Perron, M.B. v Central Land Council

[1985] FCA 187

Re: MARSHALL BRUCE PERRON and THE NORTHERN TERRITORY PLANNING AUTHORITY
And: CENTRAL LAND COUNCIL
No. NTG 2 of 1985
Administrative Law
(1985) 6 FCR 226

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), McGregor(2) and Wilcox(1) JJ.

CATCHWORDS

Administrative Law - Application for re-zoning of land by prospective purchasers - Submissions lodged with Planning Authority by objectors to draft planning instrument - Refusal of Planning Authority to give to the applicant for re-zoning an opportunity to be heard in answer to objections - Applicability of rules as to natural justice - Content, in the circumstances, of those rules - Duty to act fairly - Whether duty to act fairly was discharged - Report of Planning Authority and decision of Minister to refuse re-zoning quashed.

Planning Act (N.T.)

Re H.K. (An Infant) (1967) 2 Q.B. 617, Regina v Gaming

Board for Great Britain (1970) 2 Q.B. 417 applied.

McInnes v Onslow-Fane (1978) 1 W.L.R. 1520, Russell v

Duke of Norfolk (1949) 1 All E.R. 109, Twist v Randwick

Municipal Council (1976) 136 C.L.R. 106 referred to.

Administrative Law - Natural justice - Duty to act fairly - Application for re-zoning of land - Objections received and considered - Applicant's request to be heard in response to the objections refused - Contents of objections not disclosed to applicant - Applicability and contents of the rules of natural justice - Planning Act 1980 (NT), ss 7, 11-13, 39-50, 57, 59, 61.

HEADNOTE

The second appellant is established under the Planning Act 1980 (NT) (the Act) with functions, inter alia, to make recommendations to the Minister (the first appellant) concerning the use or development of land or with regard to planning. The respondent applied to the second appellant requesting re-zoning of a parcel of land it wished to buy. The second appellant advertised the application and received a number of objections. Despite a specific offer by the respondent to address these objections, the second appellant decided not to advise the respondent of the content of the objections, nor to give it any opportunity to refute them. The second appellant duly made its recommendations to the first appellant who determined to reject the re-zoning, both appellants admitting that they had considered the objections in reaching their respective recommendation and a determination. The Supreme Court of the Northern Territory quashed the recommendation of the second appellant and the determination of the first appellant and ordered a rehearing of the re-zoning application.

Held: (Toohey and Wilcox JJ, McGregor J dissenting) - Without attempting any general formulation of the nature or content of a duty to afford natural justice in a re-zoning situation and noting that no provision of the Act expressly or by necessary implication excludes the application to the second appellant's deliberations of the rules of natural justice, those rules required the disclosure to the respondent of the substance of the objections, particularly any allegations of fact and the affording to the respondent of a right to respond.

R. v. Gaming Board for Great Britain (1970) 2 QB 417; Ampol Petroleum Ltd v. Warringah Shire Council (1956) 1 LGRA 272; Sofi v. Wollondilly Shire Council (1975) 31 LGRA 416; Dunlop v. Woollahra Municipal Council (1975) 2 NSWLR 446; White v. Ryde Municipal Council (1977) 2 NSWLR 909; Re H K (An Infant) (1967) 2 QB 617; Wiseman v. Borneman (1971) AC 297; McInnes v. Onslow-Fane (1978) 1 WLR 1520, referred to.

HEARING

Darwin, 1985, May 3, 10. #DATE 10:5:1985
APPEAL

Appeal against a decision of the Supreme Court of the Northern Territory quashing a report and a determination made pursuant to the Planning Act 1980 (NT) and ordering the rehearing of a re-zoning application.

D F L Thompson and M J Lees, for the appellants.

C R McDonald and B G Donald, for the respondent.

Cur adv vult

Solicitors for the appellants: J B O'Rourke, Crown Solicitor for the Northern Territory.

Solicitors for the respondent: Mildren Silvester and Partners.

GFV

ORDER

1. The appeal be dismissed.

2. The appellants pay to the respondent its costs of the appeal.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Appeal dismissed with costs

JUDGE1

The facts relating to this appeal have been set out by McGregor J. and need not be repeated. It is convenient to commence a consideration of the nature of the duty borne by the appellants by noting some aspects of the scheme of the legislation out of which those facts arise.

