R v Land Use Planning Review Panel; Ex Parte M F Cas Pty Ltd
[1998] TASSC 131
•23 October 1998
131/1998
PARTIES: R
v
LAND USE PLANNING REVIEW PANEL;
ex parte M F CAS PTY LTD (ACN 009 587 857)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M344/1997
DELIVERED: 23 October 1998
HEARING DATE/S: 24, 25, 29, 30 June, 1 July, 4, 5 August 1998
JUDGMENT OF: Wright J
CATCHWORDS:
Administrative Law - Judicial review at common law - Procedural fairness - Right of party affected to be heard - Audi alteram partem rule - Whether rule breached - Result of failure to disclose report - Test; whether prosecutor was deprived of the opportunity to make submission or to call evidence.
Aust Dig Administrative Law [59]
Administrative Law - Prerogative writs and orders - On what grounds and for what purposes - To compel performance of duties by public bodies or officials - To whom and in what circumstances writ or order will issue - Persons or bodies having statutory discretion - Whether writ of mandamus ought issue or declaratory orders ought be made.
Aust Dig Administrative Law [150]
Administrative Law - Judicial review at common law - Excess of power and defective use of powers - Abuse of discretionary power - Consideration of irrelevant matter or refusal to consider relevant matter - Basis for decision - Matters of weight - Basis for prerogative relief.
Aust Dig Administrative Law [42]
Constitutional Law - Operation and the effect of the Commonwealth Constitution - The power to acquire property - In general (Constitution, s51(xxxi) - Acquisition of property on just terms - Whether confiscation or extinguishment of valuable property interests without compensation occurs where restrictions placed upon use of land by zoning.
Aust Dig Constitutional Law [205]
Local Government - Town planning - General matters - planning schemes and instruments and like matters - Tasmania - Whether an alteration of draft amendments to a planning scheme is a "modification" or "an alteration to a substantial degree" - Whether review panel exceeded its authority - Whether a failure to have regard to State policies in approving amendments to a planning scheme.
Aust Dig Local Government [161]
Statutes - By-laws and regulations - Validity - Ultra vires in general - Regulations in relation to procedures to be adopted by the panel - Whether regulations in scope of regulatory power - Whether regulations ultra vires - Whether void for uncertainty.
Aust Dig Statutes [131]
R v Medical Council of Tasmania; ex parte Blackburn 14/1998; R v Resource Planning and Development Commission; ex parte Aquatas Pty Ltd 82/1998; in Tillmanns Butcheries Pty Ltd v A M I E U (1979) 27 ALR 367; Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557; University of Tasmania v Cane (1994) 4 Tas R 156; Bernard Rothschild Pty Ltd v City of Melbourne (1982) 52 LGRA 442; Craig v South Australia (1994 - 1995) 184 CLR 163; Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, followed.
Seablest Pty Ltd v Smith & Ors A24/1996; Pettit v Dunkley (1971) 1 NSWLR 376; Newcrest Mining (WA) Ltd v The Commonwealth (1997) 71 ALJR 1346; Government of Malaysia v Selangor Pilot Association [1978] AC 337; Bank of New South Wales v Commonwealth (1948) 76 CLR 1, considered.
R v South Australian Planning Commission; Ex p City of Unley (1986) 44 SASR 100; R v Minister for Sea Fisheries; ex p National Australia Bank (1991) Tas R 70; Ainsworth v Criminal Justice Commission (1991 - 1992) 175 CLR 564 at 580 The Tasmanian Dam Case (1983) 158 CLR 1 at 283, distinguished.
Land Use Planning and Approvals Act 1993 (Tas), ss9(1)(a), 31 - 34, 12(1)(b)(v), 8, 10, 6, Pt3, Div2.
Resource Planning and Development Commission Act 1997 (Tas), ss10(1)(v), 22, Sch5.
Resource Management and Appeal Tribunal Act 1993 (Tas).
Judiciary Act 1903 (Cth), s78B.
Constitution of Australia, s51(xxxi).
Land Use Planning and Approvals Regulations 1993 (Tas), Statutory Rule No 262 of 1993.
State Coastal Policy 1996.
State Policy of Water Quality Management 1997.
REPRESENTATION:
Counsel:
Prosecutor: D R Armstrong
Respondent: D J Bugg QC
Clarence Council M E O'Farrell
Solicitors:
Prosecutor: Ogilvie McKenna
Respondent: Director of Public Prosecutions
Clarence Council Dobson Mitchell & Allport
Judgment category classification:
Court Computer Code:
Judgment ID Number: 131/1998
Number of pages: 33
Serial No 131/1998
File No M344/1997
THE QUEEN v LAND USE PLANNING REVIEW PANEL
(by its delegates G L L DAVIS and M LAUGHLIN);
ex parte M F CAS PTY LTD (ACN 009 587 857)
REASONS FOR JUDGMENT WRIGHT J
23 October 1998
On 10 December 1997, a general order was made by Underwood J requiring the Land Use Planning Review Panel ("the Panel") to show cause why writs of certiorari, mandamus and prohibition should not issue in respect of decisions made or purportedly made by the Panel in respect of draft amendments to the Eastern Shore Planning Scheme 1963.
The Panel was established by the Land Use Planning and Approvals Act 1993 ("LUPA Act"), s8, but was abolished and superseded by the Resource Planning and Development Commission ("the Commission"), pursuant to the Resource Planning and Development Commission Act 1997 ("RPDC Act"). All acts, matters and things done or omitted to be done by the Panel are now taken to have been done or omitted to have been done by the Commission (the RPDC Act, s22 and Sch5).
The functions of the Panel included the certification and approval of amendments to Planning Schemes (LUPA Act, s10). Any hearings or other functions of the Panel which may have been necessary for this purpose could be delegated by the Panel (LUPA Act, s6).
On 25 June 1996, G L L Davis and M Laughlin were delegated by the Panel to exercise the Panel's powers and functions under the LUPA Act, Pt3, Div2, with respect to draft Amendments Series BW to the Eastern Shore (Area One) Planning Scheme 1963. It may therefore be said that for all relevant purposes the delegates were the Panel and I will refer to the joint activities of Messrs Davis and Laughlin either as those of the "Panel" or of the "Panel delegates" as the occasion appears to warrant hereafter.
The BW Series of draft Amendments referred to in this delegation were constituted by a comprehensive body of proposals which had their origins in the Howrah Hills Local Area Plan produced by the Clarence City Council Planning and Development Division in 1995 following a review of the zonings and other provisions in the Eastern Shore Planning Scheme 1963 as they then applied to an area of land consisting predominantly of a spur of the Meehan Range between the South Arm Highway to the south, the Tasman Highway to the north, the Bellerive By-pass to the west and the Pass Road to the east.
Within this area the prosecutor, M F Cas Pty Ltd, owned, and still owns, 51.18 hectares of land, of which 6.2 hectares were zoned "Residential D" with a consequent potential for subdivision into about sixty residential lots. The balance of approximately 45 hectares was zoned "Rural". The Residential D land is adjacent to land previously owned by M F Cas Pty Ltd which had been subdivided into residential allotments and sold prior to the production of the Howrah Hills Local Area Plan. Generally speaking, the Rural zoned land presently owned by M F Cas Pty Ltd lies to the north of the Residential D land owned by the company. To the north of the Rural zoned land, there is a parcel of land of unspecified area owned by CSR Readymix Pty Ltd ("CSR"), upon which the Mornington Quarry is located.
The Mornington Quarry commenced operations as a gravel quarry about thirty years ago and when CSR took over in 1989, it was developed as a hard rock quarry. The quarry now supplies crushed aggregate for use in concrete, road works and construction projects in the general Hobart area. The quarry operations are subject to an Environmental Management Plan but still appear to me to constitute a somewhat alien intrusion into a generally residential suburban area.
The Clarence Council ("the Council") resolved to adopt many of the recommendations contained in the Howrah Hills Local Area Plan and, as a consequence, draft amendments to the Eastern Shore Planning Scheme were prepared and submitted to the Panel as required by the LUPA Act, Pt3, Div2. The Panel examined the draft amendments and certified them as suitable for public exhibition. The draft amendments were then placed on public exhibition and advertisements were placed in the local newspaper, advising of this fact. Numerous representations relating to the proposed amendments were made to the Council in due course, and the Panel then embarked upon a consideration thereof and the holding of hearings as required by the LUPA Act, s40.
It appears from the relevant plans, although it was submitted that there is some residual doubt about this, that one of the Council's original proposals was to rezone approximately 2.4 hectares of M F Cas Pty Ltd's land originally within the Residential D zone, as "Residential C". This proposal was designated Amendment BW9. The balance of the 6.2 hectares owned by M F Cas Pty Ltd which was originally within the Residential D zone, together with the 45 (approximately) hectares originally within the Rural zone were, according to a further Council proposal, to be included in the "Landscape and Skyline Conservation" zone. This proposal, designated Amendment BW4, also included a large area of land along the ridge line adjacent to the quarry which was owned by people other than the present prosecutor.
For reasons which have not been explained, the draft amendments were designated "the BW Series" and consisted of fourteen separate and distinct proposals for rezoning various land areas within the Howrah Hills area described above. Two of the proposals (BW1 and BW2) related to the Planning Scheme Document, whilst the balance (BW4 to BW15 inclusive) related to the Planning Scheme Maps. There was no amendment designated BW3.
The BW1 Amendment proposed that the "Landscape Conservation" zone should become known as the "Landscape and Skyline Conservation" zone. In addition, there were a number of proposals to amend the provisions in the Planning Scheme Document in relation to development within that zone, the design and location of buildings within that zone and the placement and nature of fences, masts, telephone lines, and so forth, within that zone.
In its draft form as approved by the panel for advertisement and public exhibition, the proposed BW1 Amendment did not contain a proposal to amend Schedule 2 in the Table of Uses, but, in the form approved by the Panel after the public hearings, the BW1 contained the following final paragraph:
"Amend Schedule — Table of Uses as follows:
Substitute the letter 'A' for the letter 'P' for the use of Single Dwelling in the column headed LC".
Mr Armstrong contends that this is not a mere modification of the original proposals but constitutes an alteration to a substantial degree with the consequence that the purported final approval of BW1 by the Commission on 14 June 1998 was unlawful.
