Nicholls & Anor v The City of Tea Trea Gully

[1990] HCATrans 37

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A47 of 1989

B e t w e e n -

GEOFFREY DOUGLAS NICHOLLS and

ARROW LIMITED

Applicants

and

THE CITY OF TEA TREE GULLY and

THE MINISTER FOR ENVIRONMENT

AND PLANNING

Respondents

Application for special leave
to appeal

MASON CJ DAWSON J

Nicholls

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 9 MARCH 1990, AT 9.37 AM

Copyright in the High Court of Australia

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MR B.M. DEBELLE, QC:  If the Court pleases, I appear with

my friend, MR M. BEAMOND, for the applicant.

(instructed by Mellors)

MR B. HAYES~ QC:  If the Court pleases, I appear with my

triend, MR P. LEADBETER, for the first

respondent. (instructed by Norman Waterhouse

& Mutton)

MR J.J. DOYLE, QC, Solicito-r-:..Genera-l-.for South Australia:

If the-Court-pleases, I appear with my learned

friend, MR M. QUINLAN, for the respondent, the

Minister for Environment and Planning.

South·. Australia) (instructed b¥ the Crown Solicitor for the State of

MR DEBELLE: If the Court pleases. In our respectful contention

thequestion upon which we seek leave to appeal is

whether the rules of natural justice should apply

in circumstances where the Council in this case,
the statutory authority, proposes a scheme to amend
the zoning for its Council area so as to enable it,

the Council, to benefit its land and to develop it

for commercial purposes and, indeed, to its commercial

advantage, and at the same time that Council has to

hear submissions from those who oppose the scheme and
whose property is affected by the scheme and the

Council, having heard those submissions, makes

recommendations to the Minister for Planning upon the

very submissions it, the Council, has heard.

TOOHEY J:	Mr Debelle, what are the consequences of this argument? Is it that the Council should never be the author of
a scheme where it is the owner of land within the
operation of the scheme?
MR DEBELLE:	No, Your Honour, not at all, and we are very

conscious that should not be the consequence. Indeed,

it is our respectful contention that the legislation

in terms provides for alternative procedures.

MASON CJ: In other words, the Council should request the

Minister to prepare a supplementary scheme, that

being the alternative procedure under section 41.

MR DEBELLE:  Yes, and a scheme which then provides procedural

fairness and a capacity to avoid any perception of

bias and so on. There are in the legislation, in

other words, two separate schemes. One could·

easily have been availed of in the circumstances;

has not been availed of and has led to this application.

Had the alternative course been adopted, we could not

be here because the Council would not have been

hearing and determining, we say, upon submissions
made in relation to its own proposal. That is the

point expressed very, very shortly. And the

legislation providing for that alternative scheme:

there is no room here for the doctrine of necessity

which perhaps prompted Your Honour Mr Justice Toohey's

question.

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MASON CJ: It seems to me, Mr Debelle, the principal difficulty

you face is that the procedure or the process might

accurately be described as either political or

legislative, that is, when one looks at the total

process, and that being the appropriate characterization
of the process, it is not one which attracts the rules

of natural justice.

MR DEBELLE: 

With respect, Your Honour, we would contend that

that is, in fact, one of the issues which the Court
will need to determine here, that is to say, whether

the rules of natural justice now in the post-RIDGE

V BALDWIN days should depend upon a classification

of function.  Now, this Court - at least, one member

of this Court has, in earlier days, adverted to the

fact that the rules do not depend upon a classification

of function into other legislative, administrative or

judicial-types of function.  The more important

question is, and one which we urge upon the Court is,
that one has regard to what, in truth, is occuring,
that is to say, is the body dealing with the matter,

hearing and determining a submission, being made to it?
And that is, in truth, what did occur here. There

was at all times a hearing.  The Council had to make

decisions in the course of that hearing as to whether the submission was relevant.- it is charged with that

duty under section 41(9) of the Act - and then has

to decide upon the recomm.endations it is going to

make.

Now, true it is that that is a step in the process of leading to what is an alteration to the

law, that is to say, an alteration to the development

plan.but notwithstanding that that is what is

occurring, that process, that hearing - that
submissions process, that hearing process, that

decision-making process is one which requires, in

our respectful contention, procedural fairness and
an absence of, at least, perceived bias.