The Northern Territory Planning Authority, the second appellant, is a body corporate constituted by s.7 of the Planning Act (N.T.). The Authority consists of seven members, three "Territory members" and four "local members". Local members act as members only in respect of land within the planning area or local area in relation to which they are appointed (ss.11-13). None of the members of the Authority is required by the Act to have any particular qualification or expertise; although we assume that, in practice, most, if not all, appointees will have some experience relevant to the functions of the Authority. Those functions are specified in s.32, which it is unnecessary to set out in full. It is sufficient to observe that the functions are chiefly advisory. As might be expected, the specified functions include the exercise and discharge of any function conferred or imposed upon the Authority by the Act. By sub-s.32(2) the Authority is given power "to do such supplemental, incidental or consequential acts as may be necessary or expeditious for the performance of its functions". It was conceded by counsel for the appellants that this provision would empower the Authority to take whatever steps, unspecified by the Act, are necessary to give effect to any obligations cast upon the Authority by the rules of natural justice.

Some debate occurred during the course of the appeal as to the effect, in terms of rights or expectations, of a decision by the Authority under sub-s.39(5) of the Act to resolve to prepare and exhibit a draft planning instrument in relation to land. On the one extreme, it was suggested by counsel for the respondent that the effect of such a decision was to give rise -- in the language of the authorities relating to the concept of natural justice -- to a legitimate expectation that, in the absence of submissions by way of objections under s.49, the Aurhority in due course would recommend to the Minister, under s.59, the making of a planning instrument in accordance with that draft. By way of alternative submission, counsel put the proposition that the Authority was entitled, even in the absence of objections, to change its mind regarding the desirability of the proposed instrument but that, in such a case, it was encumbent upon the Authority to give notice to the applicant for re-zoning of its disposition to change its opinion, in order to provide to the applicant the opportunity to argue in favour of the original view. The respondent's arguments placed emphasis upon the circumstance that, although any person - - including an owner or prospective owner of the subject land - - might suggest a re-zoning, the operative step was a decision by the Authority to prepare a draft instrument, which draft must take into account the matters specified in s.44, so that, in a real sense, the proposal became that of the Authority itself.

Counsel for the appellants contended, upon the other hand, that the preparation and exhibition of a draft planning instrument conferred upon an applicant for re-zoning no entitlement which might be described as a right or as an expectation. It was said that the constraints governing the use of the land, after the exhibition of a draft instrument, continued to be those contained in the existing instrument and that the expectation of an applicant for re-zoning that his or her application would be processed and ultimately determined was a mere privilege bereft of legal ramifications.

It appears to us that the true position lies between the extremes we have mentioned. It is clear, as the appellants argued, that the lawful use of the land will continue to be governed by the existing planning instrument until, if it does, the proposed planning instrument takes effect by gazettal: see s.61. But, in relation to the consideration of an application for re-zoning, the applicant is possessed of an entitlement to have the Authority carry out its statutory obligations: an entitlement which is enforceable in law, for example by a writ of mandamus, and which may not inaptly be described as a legitimate expectation that the statutory requirements will be fulfilled. We will come to the content of those requirements in relation to a case, such as the present, in which the Authority has received submissions by way of objection, but we say immediately that, in our view, there may exist no expectation having legal significance and therefore properly to be called a "legitimate expectation" - - whatever expectation there may be in point of fact - - that the Authority will, in the absence of an objection, maintain its original view. The Authority is bound to address itself to the question whether it should prepare and exhibit a draft planning scheme upon the basis of the matters properly before it at the time it makes its decision upon that question, considering these matters in the light of the criteria specified in s.44. The relevant matters will include any material placed before it by the applicant in support of his or her request for the preparation of an instrument and the terms of the existing scheme. Without attempting any exhaustive statement, it is, in our view, clear that the Authority would be entitled to take into account, in making that decision, its understanding of the policy and purposes behind the existing planning instrument, the desirability of the purposes of the proposed instrument and any matters put before it in relation to those subjects by its officers or by interested members of the public; and, in making their judgment on those matters, the members of the Authority would be entitled to apply their own knowledge of the area and their own relevant experience.

During the period between a resolution to prepare a planning instrument, under sub-s.39(4), and a decision as to the recommendation to be made to the Minister, under s.57, the relevant circumstances may change. Additional information as to a proposed new use may be received from the applicant or from some other source, the scheme may be amended or become proposed to be amended in other respects, additional information or advice may be furnished to the Authority by its servants. There may be a change in "the physical, environmental, economic, cultural, social and human resources" to which the Authority was obliged, under s.44, to have regard in preparing the draft instrument, and which remain relevant to the ultimate decision whether to carry the draft into effect. The composition of the Authority itself may change, varying the stock of knowledge and experience within the Authority itself. The decision under s.57 must be made in the exercise of the Authority's judgment, and upon the basis of all relevant material, as at the date of that decision. It would be an abdication of the Authority's responsibility to make its judgment as at that date, and upon the basis of the material then available to it, if it were to regard itself - - whatever the changes of circumstances and simply because no submissions by way of objection had been received - - as bound to adhere to its original view. This conclusion is consistent with the view which has been taken in relation to the date as at which development applications should be considered, in respect of both factual matters (Ampol Petroleum Limited v Warringah Shire Council (1956) 1 L.G.R.A. 272 at pp.279-280) and the relevant law (Sofi v Wollondilly Shire Council (1975) 31 L.G.R.A. 416 at p.422).