The BW2 and BW15 Amendments proposed that in respect of the Mornington Quarry, two buffer areas should be created consisting of two approximately concentric circular zones radiating from the quarry. These buffer areas were to be designated the "Quarry Buffer A zone" and the "Quarry Buffer B zone", respectively. If adopted as drawn, the Quarry Buffer A zone would have included well over half of the M F Cas Pty Ltd land, and the more extensive Quarry Buffer B zone would have encompassed the whole of the balance of the company's land. The proposal was that in Quarry Buffer A zone, subdivision for residential purposes be prohibited altogether and that applicants for any other form of development be required to demonstrate that any buildings are designed to withstand potential impact from noise and ground vibration generated by quarry operations. The proposal in respect of Quarry Buffer B zone was that subdivision for residential purposes be permitted, provided that applicants may be required to demonstrate design standards for building, similar to those required in the Quarry Buffer A zone.
An unusual feature of the proposed Buffer zones was that they were to consist of overlays upon the Planning Scheme Map, so that they would constitute secondary, rather than primary, zoning areas, with the consequence, as I understand it, that the permitted or discretionary uses in respect of any land to which an overlay was applicable would be constrained, both by that land's primary zoning upon the Map, as well as those restrictions which I have referred to which followed from its falling within one or other of the Buffer zones.
Not surprisingly, these proposals excited a good deal of community opposition. It seems unusual, to say the least, that a municipal council would seek to introduce measures which may render land adjacent to a hazardous extractive industry, not owned by the operators of that industry, virtually worthless by, in effect, shielding that industry from the consequences of development upon adjoining property. In the absence of legislative sanction or protection, the operators of such an industry would almost certainly be liable to their neighbours in nuisance if blasting operations were to cause damage on neighbouring properties and it seems to me inescapable that responsibility for conducting its operations safely must fall entirely upon the proprietors of such an industry. Perhaps the Council was concerned that if it permitted development in the Buffer zones, the Council itself may attract liability for damage resulting from a known hazardous source. At all events, public hearings were conducted by the Panel in respect of the BW1, BW2 and BW15 Amendments on 7, 8 and 9 October, 20 November and 18 December 1996. M F Cas Pty Ltd was represented by Mr Peter Montgomery, one of its directors, at those hearings. The results of those and other hearings conducted by the Panel delegates will appear later in these reasons.
I turn now to consider the individual grounds set out in the general order upon which the prosecutor has sought prerogative relief in these proceedings.
Grounds A and B
These grounds were as follows:
"(A)There was procedural unfairness in that the Land Use Planning Review Panel failed to disclose to the applicant a report of the Valuer-General dated 31 January 1997 obtained by the Panel and which was material to the determination of draft amendment BW9 to the Eastern Shore Planning Scheme 1963.
(B)There was procedural unfairness in that the Land Use Planning Review Panel failed to give the applicant an opportunity to make submissions in relation to the material contained in the report of the Valuer-General dated 31 January 1997 on the hearing of draft amendment BW9 to the Eastern Shore Planning Scheme 1963."
On 18 December, evidence was taken by the Panel from three registered valuers, Messrs G McNamara (for CSR), Mr D Saunders (for a group known as "Buffer Zone Action Group") and Mr P Wilson (for a Mr and Mrs Alexander who appear to have been local residents). The Panel considered this evidence and, in an endeavour to resolve conflicting opinions expressed by the three valuers, it sought and obtained an opinion from the Valuer-General who submitted a report dated 31 January 1997, in which he stated, (inter alia):
"I am of the opinion that the imposition of buffer zones will have an injurious affect, to varying degrees, on the properties and there is no doubt that by the introduction of BW15 and adherance to the requirements of BW2, the marketability of real estate in both buffer areas will be affected to varying degrees dependent upon location and property value."
and
"Given the varying affect on property values and future development, the introduction of Buffer Zones A and B is considered unnecessary having regard to the statutory provisions available to the Clarence Council by the implementation of the BW Series of amendments to include proposals to rezone areas around the Quarry to Landscape and Skyline Conservation, Extractive Industry, Reserve/Residential, Rural/Residential and Passive Recreation. The introduction of the Buffer Zones is also considered unnecessary having regard to the existing licence conditions required by the Director of Environment for the quarry operations under Licence 3598."
On the basis of this opinion, as well as other considerations arising from evidence presented and submissions made at the public hearings, the Panel decided that the proposed BW2 and BW15 Amendments should be "dismissed". It also decided that the proposed BW1 Amendment should be allowed with the addition, which I have mentioned above, and other modifications which are irrelevant for present purposes. By restricting single dwelling development within the Landscape and Skyline Conservation Zone (which also fell within the proposed Quarry Buffer A and B zones) to a discretionary use, the Panel considered that appropriate controls could be exercised by the Council to ensure the refusal of development approval for buildings which may be susceptible to blast damage. The Panel did not express itself in these terms, but these were clearly the considerations which it had in mind in making its decision. Mr Armstrong, counsel for M F Cas Pty Ltd, made the criticism, which is hard to refute, that, as the Panel had concluded that the land in question had no real conservation value, the restrictions proposed were not directed to achieving the objectives of the "Landscape and Skyline Conservation" zone, but were being used rather as a substitute mechanism for achieving defacto buffering for the quarry.
Some time after the Panel had published its decision on these matters in April 1997, CSR instituted proceedings by way of application for a prerogative writ in action No M100 of 1997 to prevent BW2 and BW15 Amendments being made.
On 19 May 1997, Zeeman J ordered that the Panel's decision relating to the BW2 and BW15 Amendments be quashed and that the "application" be reheard and determined by a fresh Panel. I infer that the "application" referred to in this order is intended to be a reference to the draft Amendments BW2 and BW15 proposed by the Council. I was informed that the rehearing ordered by Zeeman J has not yet taken place.
It is clear that Zeeman J's orders were based upon CSR's complaint, in terms similar to grounds A and B in the present case, that the Valuer-General's report had not been made available to CSR for consideration prior to the Panel making its decision. It was submitted by Mr Armstrong that the interrelationship between the proposed BW2 and BW15 Amendments on the one hand, and the existing zones and other proposed zones referred to in the BW series on the other, is such that it will be difficult, if not impossible, to reassess BW2 and BW15 without, at the same time, re-assessing BW4 and BW9. A significant part of BW4 falls within the proposed Quarry Buffer zones and BW9 falls completely within those zones. This submission by Mr Armstrong is supported indirectly by the Valuer-General's opinion, to which reference has already been made.
Although on the face of that opinion it may be thought that the views expressed by the Valuer-General as to the likely adverse effect of BW2 and BW15 upon land values within the Buffer zones would assist the prosecutors' resistance to the rezoning proposals generally, such is not necessarily the case. Certainly the Valuer-General's views were highly persuasive and of considerable weight and, furthermore, they were relied on by the Panel to reject the adoption of the proposed Quarry Buffer zones, but it is apparent that the Valuer-General's views also suggested to the Panel that a similar measure of developmental control could be achieved by restricting the permitted uses in the Landscape and Skyline Conservation zone and by including the whole of the M F Cas Pty Ltd land within that zone. It is on this basis that the prosecutor complains that there was procedural unfairness in the hearing and determination process undertaken by the Panel in failing to disclose the Valuer-General's report of 31 January 1997 to M F Cas Pty Ltd and in failing to give an opportunity to the prosecutor to make submissions in relation to the material contained in the report.
Mr Montgomery, who swore an affidavit in support of the prosecutor's case in these proceedings, was cross-examined by Mr Bugg QC as to the genuineness of these complaints and it was put to him that he had held discussions with the Panel and representatives of CSR to see if a compromise could be achieved whereby Quarry Buffer zone A would be accepted, on condition that Buffer zone B would be abandoned and there would be no additional "down zoning" of any of the land within zone B. Mr Montgomery agreed that this was so but, as he said when Mr Bugg suggested that he had achieved "better than your fall back position", this assessment was not correct because, "the Panel's decision effectively created a buffer over all of our land."
I agree with this comment by Mr Montgomery, but the real question is whether or not there was procedural unfairness arising from the non-disclosure of the Valuer-General's report to M F Cas Pty Ltd or its representatives.
The Panel was obliged to apply the rules of natural justice in conducting its hearings (see LUPA Act, s12(1)(b)(v) now repealed and re-enacted in RPDC Act 1997, s10(1)(v)), and it seems to me that to rely on a report to which the delegates attached considerable weight and which, as I find it, had the effect on the Panel contended for by the prosecutor, without disclosing the same to the prosecutor, amounted, in the circumstances, to a breach of the audi alteram partem rule, see R v Medical Council of Tasmania; ex parte Blackburn 14/1998 per Crawford J.
Mr Bugg submitted that the prosecutor was unable to show that the company was any "worse off" as a result of the Panel's decisions in relation to BW1, BW2 and BW15, than it would have been had the Buffer zones been approved, but this is not the real test. The test is whether or not the failure of the Panel to disclose the Valuer-General's report deprived the prosecutor of the opportunity to make submissions and, if necessary, call evidence in relation to an issue which had a bearing upon the zoning restrictions which may be adopted in relation to its land, both in BW9 and BW4.
Mr Bugg also submitted that the issues dealt with in the Valuer-General's report had already been raised during the BW hearings and that the Council had asked the Panel "to not consider the proposed buffer as it will rely on the provisions of the Landscape and Skyline Conservation zone". Assuming this proposition (which is taken from the Valuer-General's report) to be factually correct and also accepting that, if it is correct, the Panel would undoubtedly have given weight to the Council's submission in reaching its conclusions, the fact still remains that substantial weight was also clearly accorded to the Valuer-General's opinions in circumstances in which the prosecutor had no opportunity to deal directly with that report.
Mr Bugg drew attention to the fact that Mr Brownlie, an expert planning consultant engaged by the prosecutor, who prepared and submitted a report dated 30 October 1996 to the Panel, had, according to a summary of his evidence reproduced in the Panel's reasons for its decision, effectively submitted to the Panel:
(a) that the Buffer zones proposed were inappropriate; and
(b)that control by zoning the subject land as Landscape and Skyline Conservation would not be effective because residential development was, at that time, a permitted use within that zone.
