning context reached in Pallas Newco and The City of Enfield. First, the decision in The City of Enfield concerned a prohibition, whereas Pallas Newco concerned a power to decide.[23] Secondly, like the statutory context in Timbarra, if the subjective assessment of The City of Enfield was sufficient, the statutory power and responsibility of other bodies may have been subverted.
[22] (2000) 199 CLR 135.
[23] Cf Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557 at 576-9 [122]-[133].
In the Australian Heritage Commission v Mount Isa Mines Limited,[24] the High Court considered the jurisdiction of the Australian Heritage Commission under the Australian Heritage Commission Act 1975 (Cth) (the Heritage Act). Section 22(1) required the Commission to “keep a register, to be known as the Register of the National Estate, in which will be listed places included in the national estate.” Section 23(1) then stated that “where the Commission considers that a place that is not in the Register should be recorded as part of the national estate it shall enter the place in the Register”. The Heritage Act recited that for the purposes of the Act the national estate consists of places having certain “aesthetic, scientific or historic social significance or other special value”. Registration had a significant effect on the administration of the laws of the Commonwealth and on the financial relations between the Commonwealth and the States. Mount Isa Mines (MIM) held mining and other leases which might be administered differently by reason of the registration by the Commission of an area which included the land over which the leases were granted.
[24] (1997) 187 CLR 297.
The question before the Court was whether the Heritage Act empowered by the Commission to register places it considered to be of aesthetic, scientific or historic social significance to be part of the national estate or whether, conversely, the Commissioner was only empowered to register places which are objectively part of the national estate as defined and which the Commission, having regard to the relative significance of the place in question, subjectively considered should be registered so as to attract the protection of the Heritage Act. The Australian Heritage Commission submitted that the legislature had not made the authority of the Commission pursuant to s 23(1) of the Heritage Act contingent upon the actual existence of a state of facts; it contended that the opinion or determination of the Commission was decisive. MIM contended that the only places which could be registered were places which were in fact part of the national estate as determined by a court. The High Court unanimously accepted the submission of the Commission, noting two particular aspects of the scheme. The first was that the consequences of entry of a place in the Register was of great significance for the administration of the laws of the Commonwealth and for the financial relations between the Commonwealth and the States. The second aspect was the procedure for registration, which included significant public consultation.[25] The Court said:
The construction of the Act proposed by MIM would produce the result that, notwithstanding the detailed provisions made in this legislation for the giving of public notices and the receipt and consideration of objections, and notwithstanding the significant steps which may have been taken in public administration for a wide variety of laws by reason of the existence of an entry in the Register, a decision of the Commission to register will at all relevant times remain liable to challenge for absence of the requisite ‘jurisdictional fact’ to enliven the obligation of the Commission to make the entry.
Those detailed mechanisms for public consultation and consideration by the Commission provide guidance on the ultimate issue in this litigation. They suggest that, on the proper construction of the Act, the Commission is given the power conclusively to determine whether or not a place should be recorded as part of the national estate and its determination of that question is not subject to review provided the Commission otherwise conducts itself in accordance with the law.[26]
[25] Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 at 304-6.
[26] Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 at 306.
In Gedeon v Commissioner of New South Wales Crime Commission,[27] the High Court again distinguished between a provision which conditions the conferral of a power on the existence of a fact and a provision which prohibits the exercise of the power in certain circumstances. In the former case it is a more open question whether the satisfaction of the donee of the power as to the existence of the fact is sufficient to enliven it; in the later case the very nature of a legislative prohibition suggests that it is the objective existence of the circumstances which will deny the power. The High Court said:
Section 7(1) of the LECO Act is expressed in the terms of prohibition and thus stands rather differently. The provision does not stipulate any criterion the satisfaction of which enlivens the exercise of a power or discretion. Rather, s 7(1) delimits the scope for any exercise of authority by a chief executive officer. There is no statutory power to grant an authority where the proposed operation involves any participant in the operation of any of the activities identified in paras (a), (b) and (c). That is the force of the expression ‘must not be granted’ in s 7(1). It conveys the notion of a contraction in the content of what would be the power otherwise conferred by s 6.