DAWSON J: FAI V WINNEKE is your strongest case, is it not?

MR DEBELLE: 

Yes.

DAWSON J: There, in essence, Cabinet was held to be

kept to the rules of natural justice.

MR DEBELLE: Exactly. That is one step in it and His Honour

Mr Justice - - -

MASON CJ: Well, the Executive Council, not Cabinet.

DAWSON J: If you can draw a distinction.

MASON CJ: Well, you can. There is a clear distinction between the

Executive Council and Cabinet.

MR DEBELLE:  I do not want to debate issues with Your Honours

but - - -

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DAWSON J: But, anyway, it was a case in which ministers would

advise the governor and the ministers would,

presumably, be pursuing or could be pursuing

government policy.

MR DEBELLE: Exactly. And the same point was expressed

another way by His Honour Chief Justice Gibbs in

BREAD MANUFACTURERS Y EVANS where he, in fact,

said that the - to quote his words:

To make the question whether the rules of

natural justice apply depend on the

classification of the power seems only to introduce a distracting complication into the process of decision.

'	The thrust of His Honour's reasoning in that case was to have regard to that which, in truth, is occurring.and, having regard to what is occurring,
does it attract the rules? And that is the
question in this case and, indeed, the question in this case really depends upon to what extent
the principle was in FAI V WINNEKE and other like
case apply in circumstances of this.

MASON CJ:	Yes. Now, granted that you may derive some support
from FAI, the difficulty is that the decision here
is a decision of a quite different character from
the decision in FAI where, of course, the question
was should a licence, under a statute, be renewed
in favour of a particular applicant.

Now, here what is in question is an amendment

to a development plan that covers, as I understand

it, the whole State, in one sense. In other words,

it is a plan that has a widespread application.

True it is that the proposed amendment would relate

only to properties owned by the Council, specific

properties owned by the Council, but when you look

at the nature of the decision that has to be made

and its subject-matter, is there not a clear

distinction between the renewal of a licence in

favour of an applicant? In other words, one case

is much more apt to attract the duty of procedural

fairness, the rules of natural justice, than the

other.

MR DEBELLE:  FAI V WINNEKE more obviously attracts the rule

but we say in this case the rule is nevertheless

attracted and I will point it to Your Honours in

this way: true it is, as Your Honour has observed,

the development plan is, as it were, a State-wide

plan. The implementation of that plan is that

each local governing authority is responsible for it is a

local governing area and, indeed, it makes planning decisions in relation to it and has the capacity to

promote, as section 41 makes quite clear, alterations

to the plan for its area and, indeed, could even put

forward a proposal to amend a neighbouring council area.

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In this particular case, there is a very

direct affecting of rights not only of the Council

but of others and that is why we say there is an

attraction of th.e rule. I will explain to

Your Honours why the rights of others are directly

affected. The consequence of the particular

amendment proposed in this case,, as His Honour

Mr Justice Cox's reasoning discloses, is that the

Council, by rezoning the land in this way, is

enabled to develop its land in a way that its

proposed development does not have to go through

a planning process which will enable those who

seek to oppose the development to object to it. If the land remained in its existing zoning and

the Council sought to promote the development,

those who sought to oppose the development to protect

their own proprietorial interests would have an

opportunity of objecting. This proposed amendment

removes that right, that is to say, it removes a

clear. affection of right. ·

right affecting the property of those whose land,

as the plans make clear, adjoin the Council's land.

MASON CJ: Mr Debelle, could I ask you this question: if one

compares the alternative procedure under section 41,

which you submit should have been followed by

Council with the procedure that has been followed

in the instant case, one substantial difference

would be that the Minister would have a discretion

as to whether he was going to initiate the process,

in other words, he might reject the Council's
application to him to initiate an amendment to the

plan.

MR DEBELLE:	Yes.
MASON CJ:	Now, are there any other differences apart from
that when one compares the two procedures?

MR DEBELLE~ Yes, Your Honour.

MASON CJ: Now, can you indicate what they are?

MR DEBELLE:  Yes. Do Your Honours have section 41 in front

of you?

MASON CJ: Yes.