Mr Bugg submitted that Mr Brownlie was talking about the very proposition which the Valuer-General subsequently dealt with in his report. That is true, but I do not see Mr Brownlie's discussion of the matter in his report as leading to the conclusion that he was recommending to the Panel the solution adopted by the Panel in reliance upon the Valuer-General's report. Whilst the arguments advanced by Mr Bugg are all relevant to the issues raised by grounds A and B of the general order, I do not accept his contention that the issues considered in the Valuer-General's report, and relied upon by the Panel as a basis for its decisions in respect of BW1, BW2 and BW15, without reference to the prosecutor, did not constitute a breach of the rules of natural justice. I am accordingly of opinion that grounds A and B have been established and, as a consequence, the Panel's decision in respect of BW9 cannot stand. There was an application which was deferred and not subsequently pursued by the prosecutor to include BW4 with BW9 in grounds A and B. No application was made to include BW1. The prosecutor's attack on BW1 was confined to par1(a) and ground J of the general order, both of which were added by amendment during the hearing on 29 June 1998, and also ground H. As BW2 and BW15 have already been dealt with by Zeeman J's order, no further determination or order was sought or required in respect of them in the present proceedings.
Grounds C(i), D and J
Ground C is as follows:
"(C)The decision of the Land Use Planning Review Panel in draft amendment BW9 to the Eastern Shore Planning Scheme 1963 that the land the subject of the amendment should be re-zoned 'Landscape and Skyline Conservation' was ultra vires the Panel in that:
(i) it did not constitute a decision which the Panel had power to make by virtue of the provisions of s41 and/or s42 of the Land Use Planning and Approvals Act 1993 namely a decision to finally approve or reject a draft amendment to a planning scheme or a decision to require a planning authority to modify or alter to a substantial degree such a draft amendment.
(ii) the Panel took into account irrelevant considerations.
(iii) the Panel failed to take into account all relevant considerations.
(iv) it was contrary to the evidence and to the weight of the evidence.
(v) the Panel made a decision which no reasonable Panel properly instructing itself could have reached.
(vi) it had the effect of confiscating or extinguishing valuable property interests without just compensation."
I have already described in general terms the area of land to which it was proposed that the BW9 Amendment should apply. Ground D is stated thus:
"(D)That save to the extent that the Land Use Planning Review Panel may have purported to include the land owned by the applicant the subject of amendment BW4 to the Eastern Shore Planning Scheme 1963 within its purported decision on draft amendment BW9 to that scheme the Panel failed to determine draft amendment BW4."
Ground J was in the following terms:
"(J)The decision of the Land Use Planning Review Panel to approve the draft amendment BW1 to the Eastern Shore Planning Scheme 1963, after requiring the Planning Authority to alter the same to a substantial degree was ultra vires and void in that the draft amendment was approved without the Land Use Planning Review Panel having required further public exhibition thereof in accordance with the Land Use Planning and Approvals Act 1993, section 41B(1)(b)."
At this stage I think it appropriate to deal with grounds C(i), D and J together and to deal with grounds C(ii) to (vi) inclusive, separately, later.
Subsequent to the certification, advertisement and public exhibition of the proposed amendments, and consideration of representations received from interested parties, the Council decided to recommend to the Panel that the Landscape and Skyline Conservation zone should be extended so as to include the whole of M F Cas Pty Ltd's land, ie, that originally zoned Residential D, as well as that originally zoned Rural. As will be appreciated, this new proposal by the Council, if approved, would constitute a very drastic restriction upon potential development — indeed Mr Armstrong suggested that its adoption by the Panel rendered the whole of the property virtually worthless. He further submitted that this significant "down zoning" had the effect of confiscating or extinguishing private property without just compensation. As will be seen when I come to deal with ground C(vi), I do not accept this, but it is plain enough that the value of the property would almost certainly be adversely affected to a substantial degree by the Panel decision which, in effect, adopted Council's belated recommendation.
It is also plain enough that the Council, and, to a lesser extent, the Panel, were influenced by the notion that, by limiting the use of the land in this way, it would be available as an area to be enjoyed by the public for purposes other than mere visual amenity. It should be steadfastly borne in mind, however, that unless acquired by a public authority, the subject land will remain in private hands and it hardly needs stating that "down zoning" as a means of diminishing value to facilitate cheap public acquisition could never be regarded as a legitimate goal of a rezoning proposal.
It was submitted that this was the practical effect of what had occurred in the present case, but the evidence is quite insufficient for me to attribute any such motives to the Council or the Panel, although the content of some of the public representations referred to by the Panel in its decision appear to have advocated such a course.
Ground (C)(i) was conceded by counsel for the Panel, Mr Bugg. Counsel for the Council, Mr O'Farrell, made no submissions in support of the course followed by the Panel. Nonetheless, it is necessary to consider this ground with some care.
It is sufficient for present purposes to say that, pursuant to the LUPA Act, ss41, 41A, 41B and 42, as those sections stood at the relevant time, the Panel, when dealing with a draft amendment submitted by a Council which had been through the prescribed course of public exhibition and hearings, had four possible courses open to it, viz, (a) to accept, (b) to reject, (c) to modify, or (d) to alter the amendment to a "substantial degree".
In circumstances (a) or (b), the Panel's decision could effectively achieve finality in the amending process. A modification (c) would require redrafting of the amendment by the Council under the Panel's direction (s41A), but once this had been done, final approval under s42 could follow without delay or further public consultation. However, if the Panel decided that an alteration to the amendment to a "substantial degree" was required, it would then become necessary for the Panel to certify the altered draft amendment and require the Council to go through the whole process of public exhibition once more, following which further hearings by the Panel would be required. In short, the whole amending process would have to recommence and be followed through to a conclusion in respect of any substantial amendment proposed by the Panel in exactly the same way as was required for the originally proposed amendment by the Council.
In considering whether an alteration constitutes a mere "modification" or an "alteration to a substantial degree" requiring a reprise of the public consultation and hearing processes, a value judgment must obviously be made in each case. In R v Resource Planning and Development Commission; ex parte Aquatas Pty Ltd 82/1998, Cox CJ discussed various provisions of the LUPA Act and said this at 5 - 7:
"Section 41B requires that if a draft amendment has been altered to a substantial degree rather than merely modified, it must be re-certified and re-exhibited with consequential rights to make representations. The prosecutor first argues that the changes to the amendments were not modifications, but were alterations to a substantial degree. It is not disputed that it is for the Commission to decide into what category the changes to Q2 and Q3 fell. Such decisions involve matters of degree and unless the categorisation is patently erroneous or it is shown that in forming that judgment the Commission placed reliance upon wholly irrelevant considerations, it is not for this Court to substitute its own view should that be at variance with that of the Commission.
In Bernard Rothschild Pty Ltd v City of Melbourne (1982) 52 LGRA 442, Anderson J had to deal with a planning authority's power to grant a permit to use land for certain purposes in accordance with certain standards, subject to such modifications as the authority might permit. A planning tribunal, reviewing the authority's decision, confirmed that the departure from the prescribed standards permitted by that authority was a modification. At 446 - 447, after referring to the composition of the tribunal, Anderson J said:
'Of course, a recognition of the specialist qualifications of members of the tribunal in relation to town planning principles does not place their deliberations or conclusions beyond review by this Court, but it does involve an acknowledgement that where there is a discretion, as there is here, to allow a departure from a prescribed standard, the tribunal may employ its expertise within reasonable limits to determine whether the departure is a modification. In Legg v Inner London Education Authority [1972] 1 WLR 1245 at 1255, 1256, Megarry J, in what he described as "otherwise barren territory", has helpfully said:
"The process involved in 'modification' is thus one of alteration, and it must be considered how radical that alteration is. The alteration may consist of additions or subtractions or other changes in what is already there, or, no doubt, any combination of these. But throughout, there must, I think, be the continued existence of what in substance is the original entity. Once one reaches a stage of wholesale rejection and replacement, the process must cease to be one of modification."
On the question of whether to grant a permit with modifications, or to grant what is a different permit, Brooking J said in Addicoat v Fox (No 2) [1979] VR 347 at 353; (1978) 37 LGRA 411:
"This is plainly a matter of degree, and indeed it is almost one of impression. In my view, the changes made may be considerable without bringing it about that the permit granted is a different as opposed to a modified permit."
That case illustrated that this Court may quash a determination of a tribunal where the alteration is too great; but it is reasonable to say that, where it is a matter of degree, the tribunal is well placed to determine the limit beyond which the alteration should not fairly go. Each case, of course, depends on its own facts, and reference to other cases merely reveal the laments of others because of the problems presented and illustrates how in the particular case the problem was resolved.'
In my view, the same considerations apply here. In each case, a decision had to be made whether the alteration in question was a modification or something quite different. This Court should recognise that the Commission is well placed to determine the limit beyond which the alteration should not fairly go without being classified as one to a substantial degree requiring further re-certification, advertisement and hearings to determine and adjudicate upon any further representations. That is not to say, of course, that the words used in the statute can mean what the Commission wants them to mean.
The word 'substantial' in the phrase 'causing substantial loss or damage to the business of the Corporation' was considered by the Full Court of the Federal Court in the context of the Trade Practices Act 1974 (Cth) in Tillmanns Butcheries Pty Ltd v A M I E U (1979) 27 ALR 367. At 382 Deane J said:
'The word "substantial" is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase "substantial loss or damage", it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling ([1948] 1 All ER 1 at 11; [1948] AC 291 at 317) where, after holding that, in the context there under consideration, the meaning of the word was equivalent to "considerable, solid or big", he said: "Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case ...".'
In the same context, the phrase "substantially lessening competition" was considered by Lockhart J in Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557. At 563 his Honour said:
'The word "substantial" appears in various contexts in the Act itself. It has been considered by judges of this court as meaning real or of substance: see Cool & Sons Pty Ltd v O'Brien Glass Industries Ltd, a judgment of Keely J, (1981) 35 ALR 445 at 458; Hecar Investments No 6 Pty Ltd v Outboard Marine Australia Pty Ltd, a judgment of Franki J [1982] ATPR 40-298 at 43,699. In Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173, Smithers J said that the word 'substantially' in the context of the phrase "substantially lessening competition" (sub-ss (10) and (13) of s 47) was used "in a sense importing a greater rather than a less degree of lessening"'."
In relation to the meaning of the word "substantial" a reference might also be made to the decision of the Full Court in University of Tasmania v Cane (1994) 4 Tas R 156 at 162 - 163 where the phrase under consideration was "injury … to which his employment contributed to a substantial degree". The Court concluded that "substantial" was used here in a relative sense, ie, relative to other causes which may have contributed to the injury.
