Mount Barker Properties Ltd v District Council of Mount Barker

MOUNT BARKER PROPERTY INVESTMENTS PTY LTD v DISTRICT COUNCIL OF MOUNT BARKER &
THE MINISTER FOR TRANSPORT, URBAN PLANNING, THE ARTS AND THE STATUS OF WOMEN
[2001] SASC 249
Land and Valuation Division

DEBELLE J. In this application for judicial review the plaintiff challenges the validity of the process so far implemented for the purpose of amending the Development Plan for the area of the District Council of Mount Barker (“the Council”).
The plaintiff owns a substantial parcel of land in the town of Mount Barker. On that land is erected a shopping centre including a Bi-Lo supermarket and other shops, together with car parking. The plaintiff’s land is within the area of the Council and is subject to the Council’s Development Plan. The shopping centre forms a part of a District Centre Zone in the existing Plan. It is the only District Centre Zone in the Council area.
A Challenge to a PAR
The Council seeks to have several amendments made to the Development Plan. They include amendments to the District Centre Zone. The procedures by which amendments to the Development Plan are made at the instigation of a council are set out in s 25 of the Development Act 1993. I will describe the procedures in a moment. For the present, it is sufficient to note that the proposed amendments are to be contained in a Plan Amendment Report (“PAR”). The plaintiff contends that both the Council and the Minister for Urban Planning have failed to comply with certain of the procedures prescribed by s 25. The plaintiff therefore seeks
(1)a declaration that the draft Mount Barker and Littlehampton Township Centres PAR is unlawful and invalid; and
(2)a declaration that the acceptance by the Minister of the said draft PAR as the basis for public consultation pursuant to s 25(9) of the Act was invalid because the draft PAR had failed to comply with the provisions of s 25 of the Act.
There is no challenge to the plaintiff’s standing to bring these proceedings.
The Statutory Process
Before examining the grounds upon which the plaintiff relies, it is convenient to examine the procedure by which a Development Plan is amended. All of the references to the Development Act in these reasons are to the Act before it was amended by the Development (System Improvement Program) Amendment Act, 2000 (the Act No. 88 of 2000) which substantially amended the relevant procedures. Reference will also be made to the Development Regulations 1993 as they stood at the relevant times and before recent amendments.
The procedures for amending a Development Plan are set out in s 24 to s 30 of the Act. The Governor publishes the amendment (see s 29) but it is effectively the Minister who makes the amendment. Section 25 of the Act authorises a council to initiate the amendment process and, subject to the Minister’s control, to prepare amendments. Section 26 of the Act authorises the Minister to initiate and make amendments. The same procedures apply to the creation of a Development Plan: s 23(7) of the Act. Thus, it is the Minister who recommends to the Governor the creation of or amendments to a Development Plan.
A Development Plan is a public document: s 23(6) of the Act. A Development Plan is a fundamental document in the administration of town planning and the regulation and control of building development in this State. Although a Development Plan is a public document made by authority delegated to the Minister under the Development Act and is to that extent a statutory instrument (c.f. Jacobs J in District Council of Munno Para v Remove All Rubbish Co Pty Ltd (1985) 41 SASR 188 at 204), it would be inaccurate to describe a Development Plan as delegated legislation since its provisions do not have the force of legislation. It is, in fact, a document expressing planning policy, prescribing proposals and objectives to be obtained for areas prescribed in the Plan. As Wells J pointed out in Hassen v District Council of Mount Barker (1984) 35 SASR 448 at 454, the Development Plan is couched in the language of objectives and principles rather than legal obligation. In Town of Walkerville v Adelaide Clinic Holdings Pty Ltd (1985) 38 SASR 161 at 187, King CJ, with whom the other members of the Full Court agreed, endorsed that view, as well as observations of Jacobs J in the court below, in these terms:
“As was pointed out by Wells J. in Hassen’s case, however, the Plan is in the nature of a planning document and is couched in the language of planning objectives and principles rather than that of legal obligation. Jacobs J. in the judgment appealed from in this case described the language of the principles in the Plan as ‘advisory’. Perhaps that word read out of context does not attach sufficient force to the language of the principles, but it is nevertheless language appropriate to the expression of goals and guiding principles rather than to the expression of legal mandates.” (Footnotes omitted.)
Although these observations were made in respect of the Development Plan which existed under the Planning Act 1982, they apply with equal force to the Development Plans created pursuant to the Development Act 1993. Instead of one Development Plan, as under the 1982 Act, there are a number of Development Plans which, broadly speaking, apply to council areas and some other regions.
Section 25 is in these terms:
“       25. (1) If a council is considering an amendment to a Development Plan, the council must first reach agreement with the Minister on a ‘Statement of Intent’ prepared by the council in accordance with the regulations.
(2) The Minister must, for the purposes of subsection (1), consult with the Advisory Committee if the Minister considers that the proposed amendment would be seriously at variance with the Planning Strategy.
(3) If or when agreement is reached, and the council decides to proceed, the council must prepare a draft Plan Amendment Report based on the outcome of investigations initiated by the council in accordance with the terms of the Statement of Intent and such other investigations (if any) as the council thinks fit, and after considering the advice of a person with prescribed qualifications appointed by the council.
(4) A Plan Amendment Report must assess the extent to which the proposed amendment–
(a)    accords with the Statement of Intent;
(b)    accords with the Planning Strategy;
(c)     accords with other parts of the Development Plan;
(d)    complements the policies in Development Plans for adjoining areas;
(e)    satisfies the matters prescribed in the regulations,
and include–
(f)     an explanation of the intent of the proposed amendment, the relationship between that intent and the policy of the Statement of Intent, and a summary of the major policy changes (if any) that are proposed; and
(g)    a summary of the conclusions drawn from the investigations referred to above; and
(h)    a draft of the amendment, or a draft of the relevant section of the Development Plan as amended (with the amendments shown in a distinctive manner).
(5) Subject to subsection (6), a draft Plan Amendment Report must be referred to any government Department or agency that has a direct interest in the matter for comment (but, if a response is not received from a Department or agency within six weeks or such other period as may be prescribed by the regulations, it will be taken that the Department or agency does not desire to make any comment), and the council may, as a result of any comments that it receives, amend the reports.
(6) The Minister may, after consultation with the council at the time of the preparation of the Statement of Intent, permit the council to undertake the consultation required under subsection (5) during the period for which the Plan Amendment Report is released for public comment under subsection (11).
(7) Subject to subsection (8), the council may then finalise its Plan Amendment Report and submit it to the Minister, together with a statement containing the prescribed particulars.
(8) Subsection (7) does not apply if the Minister has authorised the council to release the Plan Amendment Report for public consultation without submission to the Minister under that subsection.