MR DEBELLE:  There is that point which Your Honour has observed

but when one - the process is that there is a period

of investigation and as subsection (5) points out,

a proposal, be it a proposal of the Council or a

proposal of the Minister, is referred to a

conunittee called the Advisory Conunittee. The

Advisory Conunittee considers it and then decides,

as it were, whether the plan should go forward for

public submission. It can reconunend to the

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Minister that the amendment immediately be

implemented, it may be something of small consequence;

if it is of larger consequence, then the Advisory

Committee will consider the matter and then

recommend whether the matter should go forward for

public exhibition, public submission and the like.

Then follows a very important difference between

the two procedures, Your Honour. If the Minister

is dealing with the proposal, as subsection (9)

makes clear, the submissions in relation to the

proposed amendment are heard by the committee

called the Advisory Committee,not by the Council.

So that you have, as it were, in the circumstances

of this case, an impartial tribunal, can I call it,
dealing with the matter. That is a very important

difference in the two procedures.and one which

we submit -

MASON CJ:	And does it make recommendations as a result of
hearing the submission?
MR DEBELLE:	The Advisory Conn:nittee then makes a recommendation

to the Minister.

MASON CJ:	So, it becomes the recommendatory body in lieu of
or in place of the Council?
MR DEBELLE:	Of the Council and, of course, the Council can

make its representations to it. Third parties -

the other proposers or - and, indeed, anybody else

can make their own submissions for or against a

proposal to the Advisory Conn:nittee. So, that is

why we say here is a scheme which enables the

rules of natural justice and procedural fairness to

be observed and which ought to have been adopted in

this case. What the court has done is acknowleged

that the rules will apply in the absence of any

statutory scheme negating them but here is a statutory

scheme which, as it were, reflects the rules, in our

respectful contention and that is why we seek leave,

if the Court pleases.

MASON CJ: Yes, Mr Hayes?

MR HAYES:  If the Court pleases. Can I just say at the outset

that Your Honour the Chief Justice mentioned

at one stage that in this case the land which was

the subject of the supplementary development plan

was only - or you might have been under the

impression - the Council's land. It is not, in fact.

It contains a parcel of land part of which is owned

by the Council and part of which is owned by a number

of other landowners as is usual in the preparation of

a supplementary development plan.	So, I just make
that point.

MASON CJ: Yes. What is the proportion of the total land, the

subject of the amendment, that is owned by the

Council?

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MR HAYES:	If Your Honour looks at page 5 of the application
book there is a land ownership plan there and it
shows the land owned by the Council. If you go to
page 4 you will see the whole of the land, the
area affected - - -

MASON CJ: Is shaded.

MR HAYES:  The area affected by the supplementary development plan, so you will see that there is a fairly - - -

MASON CJ: It is the orange lands that ·· - -

MR HAYES:	The orange land which is the Council's land and
the area shaded is a substantially larger area than that owned by the Council.

MASON CJ: Yes.

MR HAYES:  So, I just make that point. We say it is an

important point. It is not a case here of the

Council just picking its own land and preparing an

STP for it.

The other point that we would make in relation

to this case is that the alternative procedure which
is suggested by the applicants would, as set out in

the Full Court's decision, be extremely difficult,

quite apart from anything else, to determine when

the Council has to implement it. This is a classic

case, what proportion of its land which is affected

and inevitably every time an SDP· is made, some

proportion of the Council's land is going to be

affected in some way or another; whether it is a

car-park; whether it is a, shopping centre or

whatever, and the consequences are, if my friend's
argument is right which the Full Court rejected,
is that if ·.that procedure is one which has to be

adopted it would be almost impossible for local

government to operate effectively. It is one of

the reason why the Full Court, we say, rightly said

the rules do not apply.

MASON CJ:	Why do you say,"it would be almost impossible for
local government to operate effectively" in the
circumstances?

MR HAYES: Well, let us.just take this Council which owns a

civic centre within its area like most councils

would own the land. Councils would own and do

own land in their own area. Indeed, part of the

LOCAL GOVERNMENT ACT enables.:: councils to engage

upon projects which involve the development of land

which they own within their area. Now, it may be a

question of degree but it becomes extremely

difficult, we would say, to identify when a council

should exercise its power to request the Minister

to prepare a plan and when it should not because

inevitably cases will arise where it will affect

a parcel of its land. It is almost inevitable.