Whilst I respectfully agree with the approach of Cox CJ in the Aquatas case, and, in particular, with his opinion that the views, if any, expressed by the Panel as to whether a proposal is a mere "modification" or an "alteration to a substantial degree" will be of considerable weight, I think that Mr Armstrong is correct when he says that something which has been altered must still be identifiable as the original entity, otherwise it can only be said that it has been transformed or metamorphosed into something new. In the circumstances of this case, however, there is no need to pursue the philosophical consequences of this submission.
In my opinion, according due weight to the Panel's views insofar as they have been expressed or may be inferred, I cannot escape the conclusion that in the present case, in relation to the whole of the M F Cas Pty Ltd land, the Panel's decisions were not mere "modifications" of the original draft amendments, but I am equally unable to conclude that what it did went beyond an "alteration to a substantial degree" so as to effectively obliterate or transform the proposed zoning changes as Mr Armstrong submitted. My view is that the relevant Panel decisions should properly be characterised as decisions to "alter" the draft amendment to a "substantial degree". That being so, it is necessary to consider whether, in doing what it did, the Panel exceeded its authority so as to become amenable to an order by way of prerogative relief. In relation to this problem, the words of Cox CJ in the Aquatas case at 4 - 5 are, again, helpful and instructive:
In the present case, the Commission did not require any modification to draft amendment Q1, but directed that draft amendments Q2 and Q3 did require certain modifications which I have set out above under the heading 'Conclusion'. Furthermore, it determined that the changes it set out under that heading were modifications and did not constitute alterations to a substantial degree. Ground (A) claims that the Commission failed to obey the mandatory requirements of s41A(1), viz to give notice in writing to the planning authority directing that it undertake the modifications and specifying the manner in which the draft amendment is to be modified, but proceeded to give its approval under s42 to the draft amendments, as modified by it, without requiring the planning authority to go through the process of undertaking these modifications and submitting the modified amendment to the Commission within twenty-eight days in accordance with s41A(2). In other words, it foreshortened the process, nominated modifications to be made to two of the draft amendments and purported to give its approval to them instanter.
In my opinion, this ground is misconceived. The decision which is the subject of this challenge by way of prerogative writ does not purport to grant approval under s42. It clearly indicates the nature of the modifications required by it. It was not required to condescend to formal drafting of the proposed amendment as thus modified. It would have been sufficient to have confined itself to expressing the modification in the way the first modification was expressed under the heading 'Conclusion', viz 'Reduce the area of application of Clause 3.16.5 to the area defined as the maximum impact area on Attachment 2 to the proof of evidence of Dr McCambridge'. The Commission there indicated the kind of modification required, but had it gone no further, the amendment would have had to be redrafted so as (inter alia) to incorporate certain areas defined in the extraneous proof of evidence of Dr McCambridge. This is normally a task for the planning authority as envisaged by s41A(2). Upon that authority undertaking the modification in the sense of reducing it to an appropriate written formula and resubmitting it, the Commission, if satisfied that it is in order, is obliged to approve it under s42. The decision under challenge does not purport to do that. It expressly uses the future tense when it concludes 'Draft amendment Q1 and draft amendments Q2, Q3 as modified shall be approved'. The Commission did, in this case, condescend to formally draft the proposed amendment as modified and, no doubt, thereby not only saved the planning authority the trouble of doing so, but minimised the risk that the latter might not reduce it to a written formula which the Commission could be satisfied was in order. However, by doing what it did, the Commission did not relieve the planning authority of its obligation under s41A(1) to undertake the modifications required by it. There is no evidence before me negativing the proposition that the planning authority was notified in writing of the Commission's decision under s41A(1) and resubmitted amendments which incorporated the necessary modifications, that process leading to approval being given by the Commission under s42 in some other document. Even if there had been a failure to adopt that procedure, the challenged document itself is not lacking in efficacy as recording the decision of the Commission pursuant to s41 to require the modification of the amendment, nor is the challenged decision ultra vires
In my respectful opinion, Cox CJ was completely correct in his analysis of the steps which the statute requires to be taken before a Panel decision becomes either an "approval" within the meaning of the LUPA Act, s42, or a resubmission by the Panel of a proposed "alteration to a substantial degree" to the Council for redrafting, resubmission for approval, re-advertising, rehearing and so on. However, in the present case there was no evidence to suggest that the Panel delegates were considering, or had considered, whether or not to require the planning authority (ie, the Council) to alter any proposed amendment to a "substantial degree". Everything which I have seen and heard in relation to the present matter clearly suggests that the Panel's "decisions" proposed simply to either approve each draft amendment in the form proposed either originally in the amendment or by the delegates themselves, or to reject those amendments in respect of which the delegates recommended that the representations be "upheld" or that the proposed amendment be "dismissed".
In recording their determinations made in respect of each of the BW Series of Amendments, the Panel delegates, Messrs Davis and Laughlin, did not specifically make findings as to whether or not the various courses which they were proposing constituted modifications, alterations to a substantial degree, rejections or unqualified endorsements of the proposed amendment, although, in remarks which they made in relation to an argument advanced by a Mr Darcey under the heading "Relevant Considerations" in respect of "Amendment BW (Part) — The hearing of representations to zone land on the eastern slopes of Glebe Hill between the 75 metre contour from Rural to Reserved Residential" (see page 18 of annexure "A" to Peter Guy Montgomery's affidavit of 27 November 1997), the Panel delegates revealed that they were aware that Mr Darcey's suggestion "constituted a major change" which would need "to be duly processed in accordance with the provisions of the Act before it could be further considered." It is perhaps unfortunate that both in this passage and other passages of their decisions, some of which I will refer to shortly, the delegates failed to refer to the express requirements of the legislation and, whilst using terms which were, in some cases, practically synonymous with words used in the Act, failed to make distinctions of the kind which it has become necessary for the Court to make in resolving whether or not the requirements of the legislation have been observed in the present case.
So that my foregoing comments may be understood in context, I set out hereunder what I consider to be relevant parts of each decision of the Panel delegates. These decisions were sent to Mr Montgomery on 11 April 1977 by the Panel under cover of a letter in the following terms:
"The Land Use Planning Review Panel's delegates, Mr Davis and Mr Laughlin, have now submitted their decisions on this matter. These were tabled at the Panel's meeting held on 2 April 1997.
Please find enclosed herewith a copy of those decisions."
There was no indication in this letter as to any consequential course of conduct which the Panel might follow to implement the "decisions." The decisions which were enclosed appear to cover, or be intended to cover, all of the proposed BW Series Amendments.
Ignoring minor and inconsequential differences, each decision was headed:
"Land Use Planning Review Panel.
Land Use Planning and Approvals Act 1993.
Eastern Short Planning Scheme 1963.
BW Series of Amendments."Following this, a reference was made to that aspect or part of the Series to which the decision related, followed by the hearing dates, the names of the representors, any appearances by representatives of representors, arguments advanced both for and against the proposal and consideration of those and other issues, including, where appropriate, a review of evidence, followed at the end by "The decision".
Because of the questions presently under consideration and their bearing upon the relief which may be granted, I propose to now set out both the delegates' description of the particular part of the BW Series to which each decision relates, followed by the actual terms of the relevant decision. It is necessary to do this because, unlike a court of record which has a formal process for recording its decisions, judgments, determinations and orders, I understand that there is no such system in place for recording the determinations, resolutions or statutorily sanctioned acts of the Panel.
To understand what the Panel has done or has purported to do in any given case, it is therefore necessary to go to material of this kind, rather than to a formal document or record of some kind.
In all, the Panel published twenty separate decisions. These were all signed by Messrs Davis and Laughlin and dated 21 March 1997. The decisions as published by the Panel were not numbered. I have provided the numbers for ease of reference in subsequent discussions. I have also omitted the Panel's reasons for arriving at the recorded decision. Insofar as the reasons are relevant to individual decisions, they will be reviewed by me elsewhere in my reasons.
"amendment bw1
The hearing of representations to alter clauses relating to the Landscape and Conservation zone.
the decision:
The representations are partly upheld in that the BW1 amendment is to be altered as follows :
(a) clause 3.6.5 is to read:
Fences, if required, shall be located in such a way as to minimise their visual impact and shall be of post and wire or other materials which can be seen through. Council may vary this requirement where it is shown that such fencing may pose a hazard to native fauna. Obtrusive gateways, particularly of brick and masonry, shall not be constructed;
(b) The words '(including existing walks)' are to be removed from Clause 3.6.6(a)iii(a); and
(c) The Table of Uses Schedule is to be so altered in order that single dwellings are a discretionary use within the Landscape and Skyline Conservation zone."
"amendments bw2 and bw15
The hearing of representations to draft amendments to place quarry buffer areas (Buffer A and B) around the Mornington Quarry.
the decision:
The representations to Amendments BW2 and BW15 to the Eastern Shore Planning Scheme 1963 are upheld and the certified amendment is dismissed."
"amendment bw4 (part)
The hearing of representations to zone land on the eastern slopes of Glebe Hill between the 75 metre contour levels [sic] from Rural to Reserved Residential.
the decision:
The land on the eastern slopes of Glebe Hill between the 75 metre and 100 metre contour levels and as shown on the attached map may be rezoned from Rural to Reserved Residential."
"amendment bw4 (part)
The hearing of representations to rezone land at Glebe Hill from Rural to Landscape and Skyline Conservation zone.
the decision:
The Representation is dismissed and the land shall be zoned Landscape and Skyline Conservation."
"amendment bw4 (part)
The hearing of representations to zone land at 80 Tullah Road from Rural to Landscape and Skyline Conservation zone.
the decision:
The Representation is dismissed and the land shall be zoned Landscape and Skyline Conservation."
"amendment bw4 (part)
The hearing of representations to rezone 430 Rokeby Road from Rural to Landscape and Skyline Conservation.
the decision
The representation is upheld and the property at 430 Rokeby Road shall remain zoned Rural."
"amendment bw4 (part)
The hearing of representation to rezone 2.5 ha of land off Miros Drive and Merindah Street, Howrah from Rural to Reserved Residential.
the decision:
The representations are dismissed and the land shall remain zoned Rural."
"amendment bw4 (part)
The hearing of representations to zone land at 10 Monique Street from Residential D to Landscape and Conservation zone.
the decision:
The area shown on the attached plan shall be zoned Landscape and Skyline Conservation. The remainder of the site shall be zoned Residential D (Urban)."
