Independent Holdings Limited, Lam Soon (Australia) Pty Ltd, Bactaline Pty Ltd, Yarla Pty Ltd and a and E Ruggiero Nominees Pty Ltd, Auri Pty Ltd, Zencor Pty Ltd, Richard John Richards and Susan Margaret Clearihan v...
[1994] SASC 4811
•27 October 1994
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), MILLHOUSE(2) and PERRY(3) JJ
CWDS
Building control and town planning - application for approval of development in Municipality of City of Adelaide involving supermarket specialty shops offices and car parking facilities - determination by Minister that government has substantial interest in result of application - request by Minister that Council refer application to City of Adelaide Planning Commission pursuant to s19 of City of Adelaide Development Control Act - validity of request - whether development prohibited by "The Principles of Development Control" - approval of Commission validated by consent of Minister even if a prohibited use - role of Executive Officer of Commission and validity of her actions in relation to details of proposal - no proved failure of Commission to take relevant matters into account - no proved failure of Minister to discharge properly his function of concurring - power of primary planning authority to permit amendment of plans before approval - power to permit amendment in consequence of s29 Conference - application approved by Commission and consent to by Minister - judicial review to quash approval refused. City of AdelaideDevelopment Control Act 1976 ss 19,23,25,29 and 42. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24; Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223; City of Marion v Becker (1973) 6 SASR 13 and Hancock v City of Tea Tree Gully (1986) 42 SASR 584, applied.
HRNG ADELAIDE, 12-13 September 1994 #DATE 27:10:1994
Counsel for appellant: Mr M Beamond with Mr A S Clare
Solicitors for appellant: Mellor Olsson
Counsel for respondents: Mr B M Selway
Solicitors for respondents: Crown Solicitor
Counsel for intervener: Mr B R M Hayes QC with
Mr J N McElhinney
Solicitors for intervener: Ward and Partners
ORDER
Appeal dismissed.
JUDGE1 KING CJ This is an appeal against a judgment of Olsson J dismissing a summons for judicial review of decisions and actions of the Minister of Housing, Urban Development and Local Government Relations and the City of Adelaide Planning Commission. The City of Adelaide Development Control Act 1976 governs the matters which are the subject of this appeal. That Act has been repealed resulting in the abolition of the Commission. By virtue of the Statutes Repeal and Amendment (Development) Act 1993 any rights acquired prior to the repeal have been preserved and pending matters are to be completed under the repealed Act.
2. The plaintiffs are companies and individuals who carry on business or reside in or near O'Connell Street, North Adelaide. They object to a proposed development on the site of the former Le Cornu furniture store situated on the eastern side of O'Connell Street between Archer Street and Tynte Street. The proposed developer Archer Pty Ltd, was granted leave to intervene and was represented by counsel on the appeal.
3. The proposed development comprises a large supermarket, numerous specialty shops in a mall complex, several offices, and car parking facilities for a large number of vehicles. The undertaking of a development located within the municipality of the Council of the Corporation of the City of Adelaide, as this site is, is prohibited except with the approval of the Council (s23). The Council cannot approve a prohibited development (s25) or a development which "will directly affect, or has directly affected, an item of State heritage", without the concurrence of the Commission (s24).
4. Archer Pty Ltd made its application to the Council on 4 March 1993. It attracted opposition from local residents and businesses. A North Adelaide Residents' Group was formed to oppose it. Before the application was decided upon, the Council received the following letter from the Minister.
"24-5-93
Mr. M. Llewellyn-Smith, M.A.
City Manager
Corporation of the City of Adelaide
Town Hall
King William Street
ADELAIDE 5000
Dear Mr. Llewellyn-Smith,
I am aware that tonight Council will be considering a
planning application for a retail, office and associated
carparking development on the site formerly occupied by Le
Cornu's in O'Connell and Centenary Streets, North Adelaide.
I am also aware of the successive planning applications made
over this site in the last few years and the controversy
which has surrounded them.