The circumstances surrounding the preparation and exhibition of a draft planning instrument are almost infinitely variable. The draft instrument may, as in this case, relate to a small parcel of land in a single ownership in respect of which a highly specific land use proposal has been made; so that the consideration of the draft instrument involves matters closely akin to those that would be relevant to a development application. In such a case matters of fundamental planning policy may be of little significance to the decisions to be made by the Authority and by the Minister. On the other extreme, the re-zoning may relate to an extremely large area of land, perhaps fragmented into thousands of seperate ownerships, and in relation to which the schedule of permitted land areas is so extensive that it is difficult, or even impossible, confidently to predict how any particular allotment will be used. Fundamental policy questions, for example as to the establishment of a new town or major industrial facility, the development of the Territory's transport system, or the protection of land of high agricultural or natural amenity value, may loom large. Having regard to the diversity of potential re-zoning situations, it may well be that there is not a single answer to the question as to the extent of the application of the principles of natural justice to the making of decisions whether to recommend to the Minister that he make the planning instrument and, in particular, as to the content of the applicable duty to afford natural justice. The procedures required in those diverse situations may themselves be diverse: see the discussion as to diversity in content in Dunlop v Woollahra Municipal Council (1975) 2 N.S.W.L.R. and in White v. Ryde Municipal Council (1977) 2 N.S.W.L.R. 909. Having regard to these matters, and to the fact that the law in this area is still in course of development, it is undesirable to attempt any general formulation of the nature or content of a duty to afford natural justice in a re-zoning situation. It is preferable to attempt to apply the general principles relating to natural justice to the particular circumstances of this case, leaving to another day their application to other re-zoning situations.

The preparation by the Authority of a draft planning instrument is a matter of some significance, in relation to which fairly elaborate provisions are made by the Act. The Authority is bound to consult with certain people (s.43) and may be directed by the Minister to consult with any person (s.41). The Authority is empowered -- in some cases obliged -- to advertise its intention to prepare a scheme (s.40). It is bound to take into account any submissions received (ss.42, 43). In preparing the scheme it must take into account the matters specified in s.44. It must exhibit the draft instrument according to a method (s.47), and for a time (s.48), prescribed by the Act. Any person is entitled to make a submission (s.49). These provisions must be read against the background that the preparation and further consideration of a draft instrument is likely to involve an investment of time and money not only by the Authority but also by the applicant and, possibly, by others, including any objectors. It is relevant to note that sub-s.39(6) makes express provision for the Authority, in resolving to prepare a draft instrument, to require the applicant to pay to it the fee prescribed by the regulations. Commonly, of course, the applicant will incur additional expenses in relation to the application. These circumstances combine, in our opinion, to give rise to a reasonable, and legally enforceable, expectation that the Authority will conduct itself, in relation to the consideration of the application, in a fair manner and in accordance with the requirements of the Act.

Counsel for the appellants emphasized that the circumstances of this case differ from those -- considered in many natural justice cases -- in which the affected person has been, or is threatened to be, deprived of an office or position (see, for example, Ridge v Baldwin (1964) A.C. 40, Kanda v Government of Malaya (1962) A.C. 322) or some existing right (see, for example Heatley v Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487) or property interest (see, for example, Twist v Randwick Municipal Council (1976) 136 C.L.R. 106, F.A.I. Insurances Limited v Winnecke (1982) 151 C.L.R. 342). But, as they acknowledged, there are now numerous decisions which refer to the existence of a duty to act fairly in cases where an applicant has merely a legitimate expectation that prescribed procedures will be followed by the statutory decision-maker and, indeed, early in their argument they conceded that the respondent was entitled to have its application dealt with fairly in accordance with the provisions of the legislation. The principle was articulated by Lord Parker CJ. in Re H.K. (An Infant) (1967) 2 Q.B. 617 -- a case involving a person who was not possessed of any legal right to enter the United Kingdom -- at p.630:

" . . . I doubt whether it can be said that the immigration authorities are acting in a judicial or quasi-judicial capacity as those terms are generally understood. But at the same time, I myself think that even if an immigration officer is not in a judicial or quasijudicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act fairly. Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality, nor merely bringing one's mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly."