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Your Honours, it is important to understand,

as the Full Court did in this case, the nature of
the supplementary development plan process. It is

an ongoing process. There are, as the Full Court,

said, hundreds of SDPs prepared and they are prepared

to make changes all the time to update the zoning

within areas.

Now, we say with respect, it really would make

it extrememly difficult, if not impossible, if each

time the Council had to prepare or initiate a

SDP, which it is charged to do under the Act - it is a requirement of it, to examine its planning

for its area and then prepare a SDP - if it is to
say, "Well, do we own any land in this area and

are we going to benefit in some way by a rise in

what have you. 11 The important distinction, we say,	rates or by a rise in the value of the land or
in this case between what my friend said is that
the fact that the Council owns land, when it comes to develop that land, then the Act expressly provides ·for that application to go to the planning commission.
So, there is no suggestion, no question, that people's
rights are being prejudiced in anyway. They maintain
their rights to objects if that is the scheme of the
legislation. If it is not, then they do not have
that right, but they do not have it anyway with the
SDPs in other areas. But the important thing in
this case is when the Council comes to develop the land which it owns then it has to make the application
to the planning commission which is a separate and
distinct body and individuals then apply
to object to that,there are rights of appeal and so on which flow from that.
The Council has no say whatsoever in the decision - and this is the distinction between
WINNEKE's case - which affects people's rights. Here we have got a legislative process which governs
the whole of the State and that is an ongoing
process. Now, we say the legislation in
this case expressly provides for the alternative
process in the case of the decision-making power of the Council in section 8 of the Act where it has to
go to the planning commission. Section 41 is not
an alternative which deals with the questions of
nature justice at all. It is a matter,-as the
Full Court said, there is lots of room for 41 to play
where small district councils simply do not have
the resources to prepare an SDP for their area; they will request the Minister to do it, or where the SDP is of regional significance as opposed to
local significance. There is lots of room, lots of
work, for that section to play.

We say, with respect, that this application

should not be given special leave because it turns

on the function of the Council within the framework

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of the PLANNING ACT which is circumscribed in the

way in which the legislation is drafted and it does
not raise, with respect, any general or real issues
of the rules of natural justice in relation to

Council decisions. It is no more than a legislative

process which in some way.· affects - in a very

peripheral way people's rights but the Parliament

has given safeguards in the process itself. For

example, the Minister, where there is substantial

public opposition to it, can refer the matter, the
plan, to the Advisory Committee for a report

where the Council has prepared it.

TOOHEY J:	Mr Hayes, why does the Act draw a distinction between
the procedures of the Advisory Committee where the Council is the author of a plan and where the Minister
is the author?
MR HAYES:	The only distinction that the Act draws is in relation
to the public hearing where submissions are made. In
this case, the submissions are made to the Advisory
Committee and not to the Council.  The reason for
that, with respect, is simply that if a minister
prepares an SDP, the Council may well of itself
wish to object to the preparation of that SDP over
its area, because the legislation is drafted in a
way which says - Your Honours will see section 41:

A ••••• plan may be prepared ..... by the-council .....

(ii)

by the Minister acting at the request or

(iii)     where the Minister has requested the council to prepare •.... and the council declines to do so -

Now, we may well have a situation where the Minister

has asked the Council to prepare it; it has declined

to do so; the Minister prepares it;

the submissions are heard by the Advisory Committee

and the Council itself is a body that wishes to make

submissions. That is the reason - and that is the

only difference, with respect, in the procedure

which is applicable to the preparation of these SDPs.

MASON CJ:	The statute really does not direct its attention at
all to the situation where the Council is an
interested party because it happens to be a land-owner that will be affected by the proposals.
MR HAYES:	We say the statute expressly recognizes that there will
be cases when that is so and it must do that because
of the very nature of things.

MASON CJ: Well now, where is that express recognition?

MR HAYES:	There is not an express - well, can I put it this
way: there is an express recognition of the Council

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being an interested party when it makes a planning

decision to develop its own land in section 8
of the Act. It says:

This Act applies to development undertaken by a council.

(2) Where -

(a) a council proposes to undertake

development;

and

(b) a planning authorization would,

apart from this section, be required

from that council .....

the Conn:nission is the planning authority -

It expressly recognizes that situation which makes

the Conn:nission the planning authority, and we say

rightly so because here is a classic WINNEKE V FAI

situation: people's rights are directly affected and

the Council cannot be the judge in its own cause.