It has been variously put to me that the current proposal:-
- may require CAPC consent because of future development by
the Council in road closures and encroachments which will be
necessary if the development is to proceed;
- has attracted an unusually large number of public
representations;
- involves land fronting one of the major approaches to the
Central Business District and in an area of townscape
significance.
I am also conscious of the potential effect of this project
on the internal stability of the Council. The protracted
debate over the site has provoked strong reactions on all
sides which would not assist the assessment process.
Having regard to all of the above, I am of the opinion that
the proposed development is one in which the State
Government has a substantial interest and accordingly,
pursuant to Section 19(2) of the City of Adelaide
Development Control Act, I request that the Council refer
the application to the City of Adelaide Planning Commission
for determination.
To the extent that any aspect of the proposal would have
required the concurrence of the Commission had Council been
the planning authority determining the application, it
should be noted that, pursuant to Section 19(4) of the Act,
I will assume the role of the Commission in determining
whether concurrence should be granted.
I stress that in proposing this course I am committed to
working co-operatively and productively with the City of
Adelaide and look forward to our continuing co-operation.
Yours sincerely,
(signed)
Greg Crafter
MINISTER OF HOUSING, URBAN DEVELOPMENT
AND LOCAL GOVERNMENT RELATIONS"
5. Section 19, under which the Minister acted, is as follows:-
"(1) The Council must if requested by the Commission furnish
to the Commission such information, as to the substance of
applications received by the Council under Part IV, as is
specified in the request.
(2) Where the Minister is satisfied that the Government of
the State has a substantial interest in the result of an
application to the Council under Part IV, the Minister may
request (by writing setting out the grounds upon which the
request is based) the Council to refer the application to
the Commission for determination.
(3) Upon receipt of a request referred to in subsection (2)
the Council must refer that application to the Commission
together with such advice or recommendation as it thinks fit
and -
(a) the Commission must deal with the application forthwith;
and
(b) the Council may take no further action on the
application.
(4) Part IV applies, with the necessary modifications, to
and in relation to any application referred to the
Commission as if -
(a) references in that Part to the Council were references
to the Commission; and
(b) references in that Part to the Commission were
references to the Minister."
6. Upon receipt of that letter, the Council desisted from determining the application and referred it to the Commission for determination. One of the grounds upon which the plaintiff seeks to have the determination of the Commission quashed is that the Minister's request was invalid, void and of no effect.
7. The grounds upon which the Minister acted are set out in his letter. It is true that the letter expresses the grounds as the matters to which he had regard in forming the opinion that the government has a substantial interest in the development. I think, however, that to treat the grounds as confined in that way would be to construe the letter too strictly. Clearly the Minister's intention in stating the matters to which he had regard, was to comply with s19(2) which required him to state "the grounds upon which the request is based". The stated grounds must relate therefore not only to matters affecting the formation of the judgment that the government has a substantial interest in the result but also to matters germane to the decision to exercise the power which arose on the formation of that judgment. Nor do I think that the fact that the letter refers to a substantial interest in the development rather than in the result of the application is significant.
8. The first attack on the validity of the request was that the grounds stated in the letter, or at least some of them, are not relevant to the question whether the government has a substantial interest in the result of the application, and that the request was vitiated by the taking into account of irrelevant considerations. The argument overlooks the point that the grounds which must be stated are grounds for the request not merely for the judgment that the government has a substantial interest. Considerations which may be irrelevant to the question whether the government has a substantial interest, may be relevant to the question whether the power to make the request should be exercised.
9. An administrative decision may be quashed by the Court on judicial review if the decision maker has taken into account irrelevant considerations or has failed to take relevant considerations into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 per Mason J at p39, and the Court will ordinarily quash a decision so treated unless the extraneous factors were so insignificant that they could not have materially affected the decision: ibid p40.
10. It follows from the statutory obligation to state the grounds that the grounds stated are to be taken to indicate accurately and fully the grounds upon which the Minister has acted. If they, or any of them, are found on examination to be irrelevant, the validity of the request must be called into question. It does not follow that failure to refer to a relevant consideration necessarily indicates a failure to take it into account. The Minister is obliged to state the grounds upon which he has acted, not considerations which he has found not to be persuasive.