If it be established upon a ‘collateral’ attack which is decided in a ruling at trial under s 138 of the Evidence Act, or other form of ‘collateral’ attack or (if the proceeding be appropriate) upon judicial review, that, for example, the authority in question was in relation to a proposed operation involving any participant engaging in conduct that was likely to seriously endanger the health or safety of that or any other participant or any other person, then the grant of the authority was beyond power. No question of abuse of discretion or unreasonable decision making arises. The question is answered at an earlier stage of legal analysis.[28]
[27] (2008) 236 CLR 120.
[28] Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at 139-140 [46]-[47].
In Gedeon the High Court held that the great inconvenience which may be caused by the uncertainty which would attend the authorisation of the Chief Executive Officer was not a sufficient reason to depart from the textual force of the expression “must not be granted”.
Application and analysis
Turning to the precise nature of the fact which enlivens the power to designate a place as a Local Heritage Place pursuant to s 23(4) of the Act, it is useful to first observe that the provisions of a Development Plan generally reflect the policy view of the relevant Council, and ultimately the Minister, about the best planning strategy for the localities included within the Plan. In particular, even though Development Plans must be prepared for the purposes of the Act,[29] and must facilitate sustainable development and the protection of the environment,[30] it is the opinion of the Minister as to the Development Plan which will best meet those objectives on which the validity of the Development Plan’s various terms and provisions depend. The provisions of a Development Plan are not open to judicial review on the grounds that the Minister’s view as to the best way in which to facilitate sustainable development and the protection of the environment is objectively mistaken. Plainly, as a general rule, the provisions reflect matters of policy and evaluative judgments which are the province of Councils and, ultimately, the Minister.
[29] Development Act 1993 s 23(1).
[30] Development Act 1993 s 3.
The heritage criteria specified by s 23(4) of the Act necessarily involve an evaluative judgment which reflects a community consensus about the balance between the preservation of the built environment of the past and the undertaking of sustainable development which is adapted to contemporary residential requirements and expectations. The criteria also require judgment to be passed about the parts of the community’s heritage which are worthy of preservation and those which are not. It is not impossible for courts, assisted by expert evidence, to apply the judicial method to the making of evaluative judgments of this sort. However, it is more likely, I think, that Parliament established the consultative process in sub-ss 25(11) and (15) of the Act with the intention that the resulting Ministerial decision would finally determine the issues of social policy implicit in the heritage criteria of s 23(4).
If it were the case that the power to list a Local Heritage Place depended on the objective, court determined, existence of the heritage criteria, there would be some tension in the empowering provisions governing the formulation of Development Plans. That tension is perhaps best illustrated by the very provision of the Development Plan in this case which prescribes the demolition of a Local Heritage Place as a non-complying development. If it be accepted that it is the subjective assessment of the Minister which determines whether a particular development is to be classified as complying or non-complying, then at least as a general consideration one would expect the designation of the place itself to also depend on the Minister’s subjective assessment. Similarly significant restrictions could be imposed on the demolition of heritage dwellings without adopting the particular facility provided by s 23(4) of the Act. Whether or not a provision should be included in a Development Plan which imposed such a restriction would again depend on the evaluative judgment of the relevant Council and, ultimately, the Minister.
Next it is to be observed that there is a substantial and meaningful consultative process which precedes the designation of a place as a Local Heritage Place. That consideration suggests that the enlivening circumstance is the assessment made by the Minister at the conclusion of that process.
The designation of a Local Heritage Place takes place in the context of an existing Development Plan. It cannot be a pre-condition to the mere proposal of an amendment that the proposed Local Heritage Place in fact meets the heritage criteria, because it is the very purpose of the prescribed consultative procedure to put the Minister in a position to make that very assessment. Accordingly, this is a case where the relevant factual reference occurs in the course of the consideration by the decision maker of the exercise of his or her power and is not preliminary or ancillary to the exercise of that power.