Counsel for the appellants drew an analogy between the facts of the present case and the situation of an applicant for the issue to him of a licence; a fresh licence, not the renewal of an existing licence. We find this analogy useful. In each case the person seeks the application in his favour of a statutory discretion. In each case the result of a favourable decision would be to create, rather than to maintain an existing, legal right pertaining to a property or business interest. However, we do not think that the analogy advances the central argument of the appellants: that fairness, under the circumstances, "requires no more than that the Authority should act honestly, without bias and not capriciously".

In Regina v Gaming Board for Great Britain (1970) 2 Q.B. 417, Lord Denning MR. -- with whom Lord Wilberforce and Phillimore LJ. agreed -- applied the words of Lord Parker CJ. in Re H.K. to a case where applicants sought the issue to them, for the first time, of gaming licences. He held that the board had a duty to act fairly towards the applicants, and at pp.430-431, specified what this, in practice, entailed in the circumstances of that case:

"They must give the applicant an opportunity of satisfying them of the matters specified in the subsection. They must let him know what their impressions are so that he can disabuse them. But I do not think that they need quote chapter and verse against him as if they were dismissing him from an office, . . . or depriving him of his property . . . After all, they are not charging him with doing anything wrong. They are simply inquiring as to his capability and diligence and are having regard to his character, reputation and financial standing. They are there to protect the public interest, to see that persons running the gaming clubs are fit to be trusted.

"Seeing the evils that have led to this legislation, the board can and should investigate the credentials of those who make application to them. They can and should receive information from the police in this country or abroad who know something of them. They can, and should, receive information from any other reliable source. Much of it will be confidential. But that does not mean that the applicants are not to be given a chance of answering it. They must be given the chance, subject to this qualification: I do not think they need tell the applicant the source of their information, if that would put their informant in peril or otherwise be contrary to the public interest. Even in a criminal trial, a witness cannot be asked who is his informer.

. . .

"Likewise with the details of the information. If the board were bound to disclose every detail, that might itself give the informer away and put him in peril. But, without disclosing every detail, I should have thought that the board ought in every case to be able to give the applicant sufficient indication of the objections raised against him such as to enable him to answer them. That is only fair. And the board must at all costs be fair. If they are not, these courts will not hesitate to interfere."

There is, in the present case, no provision in the relevant statute, the Planning Act, which either expressly or by necessary implication excludes the application to the Authority's deliberations of the rules of natural justice. For the reasons already indicated, we prefer to say nothing as to the consequences of that position in relation to facts different from those of the present case. However, in the situation which here arose the principles of natural justice -- "fair play in action", to use the graphic phrase quoted by Lord Morris in Wiseman v Borneman (1971) A.C. 297 at p.309 -- clearly required the disclosure to the respondent of the substance of those submissions by way of objection which had been received by the Authority under s.49 of the Act. It was not enough that the respondent had availed itself of the opportunity to explain its proposal at the time of the initial application for the preparation of a draft instrument. Necessarily, that explanation could not be responsive to the s.49 submissions. As in the Gaming Board case, the respondent needed to know the matters put against it by others. The content of the s.49 submissions has not been revealed to the respondent and does not appear from the evidence, but the submissions were treated both by the Authority and the Minister as being material to the decision whether to implement the proposed re-zoning. They were in fact considered by both the Authority and the Minister. Moreover, the submissions were thought by the Authority to be of such significance as to cause it to invite many of the objectors to attend an oral hearing. That was a course available to it under s.50 only where it had formed the opinion that hearing those persons would assist it in one or more of the following functions:

"(a) assessing the suitability of the aims and objectives sought to be achieved through the draft planning instrument;

(b) assessing the suitability of the proposals contained in the draft planning instrument with respect to -

(i) the aims and objectives referred to in paragraph (a); or

(ii) any other aims and objectives;

(c) the revision of the draft planning instrument; or

(d) the preparation of its report on the draft planning instrument required by section 59(b) to the Minister."