11. It must be kept in mind that the Court is not concerned with the merits of the Minister's decision but only with the process by which he has reached it. The Court is concerned only with the relevance of the grounds stated as the basis of the request, not with their weight: Minister for Aboriginal Affairs v Peko-Wallsend Ltd supra per Mason J at p40. The judgment as to whether the government has a substantial interest in the result of the application and the decision to request the referral of the application to the Commission, are to be made by the Minister not by the Court.
12. Four considerations are mentioned in the letter and may be regarded as the grounds for the request to refer the application to the Commission:-
1. That the application "involves land fronting one of the
major approaches to the Central Business District and in an
area of townscape significance".
2. That the involvement of the Council in proposed road
closures and encroachments might require the application to
be determined by the Commission.
3. That there have been successive applications in respect
of the site which have attracted controversy.
4. That the present application has "attracted an unusually
large number of representations".
13. I think that the first of the above grounds is a ground upon which a judgment could be formed that the government has a substantial interest in the result of the application. The proper weight to be attached to it is a matter for the Minister and not for the Court. The remaining grounds are relevant to the exercise of the discretion which arises if the government has such a substantial interest, to request the referral of the application to the Commission.
14. Counsel for the appellant contended that even if the grounds stated for the request are relevant, the judgment that the government has a substantial interest in the result of the application was so unreasonable that no reasonable Minister could have made it and that the Minister has therefore acted in excess of the power conferred upon him: Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223 esp per Lord Greene MR at pp233-4. The government's interest in the result of an application for the approval of a development may arise in a number of ways. It may be a development which would affect a project being undertaken by the government or which would affect the value of government owned land. It may be a development which would have a significant effect on the economy or the environment of the state. It may be a development which would cause considerable public concern for aesthetic or environmental or other reasons, or which would have a significant impact on persons outside the area of the particular Council. The above litany is not exhaustive. Opinions may differ as to whether the fact that the development "involves land fronting one of the major approaches to the Central Business District and in an area of townscape significance", ought to lead to the conclusion that the government has a substantial interest in the result of the application, but I am unable to say that such a conclusion could not be arrived at by a reasonable Minister.
15. I consider, for the above reasons, that the Minister's request and the Council's consequent referral to the Commission are valid.
16. A further ground of attack on the approval was that the Commission and the Minister failed to treat the application as a prohibited development. The Act approves a document entitled "The Principles of Development Control". Those principles designate certain precincts and make stipulations as to uses of land in those precincts.
17. Some uses are characterised as "desired", some are "prohibited" and some are to be permitted "on merit". The consequences of the use for which approval of a Council is sought being in the "prohibited" category is that the Council may not approve it without the consent of the Commission; s25(1). Where, as here, the application is referred to the Commission for determination, the Commission may not approve it without the consent of the Minister; s19(4).
18. The supermarket and office component of the proposed development is located in the R6 precinct (Eastern Upper North Adelaide) and is a desired use in that precinct. The car parking component is in the R12 precinct in which the desired uses are residential in nature. Car parking other than public car parking for a fee or open car parking, is neither "desired" nor prohibited in R12. The car parking component is an "on merit use" unless it is treated as part of the supermarket and office use which would be prohibited in R12. Those were the competing views. They were canvassed in an opinion of the Crown Solicitor which was part of the material before the Commission and were referred to in a report to the Commission by Miss H Hele, who was both Secretary and Executive Officer of the Commission. The Crown Solicitor proposed the "on merit" categorisation and the Executive Officer advised the Commission accordingly. The Commission therefore approached the matter on the footing that it was dealing with an application to be considered on an "on merit" basis. Nevertheless the Commission was aware that the view was open that the proposed use was prohibited and that the consent of the Minister may be necessary. It was aware that that was the contention of the objecting residents. It was aware that R12 was a residential precinct and was aware of the nature of the proposed car parking facility. In those circumstances I cannot think that the Commission's decision would have been affected if it had believed that the proposed use came within the prohibited category and therefore required the consent of the Minister.