(9) The Minister must, on receipt of a report under subsection (7)–
(a)    accept the Plan Amendment Report, without alteration, as a basis for public submissions; or
(b)    require an alteration to the Plan Amendment Report (after consultation with the council) and accept the report, as altered, as a basis for public submissions; or
(c)     reject the Plan Amendment Report as a basis for public submissions (in which case the Minister must provide the council with written reasons for the Minister’s decision).
(10) In considering a Plan Amendment Report under subsection (9) the Minister must assess the extent to which the proposed amendment satisfies the matters referred to in subsection (4)(a) to (e).
(11) Unless rejected by the Minister under subsection (9), a Plan Amendment Report may then be released for public consultation in accordance with the regulations.
(12) Where a proposed amendment designates a place as a place of local heritage value, the council must, on or before the day on which the Plan Amendment Report is released for public consultation under subsection (11), 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 that applies under subsection (11).
(13) The council must, after complying with the requirements under subsections (11) and (12)–
(a)    prepare a report on the matters raised as a result of public consultation and, if relevant, under subsection (12) and on any recommended alterations to the proposed amendment; or
(b)    if it thinks fit, by notice in writing to the Minister, decline to proceed any further with the amendment.
(14) A report under subsection (13)(a) must be referred to the Minister, who must–
(a)    seek the advice of the Advisory Committee–
(i)if the Minister is of the opinion that there is substantial public opposition to the whole or part of the proposed amendment, or that the council has recommended that substantial alterations be made to the amendment; or
(ii)in the case of an amendment that designates a place as a place of local heritage value–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 manner as the Advisory Committee thinks fit) in relation to the matter before the Advisory Committee reports back to the Minister); and
(b)    if subsection (8) has applied, assess the extent to which the proposed amendment satisfies the matters referred to in subsection (4)(a) to (e),
and thereafter the Minister must–
(c)     approve the amendment; or
(d)    alter the amendment (after consultation with the council) and approve the amendment as altered; or
(e)    decline to approve the amendment (in which case the Minister must provide the council with written reasons for the Minister’s decision).”
The extent to which the Minister is involved in the process of amending a Plan is apparent from these provisions. As will be seen, the extent of that involvement bears on the issues in this application.
The Extent of Ministerial Control
I note the following aspects of the Minister’s involvement in the process and, in particular, the extent to which the Minister has substantial control over the whole process of amendment, even where the PAR is prepared at the instigation of a council.
1.A council cannot proceed to amend its Development Plan unless it has first prepared a statement of intent and the Minister agrees with it: s 25(1). The requirements for the statement of intent are prescribed by reg 9. The purpose of a statement of intent is, among other things, to explain to the Minister the reasons for the preparation of the amendment. That is apparent from the terms of reg 9 and, in particular, from the fact that a statement of intent is not required when the Minister makes amendments under s 26.
2.If the Minister agrees with the statement of intent, the council must then prepare a draft PAR in accordance with the requirements of s 25(3) and (4).
3.After the council has prepared its PAR, it is released for public consultation. The procedure to be followed before the document is released for public consultation depends on the directives, if not also the discretion, of the Minister made in accordance with subsections (6) and (8) to (11). There are alternative procedures which are described in subsections (6) to (11) of s 25. I will describe each. It will be noticed that the Minister retains full control over the process regardless of which procedure is adopted.
4.One procedure is for the council to refer the draft PAR to relevant government departments or agencies (s 25(5) of the Act), for the council then to finalise its PAR in light of submissions from those government departments or agencies, and then submit it to the Minister pursuant to s 25(7). Alternatively, the council may request the Minister to permit it to release the PAR for public comment before consultation with the relevant government departments and agencies (s 25(8)) so long as the council consults with the relevant government departments and agencies during the period of public consultation: s 25(6) of the Act.
5.On receipt of the draft PAR from the council, the Minister must consider it and assess the extent to which it satisfies the matters referred to in subsections (4)(a) to (e) of s 25: see s 25(10). The Minister then has three alternative courses of action under s 25(9). The Minister may either
(a)     accept the PAR without alteration as a basis for public submissions;
(b)require the PAR to be altered (after consultation with the council) and then accept it as altered as a basis for public submissions; or
(c)     reject the PAR as a basis for public submissions.
If rejected, the council can proceed no further with that PAR. Thus, the Minister has full control over whether the PAR is released for public consultation and the form in which it is released. Once authorised to do so by the Minister, the council may release the PAR for public consultation.
6.The process of public consultation requires public notice of the PAR, the opportunity for interested members of the public to make written submissions, and an opportunity to be heard by the council on those submissions. The details of the procedure are prescribed by regs 11 and 12 of the Development Regulations. The council must report to the Minister on the matters raised by the process of public consultation: see s 25(13). That report must be accompanied by a copy of each written submission and, if the council decides to amend its PAR, by a copy of the proposed amendment: reg 13. Thus, the Minister is fully informed of the extent to which interested members of the public support or oppose the PAR and the content of their views.
7.On receipt of the council’s report, the Minister still retains full control over the ultimate fate of the PAR. If the Minister is of the opinion that there is substantial public opposition to the PAR, either in whole or in part, she must seek the advice of the Advisory Committee. (The Advisory Committee is the Development Policy Advisory Committee established under the Act to advise the Minister on any matter relating to planning and development which it believes should be drawn to the Minister’s attention. The Act also imposes certain duties on the Committee. The constitution of the Committee and its functions are stated in s 8 and s 9 of the Act.) The Minister must also seek advice from the Advisory Committee if she believes that the council has recommended substantial alterations to the amendments proposed in its PAR: see s 25(14)(a)(i). It must be noted that, by reason of s 25(14)(b), if the Minister had authorised the council to release the PAR for public consultation without submitting it to her, the Minister must then assess the extent to which the proposed amendments satisfy the matters referred to in subsections (4)(a) to (e) of s 25. Thus, by whatever process the PAR is released for public consultation, the Minister must make the assessments required by s 25(10) and s 25(14) and retains control over the form in which the amendment will be made.
8.Once the steps in paras 6 and 7 have been taken, the Minister, pursuant to s 14(c), (d) and (e), may either:
(i)     approve the amendment; or
(ii)     alter the amendment and approve the amendment as altered; or
(iii)    decline to approve the amendment.
Once again, the Minister has complete power over the fate of the proposed amendment.
9.Once the Minister has approved an amendment, it must be referred to the Governor who may by notice in the Gazette declare the amendment to be an authorised amendment: s 27 of the Act.
Amendments to a Development Plan, whether pursuant to s 25 or s 26, are subject to parliamentary scrutiny and may be disallowed. The process is prescribed by s 27. The scrutiny is undertaken by the Environment, Resources and Development Committee of the Parliament. After publication in the Gazette, the Minister must refer the amendment to the Committee which has power both to suggest amendments as well as to accept or object to the amendment: s 27(3) and (4). If the Committee objects, copies of the amendment are laid before both Houses of Parliament and the amendment is liable to disallowance. The Minister has authority to recommend to the Governor that the Plan be amended as suggested by the Committee and must consult with the relevant council before doing so. Thus, amendments may be made by the Minister even at this late stage without public consultation.