The Authority had before it, at the time it heard the objectors, a telex from the respondent seeking the opportunity "to respond to the objections to our application, and to clarify any questions that those objections might raise in the minds of the Authority". In particular, the respondent indicated concern " to counter any ill-considered arguments". This is not a case in which the Authority was able to remove the respondent's concern by stating that, having heard the objections, it had reached the conclusion that they had no substance, so that a reply by the respondent was unnecessary. For all that appears, the Authority was influenced adversely to the respondent's interests by the matters put before it by the objectors. Those matters may have included allegations of fact which could have been rebutted by the respondent if it had been apprised of their nature. That possibility is consistent with the fact that the Chairman of the Authority thought it necessary to discuss with the members the desirability of affording to the respondent the opportunity of a reply. Furthermore, it must be remembered that the final decision rested with the Minister, not with the Authority. Even if the members of the Authority had found themselves ultimately unimpressed by the matters of objection, they remained bound by s.59 to forward a report upon the s.49 submissions to the Minister. That report would necessarily have had to contain at least a summary of the matters put by way of objection. Under such circumstances, it may be assumed the Authority would have indicated its reasons for being uninfluenced by the matters alleged in the objections. But the Minister was not bound by the Authority's view; he may have been impressed where the Authority was not. The response of an applicant for re-zoning -- particularly if that response were in the nature of a rebuttal of erroneous allegations of fact by the objectors -- might be more persuasive to the Minister than the fact that the Authority had not, in the particular case, been influenced adversely to the applicant by the matters alleged by way of objection.

As Lord Denning pointed out in the Gaming Board case, the application of the principles of natural justice does not necessarily require the disclosure to an affected person of the identity of persons who have put representations in opposition to his interests; although it is difficult to see that in a town planning case -- in marked contrast to an investigation of the suitability of a person to be granted a gaming licence -- anonymity is necessary. Certainly it was not necessary that there be anything resembling a court hearing, with objectors and applicant being simultaneously present, cross-examination of witnesses, etc. All that was necessary, in our opinion and in the circumstances of this case, was for the Authority to disclose to the respondent the content of the submissions received by it -- and, in particular, any allegations of fact which they contained -- which were adverse to the making of the proposed planning instrument and, thereupon, to afford to the respondent a hearing at which it might respond to those submissions. By the word "hearing" we do not mean to suggest that the Authority was necessarily bound to hear oral submissions. Without knowledge of the nature of the matters put against the respondent it is not possible to make a categorical statement, but it may well have sufficed for the Authority to receive and to consider written submissions in reply. If matters of convenience be material, it is conceded by counsel for the appellants that there would have been no difficulty whatever in providing even an oral hearing. The letter from the Chairman of the Authority received by the respondent on 31 July 1984 makes clear that the decision not to afford a hearing was dictated not by any practical problems but by a distaste for creating a precedent. That reason is, of course, no answer to the obligation to afford to an affected person, to whose case the duty of fairness applies, an opportunity to know the case against him or her and to be heard in reply.

Like McGregor J. we take heed of the warning expressed in McInnes v Onslow-Fane (1978) 1 W.L.R. 1520 at p.1535 by Megarry VC. that "the concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens". The courts must be concerned that the rules as to the content of natural justice, in particular situations, do not have those results. But, as we have indicated, the procedure which ought to have been undertaken in this case would have made no unreasonable requirement of the Authority; it would have imposed no undue burden upon it. Rather it would have enabled it, and ultimately the Minister, better to discharge the significant statutory burdens placed upon both of them.

We are of the opinion that the learned primary judge was correct in quashing the report of the Authority and the determination of the Minister and in ordering that the Authority re-hear the matter and give to the respondent the opportunity to be heard in opposition to any submissions objecting to the draft planning instrument. The opportunity to be heard, of course, necessarily imports the opportunity to be apprised of the content of the matters put in opposition to the application for re-zoning.

The appeal should be dismissed with costs.

JUDGE2

MARSHALL BRUCE PERRON (the Minister) and THE NORTHERN TERRITORY PLANNING AUTHORITY (the Planning Authority) have appealed against a judgment of the Supreme Court of the Northern Territory of Australia given on 7 December 1984 by the then Chief Justice of the Northern Territory, Sir William Forster. The CENTRAL LAND COUNCIL (CLC) is named as respondent in the appeal.

DIORAMA PTY. LTD. (Diorama) has been at all material times the lessee from the Crown of Lot 4991 (the subject site) Larapinta Drive, Alice Springs in the Northern Territory. This site is zoned under Special Purposes Planning Instruments providing for use for purposes which need not be set out in detail here. These include its present use as a tourist venue.

The CLC is a statutory authority of the Commonwealth incorporated under the Aboriginal Land Rights (Northern Territory) Act 1976. It provides services to the Aboriginal communities in an area of some 795,000 square kilometres with an Aboriginal population of approximately 11,000 people. Since its establishment CLC has expanded to meet the changing needs of its constituent communities in various areas of activity. It commenced operation from the premises acquired by it at 75 Hartley Street, Alice Springs. Subsequently it entered into a lease of premises some 300 metres from the Hartley Street premises as a temporary measure and its activities are now carried on from three separate premises in Alice Springs.