19. Following the decision of the Commission its Executive Officer wrote to the Minister. She said:-
"Your concurrence is necessary as the development
potentially affects an item on the State Heritage Register
(Heritage advice attached), and in addition, while the
Commission did not treat the application as a prohibited
use, there is argument by objectors as to this point and
accordingly your concurrence in respect of a prohibited
development is also sought to cover the event a court could
hold against the Commission on this point."
20. Following receipt of that letter, the Minister concurred in the decision to grant approval to the development.
21. As the Minister's concurrence or consent was granted on the basis that the proposed development might be a prohibited use, it follows that, even if the proposed car parking were a prohibited use, the Commission's approval would not, in the circumstance, be vitiated. That renders it unnecessary to determine the correct categorisation of the proposed use.
22. It was contended for the appellant that the Executive Officer exceeded her powers as a result of which the plans which were the subject of the Minister's concurrence were not those approved by the Commission. When the Commission made its decision to approve the proposal, it expressly delegated certain matters of detail to be finalised by the Executive Officer. That was not a delegation of the Commission's powers and functions pursuant to s17, but merely amounted to an instruction to the Executive Officer to finalise certain matters of detail. Apart from the express obligation, I consider that the Executive Officer was empowered by the functions and duties of her office to attend to the administrative detail necessary to implement the decision of the Commission. Having examined what the Executive Officer did, Olsson J concluded that the Executive Officer's actions amounted to no more than the performance of her proper function "to translate the decisions of the Commission in to detailed executive action". I agree with that conclusion.
23. Counsel for the appellant argued that the Commission's approval was vitiated by a failure to take relevant matters into account. The Commission received advice from Ms Hele, Mr Hodgson, the City Planner and Mr Smith of the Department of Housing, Urban Development and Local Government Relations. They canvassed many of the relevant issues. It is said that they did not deal with all relevant considerations and that the Commission did not have regard to them. The Commission was not limited in its deliberations to the matters canvassed by the experts. It was entitled to take into account, and no doubt did take into account, all factors which it considered to be deserving of weight. It became apparent as this argument was developed that it really amounted to an attempt to involve the Court in a consideration of the merits of the application. The Court must be careful not to allow the performance of its role of determining whether all relevant matters have been taken into account, to trespass upon the proper role of the Commission and the Minister to decide the application on its merits. This ground of complaint must fail.
24. It was argued that the Minister's concurrence did not amount to a valid concurrence under s24(5) or consent under s25(1) because he did not receive advice on or have regard to the Principles. The learned judge dealt with this point as follows:-
"The plaintiffs further sought to attack the 'concurrence'
of the Minister. They argued that this was invalid in
that:-
- he did not - it was said - independently perform the
functions and responsibilities assigned to him under the
Act; and
- he did not provide his concurrence upon a proper
foundation of fact - because of a failure adequately to
consult interested parties.
Once again the plaintiffs bear a heavy onus of proving that
the Minister did not properly discharge his statutory duty.
They must overcome the well established presumption that he
did (Attorney-General for the Northern Territory v Minister
for Aboriginal Affairs and Ors (1986) 67 ALR 282, Minister
for Natural Resources v New South Wales Aboriginal Land
Council and Anor (1987) 9 NSWLR 154 particularly at 164 et
seq.)
In effect Mr Mansfield QC sought to argue that the Minister
had not independently conducted his own investigations or
pursued his own separate enquiries, but had merely acted as
a 'rubber stamp' - accepting the documentation that had been
sent to him by Ms Hele. This was not - it was submitted - a
proper, independent discharge of responsibility.
Such a contention must be rejected out of hand. It is
solely based on inferences sought to be drawn from the
documentation discovered to the plaintiffs. Those
inferences cannot be supported.