"amendment bw4 (part)
The hearing of representations to zone land at 1 Monique Street from Residential D to Landscape and Conservation zone.
the decision:
The area designated on the attached map shall be zoned Landscape and Skyline Preservation. The remainder of the site shall be zoned Residential D (urban)."
"amendment bw5 (part)
The hearing of representations to rezone land a [sic] Yameda Place from Rural to Landscape and Skyline Conservation.
the decision:
The representation is dismissed and the land shall be zoned Landscape and Skyline Conservation zone."
"amendment bw5 [sic]
The hearing of representations to zone the Knopwood Hill State Recreation Area off the South Arm Highway from Public Open Space, Rural and Residential D (urban) to Passive Recreation.
the decision:
The representations against the rezoning are dismissed and draft amendment BW5 is to be finally approved in the form certified."
"amendment bw6
The rezoning of land situated at Mornington, east of Currajong Street from Rural to Reserved Residential.
the decision:
The certified amendment shall be finally approved."
"amendment bw7
The hearing of representations to rezone land (Mornington Quarry) from Rural to Extractive Industry.
the decision:
The representations against the rezoning are upheld and the certified amendment is dismissed."
"amendment bw8
The hearing of representations to rezone land at 50 Minno Street (formerly 10 Minno Street) from Rural and Residential D to Residential C and Landscape and Skyline Conservation zone.
the decision:
The representations are partially upheld in that the area already approved for a Residential D subdivision shall remain Residential D and the remainder of the site shall be zoned Landscape and Skyline Conservation."
"amendment bw9
The hearing of representations to rezone land at 100 Skyline Drive from Rural and Residential D to Landscape and Skyline Conservation zone.
the decision:
The land shall be rezoned Landscape and Skyline Conservation."
"amendment bw10
The rezoning of the Recreation Reserve between Skyline Drive and Zenith Court from Residential D (Urban) to Passive Recreation.
the decision:
The certified amendment shall be finally approved."
"amendment bw11
The rezoning of the Recreation Reserve which has frontage off Merindah Street from Residential D (Urban) to Passive Recreation.
the decision:
The certified amendment shall be finally approved."
"amendment bw12
The hearing of representations to zone land off Pass, Fitzgeralds, Old Coach and Rumney Roads, Corner Place and Houston Drive from Rural to Rural Residential.
the decision:
The representations are dismissed and the certified amendment is partially upheld except for the area to the south west, off Fitzgeralds Road, which will be zoned Landscape and Skyline Conservation."
"amendment bw13
This amendment involves the rezoning of land adjacent to 122A Mornington Road from Rural to Light Industry.
the decision:
The certified amendment is finally approved."
"amendment bw14
The rezoning of land situated at Rokeby Road, Howrah from Rural to Future Road.
the decision:
The certified amendment shall be finally approved."
It may be observed that there is no standard form in which the decisions appear to have been expressed, eg, in some cases representations are "upheld" or "dismissed" and in others, the "certified" (ie, the draft) amendment is "upheld" or "dismissed". In others, an appropriate rezoning is nominated, or the subject property is to "remain" as originally zoned, or the draft amendment "is to be" (or "shall be") (or "is") finally approved. However, in fairness I should also note in those cases in which a partial rezoning appears to have been approved (decisions Nos 8 and 9), attached plans (which I have not reproduced as part of these decisions) appear to clarify any ambiguity which the written word may suggest.
Specific attention must be drawn to the decision purportedly made in respect of Amendment BW9 (decision No 15). In the first place, the evidence suggests that "100 Skyline Drive" is a very imprecise identification of the property intended to be included in this amendment, regardless of whether or not that description was meant to refer to the whole of the M F Cas Pty Ltd land or only part of it (see for example the discussion at 380 of the transcript during the evidence of Michael Casey). From the map material placed before me, it is possible, indeed likely, that the BW9 designation was intended by those framing the draft amendment to include only that land owned by M F Cas Pty Ltd which had been previously approved for residential subdivision, but even this is far from clear.
What is certain is that the description of Amendment BW9 in decision No 15 as relating to "representations to rezone land at 100 Skyline Drive from Rural and Residential D to Landscape and Skyline Conservation zone" is far from accurate, if, by this, it was intended to convey that such a rezoning was the proposal actually contained in the draft Amendment BW9.
What is also certain is that Amendment BW9, as shown on various maps (not always accurately or consistently), was not a blanket proposal in respect of all M F Cas Pty Ltd land (viz, the 51.18 hectares previously referred to).
The authors of the decision have apparently attempted to clarify the position by stating at page 2 of decision No 15:
"council's position:
The Council's proposal, as certified, is to rezone the existing 6 hectares in the Residential D zone to an area of approximately 2.4 hectares as a Residential C zone with the balance of the Residential D and Rural zone changing to Landscape and Skyline Conservation zone. Council's subsequent response to the Representations received and in considering the proposed Buffer A and B areas around the Mornington Quarry resulted in Council recommending to the Panel that the Landscape and Skyline Conservation zone apply to the whole of the subject land."
The Panel's written reasons on this particular matter are detailed and extensive and references to those reasons were made by both Mr Bugg and Mr O'Farrell with a view to demonstrating that, although expressed to be a decision as to the BW9 draft amendment only, the Panel's delegates had really intended to deal with the whole of the M F Cas Pty Ltd land, ie, that contained within the BW9 proposal, as well as that contained within the BW4 proposal. It was pointed out that in its various decisions (seven in all) made in respect of various parts of the BW4 land, the Panel appeared to have made no decision at all in respect of the bulk of the M F Cas Pty Ltd land which had been included in the draft BW4 Amendment. Not surprisingly, perhaps, Mr Armstrong submitted that whilst illustrating confusion on the part of the Panel delegates, their failure to give a single decision in respect of all BW4 land and their piecemeal approach as manifested in decisions Nos 3 to 9 inclusive, suggested confusion and a lack of cohesion in the delegates' approach which, whilst not necessarily vitiating their decisions, did nothing to dispel the conclusion that they had simply omitted to make any effective determination in respect of rezoning such land belonging to M F Cas Pty Ltd as fell within the boundaries of the proposed BW4 Amendment. This, of course, is the substance of ground D of the general order which I will come to shortly.
The instrument of delegation by the Panel to Messrs Davis and Laughlin invested them with the powers and functions of the Panel under the LUPA Act, Pt3, Div2, with respect to the BW Series of draft amendments. On its face, this delegation includes the power to give final approval to a draft amendment which has proceeded through all preliminary steps, including public exhibition, public hearings and so on. Presumably, the delegation should not be construed as giving the delegates power to sign the finally approved amendment under s43(3)(a) as it stood at the relevant time. That section provided that this specific task must be performed by "the Chairperson of the Panel", ie, the Secretary of the Department (see the LUPA Act, s9(1)(a)), a statutory persona designata whose functions did not, and could not, come within the general instrument of delegation, as I see it.
In all other respects, however, the statutory functions and powers conferred upon the Panel by the LUPA Act, ss31 to 43 inclusive, were delegated to Messrs Davis and Laughlin and, unless and until, such delegation is validly withdrawn or exhausted, they are the only persons who can exercise those functions. As Mr Armstrong correctly pointed out, the delegates were not just acting in an advisory role to the Panel or for the purpose of making recommendations to the Panel. For all relevant purposes they were the Panel.
However, recognition of this distinction tends to undermine the very argument that Mr Armstrong advanced on these grounds, viz, that the delegates acted ultra vires in what they did or purported to do. He submitted that once the delegates had reached their conclusions and expressed those conclusions as a "decision", they exhausted the powers of the Panel and had no power to do anything more thereafter. This is really a "functus officio" argument and cannot succeed, in my view. Either the delegates performed their functions effectively and thereby exhausted their powers, or they failed to perform their functions and may either do so voluntarily unless prevented by, for example, the expiration of some relevant time limit or the existence of some other lawful impediment, or they may be compelled to do so by mandamus or, in appropriate circumstances, by certiorari.
The obligation of the delegates was to conduct a hearing in relation to each representation made in respect of the proposed amendments (LUPA Act, s40(2)), then, after considering the draft amendment, the representations, statements and recommendations contained in any s39(2) report, together with the material presented at any such hearing, the delegates had both the authority and the obligation to require the Council to modify or alter the draft amendments to a substantial degree or to approve or reject the draft amendment (LUPA Act, ss41(a) and (b) and 41A(1)).
It seems to me that in respect of those decisions which purported to reject (or "dismiss") or to finally approve proposed amendments, the delegates fulfilled their duty under ss41(b) and 42, but in respect of any draft amendment which required further modification or alteration before being finally approved or resubmitted to the public exhibition and hearing process, they did not do so because, in each of the latter circumstances, further steps had to be taken and, so far as the evidence permits me to so infer, it appears that such steps have not been taken in respect of BW9 and BW4.
Although it is clear enough what the delegates set out to achieve by announcing their decision in respect of BW1 (see ground J), they failed to follow the procedures for modification or alteration required by the Act. If their proposals for altering BW1 in its draft form constituted modifications not amounting to alterations to a substantial degree, their oversight in this respect could hardly invalidate the final approval which was given to the proposed amendment in June of this year. Mr Armstrong, however, contended that the decision to amend Schedule 2 constituted an alteration to a substantial degree. Comparing the Panel's proposed variations to the amendment with the originally proposed BW1 Amendment, I am unable to conclude that the Panel delegates were wrong to conclude, as I infer they did, that the variation which they were suggesting was a mere "modification" and did not constitute an "alteration to a substantial degree". The central thrust of the proposed BW1 Amendment was to significantly tighten development, especially building development, within the Landscape and Skyline Conservation zone. It seems to me that the final clause amending Schedule 2 (Table of Uses) was a logical, if not necessary, addition to give effectiveness to the general scheme apparent from the original proposal. Mr Armstrong argued that the original proposal only dealt with cl 3.6 of the Planning Scheme, whereas the change approved by the Panel involved an amendment to the Schedule. He submitted that this went beyond both a "modification" and an "alteration to a substantial degree". I do not accept that argument. In my opinion, the appropriate test to apply is to ask whether the actual effect of the changes proposed involve a minor or major alteration to the original proposal, and, according to this method of characterisation, the change will be a "modification" or an "alteration to a substantial degree". If the proposed change by the Panel is so radically different from the original that it includes or constitutes a totally new idea or concept, it cannot be saved or implemented by the provisions of the Act and must be put forward as a fresh amendment proposal (see Bernard Rothschild Pty Ltd v City of Melbourne (1982) 52 LGRA 442 at 446 - 447).