In April or May 1984, the CLC became aware that the subject site was available for sale being, so it is said, no longer sufficiently commercially profitable in its use as a tourist venue. Representatives of CLC negotiated with the proprietor of the subject site for its purchase which negotiations resulted in the preparation of a contract for its sale. It seems that the use to which CLC would put the subject site would not be permissible under the present Special Purposes Planning Instruments which apply to it. CLC negotiated a right to make application to the Northern Territory Planning Authority (the Authority) established under or pursuant to s.7 of the Planning Act (N.T.). Its functions are set out in s.32 of the Planning Act and include the submission to the Minister (i.e. the Minister for Lands, Industrial Development and Tourism of the Northern Territory) of proposals for the use or development of land or with regard to planning; to furnish reports, and to advise or make recommendations, to him upon any such proposal. CLC, having arranged preparation of architect's plans, made an application setting out the proposed use of the subject site and requesting a new Special Purpose Planning Instrument to permit activities including the establishment of administrative offices, outdoor meeting areas and loading bays.

On 31 May 1984, MICHAEL CAMPION DILLON, the Manager-Administration of CLC, and the Director of the Legal Services for CLC, attended the Planning Authority. They made verbal submissions to it to the effect that CLC had become an established member of the Alice Springs Public Agency Community with an excellent record as an occupier and manager of premises; that with a present staff of 52 persons and a fleet of 23 vehicles, it was extremely inefficient for CLC to be located in three separate premises. They also submitted that the use to be made of the subject site was very similar to its present use; that the impact on the surrounding land would be substantially less intrusive than the present and potential use; that the continued effective functioning of CLC was an important aspect of the life of the region and that the zoning requested would permit this to be implemented; that Aboriginal people would feel more comfortable attending offices at ground level which the subject site offered; and that any meetings to be held at it would be relatively few and properly managed.

Following those submissions the Planning Authority resolved to advertise (counsel suggests this means or includes "prepare and exhibit") a Draft Planning Instrument which referred to the re-zoning sought by CLC. Such an advertisement was published. It indicated that submissions in respect of it would be received until 17 July 1984. Thirty to forty objections were received and are referred to in the affidavit of Michael Campion Dillon. On 25 July 1984 the CLC by telex sought an opportunity to respond to any objections to its application. This read -

"I WISH TO INDICATE OUR DESIRE AND WILLINGNESS TO RESPOND TO OBJECTIONS TO OUR APPLICATION, AND TO CLARIFY ANY QUESTIONS THAT THOSE OBJECTIONS MIGHT RAISE IN THE MINDS OF THE AUTHORITY.

WE BELIEVE OUR CASE AS PUT TO THE LAST MEETING WAS RATIONAL AND COMPREHENSIVE. IN PARTICULAR, WE MADE THE POINT THAT THE EXISTING ZONING WAS POTENTIALLY MORE DISRUPTIVE THAN THE ZONING WE ARE PRESENTLY SEEKING.

WE WOULD BE PARTICULARLY CONCERNED TO COUNTER ANY ILL-CONSIDERED ARGUMENTS.

THIS TELEX HAS BEEN PROMPTED BY THE PUBLICITY WHICH OUR APPLICATION HAS RECEIVED IN RECENT WEEKS, AND OUR CONCERN THAT THIS MAY REFLECT ON THE BALANCED APPROACH ADOPTED BY THE AUTHORITY TO THE PROCESSING OF REZONING APPLICATIONS."

On 26 July 1984 the Planning Authority gave the objectors an opportunity to be heard in support of their objections.

On 31 July 1984 CLC received a letter from the Chairman of the Planning Authority stating, inter alia -

"Your telex relating to the rezoning of the Diorama site was not received by me until 2 p.m. on 26th July 1984. I should explain that the Territory members of the Authority did not arrive in Alice Springs from Tennant Creek until 1 p.m. on that day.

Since the rezoning of the Diorama site was to start at 2 p.m. the difficulties of being in touch with you will be appreciated particularly since some 40 objectors were in attendance at the appointed time. However, I did put to members of the Authority that, having heard the objectors, I could arrange a further hearing on Friday 27th July to inform you of the nature of the objections and to hear you thereon. The Authority decided that there seemed no need to create a precedent of this sort.

I should explain that it has not been the custom of the Authority, where rezoning is concerned, to create an adversary situation except occasionally when the applicant is the owner of the land to be rezoned. Rather it has been the practice to hear the applicant's case and then the objectors. In the case of development applications the practice is otherwise. You will understand that the original decision not to invite your organisation to be present was based on this practice."

On 1 August 1984 CLC wrote to the Minister in the following terms:-

"I am writing in relation to our application for the rezoning of lot 4991, Larapinta Drive, Alice Springs. We understand that our application has been considered by the Planning Authority and that a recommendation will be made to you for a final decision.