A construction of s 23(4) of the Act, which conditions the power on the Minister’s assessment of the criteria, does not subvert the consultative process or the provisions of the Act designed to give others an opportunity to comment on the proposed designation. Again, the Ministerial decision is only made after that consultation has taken place. Nor does s 23(4) of the Act operate as a prohibition on power. To the contrary, it is facultative.
The power of the Minister to “adopt” guidelines that are to be used in the interpretation and application of the heritage criteria also suggests that it is the Minister’s assessment of their weight that is determinative. It would be unusual for Parliament to confer a power to define the meaning that a court must give to the words of an enactment to a Minister or other member of the Executive. On the other hand, the Parliament may give a member of the Executive a power to regulate the exercise of a discretion it has conferred on him or her in the interests of certainty. Section 23(4)(aa) of the Act is more likely to have been intended to confer the latter power than the former.
The abovementioned matters strongly suggest that it is the assessment of the Minister that the proposed place satisfies the heritage criteria in s 23(4) of the Act which is determinative.
On the other hand, I do not accept the City of Adelaide’s contention that much uncertainty would be created if the valid designation of a place as a Local Heritage Place depended on an objective judicial assessment of the satisfaction of the criteria. The property or other legal rights of persons other than the owner of the designated place will not be affected by a judicial declaration that the place was invalidly listed. I doubt that the proprietors of neighbouring properties make many significant decisions about the purchase or development of their properties on the assumption that a place is validly designated a Local Heritage Place or will continue to be so designated. To the extent that they do, their interests are likely to continue to be protected, to some albeit lesser degree, by other provisions of Development Plans.
There are some indications which go the other way. Foremost amongst those considerations is the substantial extent to which the designation of a place as a Local Heritage Place detracts from the property rights of the owner of the place. However, it is in the very nature of planning regulations that property rights are diminished. I accept that the listing of a place as a Local Heritage Place is a greater intrusion on private property rights than many other provisions of Development Plans, however, the difference remains largely a matter of degree, especially when alternative forms of permissible planning regulations which would achieve much the same result as the designation of a place as a Local Heritage Place are considered.
Mr Ilic also relies on the contrast between the failure to expressly refer to the Minister’s opinion in s 23(4) of the Act and the express reference to the decision maker’s opinion or satisfaction in other sections.[31] In my view, the failure to expressly refer to the assessment of the Minister or his or her opinion in s 23(4) of the Act is largely explicable by the passive voice in which that section speaks. Section 23 of the Act proceeds by enumerating the matters which may be included in a Development Plan, but the power to make the amendment is given by s 25(15) of the Act. It goes without saying that the power to approve an amendment pursuant to s 25(15)(c) is a power to approve amendments which in the Minister’s opinion should be made. The express reference to the assessment made by a planning authority in s 35(2) is a result of the decisional history on a similar provision which is explained by the decision of this Court in Upham v The Grand Hotel (SA) Pty Ltd.[32]
[31] Development Act ss 28(1), 29(2)(b), 34(1), 35(2) and 46(1).
[32] (1999) 74 SASR 557 at 578-9 [128]-[132].
Legislative or administrative act?
Before concluding my reasons for answering the first question in the way that I have it is necessary to deal with the submission made by the Crown Solicitor, counsel for the Minister for Urban Development and Planning, that the power is legislative in nature and not administrative.
The Crown Solicitor relied on the decision of the Full Court of the Federal Court in RG Capital Radio Ltd v Australian Broadcasting Authority.[33] That was a decision of the Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). The judicial review of administrative decisions under that Act was limited by a combination of ss 3(1) and 5(1) of the ADJR Act to “a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment”. The decision of the Federal Court in RG Capital Radio Ltd was therefore limited to the meaning of the expression “a decision of an administrative character” in that Act. Nonetheless, I accept that the factors identified by the Federal Court are indicative of legislative acts for the purpose of public law generally. Speaking broadly, legislative acts prescribe rules of conduct having general application, are published and promulgated as a public document and are the product of wide social and economic policy considerations. Legislative acts are not subject to executive or administrative variation or control and there is no merits review.