Quite aside from the facts that, in any event, the
documentation forwarded fairly presented to the Minister
both the development proposal and the issues arising in
relation to it (as well as the attitude of the Commission)
and he had actually earlier granted a personal interview to
various objectors (including the two personal plaintiffs),
so that he was well able to bring a properly informed,
independent mind to bear on the matter, the request for his
consent and/or concurrence passed through the hands of no
less than three of his senior officers, with one of whom the
Minister obviously discussed the matter orally. It is not
known what oral discussions the Minister may have had and
with whom. It is not to be supposed that he did not, as is
the usual course, seek input and advice from his senior
advisers.
The plaintiffs have fallen far short of demonstrating that
the Minister did not properly and independently discharge
his function or fail, by appropriate consultation, to
establish the relevant facts. The fact that, in his
response, which was drafted by Ms Hele for him, the word
'concur' was used instead of 'consent' is, in my view, of no
significance. The intent is clear and it does not suggest
any lack of independent consideration of relevant matters."
25. In that passage the learned judge convincingly disposes of the point and it is unnecessary to add to what His Honour said.
26. The final point argued on the appeal was that the Commission's approval was invalid because the proposal approved by the Commission is substantially and fundamentally different from the proposal lodged on 4 March 1993. There is now no express power of amendment in the Act or Regulations. Formerly Regulation 6 conferred a power to amend. It was as follows:-
"An applicant under section 24 of the Act may amend the
application at any time before the Council determines the
application and, in that case, the application will be taken
to have been received by the Council on the date on which it
received the amendment."
27. That Regulation had the effect of conferring on an applicant a right of amendment irrespective of the consent of the Council. It also fixed the date at which the applicable law was to be determined pursuant to s42 as the date of the amendment. At the time of the hearing before Olsson J it was believed that that Regulation applied to this case and His Honour's reasons for judgment proceed on that footing. It now transpires that Regulation 6 was revoked on 20 February 1992 and therefore has no application to the case.
28. In the absence of an express provision authorising amendment, it is necessary to consider whether there is any implied authority to amend or permit amendment. There does not appear to be any reason why the primary planning authority, be it Council or Commission in the particular case, should not have the power to permit amendment of the plans which form the basis of the application, before it makes its final decision. There is no provision in the Act which forbids such a course. There are no third party rights under the Act which could be adversely affected. It is manifestly convenient that such a power should exist. It is almost inevitable that when proposals for complex developments are examined by the planning authority's experts, some need for modification of plans will arise. It would be absurd to require a developer to lodge a new application notwithstanding that the desired modification might be of minor significance. I see no reason to interpret the Act in so rigid a manner.
29. Nevertheless some limitation on the scope of permissible amendments is required by the Act. Section 42 provides that the date of the application for approval determines the law to be applied in deciding it and the Principles that are relevant to its decision. To give proper effect to this section it is necessary to restrict the power to permit amendment so that amendment cannot be made the means of substituting for the original application what is in substance a new application.
30. In City of Marion v Becker (1973) 6 SASR 13 and Hancock v City of Tea Tree Gully (1986) 42 SASR 584, the Court dealt with the limitations on the power of the Planning Appeal Board under the then planning legislation, to permit amendments on appeal. It was concerned with the nature of the planning appeal process and not the power of the primary planning authority to permit amendment. Nevertheless I think that the distinction made in those cases is valid for present purposes. Amendments are permissible unless the amendments are so extensive as to change the character of the development so that it is not, in essence, the same development as that for which approval was originally sought.
31. Several amendments to the plans which formed the basis of the application, were made before the Council referred the application to the Commission. They were made in response to objections made by local residents and did not alter the essential character of the proposed development. The Commission initially rejected the application and refused approval. There was an appeal to the City of Adelaide Planning Appeals Tribunal pursuant to s27. A conference between the applicant and the Commission was then held as required by s29. As a result of that conference agreement was reached between the Commission and the applicant as to the modifications which would be necessary to secure the Commission's approval. In consequence of that conference, the applicant put forward amended plans. The amendments were extensive. They did not, however, in my opinion, alter the essential character of the proposed development. It still consisted of a large supermarket and a number of specialty shops in a mall complex, and several offices, as well as a car parking facility in the R12 precinct.