Accordingly, ground J has not been made out. It will be noted that ground J claims that the Panel's "decision" as to BW1 was ultra vires; it does not allege a breach of the rules of natural justice by the Panel in conducting its hearing or coming to its decision. As will be apparent from what I have said in dealing with grounds A and B, it could perhaps have been successfully contended that there was indeed a breach of natural justice which affected BW1, as well as BW9. However, no application was made by the prosecutor to broaden the grounds in this way.
This leaves for resolution the question whether the Panel delegates have effectively dealt with both the BW9 Amendments and the BW4 Amendments as required by the legislation. I have already referred to the ambiguities and uncertainties which arise from the way in which the delegates dealt with BW9 and BW4 in their published decisions. For reasons already discussed, I do not think it can be said that the decision in respect of BW9 was ultra vires as alleged in ground C(i). So far as ground D is concerned, that must be considered in light of what the Panel delegates said in their consideration of BW9. It must be remembered, of course, that none of these decisions is itself an act, process, or instrument recognised by the statute. The decisions are simply the delegates' written explanations of their understanding of their task and their reasons for determining to take one or other of the four possible courses of action provided for in the Act.
The Panel delegates have plainly not completed their statutory duties in such a way as to discharge or conclude their functions and obligations under the Act, but, consistently with what was said by Cox CJ at 4 - 5 in the Aquatas case, this does not ipso facto render their decision on BW9 ultra vires. Whether or not ground D succeeds (and I will return to that shortly), it seems to me that ground C(i) cannot. It was not argued, and it cannot be said, that the BW9 decision is unclear as to that M F Cas Pty Ltd land which is in fact embraced within the boundaries of the BW9 Amendment. Whatever else may be said of decision No 15, it is clear enough that the Panel determined that the land which was properly within that proposal should be rezoned as Landscape and Skyline Conservation. As I have already mentioned, there was a suggestion that the proposed amendment lacked clarity because of the manner in which it was depicted on the relevant maps, but I am far from satisfied that this provides a legitimate basis for holding that the Panel's decision is ambiguous, insofar as it purports to deal with the BW9 land. The boundaries of what is contained in the BW9 Amendment may be determined by survey or otherwise if the amendment ever gets into the Planning Scheme and there is a subsequent dispute as to the scope of its operation. In my opinion, the arguably inappropriate description of the BW9 land as "100 Skyline Drive" in the Panel's decision does not, of itself, invalidate the statutory processes which the Panel had been following. For these reasons, ground C(i) of the general order cannot be upheld, although, as I have already said, the BW9 proposal must, in effect, go back into the melting pot for further public hearing.
Consequently, although not upholding ground C(i) as drawn, it would have been appropriate to make an order directing the Panel to complete its statutory obligations were it not for the fact that I have already upheld grounds A and B which, themselves, vitiate the Panel's activities in respect of BW9 and require Amendment BW9, in its original form, to be the subject matter of further hearings by the Commission in accordance with the LUPA Act, s40 et seq. To achieve this purpose it may be necessary and appropriate to quash the Panel's determination, even though it is not, and does not, purport to be a final resolution of the BW9 approval process. It is also necessary and appropriate that such rehearing process should be conducted by a delegate or delegates of the Commission other than Messrs Davis and Laughlin. In any event, it is appropriate that such a rehearing should proceed in close conjunction with the rehearing of BW2 and BW15 as ordered by Zeeman J last year. With these considerations in mind, it is apparent that any order of a kind which, in theory, was possible under ground C(i) could not sensibly be made, even if ground C(i) had been upheld.
Turning therefore to ground D, I note that my determination that (leaving aside grounds A and B), the Panel's decision No 15 was an effective determination of relevant issues relating to the BW9 Amendment, does not necessarily lead to the conclusion that the same can be said in relation to BW4. As I have pointed out, decision No 15 may have been intended by the Panel to cover all of the M F Cas Pty Ltd land. However, the Panel's obligation was to approve, reject, modify or alter to a substantial degree, specific amendments placed before it for consideration. I am not fully persuaded by Mr Montgomery's evidence that he did not appreciate that the Panel's intention was to deal with the whole of the M F Cas Pty Ltd land in decision No15, but this is not the issue as I see it. The central issue is whether or not the published decision shows that the Panel has performed its duty. I have reread decision No 15 carefully. Whilst it undoubtedly takes into account matters which relate to both the BW9 land and the BW4 land, the method of approach and its expressed decision can lead only to the conclusion that decision No15 is fraught with ambiguity to such an extent that it cannot be positively concluded that the Panel has performed any part of its statutory duty in relation to the M F Cas Pty Ltd land within BW4, other than the obligation to hold a public hearing. I find that ground D has been sustained. A nice question thus arises as to what consequential order should be made.
If I had amended grounds A and B as sought by Mr Armstrong on 24 June 1998, the words "and draft amendment BW4" would have been added after the words "draft amendment BW9" appearing in both grounds and both BW4 and BW9 would have been included in the order which I have proposed in respect of grounds A and B. That amendment was not made. Nonetheless, it seems to me inevitable that insofar as the BW4 Amendment relates to M F Cas Pty Ltd land, it will have to be reconsidered with BW2, BW15 and BW9 if justice is to be done to the prosecutor. It would be plainly inappropriate to direct or permit the Panel to take steps to finally approve or reject the proposed amendment in respect of BW4 whilst remitting BW9 for a full rehearing.
The Panel made several decisions as to discrete parts of BW4 which have not been directly challenged by property owners or other interested parties. I can see no reason why those decisions should be overturned or placed in jeopardy. I am not persuaded that BW4, as a whole, should go back for redetermination by a fresh delegate or delegates of the Commission, but I think that that is the only sensible course to follow in respect of the BW4 land owned by M F Cas Pty Ltd, having regard to the following facts, (a) that BW2, BW15 and BW9 must all be dealt with in this way, and (b) that the issues affecting BW2, BW15, BW9 and the M F Cas Pty Ltd component of BW4, are so inextricably intertwined that it is almost impossible to conceive of new delegates of the Commission being able to effectively deal with BW2, BW15 and BW9 without also considering the impact of rezoning those areas upon the M F Cas Pty Ltd land which falls within BW4. As previously mentioned, the M F Cas Pty Ltd land in BW4 is wholly within proposed Quarry Buffer zone B. As I have been unable to find that the Panel has made any effective decision in respect of BW4, it is appropriate that I direct that the Commission, constituted by delegates other than Messrs Davis and Laughlin, rehear the BW4 Amendment proposals in respect of such part of the M F Cas Pty Ltd land as lies within the boundaries of that amendment.
Ground C(ii), (iii), (iv) and (v)
In its decision No 15, the Panel made the following observations:
"relevant considerations:
The following issues in our opinion are pertinent to the decision:
1 The subject land forms an integral part of the Howrah Hills area over which a number of fauna, flora and landscape studies have been conducted. The studies found that the Hills are ecologically important on a local and regional level and provide an important visual backdrop for local and metropolitan vistas. The Council, in conjunction with a large degree of community support, have proposed a number of planning amendments which will give the Hills protection from large scale urban development and, what development is allowed, will be controlled. This particular amendment (BW9) forms an integral part of the amendments which give further conservation protection to the Howrah Hills.
2 Representatives from M F Cas Pty Ltd raised the issue that Council's decision to rezone the site to Landscape and Skyline Conservation not being representative of the wider community's wishes. Nevertheless, we recognise that Council is representative of the community and its values and this argument is about the value of retaining bushland development. Council has been very clear about its wishes and even for they acted against the recommendations of their professional staff and the likely impact upon the land owners. One of the Acts Objectives l(c) clearly encourages the public to participate in the decision making process and a number of people have elected to submit their views to the Panel in order to stop any development on-me site.
3 We consider the area subject to development (current Residential D) does not have a high conservation value but recognise that it is valued by the community as an important piece of urban bushland, with its own set of intrinsic values.
4 We consider the site can be adequately serviced by the existing water and sewer infrastructure. Council representatives did not refute this.
5 Several representors submitted that the site, and in particular the proposed development area, forms an important element of the ecology of the Howrah Hills. We believe that development of the site will effect the ecology of the total site but to what degree is unknown and thus we intend to recognise the precautionary principle and err on the side of caution in this matter. The burden of proof is placed on the development to demonstrate that it is sustainable and we are not satisfied that this has occurred. In our opinion the effects of urban development will extend up into the generally recognised sensitive areas if the 6 hectares are permitted to be developed.
6 Although we are sympathetic to the economic concerns of the owner we are not prepared to agree to a Residential C zoning, as requested by the owner without appropriate controls in place, such as those recommended in the Howrah Hills Plan. As such controls have not been through the appropriate process we believe we would be exceeding our authority to incorporate them into an amendment. With regard to protecting the bushland through placing covenants on titles we refer to an earlier Panel decision:
'Fundamentally to plan an area through extensive covenants on titles is not seen as an appropriate response to resolve a lack of land capability and suitability for the intended zoning and density'.
7 We do not accept the owner's argument that development of the site can be justified because part of the site has been degraded.
8 We are aware that Council granted subdivision approval over part of the site which was ultimately overturned by a Supreme Court decision. However the Council, in a relatively short period of time, has changed its attitude towards the development potential of the site. In light of the history and unique circumstances associated with this matter, it is regrettable that Council has not taken the initiative and, in conjunction with the owner, developed possible alternative management arrangements. In our opinion this is an issue which needs resolving. This is particularly so as there are no compensation provisions in the Act which can be applied
9 The Panel, in conjunction with the Tasmanian Fire Service, have issued a Draft Planning Note on Bushfire Hazard Minimization Planning. Even though the Note is in draft form several important guidelines are recognised. Bushfire prone areas are defined as land with any forest vegetation type, greater than one hectare in extent or any land within 100 metres of any bushfire prone areas. The bushfire hazard is also classified by slope with bushfire prone land having a slope of between 0° and 15° being rated as a Moderate hazard, and land with a slope greater than 15° is rated as a High hazard. Based on these criteria the, site would be classified as having a Moderate to High bushfire hazard status which would require a range of passive and active fire management measures, including extensive clearing of bushland. This would further degrade the bushland values of the site.