We wish to bring to your attention the fact that the Federal Minister for Aboriginal Affairs has now given his approval for the Central Land Council to purchase and renovate the land involved; that approval is subject to our re-zoning application being successful.

I also attach for your information a telex to the Chairman of the Planning Authority from my Manager-Administration Mr. Dillon and the reply from Mr. Withnall relating to the processes of the Planning Authority in relation to objections to re-zoning applications. As pointed out in our telex, we are concerned that the Land Council have every opportunity to counter any ill-considered arguments or objections relating to our application. We would like to indicate our availability to respond to any matters arising from the recommendation of the Authority or the objections to our application. We understand the desire of the Authority to minimize adversarial situations; nevertheless we felt that we should bring our concerns to your attention."

On 31 August 1984 contracts for the purchase of the subject site were exchanged between Diorama and CLC which included a clause that it was subject to the Planning Authority allowing the re-zoning application within 80 days of 31 August 1984.

CLC was not informed by the Planning Authority or the Minister of the nature of the objections nor given an opportunity to be heard in opposition to these objections. It was not informed of the contents of the Report of the Planning Authority to the Minister. The Planning Authority via the affidavit of its Chairman admitted that it took into consideration the objections and submissions made by objectors. The Minister in his affidavit made a similar admission. Later in that affidavit it was stated in reference to certain allegations by CLC as to the use of the land that they did not constitute any sound basis for the rejection (by the Planning Authority) of the objections or submissions made in support thereof.

On 13 September 1984 the Minister by letter advised CLC that he had considered the report of the Planning Authority and all the submissions and had made a determination which rejected the Draft Planning Instrument.

On 26 October 1984 the Chief Justice made an Order Nisi calling upon the Minister and the Planning Authority to show cause why, inter alia, the recommendation and report of the Planning Authority and the determination of the Minister of 13 September 1984 should not be quashed.

It is not disputed that CLC had the right to make application to the Planning Authority for a re-zoning of the subject site.

In his Reasons for Judgment the learned Cheif Justice said that from authorities to which he referred, where the legislature provided for recommendations or reports to Ministers to be made affecting the rights of citizens, the Tribunal making the decision, recommendation or report was obliged to accord natural justice to the citizen unless on a proper interpretation of the statute (i.e. in this case the Planning Act) the right to natural justice is taken away; that there was nothing in the Planning Act which did so. Referring to when the Planning Authority had resolved to prepare and exhibit the Draft Planning Instrument, he said -

"The prosecutor then had been given by the Authority a reasonable expectation that in the absence of any objecting submissions the Authority would recommend to the Minister that the instrument should be adopted and thus the rezoning granted."

Further, he said that when the Planning Authority found it was influenced by objecting submissions the Planning Act should be interpreted in the present case as requiring that an opportunity be given to make submissions in answer to the objecting submissions. I observe that the evidence does not appear to support that the Planning Authority was so influenced or that it was upon consideration of the objections that the Planning Authority was persuaded to reject the application.

The learned Chief Justice, after referring to precedent, quashed the report of the Planning Authority to the Minister and the determination of the Minister.

It is not possible to list or describe exhaustively the circumstances in which the principles of natural justice are applicable. The Privy Council in Durayappah v. Fernando (1967) 2 A.C. 337 at p.349 was of the opinion that it would be wrong to attempt to do so. If those principles are to be applied, what they may require will vary depending upon the "circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with. . . . " (Russell v. Duke of Norfolk (1949) 1 All E.R. 109 per Tucker L.J. at p.118). See also Wiseman v. Borneman (1971) A.C. 297; Furnell v. Whangarei High Schools Board (1973) A.C. 660; Stollery v. Greyhound Racing Control Board (1972) 128 C.L.R. 509. Sometimes a person or body whose rights or hopes are in issue or threatened may be thought to have a "legitimate expectation" that a certain course of events should follow or that he or it will have an opportunity to present argument in support of what is conceived to be an entitlement. It would appear that in the instant case the learned Chief Justice thought that a situation had arisen where opportunity should be afforded the CLC to offer argument against the objections which had been received.

However, the Planning Act does not in terms require either the Planning Authority before making the recommendation in relation to a particular Draft Planning Instrument to the Minister, or the Minister in deciding whether to act on the recommendation, to provide an opportunity to the person or body who has requested the preparation and exhibition of the Draft Planning Instrument in a re-zoning application to present argument in support of his or its submissions. Nor does it require the Planning Authority to give those who would support a Draft Planning Instrument an opportunity to see, or offer submissions in reply to, objections. The legislature may exclude or limit the rules of natural justice by "express words of plain intendment" (Commissioner of Police v. Tanos (1958) 98 C.L.R. 383 per Dixon C.J. and Webb J. at p.396); or, as here, the legislation may be silent. The Court then "will approach the construction of the statute with a presumption that the legislature does not intend to deny natural justice" (Twist v. Randwick Municipal Council (1976) 136 C.L.R. 106 per Barwick C.J. at p.110).