32. The very purpose of s29, as it seems to me, is to enable the primary planning authority and an applicant to resolve, by compromise, the grievance which has led to the appeal. It must be envisaged that the applicant will be able to amend the plans, even at that stage, in order to settle the issues on the appeal by agreement and to secure the approval. The same limitation would still apply namely that the development which is approved must be in essence the development for which approval was originally sought but subject to that it must be permissible to alter the plans to implement an agreement reached in consequence of the conference. In my opinion the development approved by the Commission and concurred with by the Minister is in essence the development for approval of which application was made on 4 March 1993.
33. I think that all grounds upon which judicial review was sought were properly rejected and that the appeal should be dismissed.
JUDGE2 MILLHOUSE J This appeal is about the old Le Cornu's site in O'Connell Street North Adelaide.
2. In the last few years plans for redevelopment have been made and discarded because some local residents don't want a car park in a residential zone and another group of opponents, owners of local businesses, have not been keen to have the competition.
3. The appellants belong to both groups. They sought judicial review of a decision of the City of Adelaide Planning Commission granting consent to a developer:-
"to construct a shopping, commercial complex including a
supermarket, shops and a 3 level ancillary parking structure
at land situated at 62-100 O'Connell Street, 114-120 Archer
Street, 103-107 Tynte Street, 1-39 Centenary Street, 1-17
Watson Street, 2-18 Stephen Street, North Adelaide ...".
4. Amongst other relief they sought:-
"4. A declaration that the decision of the Minister recorded
in the letters of the 24th May 1993 to the Council
requesting the Council to refer the application by Archer
Pty Ltd to the Commission is invalid void and of no
effect; ..."
5. Olsson J refused relief: hence this appeal, the grounds of which are:-
"1. The Learned Trial Judge was in error in that:-
(a) he misconstrued the provisions of Section 19(2) of the
City of Adelaide Development Control Act 1976 ("the Act"),
in particular as to the meaning of the term "substantial
interest",
(b) there was no evidence upon which the jurisdictional fact
needed for the Minister's request to refer the application
to the City of Adelaide Planning Commission ("the
Commission") existed.
(c) he misconstrued the Principles under the Act in
determining, upon the uncontested material as to the nature
of the application, that the application should have been
assessed on an "On Merit" basis,
(d) he misdirected himself as to the onus of proof as to the
improper exercise of delegated powers by a delegate of the
Commission,
(e) he misdirected himself as to the legal status or quality
of the process undertaken by Ms. Hele, purportedly in
exercise of delegated powers,
2. The Learned Trial Judge was in error in failing to find
as a matter of law
(a) the Commission was not empowered to make the decision
which it purported to make on 17 August 1993 and thereafter
in relation to the application;
(b) the approval purportedly given by the Commission was not
an approval in relation to the application properly before
it, but to some other proposal."
6. I start by mentioning that the City of Adelaide Development Control Act has been repealed and replaced by the Development Act 1993 which provides arrangements for development control within the City of Adelaide different from those in the repealed Act.
7. Olsson J sets out the facts at length in his Reasons so I need do no more than summarise them.
8. In March 1993 a developer, Archer Pty Ltd, applied to the Adelaide City Council for approval of its plans to redevelop the Le Cornu's site. The Council debated the application. There was a clash of views between the pro-development and anti-development factions. There was opposition in the community and a good deal of publicity. By May 1993 the Council had not made a decision. On 24 May the Minister of Housing, Urban Development and Local Government Relations, The Hon. Greg Crafter MP, wrote a letter to the Council:-
"Mr. M. Llewellyn-Smith, M.A.
City Manager
Corporation of the City of Adelaide
Town Hall
King William Street
ADELAIDE 5000
Dear Mr. Llewellyn-Smith,
I am aware that tonight Council will be considering a
planning application for a retail, office and associated
carparking development on the site formerly occupied by Le
Cornu's in O'Connell and Centenary Streets, North Adelaide.