[33] (2001) 113 FCR 185.
However, in my view the essential character of a legislative act is that it, is of itself, legally binding. In Queensland Medical Laboratory v Blewett,[34] Gummow J said:
The decisions to which the ADJR Act applies are limited, inter alia, by the requirements of the definition in s 3(1) that they be made ‘under’ an ‘enactment’ … and that they be ‘of an administrative character’. That expression is not further defined. But as Fox J explained in Evans v Friemann (1981) 35 ALR 428; 53 FLR 229 at 234-7, (i) the use of the term ‘administrative character’ indicates that the ADJR Act recognises and maintains the constitutional trichotomy (found in Chs I, II and III of the Constitution) between the legislative, the administrative and the judicial as an exhaustive description of decision-making, and (ii) in each of these spheres there will be many incidental functions which display some of the characteristics of principal activities in other fields, so that the judges may make rules of court, the Parliament may punish for contempt of the Parliament, and administrators may make some findings of fact conclusively.
Nevertheless, the primary characteristic of the activities of administrators in relation to enactments of the legislature is to maintain and execute those laws, as is indicated by the terms of s 61 of the Constitution itself. As a result of the holding in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73, and the accepted constitutional doctrine flowing from that case, the Constitution does not forbid the statutory authorisation of the Executive to make laws: see Zines, The High Court and the Constitution, 2nd ed, pp 146-53. In doing so, the Executive is not exercising the power contained in s 61 of the Constitution. The prerogative power to make law without statutory mandate is limited: Davis v Commonwealth (1988) 82 ALR 633 per Brennan J. Rather, the federal legislative powers of the Parliament (found principally in Ch I of the Constitution) authorise the Parliament to repose in the Executive an authority of an essentially legislative character, at least where the exercise of the authority is subject to a measure of parliamentary control. ...
The delegation of legislative authority has most frequently been effected by reposing a regulation-making power in the Governor-General in Council. Decisions under an enactment by the Governor-General in Council (whether the decisions are legislative or administrative in character) are excluded from the definition of decisions to which the ADJR Act applies: Attorney-General (NT) v Minister for Aboriginal Affairs (1987) 16 FCR 267 at 271-4; 73 ALR 33.
However, delegation by the Parliament may also be made to other personae designatae (for example particular Ministers of State for the Commonwealth) subject to parliamentary control by procedures for disallowance by either House such as those found in ss 48, 49, 49A and 50 of the Interpretation Act.[35]
[34] (1988) 84 ALR 615.
[35] (1988) 84 ALR 615 at 633-4.
In Dignan’s Case,[36] Dixon J said:
The existence in Parliament of power to authorize subordinate legislation may be ascribed to a conception of that legislative power which depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law. In English law much weight has been given to the dependence of subordinate legislation for its efficacy, not only on the enactment, but upon the continuing operation of the statute by which it is so authorized. The statute is conceived to be the source of obligation and the expression of the continuing will of the Legislature. Minor consequences of such a doctrine are found in the rule that offences against subordinate regulation are offences against the statute (Willingale v. Norris) and the rule that upon the repeal of the statute, the regulation fails (Watson v. Winch). Major consequences are suggested by the emphasis laid in Powell’s Case and in Hodge’s Case upon the retention by the Legislature of the whole of its power of control and of its capacity to take the matter back into its own hands. After the long history of parliamentary delegation in Britain and the British colonies, it may be right to treat subordinate legislation which remains under parliamentary control as lacking the independent and unqualified authority which is an attribute of true legislative power, at any rate when there has been an attempt to confer any very general legislative capacity. But, whatever may be its rationale, we should now adhere to the interpretation which results from the decision of Roche v. Kronheimer.[37] (citations omitted)
[36] (1931) 46 CLR 73.
[37] The Victorian Stevedoring and General Contracting Company Proprietary Limited v Dignan; Meakes v Dignan (1931) 46 CLR 73 at 101-2.