The extent to which Parliament has delegated responsibility and control of the amendment of Development Plans to the Minister is emphasised by other provisions in this part of the Development Act. Section 24 authorises the Minister to prepare an amendment:
(a)where a council has been asked by the Minister to prepare a statement of intent within a specified time and the council has failed to do so;
(b)where a council and the Minister cannot agree on a statement of intent;
(c)where the Minister believes a council has unduly delayed the preparation of an amendment;
(d)where a council has decided not to proceed with an amendment; or
(e)where a council has failed to comply with subdivision 3 of this part of the Act (that is to say, failed to comply with s 30 of the Act) which requires councils to carry out periodic reviews of the Development Plan for its area.
The process by which the Minister amends a Development Plan under s 26 of the Act is, broadly speaking, similar to that under s 25 but does not require a statement of intent. A PAR is prepared. It is released for public consultation. The Minister then decides whether to approve the amendment (as proposed or in an amended form) or to decline to proceed with it. The Minister is required to seek the advice of the Advisory Committee on matters raised by the process of public consultation: see s 26 of the Act.
The Minister also has power to make amendments to a Development Plan to make it accord with a plan, policy or code prepared or adopted under any other Act which falls within a class prescribed by regulation, to correct errors or changes of form (but not substitute) in a Plan, and to deal with items of State heritage: see s 29 of the Act.
Other Features of Section 25
Given the submissions made by the plaintiff, some additional features of the powers and controls of the Minister over the PAR and any proposed amendment must be noted.
1.By virtue of s 25(9), the Minister is at liberty to require an alteration to be made to the PAR before it is submitted for public consultation.
2.The scheme of s 25 shows that the primary purpose of the statement of intent is to inform the Minister of the reasons for the proposed amendment and it is for the Minister to assess whether the PAR accords with it.
3.The Minister may permit a council to release a PAR for public consultation even if it does not comply with s 25(4)(a) to (e). All that s 25(10) and s 25(14)(b) require of the Minister is an assessment of “the extent to which the proposed amendment satisfies the matters referred to in subsection (4)(a) to (e)”. Nowhere in s 25 is there any obligation on the Minister to reject the proposed amendment if the PAR does not comply. Even if the PAR fails to satisfy s 25(4)(a) to (e), once the Minister has made the assessment required by s 25(10) or s 25(14)(b), the Minister is at liberty either to reject the PAR (and hence the proposed amendment) or to permit the PAR (and hence the proposed amendment) to be released for public consultation or, if it has already been submitted for public consultation, to approve the amendment pursuant to s 25(14)(b). In other words, although the PAR might not in fact comply with s 25(4)(a) to (e) or although the Minister might assess the PAR as not complying with those provisions, the Minister is nevertheless at liberty to approve the PAR as submitted to her or as amended by her. This not only serves to underline the extent of the Minister’s control but, more significantly in the context of this case, it is one matter which suggests that Parliament does not intend that non-compliance with s 25(4)(a) to (e) will automatically invalidate the PAR. I do not mean to suggest that complete non-compliance with s 25(4)(a) to (e) could be disregarded by the Minister. Subsections (10) and (14)(b) of s 25 require the Minister to make a subjective assessment of the matters listed in s 25(4)(a) to (e). In addition, when subsections (10) and (14)(b) are read with subsections (9) or (14)(c), (d) and (e) as the case may be, it is apparent that the Minister is invested with a discretion to reject or approve the proposed amendment. That discretion must be exercised in accordance with the purpose for which it is conferred: c.f. Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552 at 561. Subject to that consideration, a decision by the Minister to approve a PAR, notwithstanding a failure to comply with s 25(4)(a) to (e), could be set aside on the ground of unreasonableness in the sense explained in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229 – 230. It might be possible to set aside the decision if it could be demonstrated that the Minister had failed to have regard to relevant factors or had had regard to irrelevant factors. But that issue need not now be pursued. It is sufficient to note that the grounds on which the Minister’s decision could be reviewed are likely to be few. What is important is that Parliament has reposed in the Minister a discretion to allow a PAR to proceed even if an amendment does not accord with the statement of intent.
4.By reason of s 25(14), even after the process of public consultation has been completed, the Minister has the power to alter the amendments proposed by the council and approve the amendments as altered. This power may be exercised notwithstanding that the interested members of the public have not had an opportunity to comment on the amendment the Minister proposes to make. In the case of the power invested in the Minister under both s 25(9) and s 25(14), the Minister is required to consult with the council but, it must be noted, the Minister is not obliged to obtain the consent of the council.
5.Thus, before the process of public consultation, the Minister may have accepted the PAR without alteration or may have amended it after consultation with the council and assessed it in accordance with s 25(10), or she may not have done either, having permitted the PAR to be released for public consultation without submission to her pursuant to the power contained in s 25(8). Whatever process is adopted, the Minister has the capacity, after the process of consultation, to amend the proposed amendment, that is to say, make an amendment which the public has not seen.
6.To summarise,
(1)It is the Minister’s decision whether an amendment is made and it is the Minister who refers it to the Governor for publication.
(2)The Minister has control at three separate stages in the process of amendment and at any stage can stop the process or allow the amendment to proceed as proposed by the council or in terms amended by the Minister, terms which may or may not have been submitted to the process of public consultation. Those three stages are:
(a)    after the council has prepared a statement of intent,
(b)    before public consultation, and
(c)    after public consultation but before the Minister approves amendment of the Development Plan.
The Minister is at liberty to approve an amendment made by a council even after the process of public consultation and may, herself, alter the proposal after the process of public consultation.
(3)The Minister may even alter the amendment in light of the Environment Resource and Development Committee’s comments.
What is striking about s 25 is the extent of the control exercised by the Minister and the fact that the PAR which is released for public consultation may include the Minister’s amendments and that, even after the process of public consultation, the Minister may make further amendments.

It is apparent that the involvement of the public is limited to the ability to make written submissions and to make representations in respect of those submissions. Public consultation occurs only after a draft PAR has been prepared by the Council and after the Minister has authorised release of the PAR.
The Procedure adopted by the Council
The Council prepared a statement of intent and the Minister agreed with it on 30 October 1998. Before preparing the statement of intent, the Council had undertaken a number of studies or investigations. It also had some studies and investigations prepared by other persons. They are listed in section 6 of the statement of intent. The Council proceeded to prepare the PAR.
On 1 November 1999 the Council resolved to adopt the PAR in principle. It resolved as follows:
“1)That Council give ‘in principle support’ to the PAR as being suitable for consultation with Government agencies in accordance with Section 25 (5) of the Development Act, 1993.