In this matter CLC was given an opportunity to offer argument as appears from the affidavit of Michael Campion Dillon. On 31 May 1984 the latter, together with the Director of the Legal Services for CLC, attended the Planning Authority and made verbal submissions to it. The Planning Authority was entitled under s.50(1) of the Planning Act to invite the so-called "objectors" to appear before it to offer argument in support of their points of view. I observe, as did the learned Chief Justice, that the Chairman of the Planning Authority, a very experienced solicitor, considered whether CLC should be allowed a further hearing to inform it of the nature of the objections and to hear it thereon. Apparently this was discussed by the Planning Authority and it came to the view that there was no need to offer such an opportunity. I note that in his letter to Mr. Dillon (set out above) the Chairman of the Planning Authority stated that it had been the Authority's practice "to hear the applicant's case and then the objectors". To me this indicates the care taken by the Planning Authority (in respect of whom there has been no argument to suggest fraud or bias) who must be accepted as having experience and ability properly to perform its task. The Planning Authority may well have decided that the propositions offered by objectors needed no reply.

The effect of a concession made by counsel for the Minister and the Planning Authority - that they should act fairly - may be treated as a concession that the rules of natural justice apply to the circumstances here. I will assume in what follows that they do apply. CLC did not have a proprietary interest in land which was threatened. It was permitted, even though not the owner of the subject site, to put forward its contentions in relation to the suitability of that site for the re-zoning sought. After "hearing" CLC, the Planning Authority treated the objectors similarly in that their reasons for resisting the application were also heard and considered. To find that CLC was entitled to answer any "case" made by the objectors would be to equate the application of the principles of natural justice with observance of the formal procedures of a court; the moving party in court proceedings, the plaintiff, and the defendant both offer evidence and argument. The moving party then has a right of reply. If CLC were allowed an opportunity to answer objectors' submissions this may well be thought to create over-sophisticated or elaborate procedural safeguards which the principles of natural justice do not ordinarily require.

However, I have been concerned that in the particular circumstances of this case there may have been error by the Planning Authority. It heard objections, it took them into account; and as I read the letter (quoted above) of the Chairman of the Planning Authority would have informed the CLC of the nature of the objections and heard the CLC thereon; its decision not to do so was based on a practice which ought be adhered to lest there be created a precedent.

Adherence to a "policy so precise that it could well be called a rule", even one which will inevitably produce a certain result, may be permissible (cf. per Lord Reid in British Oxygen Co. Ltd. v. Minister of Technology (1971) A.C. 610 at p.625). Such adherence may be more acceptable where there is "a multitude of similar applications". The "policy" referred to in that case did not relate to procedure. And Lord Reid emphasises that what an authority must not do is to refuse to listen at all.

I have found assistance in McInnes v. Onslow-Fane (1978) 1 W.L.R. 1520; particularly in discussion by Megarry V.-C. at pp.1534 and 1535 of Breen v. Amalgamated Engineering Union (1971) 2 Q.B. 175; though McInnes was concerned with an application significantly different from the one we are considering; yet there is instruction to be derived from the Vice Chancellor's words at p.1535 -

"I think that the courts must be slow to allow any implied obligation to be fair to be used as a means of bringing before the courts for review honest decisions of bodies exercising jurisdiction over sporting and other activities which those bodies are far better fitted to judge than the courts. This is so even where those bodies are concerned with the means of livelihood of those who take part in those activities. The concepts of natural justice and the duty to be fair must not be allowed to discredit themselves by making unreasonable requirements and imposing undue burdens. Bodies such as the board which promote a public interest by seeking to maintain high standards in a field of activity which otherwise might easily become degraded and corrupt ought not to be hampered in their work without good cause."

The Minister here reached a decision which ultimately is the one under attack. It is said he may not have done so if the Planning Authority had heard the submissions as to the objections. But he did so after the Planning Authority had heard and considered submissions from both applicant and objectors in turn and had made a recommendation.

The Planning Authority must be accepted as a body with experience, well intentioned. Thus assisted, the Minister reached his decision. In my view the principles of natural justice - assuming they apply - have been satisfied here; to have required more, even if not much more, would be to impose "undue burdens" and to discredit the principles of natural justice.

I would uphold this appeal. Since I am aware that my brothers have a different view, no purpose is to be achieved in discussing the order I would make.