In Arthur Yates and Company Pty Ltd v The Vegetable Seeds Committee,[38] the High Court considered a challenge by a seed merchant to the validity of certain orders made by the Vegetable Seeds Committee. The National Security (Vegetable Seeds) Regulations established the Vegetable Seeds Committee and empowered it to make orders regulating the processing, treatment, distribution and disposal of vegetable seeds as a wartime measure. The Regulations prohibited the sale of seeds except as ordered by the Committee. The validity of certain of its orders was challenged on the basis that they were made in bad faith and for the purpose of advancing the financial interests of the Committee rather than ensuring an adequate supply of vegetable seeds was available in Australia. The High Court held that subordinate legislation of this type could be challenged on the grounds of bad faith where the regulation making the power was limited, either expressly or by implication, by reference to a purpose. Dixon J rejected the proposition that the availability of judicial review of subordinate legislation depended on whether it could be classified as administrative or legislative. In doing so, Dixon J recognised that regulations making powers delegated by the legislature may be administrative or legislative in character:
The power itself belongs to an administrative body or authority. It would, I think, be classified nowadays as an administrative power. If adherence to the old dichotomy of non-judicial governmental power into executive and legislative were obligatory, and also significant in the decision of the case, it would be probably necessary to dissect the power and allot some of its content to one head and some to the other. For the authority it gives of control and regulation by means of orders is exercisable either by the promulgation of a general rule to be observed by all or by the issue of specific directions with reference to a particular transaction.[39]
[38] (1946) 72 CLR 37.
[39] Arthur Yates and Company Pty Ltd v The Vegetable Seeds Committee (1946) 72 CLR 37 at 79-80.
Regulations may take the same form and have essentially the same effect as the provision of a statute; most obviously, for example, where the regulation prohibits certain conduct by making it an offence. The origin of regulations of this type can be traced to the Statute of Proclamations, passed in 1539, which enacted that the King “may set forth Proclamations under such Penalties and Pains as to him … shall seem necessary, which shall be observed as though they were made by Act of Parliament”.[40] On one view, the legal force of such a regulation may be attributed to the Act under which it is made. That view appears to have been taken in the case of Willingale v Norris[41] to which Dixon J referred in the passage cited above. An alternative view, that the Act delegates legislative power so that the regulation is in itself legally binding by reason of that delegation, appears to have been expressed by Gummow J in the passage I have cited above. That view is consistent with the historical origins of delegated legislation under the Westminster system and with the wide free standing way in which the regulation making power is often expressed.[42]
[40] Quoted from Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (3rd ed, 2005) at [1.8].
[41] [1909] 1 KB 57 at 64 and 66.
[42] Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (3rd ed, 2005) at [1.8].
It must be remembered that even in the case of regulations which prescribe general rules of conduct their validity can be reviewed.[43]
[43] Jones v Metropolitan Meat Industry Board (1925) 37 CLR 252; Re a By-law made by the District Council of Prospect; Ex parte Hill [1926] SASR 326; Bailey v Conole (1931) 34 WALR 18; Williams v Melbourne Corporation (1933) 49 CLR 142; Arthur Yates and Company Pty Ltd v The Vegetable Seeds Committee (1946) 72 CLR 37; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565.
However, regulations often merely prescribe a factum on which a substantive statutory provision applies. There are many examples: a provision in an Act might proscribe substances or conduct which are prescribed by regulation; alternatively, a statute may exempt, from the scope of the general rule it makes, such things persons or circumstances that are prescribed in regulations. In such cases, the legal force of the proscription resides in the Act and not the regulation. In my view such regulations have an administrative character. An act is administrative if its function is simply to serve as a factum upon which a general rule of conduct operates. Alternatively, an Act may prohibit persons from engaging in specified conduct unless they are licensed or authorised to engage in it by an administrative tribunal. The grant of a licence by the Tribunal is, in that context, commonly accepted to be administrative. Tribunals which are established to regulate business activities might also prescribe some forms of conduct which are then prohibited by force of a legislative proscription. Again, the decision of such a tribunal is, in my view, administrative.