2)That the Strategic Planner and Manager Environmental Services be authorised to:
a) undertake further amendments to the PAR so as to bring it up to a standard suitable for consultation with Government agencies in accordance with Section 25 (5) of the Development Act, 1993; and
b) undertake consultation with Government agencies in accordance with Section 25 (5) of the Development Act, 1993; and
c) undertake further informal consultation with key community groups: and
d) report back to Council following the receipt and consideration of all comments received as a result of the above consultation processes.”
For reasons which will appear, it is necessary to note that a Mr Andrew Grear was then either the Strategic Planner or the Manager, Environmental Services of the Council mentioned in paragraph 2 of the resolution. The Council did not undertake consultation with any government agencies at that time.
It was not until 7 August 2000 that the Council sent its PAR to the Minister and asked, pursuant to s 25(7), that the Minister release it for public consultation. The Council also asked the Minister, pursuant to s 25(5), to permit it to undertake the process of consultation with government departments and agencies during the period of public consultation. Those requests were made on behalf of the Council by its Chief Executive Officer pursuant to a resolution of the Council made on 17 July 2000. The terms of the resolution were:
“That the Chief Executive Officer and/or his delegate be authorised to:
1.Request the Minister of Urban Planning to authorise the commencement of concurrent government agency and public consultation of the Mount Barker and Littlehampton Townships Centres – Plan Amendment Report.
2.Undertake further amendments to the PAR so as to bring it up to a standard suitable for consultation with Government Agencies and the public in accordance with Section 25 of the Development Act 1993.
3.Undertake consultation with Government Agencies and the public in accordance with Section 25 of the Development Act 1993.
4.Report back to Council following the receipt and consideration of all comments received as a result of the above consultation process including a public hearing should it be required.
5.Report back to Council to determine those elected members who will form the public hearing panel as required by Regulation 12 of the Development Regulations 1993 should this be required at the conclusion of the public consultation period.”
On 31 October 2000 the Minister authorised the release of the PAR for public consultation and permitted the Council to undertake concurrent consultation with government departments and agencies. That approval was subject to the Council making certain alterations to the PAR, none of which is relevant for present purposes.
The Council released the PAR for public consultation. On 16 November 2000 it gave notice of the release by an advertisement in “The Courier”, a newspaper published in Mount Barker and circulating in that part of the Adelaide Hills in and near Mount Barker. The Council later received advice that the notice in “The Courier” did not comply with reg 11 and again published notice of the release in “The Advertiser” on 25 January 2001, in the Government Gazette and again in “The Courier”. The Council extended the period of public consultation to 26 March 2001 and changed the date for the hearing by the Council of oral submissions to 3 April 2001. Nothing turns on the Council’s initial failure to comply with reg 11. The plaintiff made very lengthy and detailed written representations through its solicitors which were lodged on 26 March 2001, the last day for written representations. It also made oral submissions in support of those representations at the public meeting held by the Council on 3 April 2001. The Council received 39 representations in all in relation to the PAR. In addition to exercising its statutory rights, the plaintiff, through its solicitors, on 12 April 2001, also lodged detailed written representations with the Minister. In both its submissions to the Council and to the Minister, the plaintiff referred to the alleged non-compliance with s 25. Nothing which has been done in relation to the PAR the subject of this application by either the Council or the Minister has in any way circumscribed the plaintiff’s entitlement or capacity to make representations. It will be apparent that the plaintiff seeks to oppose the establishment of a regional centre. It had every entitlement and opportunity to do so when the PAR was released for public consultation and it has exercised that right.
Alleged Grounds of Invalidity
With that background, I examine each of the grounds upon which the plaintiff asserts invalidity. No separate argument was adduced by the plaintiffs in respect of its second declaration. I infer that the submissions made on behalf of the plaintiff applied to both of the claims for declarations.
(1) Accord with Statement of Intent
The first ground asserts that the PAR does not comply with s 25(4) in two respects. The first is that the PAR does not assess the extent to which the proposed amendment accords with the statement of intent and so fails to comply with s 25(4)(a). The second is that it does not include an explanation of the intent of the proposed amendment and an explanation of the relationship between that intent and the policy of the statement of intent and so fails to comply with s 25(4)(f).
I deal first with the contention that the PAR does not accord with the statement of intent and whether the PAR assesses the extent to which the PAR assesses that question. Section 25(4)(a) does not require that the amendment must accord with the statement of intent. Indeed, it is implicit in the scheme of s 25 that it may not. Instead, what is required is that the PAR assess the extent to which the amendment does or does not accord with the statement of intent. The only express statement in the PAR which might comply with s 25(4)(a) is para 7.1 which reads:
“This PAR has been prepared in accordance with the Statement of Intent agreed to by the Minister for Transport and Urban Planning on 30 October 1998.”
A fair reading of the PAR indicates that by this statement the Council intended to comply with s 25(4)(a). The plaintiff contends that this statement is not an assessment of the kind intended by s 25(4)(a). I agree. The difficulty with the statement is that it expresses a conclusion and gives no reasons for it. Furthermore, it refers to the preparation of the PAR and not to the question which s 25(4)(a) requires to be addressed, namely, the extent to which the proposed amendment accords with the statement of intent. Thus, the PAR contains no section which expressly makes the assessment required by s 25(4)(a). In a moment, I will examine whether that results in the PAR being invalid.
Before doing so, it is appropriate to note that, for the reasons which follow, it is apparent that the plaintiff’s argument lacks merit and fastens on form, not substance. Although the court should not examine issues of planning policy, it is readily apparent that, when the PAR is compared with the statement of intent, the proposed amendment to establish the Regional Town Centre Zone accords with the statement of intent or, if it does not strictly accord with it, it has a very close correspondence with it.
The statement of intent states (in para 1.3) that the Mount Lofty Ranges Regional Strategy Plan, 1993 has identified the Mount Barker township as one of the two Regional Service Centres for the Mount Lofty Ranges. The other is Victor Harbor. Para 1.3 continues:
“In accordance with the Planning Strategy and other relevant strategic planning documents, the proposed Plan Amendment Report will reflect the significance and rezone the existing Mount Barker District Centre (refer to Map 1) to a Regional Centre Zone.”
The Map 1 shows the existing District Centre Zone. Later, in para 4.1.1 of the statement of intent, the following appears:
“Mount Barker Regional Centre Zone
The primary reason for the preparation of the proposed Plan Amendment Report is to update Council’s Development Plan in accordance with the relevant planning strategy documents, such as the Mount Lofty Ranges Regional Planning Strategy. In particular, rezone the Mount Barker District Centre Zone to Regional Centre and increase the quality of urban design related policies.”