10 Evidence from Mineral Resources indicated that a residential zoning over the site would be inappropriate in an area where excessive ground vibration is predicted to occur from the Mornington Quarry.
11The provisions of the Act [s20(d)] state that a planning scheme must have regard to Council's strategic plan. The goals of the strategic plan include:
·to ensure the preservation and enhancement of natural environments heritage assets and community amenity;
·to maintain the rich diversity of available lifestyles inherent in a mix of urban and rural land uses within the City;
·a well planned City that provides for and encourages harmonious and sustainable economic, social, environmental and recreational use of land,
·to ensure supporting social and physical infrastructure for the benefit of the community; and
·stimulate economic activity, sustainable development and employment growth within the city.
We believe the proposed amendment supports the above goals and objectives. It could be argued that development of the site will stimulate economic activity within the City but we note Clarence is well endowed with a range of land types in less environmentally sensitive areas which are suitable for residential development.
12 The issue of the rights of the individual versus the community is an important one and generally creates tension between the two but in the end land use planning as per its historical roots must be for the benefit of the community and the creation of a sustainable environment. A great deal of weight has been placed on the argument that because part of the site has an existing Residential D zoning it should not be changed. However, in our opinion, in accordance with the Objectives of the Act, changing community standards and expectations and an improvement in planning knowledge the site today would not be zoned for residential development. Some of the reasons for this are:
·the characteristics of the site make it a potential bushfire prone area;
·urban bushland around Australia is being recognised as an important community and environmental resource which should be protected;
·the high population growth rates experienced in the 1960s and early 1970s and expectations of needing large amounts of residential land have not been met with the result that large amounts of residentially zoned land is being rezoned for other purposes;
·the Mornington Quarry is an important economic community resource which needs to be protected but the influence of its operations extend into this site;
·access to the site will not be in accordance with the recognised standards established in AMCORD;
·development of the site will have some impact on the environmentally sensitive area at the head of the gully and to some degree on the visual landscape. Removal of vegetation as part of a bushfire management regime will exacerbate the effect."
The Panel then went on to consider the objectives of the LUPA Act and concluded:
"In essence, we believe the objectives and provisions of the Act clearly state there is no reason why land should not be rezoned to further the Objectives of the Act, even though an actual or potential economic loss may be sustained by a property owner.
Objective (Part 1, 1(e):
to promote the sharing of responsibility for resource management and planning between different spheres of Government, the community and industry in the State,
I agree with Stephen J's approach and propose to adopt a similar approach in the present case."
Deane J's approach was not endorsed by the three other judges who dealt with the acquisition issue in the Dam's case. At 145 - 146, Mason J said:
"The emphasis in s 51(xxxi) is not on a 'taking' of private property but on the acquisition of property for purposes of the Commonwealth. To bring the Constitutional provision into play it is not enough that legislation adversely affects or terminates a pre-existing right that an owner enjoys in relation to his property; there must be an acquisition whereby the Commonwealth or another acquires an interest in property, however slight or insubstantial it may be. The effect of s 51(xxxi) was correctly stated by Dixon J in Bank of NSW v The Commonwealth ('the Banks Case') (1948), 76 CLR 1, at p349:
'I take Minister of State for the Army v Dalziel ((1944), 68 CLR 261) to mean that s 51(xxxi) is not to be confined pedantically to the taking of title by the Commonwealth to some specific estate or interest in land recognized at law or in equity and to some specific form of property in a chattel or chose in action similarly recognized, but that it extends to innominate and anomalous interests and includes the assumption and indefinite continuance of exclusive possession and control for the purposes of the Commonwealth of any subject of property. Section 51(xxxi.) serves a double purpose. It provides the Commonwealth Parliament with a legislative power of acquiring property: at the same time as a condition upon the exercise of the power it provides the individual or the State, affected with a protection against governmental interferences with his proprietary rights without just recompense. In both aspects consistency with the principles upon which constitutional provisions are interpreted and applied demands that the paragraph should be given as full and flexible an operation as will cover the objects it was designed to effect.'
See also Minister of State for the Army v Dalziel (1944), 68 CLR 261, at pp 276-277, 284-286, 290-291, 299-300.
The effect of s 9, and perhaps to a lesser extent, of ss 10 and 11, is to prevent any development of the property in question, subject to the Minister's consent, so as to preserve its character as a wilderness area. Section 13(1), which compels the Minister to have regard only to the protection, conservation and presentation of the property, applies only to consents under s 9. In terms of its potential for use, the property is sterilized, in much the same way as a park which is dedicated to public purposes or vested in trustees for public purposes, subject, of course, to such use or development as may attract the consent of the Minister. In this sense, the property is 'dedicated' or devoted to uses, that is, protection and conservation which, by virtue of Australia's adoption of the Convention and the legislation, have become purposes of the Commonwealth. However, what is important in the present context is that neither the Commonwealth nor anyone else acquires by virtue of the legislation a proprietary interest of any kind in the property. The power of the Minister to refuse consent under the section is merely a power of veto. He cannot positively authorize the doing of acts on the property. As the State remains in all respects the owner the consent of the Minister does not overcome or override an absence of consent by the State in its capacity as owner. The fact that the Minister has a power of veto of any development of or activity on the property does not amount to a vesting of possession in the Commonwealth. Significantly, the Act contains no provision dealing with possession."
Similar views to those expressed by Mason J were also expressed by Murphy J at 181 - 182 and Brennan J at 246 - 248.
I am in little doubt that, despite the significant restrictions which would be placed upon the whole of the prosecutor's land by the incorporation of the proposed Amendments BW1, BW4 and BW9 into the Eastern Shore Planning Scheme, that process would not constitute an acquisition or confiscation of that land in any relevant sense. A fortiori the published decision of the Panel complained of in ground C(vi) would not, and does not, per se constitute confiscation or extinguishment of valuable property interests without compensation in the absence of which the Panel's decision must be regarded as ultra vires as claimed in this ground. Thus, ground C(vi) fails.
Grounds E and F
These grounds were as follows:
"(E)The exhibition under the Land Use Planning and Approvals Act 1993, Section 38 (a) (ii) of the draft BW Series amendments to the Eastern Shore Planning Scheme 1963 did not, or did not sufficiently,
(i) Describe the content of the said amendments,
(ii) Describe the location of the affected area.
(iii) Contain a statement advising of the right of any person to make representations in accordance with the Land Use Planning and Approvals Act 1993, Section 39 (i),
contrary to the Land Use Planning and Approvals Regulations 1993, Regulation 6 (e) and Regulation 6 (f).
(F)The exhibition under the Land Use Planning and Approvals Act 1993, Section 38 (a) (ii) of the draft BW Series amendments to the Eastern Short Planning Scheme 1963 was not lawfully carried out in that the exhibition advertised in a daily newspaper circulating generally in the area was not served on adjoining property owners and occupiers, contrary to the Land Use Planning and Approvals Regulations 1993, Regulation 6 (c)."
It is necessary to consider these grounds, notwithstanding the conclusions which I have reached on grounds A, B and D, because my proposal, based upon those grounds, is that Amendments BW9 and BW4 (in part) must go back to the Commission or its delegates for a fresh hearing. However, if grounds E and F are upheld, the amendment process will have to go back at least to the public exhibition stage before it can be effectively resurrected.
Before dealing with the substance of Ground E, some preliminary observations must be made. Ground E is founded upon the exhibition requirements provided for in the LUPA Act, s38(a)(ii). That section, as it stood at the relevant time, was as follows:
"38 — Where the Panel gives notice under section 36 (4) (a), (4) (b) (i) or (7) directing the public exhibition of a draft amendment —
(a) the planning authority must —
(i) within 3 weeks from the date on which notice is given by the Panel or such longer period as the Panel may allow, cause a copy of the draft amendment to be placed on public exhibition for a period, being not less than 3 weeks and not more than 2 months; and
(ii) advertise, as prescribed, the exhibition of the draft amendment; and
(b) the Panel must cause a copy of the draft amendment to be placed on public exhibition at its office for that period."
It will be noted that s38(a) imposed requirements upon the "planning authority", in this case, the Clarence Council. Those requirements were not imposed on the Panel. The Panel's obligations were dealt with in s38(b). Section 87(2)(a) enabled regulations to be made by the Governor in relation to "procedures to be adopted by the Panel". No specific statutory power to regulate procedures by the planning authority were conferred on the Governor by the Act, except for those contained in s38(a)(ii). Is this a case of expressio unius est exclusio alteirus? I think it is, but, in any event, the general regulation making powers conferred by s87 do not appear to me to be sufficiently wide to support the regulations which were made in 1993 and were relied upon by the prosecutor to support its case. I refer to the Land Use Planning and Approvals Regulations 1993, Statutory Rule No 262 of 1993, reg6 of which is in the following terms:
"Advertisement of exhibition of draft amendment
6 — The exhibition under section 38 (a) (ii) of the Act of a draft amendment is to —
(a) be advertised in a daily newspaper circulating generally in the area; and
(b) be displayed at the planning authority's office; and
(c) if the draft amendment relates to a specific site, be served on any adjoining property owners and occupiers; and
(d) specify the places at which the draft amendment may be inspected; and
(e) describe the content of the planning scheme amendment and the location of the affected area; and
(f) contain a statement advising of the right of any person to make representations in accordance with section 39 (1) of the Act; and
(g) contain any other details determined by the planning authority."
The heading of this regulation suggests that it relates to the "advertisement" of the exhibition of the draft amendment, but in its terms the regulation purports to prescribe procedures, not only in relation to the advertising process, but also in relation to the exhibition itself. There is no mandate which I can see in the Act to justify the exercise of such wide regulatory power. Section 38(a)(ii) requires the planning authority (Council) to advertise the exhibition of the draft amendment in such manner as may be prescribed, but the Act contains no authority, either in s38 or elsewhere, for the Governor to make regulations in respect of the exhibition process itself.
Regulation 6 fails completely to acknowledge the distinction between advertising the exhibition and the exhibition itself. In terms, reg6 relates to the exhibition process, although in reg6(a), it deals with the advertising. In my view, it is only reg6(a) which relates clearly and specifically to advertising, although it may be surmised that reg6(d), (e) and (f) were also intended to do so. Quite apart from the matters already discussed, reg6(g) seems to be a clear breach of the principle delegatus non potest delegare. Regulation 6(b) can only sensibly apply to the exhibition process itself and for the reasons already expressed, must be ultra vires. Regulation 6(c) appears to relate to service of notice, rather than advertising as such. Strangely, reg6(a) says nothing about the number of insertions or the period of time over which the advertisements are to be placed in the newspaper. Without such provisions, reg6(a) seems to me to be practically useless.