I acknowledge that where the factual circumstances prescribed by the person or tribunal have a general application, there is a tendency to regard its acts as legislative even though the prescription only has those legal consequences that the statute gives it. That is because the prescription is the product of general policy considerations and not the balancing of matters peculiar to particular individuals and their interests, which is more obviously the provenance of the administrator. However, in my view the prescription of general matters is no less the execution of a law than the making of a decision on a particular person or transaction.
The amendment of a Development Plan by the inclusion of a place as a Local Heritage Place provides a factual circumstance on which the provisions of s 35 of the Act operates to regulate the powers of planning bodies. It is an act performed in execution of the provisions of the Act and is not in itself a legislative precept. The same can be said of Development Plans generally. Development Plans do not of themselves purport to regulate developers nor the decision making powers of the planning tribunals established pursuant to the Act. Development Plans provide the criteria against which decisions of planning authorities must be made in accordance with s 35 of the Act. The prohibition against developments which are not approved, the powers to formulate Development Plans, the powers of planning Tribunals and the constraints on how they must assess development applications all draw their legal force from the Act itself.
In any event, the designation of a place as a Local Heritage Place is a specific decision of narrow application which substantially affects the property rights of individuals. For the general reasons I have advanced above and on this narrower basis I hold that the amendment of the Adelaide Development Plan to designate the dwelling a Local Heritage Place was an administrative act.
For these reasons, I reject the submissions of the Crown Solicitor.
Conclusion on Local Heritage Value – Objective fact or Ministerial opinion
For these reasons, I would answer the first question: The lawfulness of the designation of a place as a place of local heritage value turns on the Minister’s opinion that one or more of the s 23(4) criteria are satisfied. It is not necessary to consider the grounds on which the opinion of the Minister may be reviewed, a question on which there is much authority.[44]
[44] R v Connell; Ex parte Hetton Bellbird Collieries Limited (1944) 69 CLR 407 at 430-1; Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; Buck v Bavone (1976) 135 CLR 110 at 115-9; Upham v The Grand Hotel (SA) Pty Ltd (1999) 74 SASR 557 at 579-81 [135]-[144]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651-6 [131]-[141]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 [73].
Erroneous description of the plaintiff’s dwelling
Counsel for Mr Ilic submits that, even if the power to designate his dwelling was enlivened on the Minister’s satisfaction that the heritage criteria were met, the reference to his dwelling in the Adelaide Development Plan is ineffective. Mr Ilic accepts that the Adelaide Development Plan refers to the address of his residence. He agrees that there is a house at that address. However, Mr Ilic contends that there is no house at that address which answers the description “inter-war old English Revival Style residence”. He submits that it follows, therefore, that the designation of his dwelling in the Adelaide Development Plan is a nonsense to which no legal effect can be given.
It is clear from the context in which Mr Ilic’s dwelling is listed that it is the intention of the Adelaide Development Plan to designate all of the places in that list as Local Heritage Places. I accept that the designation would be ineffective if a listing were made in ambiguous terms which left the particular place listed in some doubt. However, the address and Certificate of Title which appear in the Adelaide Development Plan are sufficient to identify the designated Local Heritage Place as the residence. The table expressly refers to the house at the described address. Admittedly, if the opinions of Messrs Schulz, Bell and Harry were accepted, a reasonable observer with a good appreciation of architectural style might be surprised at the appearance of the dwelling at the specified address. However, that reasonable observer could not be in any doubt as to the intention to nominate the residence although he or she may express disagreement with the architectural description. Indeed, the opinions of Messrs Schulz, Bell and Harry seem to accept that the residence was a house built in the inter-war period and that it might include at least some features which could be described as old English style. In my view, the description of the residence is sufficiently clear and certain for the designation to be effective.
I would therefore answer the second question: No.
Conclusion
Having answered all of the three preliminary questions adversely to Mr Ilic, I will hear the parties as to the final disposition of the summons for judicial review.
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