I am also aware of the successive planning applications made
over this site in the last few years and the controversy
which has surrounded them.
It has been variously put to me that the current proposal:-
- may require CAPC consent because of future development by
the Council in road closures and encroachments which will be
necessary if the development is to proceed;
- has attracted an unusually large number of public
representations;
- involves land fronting one of the major approaches to the
Central Business District and in an area of townscape
significance.
I am also conscious of the potential effect of this project
on the internal stability of the Council. The protracted
debate over the site has provoked strong reactions on all
sides which would not assist the assessment process.
Having regard to all of the above, I am of the opinion that
the proposed development is one in which the State
Government has a substantial interest and accordingly,
pursuant to Section 19(2) of the City of Adelaide
Development Control Act, I request that the Council refer
the application to the City of Adelaide Planning Commission
for determination.
To the extent that any aspect of the proposal would have
required the concurrence of the Commission had Council been
the planning authority determining the application, it
should be noted that, pursuant to Section 19(4) of the Act,
I will assume the role of the Commission in determining
whether concurrence should be granted.
I stress that in proposing this course I am committed to
working co-operatively and productively with the City of
Adelaide and look forward to our continuing co-operation.
Yours sincerely,
(signed)
Greg Crafter
MINISTER OF HOUSING, URBAN DEVELOPMENT
AND LOCAL GOVERNMENT RELATIONS"
9. The Minister purported to act pursuant to s19(2) of the Act:-
"(2) Where the Minister is satisfied that the Government of
the State has a substantial interest in the result of an
application to the Council under Part IV, the Minister may
request (by writing setting out the grounds upon which the
request is based) the Council to refer the application to
the Commission for determination."
10. Mr Michael Beamond who led for the appellants had six points: they covered all grounds of appeal. As in my view the first is decisively in favour of the appellants I shall not need to canvass the other five.
11. The Council acceded to the Minister's request and referred the applications to the Commission. I need not take the narrative further as the first of Mr Beamond's points arises out of the Minister's request. Mr Beamond argued that the Minister's request was, to use his word, "invalid": the Minister had misdirected himself.
12. It will be seen from the subsection that there are two steps which the Minister must take to get the Council to refer the application to the Commission: one, be satisfied that the Government has a substantial interest in the result and two, decide to request the Council to refer the application.
13. The first step is that the Minister must satisfy himself that the Government has a substantial interest in the result of the application. I emphasise the word "result": the substantial interest must be in the result - not in the process by which the result is obtained.
14. When I put it to the Crown Prosecutor, for the respondents, Mr Selway acknowledged that it really wouldn't have mattered much to the Government which of the various proposals put successively by the developer in support of its application had been accepted.
15. That may be why, in his letter of 24 May to the Council, the Minister mentioned three matters - the possible requirement of City of Adelaide Planning Commission consent because of road closures etc, the "unusually large number of public representations" and that the proposal "involves land fronting one of the major approaches to the Central Business District". None of these matters, except perhaps the last, bears at all on the result of the application: the first is between the Council and the Commission, the second, I would have thought, was to be applauded as "grass-roots democracy", the third, as I have said, may have been of some interest to the Government but pretty faint interest.
16. In the next paragraph of his letter the Minister puts in, by implication, a fourth matter - stripped of the excess verbiage, the fighting amongst members of the Council. This consideration, no more than the other three, could give the Government an interest in the result of the application.
17. The Minister then goes on to say in his letter, "Having regard to all of the above, I am of the opinion .......".
18. Despite Mr Selway's arguments, supported persuasively as they were by Mr Brian Hayes QC leading for Archer Pty Ltd, the intervener, the irresistible conclusion is that the Minister has taken into account matters which are quite irrelevant to the first step under s19(2) - his satisfaction that the Government "has a substantial interest in the result of (the) application." Only one is even faintly relevant to the result but we do not know what weight the Minister has attached to it or to any other of the others.