The plaintiff asserts that the PAR does not accord with the statement of intent in that the area of the proposed Regional Town Centre Zone as stated in the PAR extends beyond the area of the existing District Centre Zone. The plaintiff points to the fact that the area of the Regional Town Centre Zone is proposed to extend beyond the existing District Centre Zone is clearly stated in a number of places in the PAR. It is stated in para 4 entitled “Summary of Policy Changes”, where the first two policy changes are noted in these terms:
“• Rezoning the Mount Barker District Centre to Regional Town Centre.
•Including additional land within the Regional Town Centre Zone. The additional land was previously within the Industrial/Commercial, Residential, Historic (Conservation Auchendarroch) or Public Purpose Zones.”
Furthermore, the additional land to be included in the Regional Town Centre Zone is clearly shown on separate maps which form part of the proposed amendments. The plaintiff relies on the fact that the statement of intent does not state that the existing District Centre Zone will be enlarged when it is changed to a Regional Town Centre Zone. Certainly, the statement of intent does not state that in express terms.
The verb “accord” means to be in harmony or in correspondence or to be consistent with another thing: see Oxford English Dictionary and Macquarie Dictionary. The amendment will accord with the statement of intent if it is consistent with or corresponds with it. The correspondence between the proposed amendment and the statement of intent is not to be determined by a comparison of individual sentences or paragraphs in each document. The question whether the proposed amendment accords with the statement of intent does not necessarily turn on one statement or paragraph in the statement of intent. The statement of intent and the proposed amendment must each be viewed as a whole and then compared. Regard will be had to substance and not mere form. The plaintiff’s attack fastened only on the passages from the statement of intent I have already noted. It fastens on words, not substance. When both documents are read in their entirety, it is apparent that, in substance, the amendment relating to the Regional Town Centre Zone accords with the statement of intent.
First, it would not be unexpected that the area of the zone would be increased, since Regional Town Centre Zones have a wider role and function than District Centre Zones and are therefore usually, if not invariably, larger. The mere description of the zones is a sufficient indicator of that. Secondly, the statement of intent referred to an investigation by Mr Tutte entitled, “Mount Barker Retail and Office Study”, which included a review of the District Centre Zone and suggested that it be enlarged in a manner very similar to the proposal in the PAR for a Regional Town Centre Zone, a fact which the officers of Planning SA would clearly know. Thirdly, section 4.2 of the statement of intent, which is headed “Aims and Relevant Issues”, lists aims to be addressed in the PAR. They include
“•   Orderly and efficient development of centres. ...
•   Expansion of centre facilities and services in order to meet the needs of their hinterlands. ...
•   Reinforce the role and status of the Mount Barker town centre via a proposed designated Regional Centre Zone classification.”
When read as a whole, an increase in the size of the proposed Regional Town Centre Zone is an apparent possibility, a possibility made the more likely by the proposed change in the name of the zone.
In addition, this PAR proposed a number of other amendments to the Development Plan. Those amendments also accord with amendments proposed in the statement of intent. In my view, the proposed amendments, and in particular the proposed Regional Town Centre Zone, accord with the statement of intent.
Furthermore, as already noted, the obligation imposed on the Council by s 25(4)(a) is to demonstrate to the Minister the extent to which the proposed amendment is consistent with what had been proposed in the statement of intent. Section 25(4)(a) does not necessarily require the council to produce a PAR that in fact accords with the statement of intent. This obligation is a tool to assist the Minister who, by reason of s 25(10) and s 25(14)(b), has the task of assessing the extent to which the PAR accords with the statement of intent. In this case, it is readily apparent that the Minister was aware that the proposed Regional Town Centre Zone was larger than the existing District Centre Zone. The Minister had delegated the task of assessment. It is clear that her delegate was aware of the proposal to increase the area of this zone since it was noted by officers of Planning SA in their report to the Minister’s delegate. An examination of all of the reports prepared by Planning SA show that the proposed size of the zone was a live issue.
However, for the reasons I give later, it is unnecessary to stay with this issue or rely on the fact that the proposed amendment accords with the statement of intent. As already mentioned, even if the PAR does not accord with the statement of intent, the Minister is at liberty to approve it for release for public consultation. Further, the question whether the PAR accords with the statement of intent involves a subjective assessment by the Minister, a fact which emphasises the extent of ministerial control of this process. More significantly, it points to the conclusion that Parliament did not intend that this Court should interfere. The question whether the Minister’s assessment under either s 25(10) or s 25(14)(b) is correct would involve the court in resolving debatable questions of planning values, if not also policy: c.f. R v City of Munno Para (1987) 46 SASR 400 at 402 – 403.
The other aspect of this alleged ground of invalidity asserts that the PAR does not include an explanation of the intent of the proposed amendment or an explanation of the relationship between that intent and the policy of the statement of intent so that it fails to comply with s 25(4)(f). It is not entirely clear what is meant by the requirement in s 25(4)(f) that the PAR must include an explanation of the relationship between the intent of the amendment and the policy of the statement of intent, particularly as s 25(4)(a) has already required the PAR to assess the extent to which the proposed amendment accords with the statement of intent. The obligation in s 25(4)(f) appears to overlap the obligation in s 25(4)(a). The Council has, I think, complied with s 25(4)(f). Here again, regard must be had to substance and not form. An explanation of the intent of the proposed amendment is an explanation of its purpose and its objectives. It is quite apparent from the PAR, when read as a whole, that it explains the need for the amendment and that the intention is to create a Regional Town Centre Zone as well as to review policies for the District Centre Zone and the smaller Neighbourhood and Local Centre Zones. The PAR also states an intention to introduce current and relevant planning policies for all commercial zones within the townships of Mount Barker and Littlehampton. That is what the PAR in fact does in the sections entitled “Need for Amendment” and “Investigations”. Although not expressly stated, the whole of the PAR is, in effect, an explanation of the relationship between the intent of the amendment and the policy of the statement of intent. The meaning of s 25(4)(f) is not entirely clear. For the purpose of this application, I am prepared to assume that it requires a council to have a section which expressly explains the intent of the proposed amendment and the relationship between that intent and the statement of intent. The Council has failed to include such a section, although, as I have said, in substance the PAR addresses that issue.
To summarise. The PAR does not in express terms assess the extent to which the proposed amendment accords with the statement of intent and, to that extent, the Council has failed to comply with s 25(4)(a). However, the amendment does in fact accord with the statement of intent. In a moment I will examine the consequences of non-compliance with s 25(4)(a). The purpose of s 25(4)(f) is not entirely clear. I am prepared to proceed on the footing that the Council has not complied with that provision.
(2) Investigations
The plaintiff’s next allegation is that the PAR was not based on investigations initiated by the Council in accordance with the statement of intent or other investigations carried out by the Council and so fails to comply with s 25(3). It is convenient to deal also with a related allegation that the PAR does not include a summary of the conclusions drawn from the investigations made under s 25(3) and so fails to comply with s 25(4)(g).