The many deficiencies and ambiguities in reg6 which I have identified, make it a fragile foundation upon which to support any of the prosecutor's arguments. It is plain that reg6 and probably some of the other regulations contained in Statutory Rule No 262 of 1993, require radical overhaul and redrafting. The prosecutor's arguments were based squarely upon the requirements of reg6(e) and (f) but, in my opinion, those regulations are void. In specific terms they relate to the "exhibition". The exhibition is referred to as "the exhibition under s38(a)(ii)". Section 38(a)(ii) deals not with the exhibition, but the advertising of the exhibition. These factors and the other deficiencies and ambiguities previously referred to cause me to conclude that reg6, with the exception only of par(a), is void either for ambiguity and uncertainty or for constituting an attempt to exercise non-existent regulatory power. On this basis, ground E cannot succeed.
Ground F
This ground is as follows:
"(F)The exhibition under the Land Use Planning and Approvals Act 1993, Section 38 (a) (ii) of the draft BW Series amendments to the Eastern Short Planning Scheme 1963 was not lawfully carried out in that the exhibition advertised in a daily newspaper circulating generally in the area was not served on adjoining property owners and occupiers, contrary to the Land Use Planning and Approvals Regulations 1993, Regulation 6 (c)."
It may be dealt with shortly. In my opinion, reg6(c) is void for reasons already expressed above. I do not think that service of notice upon adjoining property owners is encompassed by the concept of "advertising". Regulation 6(c) is a requirement to give notice to specific individuals. The absurdity of this requirement was pretty clearly demonstrated by Mr Armstrong's argument that service had to be effected upon the relevant public authority administering the roads and highways running through the BW Amendment area.
However, my rejection of reg6(c) as a basis for upholding ground F does not rely upon these considerations alone. As I have already observed, reg6(c) relates to "service" but the question remains, service of what? In literal, albeit ungrammatical, terms, reg6(c) requires that if the draft amendment relates to "a specific site", the adjoining property owners and occupiers must be served with "the exhibition".
One may ask, did the proposed BW Series of Amendments relate to a specific site? Collectively they covered a very considerable area consisting, in the main, of dense suburban residential development. It will be noted that reg6(c) relates to "adjoining" sites, not sites within the zone, the amendment of which is being proposed. Should one look at the BW series as one site or many? Did each separately designated amendment, eg, BW4, BW5, BW6 and so on, constitute a separate site? I find these questions impossible to answer, yet these are important distinctions which it is necessary to make because Mr Armstrong argued that adjoining owners and occupiers had not been served with anything and that therefore the advertising and exhibition process was fatally flawed. Obviously "adjoining owners and occupiers" will be different if one regards the omnibus collection of BW Amendments as one site, rather than regarding each single BW Amendment as a separate site. One is also entitled to ask, how do you serve "an exhibition"? An exhibition is a process not a document. Documents may constitute the whole or part of an exhibition but they are not "the" exhibition. In any event, what must be served? — the original documents or copies? — a list of documents, perhaps?
In my opinion, it was not the advertising and exhibition process which was flawed, but the regulation itself. It seems to me that the Act itself clearly spells out the processes required for planning scheme amendment. Only the advertising processes required are left for further regulation. One would expect this to be a fairly simple requirement to fulfil. The proposed changes to the scheme should obviously be given wide publicity. The time honoured way of giving public notice is by newspaper advertisement. The public could hardly expect to be acquainted in full detail by an advertisement with what may be highly technical and detailed proposals. The Act therefore requires the proposals to be open to public inspection at the Council offices — a practical and sensible course which one might expect. To hedge the process around with some of the requirements which reg6 tries to impose, is to court disaster by exposing the amending process to unmeritorious challenge for relatively minor non-compliance.
The planning scheme amendment process now in question is very different from the development proposal in relation to individual units and the requirement to notify abutting owners, dealt with by the South Australian Full Court in R v South Australian Planning Commission; Ex p City of Unley (1986) 44 SASR 100. In that case, the decision that a failure to notify abutting owners constituted breach of a mandatory requirement and vitiated the consent of the planning authority is not surprising, nor, in the circumstances, was the decision that the local council should have been served with notice. That case, however, has no direct application in the circumstances of the present case. In my opinion, ground F fails.
Grounds G, H and I
These grounds are as follows:
"(G)There was procedural unfairness in that Clarence City Council did not afford to the applicant a reasonable opportunity to respond to the intention of Clarence City Council to recommend to the Land Use Planning Review Panel pursuant to the Land Use Planning and Approvals Act 1993, Section 39 (ii), that the whole of the area covered by draft amendment BW9 to the Eastern Shore Planning Scheme 1963 at the northern end of Skyline Drive be rezoned to Landscape and Skyline Conservation.
(H)There was procedural unfairness in that the Land Use Planning Review Panel in its hearings of the draft BW Series of amendments to the Eastern Shore Planning Scheme 1963 failed to prescribe a procedure which gave reasonable notice to affected persons of the issues to be raised and the evidence to be presented by other persons at the hearings, thereby denying an opportunity for affected persons to make an appropriate response.
(I)There was procedural unfairness and a denial of natural justice in the decision of the Land Use Planning Review Panel to delegate to two different delegates the Panel's functions and powers under the Land Use Planning and Approvals Act 1993, Part 3, Division 2 in respect of different parts of the draft BW Series amendments to the Eastern Shore Planning Scheme 1963."
I have already decided that BW9 and BW4 (insofar as it deals with M F Cas Pty Ltd land) must be reheard by the Commission or its delegates. Notice of what the Council was or was not proposing (ground G), although involving alleged deficiencies by the Council, rather than the Panel, could not produce a better result for the prosecutor. M F Cas Pty Ltd and its advisers now have ample notice of the Council's recommendations and proposals. Since the hearing of this matter, there can be no doubt where the Council currently stands in relation to BW1, BW9 and BW4. By these comments I do not mean to imply a finding that the prosecutor did not have notice of the Council's position at any relevant time.
The procedures of the Panel (which, I must say, I have not been persuaded were inadequate or inappropriate) will not be of significance hereafter. The proposals for amendment will be reheard by the Commission or its delegates. At that rehearing, different procedures may be adopted. This remains to be seen.
Ground H, if successful, could not produce better results for the prosecutor in relation to BW9 and BW4 than those already achieved. In terms, ground H is wide enough to cover all the BW Series of Amendments, and Mr Armstrong relied upon it as a basis for challenging the entirety of the hearings held by the Panel delegates. He also argued that it was a ground which would justify a fresh hearing in respect of BW1, as well as BW9 and BW4. The procedural unfairness alleged consists of a failure to "prescribe" an appropriate "procedure" for the hearings but, as the case was presented, I understood Mr Armstrong was really complaining that representors and, in particular, his clients, did not have an appropriate opportunity to become aware of and respond to various proposals made during the hearing process which may have affected the Panel's assessment of land in respect of which the representor had an interest. I reject the proposition that the mere possibility that some unidentified representor may have been deprived of such an opportunity, constitutes a sufficient basis for overturning all of the BW decisions and remitting them for rehearing before the Commission or its delegates.
Insofar as M F Cas Pty Ltd is concerned, it is clear from the evidence of Mr Michael Casey, the Commission's executive officer, and clerk to the Panel at the relevant times, that representatives of M F Cas Pty Ltd were present when the prospect of expanding BW1 to include an amendment to the Table of Uses in Schedule 2 was raised and discussed before the Panel. I accept Mr Casey's evidence as to this. It is also clear from Mr Casey's evidence that the possibility of taking this course was raised by M F Cas Pty Ltd's own witness, Mr Brownlie, during his evidence to the Panel, albeit that M F Cas Pty Ltd's representatives did not support that proposal by Mr Brownlie. In my opinion, there was no procedural unfairness so far as M F Cas Pty Ltd was concerned and this particular complaint of procedural unfairness in respect of BW1 cannot avail the prosecutor as a mechanism to impugn BW1 and expose it to a rehearing.
I had difficulty in understanding Ground I as it was drawn and I must confess that that difficulty has not lessened as a result of hearing and rereading Mr Armstrong's submissions. All I can say is that I can see no objection to the Commission or its delegates dealing with the rehearing of Amendments BW9 and BW4 (in part), as well as BW2 and BW15, either at the same time or in some other sequence. It is inconceivable to me that these tasks may be allocated to separate delegates, but ultimately that will be for the Commission to decide.
Conclusion
It remains to consider how my discretion should be exercised. I have already indicated in general terms that BW9 and BW4 (insofar as it includes or relates to land owned by M F Cas Pty Ltd), must be reheard. In passing, I have also indicated that the Commission may need to take further steps to implement the Panel's other decisions so as to translate those decisions into one or other of the statutory determinations envisaged by the Act and to convert those determinations into full blown planning scheme amendments. It seems to me that there is little room for exercising a discretion adversely to the prosecutor consistently with the decision of the Full Court in R v Minister for Sea Fisheries; ex p National Australia Bank (1991) Tas R 70. Despite Mr Bugg's submissions to the contrary, I am unable to find that there has been conduct by the prosecutor by way of delay or otherwise which is of a disentitling character.
To give effect to the views which I have expressed, I think that a writ of mandamus should be issued directing the Resource Planning and Development Commission to rehear and determine draft Amendments BW9 and BW4 (insofar as BW4 includes or relates to land owned by M F Cas Pty Ltd).
For reasons already discussed, I am doubtful whether a writ of certiorari is the appropriate remedy in respect of Amendment BW9 as sought in par1(a) (as amended) of the general order to show cause granted by Underwood J on 10 December 1997.
An alternative method of approach may be to decline to grant prerogative relief as such and to make declaratory orders (see Ainsworth v Criminal Justice Commission (1991 - 1992) 175 CLR 564 at 580 and The Laws of Australia, Vol 2, Administrative Law, s2.6, Remedies in Judicial Review, especially pars112 and 119). These possibilities were not adverted to by counsel during the hearing and may require further discussion.
Before formally pronouncing orders, I will invite further submissions from counsel as to the form which such orders should take.
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