That is the reason the legislation has that in

there. By implication, we say, the legislation has

excluded the sort of problems associated with bias

arising when the Council is carrying out its

legislative role in the preparation of SDPs.

Now, we say, frankly, with respect,

Your Honour Justice Toohey's question to my friend

is quite accurate in that the consequences of

my friend's argument will be that every time the

Council has land which may be affected, it will
have to make a decision depending on the degree.

Indeed, it will have to make a decision of principle

by saying, "We'd better get the Minister to make

this plan because we happen to have a car-park in

that area" or "because we happen to have a reserve

in that area" or "because we happen to have a

community centre within part of the area which is

covered by the SDP.", and we say, with respect,

that would be a nonsense to require the Council to

do that or to put the Council in the position where

it is required to give that sort of consideration to

each and every time it proposes an SDP.

DAWSON J:	So, you say the nature of the decision to be made,
that is, that it is a legislative decision, means
that the legislation contemplates the existence of bias?
MR HAYES:	Yes.  It contemplates that. The LOCAL GOVERNMENT ACT
recognizes that by - - -

DAWSON J: Or is it the nature of the body that is to make the

decision that determines it?

MR HAYES:	It is the nature of-the legislation contemplates
that situation by providing the Council with the

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sort of functions it has to exercise within that

legislation.

DAWSON J: Well,then, it is the nature of the body that

determines the question? Which?

MR HAYES:	Yes, it is the nature of the body because of the
functions which it exercises within that
legislation.  Now, we say that distinguishes - - -
DAWSON J:	FAI V WINNEKE seems to go the other way and says
that it is the nature of the decision.
MR HAYES:	FAI V WINNEKE, with respect, was concerned, (a)
with whether there is the right to be heard on an
application which affected the granting of the

• licences. It, with respect, is quite distinguishable

from the situation here. It cannot be said - there

is nothing, in our respectful submission, which my

friend can draw on in FAI V WINNEKE which suggests

that it can be used to support an argument in this

case of the rules of natural justice being applied

because of, as we say, the nature of the function

exercised by the body in this case, the Council.
But I would go back, with respect, to also the

legislation because the totality of local government

legislation requires the Council to embark on

projects of which it will have an interest and

then we see the legislation which expressly says

how you deal with those.

Now, it would, in our submission - the Full Court

is quite right in saying that here this legislative

process would, for all intents and purposes, make

it, in our submission, impossible for a council to

properly embark on the duties with which it is leave should be refused because the Full Court analysed the legislation; it analysed the facts
charged if the rules applied in the way suggested.

in this case. There is no issue of principle which

emerges or, indeed, which the Full Court can be said

to have erred as a matter of principle in applying.
The Full Court recognized that natural justice does,
in some cases, apply. In relation to this legislation
it said, "No, it doesn't" and we say quite rightly so

for the reasons which I have outlined.

TOOHEY J: The rules may apply in some other respects. It

does not seem to me to be very helpful to ask whether

the rules of natural justice apply in this area.

They may do in certain respects; in other respects

they may not. The real question is whether the

Council is precluded by the rules from initiating a supplementary development scheme if it is the owner

of any or perhaps a substantial area of land that

falls within the scheme.

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MR HAYES:	I, with respect, agree with that and the fact that
Your Honour has to go to the stage of saying
"any or a substantial area of land" once again, perhaps, highlights, in our submission, the fact that Parliament would not have intended, in this
case - did not intend, by the way it has drafted
the legislation, to apply the rules of natural
justice to a council in relation to bias and it is
that aspect of natural justice with which we are
concerned.

For those reasons we would strongly submit

that it does not warrant special leave.

MASON CJ:  Thank you, Mr Hayes. Mr Solicitor?