In this case, the statement of intent listed twelve investigations to which the Council had referred when preparing its statement of intent. They are also listed in the PAR. There is no evidence as to how many of those investigations had been initiated by the Council. All that can be gleaned from the evidence is that a number of studies or investigations had been considered in the course of preparing the statement of intent. Although no one study or investigation was the basis for the PAR, the most significant was Mr Tutte’s investigation and the Council had instructed him to undertake that investigation. The evidence suggests that at least five other investigations or studies were also prepared at the request of the Council. The important fact is that all of the twelve investigations had been completed before the Council prepared its statement of intent. In the statement of intent the Council stated that it would undertake further investigations “which relate to community facilities and urban design issues”. It did not. The plaintiff contends that the PAR is invalid because it contains no reference to investigations initiated by the Council and that the Council had not undertaken the investigations promised in the statement of intent. It was implicit in the plaintiff’s submissions that the Council was obliged to undertake investigations after its statement of intent had been agreed with the Minister.
I do not think that s 25(3) imposes any obligation on a council to undertake investigations after its statement of intent has been approved. In addition to the fact that the terms of s 25(3) do not require that, there is no reason why a council should be obliged to do so since the proposed amendment or amendments may be of a kind which do not require any investigation after a statement of intent has been agreed. For example, a council may have undertaken detailed investigations for the purpose of preparing its statement of intent and intends to rely on those investigations and no other when preparing its PAR. All that s 25(3) requires is that the PAR be based on investigations initiated by the Council which are proposed in the statement of intent or in any other subsequent investigations. Furthermore, s 25(3) does not require the PAR to be based on investigations which have preceded the statement of intent. In this context, the verb “initiate” means to begin or originate: see Oxford English Dictionary and Macquarie Dictionary. Thus, the expression “investigations initiated by the Council in accordance with the terms of the statement of intent” in s 25(3) can only refer to investigations begun in accordance with the statement of intent, that is to say, investigations after the statement of intent which proposed in the statement or which in some other way accord with it. The latter could even be included in the expression “such other investigations (if any) as the council thinks fit” to which s 25(3) also refers. As the Council did not undertake any further investigations after its statement of intent, there were no further investigations upon which the PAR should be based. For these reasons, if investigations are not conducted after the statement of intent has been agreed, it does not prevent the PAR proceeding. However, if a council has initiated investigations after it has prepared the statement of intent, the PAR must be based on them. The fact that the Council stated in its statement of intent that it intended to undertake further investigations and did not do so does not in any way invalidate the PAR. A council is entitled to review the position and decide that no further investigations are necessary. The PAR does not, therefore, fail to comply with s 25(3).

For the reasons just given, the obligation in s 25(4)(g) that the PAR should include a summary of the conclusions drawn from the investigations is limited to conclusions drawn from investigations initiated by the Council after it has agreed its statement of intent with the Minister. That is the plain meaning of s 25(3) and s 25(4)(g). As the Council did not carry out any such investigations, it has not failed to comply with s 25(4)(g).
(3) Advice of Prescribed Person
The next ground on which the plaintiff relies is that the PAR does not comply with s 25(3) because it was not prepared by the Council after considering the advice of a person with prescribed qualifications appointed by the Council. The qualifications are prescribed by reg 86. In effect, they require the person to hold a qualification in town planning. The Council relied on the advice of Mr Andrew Grear. It is common ground that he held the prescribed qualification.
Mr Grear was, at all material times, an employee of the Council. The evidence shows that he had been involved with the proposed amendment from at least November 1997. On 22 September 1998 he had signed the Council’s letter sending the statement of intent to the Minister with a request that the Minister agree with it. At that time he was employed by the Council as its Manager, Environmental Services. He was later employed as Director, Strategy and Policy. The date of that latter appointment has not been proved but it seems that he held that position in July and August 2000. Mr Grear was also a member of the Council’s Development Plan Advisory Group, a committee of the Council. There is no direct proof of the function of that group but the documents before the court indicate that it was responsible for making recommendations on the proposed amendments to the Council. The group comprised councillors and employees of the Council. In addition to Mr Grear, the Council employees on the group included Mr Worthington, the Council’s Strategic Planner who had also been a member of the group since November 1997. Mr Worthington also held the prescribed qualifications. It is reasonable to infer from the evidence that Mr Grear had been involved in the preparation of the statement of intent, that he had also been involved in the preparation of the PAR, and that he had given advice in relation to it. The plaintiff has not proved that Mr Grear was not involved in or did not give advice in respect of the PAR. The plaintiff contends that Mr Grear did not proffer advice to the Council as required by s 25(3). The plaintiff did not lead any evidence to show that. The facts to which I have already pointed suggest the contrary. They suggest that the Council would have been advised by Mr Grear, if not also by Mr Worthington. The plaintiff submitted that Mr Grear gave written advice in two documents only, each of which is a summary of the procedures prescribed by s 25. While advice as to the procedures in s 25 might not be the advice which s 25(3) contemplates, the plaintiff has not proved that Mr Grear’s advice was limited to those matters.
Two questions exist as to the proper interpretation of s 25(3). First, the meaning of the expression “and after considering the advice of a person with prescribed qualifications appointed by the Council” is not entirely clear. At what time must the Council consider the advice? Must it obtain the advice before it begins the task of preparing the draft PAR or can it receive that advice in the course of preparing the draft? In my view, it is the latter because it is unrealistic to expect that the advice could cover all issues before the draft PAR is prepared. In addition, new issues may surface in the course of preparing the PAR and it is both sensible and convenient for the Council to have the benefit of planning advice on them while drafting the PAR.
The other question is whether the Council is required to appoint a person who is not one of its employees to give the advice or whether it is entitled to rely on the advice of an employee who has the prescribed qualifications. In my view, the word “appointed” permits either. The manifest object of this provision is to ensure that a council obtains advice from a person with appropriate town planning qualifications. That advice can be just as useful when given by an employee with the prescribed qualifications as when given by an outside independent contractor. Furthermore, if the Parliament had intended to exclude employees with appropriate qualifications it could have said so.
It is reasonable to infer that Mr Grear was involved throughout the whole process before and during the preparation of the PAR and gave advice to the Council. There is nothing to suggest the contrary. The plaintiff has therefore failed to prove that the Council did not prepare the draft PAR after considering the advice of a person with prescribed qualifications appointed by it. It has, in short, failed to prove that the Council did not comply with s 25(3).
(4) The Finalisation of the PAR
The plaintiff relied on three further grounds. The first is that the Council has failed to comply with s 25(7) in that it did not finalise its PAR before submitting it to the Minister. When preparing this PAR, the Council and the Minister purported to follow the procedures in s 25(7), (9), (10) and (11). As already noted, the Council, on 17 July 2000, resolved that its Chief Executive Officer or his delegate be authorised, among other things, to “undertake further amendments to the PAR so as to bring it up to a standard suitable for consultation with government agencies and the public in accordance with s 25 of the Development Act 1993”. The Chief Executive Officer of the Council later signed a statement in the PAR that “on 17 July 2000 1999” (sic) the Council resolved that the PAR “is in a suitable form to request the Minister to authorise the commencement of public consultation pursuant to s 25(7) of the Act”. The date is obviously intended to be 17 July 2000. The alleged non-compliance with s 25(7) is said to lie in the fact that the statement signed by the Council’s Chief Executive Officer is inaccurate and does not accord with the resolution so that there is a failure to comply with s 25(7). The submission is misconceived.
