Sorell Council v State of Tasmania
[2004] TASSC 46
•21 May 2004
[2004] TASSC 46
CITATION: Sorell Council v State of Tasmania[2004] TASSC 46
PARTIES: SORELL COUNCIL
v
STATE OF TASMANIA
LANGLEY, Gregory John
LANGLEY, Helen Teresa
CALVERT, Harvey Brian
CALVERT, Jill Elizabeth
CALVERT, James Geoffrey
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 644/2003
DELIVERED ON: 21 May 2004
DELIVERED AT: Hobart
HEARING DATES: 4 – 6 May 2004
JUDGMENT OF: Blow J
CATCHWORDS:
Environment and Planning – Pollution – Water pollution – Other matters – State Policy on Water Quality Management 1997 (Tas) – Determination of "protected environmental values" - validity.
State Policy on Water Quality Management 1997 (Tas), cl 10.2.
Aust Dig Environment and Planning [398]
Primary Industry – Fish – Management plans – Validity – Recital of invalid determination of "protected environmental values".
Marine Farming Planning Act 1995 (Tas), ss21(1)(ga), 31(3)(a).
Aust Dig Primary Industry [24]
REPRESENTATION:
Counsel:
Plaintiff: M E O'Farrell
First Defendant: T J Ellis SC
Other Defendants: A C R Spence and C A Scott
Solicitors:
Plaintiff: Murdoch Clarke
First Defendant: Director of Public Prosecutions
Other Defendants: Page Seager
Judgment Number: [2004] TASSC 46
Number of Paragraphs: 46
Serial No 46/2004
File No 644/2003
SORELL COUNCIL v STATE OF TASMANIA,
GREGORY JOHN LANGLEY, HELEN TERESA LANGLEY,
HARVEY BRIAN CALVERT, JILL ELIZABETH CALVERT,
JAMES GEOFFREY CALVERT
REASONS FOR JUDGMENT BLOW J
21 May 2004
This is an action for declaratory relief. The plaintiff council is opposed to marine farming in an area of water that was referred to during the trial as Lower Pitt Water and also as Southern Pitt Water. The area in question comprises that part of the Pitt Water estuary lying on the seaward side of the causeways that carry the Tasman Highway to Midway Point and Sorell. It extends to the mouth of the estuary. On 16 April 2003 the Minister for Primary Industries Water and Environment, in pursuance or purported pursuance of the Marine Farming Planning Act 1995, s31(3)(a), gave final approval to the Marine Farming Development Plan Pitt Water June 2001 ("the Plan"). It provides inter alia for marine farming in Lower Pitt Water. The plaintiff council contends that the Minister's approval was ultra vires that Act, and that the Plan is a nullity. Clause 3.11 of the Plan sets out a list of "protected environmental values" said to have been prescribed under the State Policy on Water Quality Management 1997 ("the State Policy"). It appears from the pleadings that it is common ground that the Board of Environmental Management and Pollution Control ("the Board") determined the "protected environmental values" that appear in cl 3.11 without the agreement of the plaintiff. The plaintiff contends that that determination by the Board was ultra vires the State Policy.
Protected environmental values
The State Policy was made pursuant to the State Policies and Projects Act 1993. It came into force on 27 September 1998. It was amended on 21 July 2000 and 20 June 2003. For the purposes of this case, it is necessary to consider the policy as it was worded between those two dates.
The provisions of the State Policy as to "protected environmental values" require careful explanation. In my view they are not easily comprehensible. There appear to be underlying premises that water quality should ordinarily be preserved, that water quality should be improved where practicable, and that the uses made of a body of water are indicators of its water quality. For the purpose of preserving and improving water quality in specific bodies of water, the State Policy requires the identification of certain attributes and uses of bodies of water to which it applies. Those attributes and uses are referred to in the State Policy as "protected environmental values". A list of the relevant "protected environmental values" appears in cl 7 of the State Policy. It is a fairly short list. No doubt bodies of water can have other attributes and other uses. Clause 10.2 of the State Policy provided for determinations to be made as to the "protected environmental values" for bodies of water. Determinations under cl 10.2 could only be made by the Board reaching agreement with one or more other authorities. A determination under cl 10.2 was a determination that a particular body of water had particular attributes and/or uses that appear in the list in cl 7, and that the relevant body of water should be protected for the purpose of each "protected environmental value" (ie, each attribute or use) mentioned in the determination.
The definition of "protected environmental value" in cl 4.1 of the State Policy reads as follows:
"'protected environmental value': | means the value or use for which it has been determined that a given area of the environment should be protected. There can, and often will be, more than one protected environmental value for a given area. A list of potential protected environmental values is given in clause 7.1." |
Clause 7 of State Policy, which sets out the list of potential "protected environmental values" read as follows at all material times:
"7 Protected environmental values
7. 1
Protected environmental values are values or uses of the environment for which it has been determined that a given area of the environment should be protected. Water quality objectives may be set for surface waters and groundwaters in Tasmania by determining which of the following protected environmental values should apply to each body of water.
AProtection of Aquatic Ecosystems
(i) Pristine or nearly pristine ecosystems
(ii) Modified (not pristine) ecosystems
(a)from which edible fish, crustacea and shellfish are harvested
(b)from which edible fish, crustacea and shellfish are not harvested
BRecreational Water Quality and Aesthetics
(i) Primary contact
(ii) Secondary contact
(iii) Aesthetics only
CRaw Water for Drinking Water Supply
(i) Subject to coarse screening only
(ii) Subject to coarse screening plus disinfection
DAgricultural Water Uses
(i) Irrigation
(ii) Stock watering
EIndustrial Water Supply
The specific industry type for which the water is to be used must be specified to identify appropriate guidelines.