•	MR DOYLE:	If the Court pleases, in our submission, the matter
at issue is properly stated by Your Honour Justice Toohey and we just put it this way that it is a question of
whether the Council is able to prepare an SDP
if it either has a financial interest in the
adoption of the proposed amendment, that is the
SDP, or if it has a policy predisposition in
favour of proposed amendment. We would submit that
the judgment below is bas.ed on-five relatively
simple propositions,all of which are clearly sound
and for those reasons special leave should not be
granted, but I just state briefly what the five
propositions are because, by and large, we join
with the submissions just made by my learned
friend.
First of all, the Court relied upon the fact that while the Council is the proponent of the
proposed SP its role is relatively limited, it is
the Minister who makes the final decision and when
you look at the section it is clear that the role
of other bodies, such as the advisory cormnittee
and the joint cormnittee, is quite important, so
first of all while the Council does kick the process
off its role is not, in any sense, a decisive one,
it is a participant. The second point and in our
submission one of the quite crucial ones is that it is only natural that the Council might have, for
a start, a very strong policy view on any proposed
SDP because the SDP is the planning, or the plan
itself and any SDP affects the planning instrument
for the ouncil's area and, in our submission, under
this legislation, who would one expect to have the
main interest in the contents of the plan other than
the Council and my learned friend's submission, we
would submit, would lead to the conclusion, or would seem to lead to the conclusion, that you could not
stop at financial interest in the outcome, surely
a strong policy view on the outcome would have a similar
disabling effect and you would be saying, in effect,

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or the body who is expected to have the greatest

interest in the contents of the SDP is the very

body that is disabled from dealing-with changes.

DAWSON J:	The first argument is confession and avoidance,
this one is necessity?

MR DOYLE: Yes, it is a matter, Your Honour, of looking at

what the section is dealing with and saying, "Well

it is dealing with an SDP", we are talking about the

role which a council is permitted to play in relation

to an snP and when we look, realistically, at the fact

that the G~uncil, not the Minister, is the body who

will usually have the greatest interest in the contents

of the SDP, it would be a strange result that really

said, "Well when council really does have a strong

interest, be it financial or policy, it is disabled

from dealing with changes to the plan!' and, in our

submission, that would really move the Minister to

centre stage in the amendment process whereas, in
our submission, the natural conclusion is that it is

Council that is at centre stage and the Minster would be involved rather less often,and indeed my friend's

submissions would lead to the conclusion that in many

situations, as Mr Hayes has said, the Council would

have to say, "We cannot handle this,we will ask the

Minister to handle it" and where do you go from there

if the Minister sl:Iys, "Well, this is going to cause

a bit of a stir in a marginal electorate, I do not

want to touch it." Council cannot handle it and where

do you go. In our submission, that is very practical

and relevant consideration on a matter like this.

So that is the second point, Your Honours, that it is

only natural that the Council might have very strong

views and for the reasons my friend advanced might have

1and which is directly affected by the proposal.

MASON CJ:	Mr Solicitor, I think we need trouble you no further,
at this stage.
MR DOYLE': Yes, if the Court pleases.
MASON CJ:	Mr Debelle.
MR DEBELLE:	If Your Honours please. We do not stand here to

say that a council cannot initiate a proposal, we

never have and we do not now. It is plain that a

council may have a very proper and active interest

in promoting a development within its area and
that the Act recognizes.

All that we say is that when that occurs then there is

a procedure in the Act, in section 41, which enables

the Minister to deal with the matter, rather than

the .Council, to remove any perception of bias.

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My friend the Solicitor just said a moment ago we

seek to move the Minister, as it were, to

center stage in place of the Council. Now to go

along with my friend's theatrical analogy, it may

be very proper for the Minister to occupy the

footlights in a case where it is the Council who is

promoting a zoning change so as to ensure that

there is procedural fairness and an absence of bias.

Now, he says, "The Minister may delay dealing

with the matter because the Council area may be
in a marginal electorate". That does, with respect,

advance him.RO further at all. The Council has very

active means of ensuring that the Minister gets on

with the Minister's job. There is, when all said and

done, the advisory connnittee also who has tasks to

perform in this function of amending the development

plan, so it is not purely and simply a role of the

Minister. In any event, that aside, how, with

respect, is that an answer. to a case where the Council

may have a very clear and direct financial interest

in promoting the rezoning. The Council's clear and
direct financial interest may be a greater ground for
disqualifying him than any suggestion, perhaps, that
a minister might delay in the process. With respect,
my friend is clutching at straws when he resorts to

that argument.