Before the PAR could be released for public consultation, it had to be submitted to the Minister under s 25(8). As is apparent from the terms of the Council’s resolution carried on 17 July 2000 (see para 17 above), that was the procedure the Council intended to follow. The effect of the Council’s resolution was to delegate to its Chief Executive Officer the power to bring the PAR to a state suitable for submission to the Minister and seek the Minister’s authority to release the PAR for public consultation. The Chief Executive Officer’s statement is inaccurate. The Council did not resolve that the PAR was in a suitable form to request the Minister to release it but, instead, that the Chief Executive Officer should be authorised to put it in a suitable form to request the Minister’s authority. Although the Chief Executive Officer has overstated the true position, it does not have any material consequence. Section 25(7) requires no more than that the Council finalise the PAR and submit it to the Minister with a statement containing the prescribed particulars. There is no submission that what was submitted to the Minister did not contain the prescribed particulars. The Council through its delegate finalised the PAR and submitted it to the Minister. There is, therefore, no failure to comply with s 25(7). This ground must, therefore, fail.
(5) Parking Requirements
The plaintiff next contends that the PAR is invalid because it proposes an amendment to the car parking standards in the proposed Regional Town Centre Zone in a form which does not enable interested members of the public properly to address the amendment and so defeats the intention of s 25 and regs 11 and 12. The statement of the proposed amendments include principles of development control which will apply in the Regional Town Centre Zone and para 4 of those principles concerns car parking. It reads:
“Vehicle parking areas should be designed in accordance with Table MtB/3 (vehicle parking requirements) and Table MtB/7 (Design Standards for vehicle parking areas).
(Note Tables MtB/3 and MtB/7 are still to be reviewed. Planning SA is presently undertaking a review of vehicle parking standards. It is Council’s aim to include the findings of the Planning SA study in this PAR before undertaking community consultation.)”
The PAR includes Tables MtB/3 and MtB/7 which have been taken from tables which exist in the present Development Plan. Although the Council intends to review those tables, it had not received any findings from the study by Planning SA at the time of public consultation. The PAR does not include any proposed alteration of the car parking requirements in Tables MtB/3 or MtB/7.
The plaintiff points to a telephone conversation on 22 December 2000 between an employee of Planning SA and Ms Weston, who is an employee of the Council. The file note of the conversation which has been made by Ms Weston reads:
“Told Gary that neither car parking tables had been included in the PAR for public consultation.
He advised that these could be introduced as part of my own submission.”
The plaintiff submits that the clear inference from the terms of the PAR and this file note is that the Council intends to modify the car parking amendments after the process of public consultation and so will by-pass the statutory procedures.
This attack is misconceived, if not also premature. At this stage the car parking requirements are those in tables MtB/3 and MtB/7 which repeat existing requirements. There is no evidence that Ms Weston or any other employee or representative of the Council has made any submission to alter the car parking requirements. The summary of submissions prepared by the Council in accordance with s 25(13) and reg 13 does not include a submission from Ms Weston or other representations of the Council. Further, there is no evidence that Ms Weston has authority to propose such an amendment. More significantly, in her affidavit sworn on 17 May 2001, Ms Weston states that the existing car parking requirements are untouched by the PAR. That indicates that the Council does not intend by the PAR to amend the car parking requirements at this stage. That conclusion is reinforced by the submissions on behalf of the Council which state in para 34:
“The note in the Regional Town Centre Principles simply warns that the Tables could have been under consideration for amendment if amendments were ready prior to public consultation. As this has not happened, no amendment can be made. Future amendment of the Tables will need to await a further process.”
All of this suggests that the Council recognises that it will have to engage in a fresh process of amendment if it seeks to amend the car parking requirements in accordance with the intention stated in the note to para 4 of the principles of development control.
I note that the Council may in its report to the Minister, pursuant to s 25(13), recommend alterations to the proposed amendment after the process of public consultation has been completed. It is not clear whether that power is limited to recommendations to alter the proposed amendment to deal with matters raised as a result of submissions from the public or is at large. The issue was not argued and there is no need to express a concluded view on it because the process of amendment is not complete and at this stage the Council does not seek to include any amendment to car parking. Thus, the plaintiff’s challenge on this ground is without foundation. If the Council does amend the car parking requirements after the process of public consultation, it may face a challenge to the validity of its amendments. Those are issues for another day if and when they should arise.
(6) Form of Public Notice
The final ground of alleged invalidity concerned the form of public notice which was asserted to be misleading. The notice does not fail to comply with either the Development Act or the Development Regulations. Counsel for the plaintiff said that the plaintiff did not press this ground. It is therefore unnecessary to deal with it. I simply note in passing that it is doubtful that the notice was misleading.
Thus, on examination, the plaintiff established only one respect in which the Council has failed to comply with s 25, namely, that the PAR does not expressly examine the extent to which the amendment accords with the statement of intent and so fails to comply with s 25(4)(a). Furthermore, as already mentioned, I am prepared to assume, for the purpose of these reasons, that the Council has failed to comply with s 25(4)(f) in that the PAR does not include an express statement of the relationship between the intent of the proposed amendment and the policy of the statement of intent.
Does Failure to Comply Cause Invalidity?
It will have been noticed that s 25 is expressed in terms which state that the procedure to be undertaken by either the Council or the Minister “must” be performed. The word “must” appears in all subsections except subsections (7) and (8). On its face, the word “must” denotes a mandatory obligation. The Council has failed to comply with two of the prescribed steps. The question is whether that results in the invalidity of the PAR. That depends on whether it is possible to discern a legislative purpose to invalidate any act that fails to comply with the requirements of s 25: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, para 91 where the High Court said that the existence of the purpose of the legislation is to be ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the statutory requirements. Some guidance can be gained from distinguishing between acts done in breach of an essential preliminary to the exercise of a statutory power or authority (which are regarded as going to jurisdiction and thus mandatory so that a failure to comply results in invalidity) on the one hand and, on the other, acts done in breach of a procedural condition for the exercise of a statutory power or authority (which are directory and a failure to comply does not result in invalidity): Project Blue Sky (supra) at para 92. But, as the High Court notes in paras 92 and 93 in Project Blue Sky, the distinction between mandatory and directory provisions has proved elusive and has outlived its usefulness. Thus, a better test for determining the issue of invalidity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid: Project Blue Sky at para 93. See also Barwick v Law Society of NSW (2000) 74 ALJR 419, para 49.