19. The irony is that the Minister would probably have done better not to have tried to give reasons at all for his satisfaction, merely to have asserted he was satisfied and then taken the second step required by the subsection, making the decision to request the Council to refer the application and giving the reasons for that - for at that stage he was required to set "out the grounds upon which the request (was) based." As it is, he gave grounds at the first step when he didn't have to but did not at the second when he did.
20. Well, then, what follows?
21. Guidance towards the answer is to be found in the decision of the High Court in Minister for Aboriginal Affairs v Peko Wallsend Ltd ((1986-1987) 162 CLR 24), also an application for judicial review, review of a decision of the Commonwealth Minister for Aboriginal Affairs. It was claimed that the Minister had failed to take into account matters made relevant under the Aboriginal Land Rights (Northern Territory) Act - the reverse of the situation here, of course, where Mr Crafter took into account irrelevant matters: nevertheless I have found the decision helpful. Mason J in considering the question said this:-
"The failure of a decision-maker to take into account a
relevant consideration in the making of an administrative
decision is one instance of an abuse of discretion entitling
a party with sufficient standing to seek judicial review of
ultra vires administrative action. That ground now appears
in (the Administrative Decisions (Judicial Review) Act)
which, in this regard, is substantially declaratory of the
common law. Together with the related ground of taking into
account irrelevant considerations, it has been discussed in
a number of decided cases, which have established the
following propositions: ...
(c) Not every consideration that a decision-maker is bound
to take into account but fails to take into account will
justify the court setting aside the impugned decision and
ordering that the discretion be re-exercised according to
law. A factor might be so insignificant that the failure to
take it into account could not have materially affected the
decision:" (here are cited a number of authorities) "A
similar principle has been enunciated in cases where regard
has been had to irrelevant considerations in the making of
an administrative decision:" (here are cited further
authorities - at pp 39-40).
22. His Honour then goes on to discuss "the limited role of a court reviewing the exercise of an administrative discretion" and the test (the test is whether the decision were "manifestly unreasonable") which should be applied "lest (the court) exceed its supervisory role by reviewing the decision on its merits" (@ p42). He had already said, "in (its) application" (that is of the test),"there has been considerable diversity in the readiness with which courts have found the test to be satisfied" (@ p41). I conclude from the whole of the discussion that the Court has to make up its mind whether the Minister's asserted "satisfaction" was "manifestly unreasonable" but in doing so be careful not "to exceed its supervisory role".
23. I have come to the conclusion that the Minister's assertion of satisfaction was "manifestly unreasonable": he has taken into account considerations, none of which but one, faintly, were relevant at all to the result of the application.
24. The appellants therefore are entitled to relief.
25. During the course of argument my brother Perry raised the question of discretion: the appellants seek relief in its nature equitable: the Court has a discretion whether to grant it or not. Were it not that the Act has changed and there are now different procedures to be followed on such applications I would have doubted whether we should grant relief: if the City of Adelaide (Development Control) Act were still in force then relief would put the parties back to where they were in May 1993 (to use Perry J's phrase "put them back on the merry-go-round"): we might simply be delaying the whole thing by 18 months or more. On the other hand, as Mr Beamond said in reply:-
"If it is suggested that to start the merry-go-round again
is something which shouldn't happen, then every time this
court quashes a decision of this kind, it very often starts
that merry-go-round in any event. It often quashes for
procedural matters, not on the basis of the merits. The
same decision may be made subsequently, but may be made in
the right way."
26. Here it is more than that, (as Mr Beamond had pointed out) the new Act, the Development Act, has no equivalent of s19(2): it "provides different, and, in some cases greater, opportunity, for involvement by the public" as Mr Beamond said. I think therefore that we should, in our discretion, grant relief. That will mean quashing the decision of the Commission and returning the application to the Adelaide City Council.
27. I suggest therefore that the appeal be allowed and a declaration made in terms of paragraph 4 of the relief sought by the appellants.
JUDGE3 PERRY J I agree that the appeal should be dismissed for the reasons given by His Honour the Chief Justice.
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