My friend Mr Hayes-1-s submissions really sought

to raise, as I perceive them, issues which he said

raised problems in terms of questions of degree,

so far as whether a council should or should not be

disqualified. He said, for example, if a zoning

amendment proposed dealt with a reserve of the Council
or a carpark, then who knows whether the rules should
or should not apply in those circumstances. It was

an inverted kind of floodgates argument. In the first

place,·we. say the questions of degree have never

been a great problem in determining whether the rules

of natural justice apply; you look at each case on

its own facts and circumstances. In this particular

case, true it is as my friend pointed out, the

zoning change proposed includes land other than the

Council's land but at the same time,as the plans
make very clear, include a very substantial portion
of land which is Council land and whereby the Council
seeks, as the court decided, to derive a connnercial
advantage. In such a case the Council has, on the
facts of that case, a very clear policy and, if you
like, there may be a perception of bias.

In another case where it is just an incidental

plot of land and you were dealing with a large area,
plainly there would be none. Those are questions

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that never frighten the courts off and, indeed,

one will consider, according to facts and circumstances

of each case. whether it is appropriate there would

be a percep-tion'of bias,arid;obviously, if it was

just a reserve, if it was a small parcel of land, who

could seriously stand up before any court and say

that it was bias when we are dealing with a whole

large area of land. No one could.

So those are questions ,J:rich:, with great respect, do

not answer the issue as to whether the Court should

grant leave here and here, if the Court pleases, the

supreme court did fall into the· trap, in our respectful

contention, of trying to classify function.	We see
that as being fairly central to ·its reasoning.

At page 21 of the application book, about line 14, just below the reference to KIOA V WEST, His Honour

Mr Justice Cox says:

Nevertheless, it is generally true to say

that the courts will be more inclined to find

that the rules do not apply where the function

in question is substantially legislative

in character.

That sentence to be viewed against his earlier

discussion of the fact that the development plan

is a kind of legislation.

MASON CJ: There is no error in that sentence,is there? The

sentence is not suggesting that there is

necessarily a strict test; that it is an

accurate statement to say that the courts are

disinclined to apply the rules w?!ere the

function is basically legislative.

MR DEBELLE: Less inclined, quite. In our respectful

contention, his reasoning is coloured by a view

that here we have an amendment to what is a kind

of law and the Council is merely performing a

function in that legislative process, therefore,
the rules do not apply.	Now, in our respectful

contention, that is a wrong approach because the

court has failed to address that which in truth

the Council is performing when it is hearing and

determining upon submissions. It is hearing
submissions from people who are opposed to the very
development that Council, itself, is putting

forward and in circumstances where the Council is

required to make a decision - a decision that is

as to what reconunendation it puts forward

_to the Minister and it plainly is a

hearing process with a decision at the end of that

hearing, that which, in ordinary circumstances,

would attract the rules of natural justice. The

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question is, in the circumstances of this case,

does it? We say, it does because there is an

affecting of rights and property and the question

which we seek to agitate before the Court, and

really my friends have advanced not so much

arguments as, in our respectful contention opposed

to leave but opposed to why we should, ultimately,

succeed. But we say that here is something which

affects rights, therefore attracts the rules, does

the Act applying the ordinary principles exclude

the operation of natural justice? In our respectful

contention, answer "no", because there is an

alternative procedure. Now, if it is said that the.

alternative procedure attracts the Minister; puts him

to centre stage; the Minister because it is in a

marginal electorate,will delay the process; that is

a consequence of the Act, but the rules of natural

justice should not be defeated merely because someone

stands up and says that the Minister may delay in

the process. Where a person has a plain interest in

a particular development going for them,has a view

upon it, something which naturally would attract that

which would ordinarily attract the rules of natural

justice, why should that be defeated merely by an

assertion that the statutory alternative procedure

provided may enable someone to delay it slightly in

circumstances where, with great respect, that may not

necessarily occur, if the Court pleases.

MASON CJ: Thank you,Mr Debelle. The Court is of the opinion

that the decision of the Full Court of the Supreme Court

of South Australia is not attended with sufficient
doubt to justify the grant. of special leave to

appeal. The application is therefore refused.

MR HAYES:  I ask for an order for costs.

MASON CJ: You do not oppose costs do you,Mr Debelle?

MR DEBELLE:  No, Your Honour.

MASON CJ: The application is refused with costs.

AT 10.20 AM THE MATTER WAS ADJOURNED SINE DIE

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