There are some provisions in s 25 where non-compliance might result in invalidity because it is an essential part of the process. They might include the requirement in s 25(1) that the council must prepare a statement of intent and reach agreement with the Minister before being able to proceed with its PAR. That is because the statement of intent is a kind of essential preliminary to the amendment process and informs the Minister of the council’s intention. Another is the requirement for public consultation. It is unnecessary to express a final view on those provisions as there has been compliance with them. The question is whether the two provisions with which the Council has failed to comply result in invalidity.
The following factors suggest that Parliament does not intend that a breach of s 25(3) and (4) should result in invalidity. There is nothing in s 25 or elsewhere in the Act which suggests that non-compliance with those provisions should result in invalidity. Indeed, the above examination of s 25 suggests the contrary. I particularly refer to the following.
1.The extent of ministerial control and, in particular, the fact that it is the Minister who decides whether a PAR will be released for public consultation and whether the proposed amendments will be made. It is apparent that Parliament intends that the Minister should have complete control subject only to disallowance in the Parliament.
2.The Minister’s extensive powers of control over the process including the power to alter the proposed amendments, both before and after the process of public consultation, as well as in response to comments of the Environment Resources and Development Committee.
3.The fact that the Minister has power to approve a PAR, notwithstanding that it does not comply with s 25(4)(a) to (e). This fact, coupled with the Minister’s extensive control over the whole process is a particularly strong pointer to the fact that a failure of a council to comply with s 25(4)(a) to (e) does not invalidate the proposed amendment. It indicates that compliance with s 25(4)(a) to (e) is not an essential prerequisite to the Minister’s assessment.
4.The fact that the statement of intent is a document prepared to assist the Minister in making the assessment required under s 25(10) and s 25(14)(b) and is not released to the public indicate a number of things. Most importantly, it points to the conclusion that the Minister has a wide discretion whether to approve the proposed amendment, notwithstanding the Council’s failure to comply with any of the provisions in s 25(4)(a) to (e). The only restraint is that the Minister act within the powers conferred by the Act. The Minister is liable to be restrained only if she exercises her discretion for a purpose for which it was not conferred or otherwise acts unreasonably. This conclusion is reinforced by the fact that the proposed amendment does not have to accord with the statement of intent, by the fact that the ministerial assessment required by s 25(10) and s 25(14)(b) is subjective, and by the fact that the Minister is at liberty to make an amendment to the PAR before it is released for public consultation.
5.Furthermore, nothing in s 25(3) or s 25(4), that is to say, none of the grounds of invalidity relied on by the plaintiff, could be regarded as an essential prerequisite to the process of public consultation or the ministerial assessment.
This examination of s 25 shows that the intention of the Parliament is that a council proposes an amendment and seeks to justify it with a PAR; that the Minister decides whether the PAR will be released for public consultation; that, if released, there will be a process of public consultation; and that, informed of any representations made by the public, the Minister decides whether the amendment will be made, either as proposed or as amended by the Minister. The involvement of the public in this process is limited to receiving notice of the PAR, examining the PAR and the proposed amendment, and making representations upon them. Public consultation is secondary to the overall and extensive control of the Minister.
Another factor which points to the fact that Parliament did not intend that non-compliance should result in invalidity is that, if a failure to comply with any of the steps prescribed in s 25 were to result in invalidity, serious delays could occur in the process of amending a Development Plan. As already mentioned, a Development Plan is an essential document in the process of assessing development applications. The process of amendment is quite lengthy and involved and includes a great deal of consultation between the council and the Minister. The safeguards to ensure that the amendments are carefully and responsibly made are the extent of Ministerial control, which effectively means the supervision by officers in Planning SA, and the fact that interested members of the public have an involvement in the process. However, at the end of the day, it is the Minister who says yea or nay to the proposed amendment even to the point of being able to make her own amendments. To adapt Thomas à Kempis, a council proposes, but the Minister disposes.

For all of these reasons, it is apparent that Parliament does not intend that failure strictly to comply with s 25(3) and s 25(4) will result in invalidity. Instead, all that is required is that there be a substantial compliance. The conclusion is reinforced by an examination of s 25(4)(f) to (h). Section 25(4)(f) requires, among other things, that the PAR include a summary of the major policy changes (if any) that are proposed. The Mount Barker PAR included such a summary. But that is not the issue. What is relevant, when determining whether Parliament intended that a non-compliance would result in invalidity, is that there may be a debate whether a policy change constitutes a major policy change. There are no objective criteria by which that issue can be determined. It is inconceivable that Parliament intended to put the whole amendment process at risk over such a question where there are no objective criteria by which that issue can be determined. Again, it was inconceivable that Parliament intended to put the amendment process at risk if a council omitted to include but one of a number of major policy changes, particularly if that change is noted elsewhere in the PAR. Similarly, there is an absence of objective criteria in s 25(3) insofar as it requires the PAR to be based on investigations made by the Council. Another provision where Parliament would not intend an omission to result in invalidity would be an omission to include a summary of one of a number of conclusions drawn from investigations by the council as is required by s 25(4)(g) or an error in the terms of the amendment as required by s 25(4)(h). The omission of a word from the terms of the proposed amendment may not impair an understanding of the intent of the amendment. Even the omission, say, of such an important word as “not” or its inadvertent inclusion would not be intended to lead to invalidity if the intent of the amendment is otherwise apparent. If such an important word as “not” was wrongly excluded or included, it would be necessary to determine whether or not there was substantial compliance and that would in turn depend upon an examination of the whole PAR, and such questions as whether the intent of the amendment was conveyed elsewhere in PAR.
Thus, it is quite apparent that Parliament intended that substantial compliance with s 25(3) and s 25(4) was sufficient. In other words, a failure strictly to comply with those provisions would not invalidate the process or the ministerial approval of an amendment.
Although the Council failed to comply with s 25(4)(a) and did not assess the extent to which the proposed amendment accorded with the statement of intent, it is apparent that the PAR effectively does accord with what was proposed in the statement of intent in respect of the Regional Town Centre Zone and the other amendments in the PAR. The Minister was aware of that fact. It is quite clear that the Council has substantially complied with s 25(4)(a). The plaintiff has a further difficulty. The Minister has authorised the release of the PAR for public consultation, notwithstanding the failure of the Council strictly to comply with s 25(4)(a). The Minister has the power to do so. For the reasons already given, the Minister has not wrongly exercised her discretion nor has she acted unreasonably in the Wednesbury sense. In short, the Minister has acted lawfully and the plaintiff cannot rely on this ground.In addition, even if the Council has failed to comply with s 25(4)(f), it is apparent from the above reasons that it has substantially complied with it.
For these reasons, I dismiss the application. The plaintiff has failed to establish that the PAR is invalid.

[2001] SASC 249

27 July 2001