(Australian Water Quality Guidelines for Fresh and Marine Waters, ANZECC, 1994.)"
Items B(i) and B(ii) in that list can be understood by reference to the following definitions in cl 4.1:
| "'primary contact recreation': … | means recreation involving bodily immersion or submersion where there is direct contact with water and includes activities such as swimming, diving, water skiing and surfing. (National Health and Medical Research Council). |
'secondary contact recreation': | means activities in which there is likely to be some direct contact with water, but where it is unlikely that water will be swallowed, and includes paddling, washing, boating and fishing (National Health and Medical Research Council)." |
The procedures for determining "protected environmental values" are set out in cl 10, which read as follows at all material times:
"10 Determining protected environmental values
10.1
Consistent with the purpose of the Policy to protect or enhance water quality, the protected environmental values for specific bodies of water, segments of the coast, and groundwaters will be those values and uses listed in clause 7 which exist in respect of those waters at the time that this Policy comes into operation.
10.2
The values and uses referred to in clause 10.1 will be determined by agreement between the Board, the planning authorities with jurisdiction over those waters, and, where relevant, the water management authorities with jurisdiction over those waters, provided that the Board has taken all reasonable measures to consult other agencies and organisations having an interest in the body of water or groundwater aquifer about the existing protected environmental values, and has taken account of these views.
10.3
If agreement cannot be reached between the authorities referred to in clause 10.2, the matters in dispute will be determined by the Land Use Planning Review Panel.
10.4 Deleted 21/7/2000.
10.5
All planning schemes and equivalent planning instruments shall identify the protected environmental values for specific bodies of water, segments of the coast, and groundwaters within five years of the Policy coming into operation. The protected environmental values shall be designated or reviewed through a catchment-based consultative process."
A determination that certain values and uses were to be the "protected environmental values" for a specific body of water was not just a determination as to the situation that existed when the State Policy was made, as contemplated by cl 10.1. Because of the first sentence of cl 7.1 and the definition of "protected environmental values" that I have quoted above, a determination that a given area was to have certain "protected environmental values" was a determination that that area should be protected for those "protected environmental values", ie, for the attributes and/or uses specified in the determination.
There is and was no provision in the State Policy as to the effect or consequences of a determination under cl 10. There is nothing in the State Policies and Projects Act as to the effect or consequences of a determination made in pursuance of a State Policy. That Act contains, in s13, certain provisions as to inconsistencies between State Policies and planning schemes, interim orders, and special planning orders, but none of those provisions is of any present relevance. Apart from those provisions, the only provision in that Act as to the consequences or effect of a State Policy is s13(3B), which reads as follows:
"(3B) A State Policy may be implemented by any means available to the Crown."
The result of all this is that, unless the provisions of s13 relevant to planning schemes, interim orders and special planning orders are applicable, the making of a determination under cl 10 gains from the State Policies and Projects Act no greater status than that of an expression of policy which decision-makers, or decision-making bodies, exercising statutory power may, or sometimes should, take into account.
The only other statutory provision of present relevance that affects the status of a determination under cl 10 is to be found in the Marine Farming Planning Act, s21(1)(ga), which provides that "A draft marine farming development plan for an area must … be consistent with State Policies made under section 11 of the State Policies and Projects Act 1993". That paragraph was introduced by an amending Act which commenced on 19 September 2001.
The Marine Farming Planning Act makes provision in Pt3, Div1 (ss15 – 31) for marine farming development plans, in which areas may be specified as marine farming zones. On 17 December 1998, the Board adopted a policy as to the determination of "protected environmental values" for marine farming zones. It did so by adopting a recommendation in a briefing paper dated 7 December 1998. That was prior to the repeal of cl 10.4 of the State Policy, which required the "protected environmental values for surface waters" to be shown in "draft planning schemes or equivalent draft planning instruments" which were placed on public display. The recommendation was to the effect that, inter alia, draft "protected environmental values" should be placed in draft marine farming development plans, but only for the areas shown in such draft plans as zoned for marine farms; and that any comments on the draft "protected environmental values" would be summarised and conveyed to the Board with a recommendation.
In June 2000, the Board adopted a revised policy as to the inclusion of "protected environmental values" in marine farming development plans. Again, its decision was based upon a recommendation contained in a briefing paper. The briefing paper included the following:
"Now that the PEV setting process has progressed it is considered that the PEVs shown in Marine Farming Development Plans should be refined. The following wording is now proposed for Marine Farming Development Plans:
A: Protection of Aquatic Ecosystems
(ii) Protection of modified (not pristine) ecosystems
a) from which edible fish, crustacea and shellfish are harvested*;
B: Recreational Water Quality & Aesthetics
(i) Primary contact water quality
(ii) Secondary contact water quality
E: Industrial Water Supply ‑ Aquaculture
*This value may be 'from which edible fish and crustacea but not shellfish are harvested' depending on the location and nature of the marine farming development plan.
…
recommendations
1 The Board endorses the revised process proposed for the inclusion of Protected Environmental Values in Marine Farm Development Plans and reserve management plans (under the National Parks and Wildlife Act, 1970).
2 The Board agree [sic] that these will be the final PEVs for all marine farming development plans or reserve management plans unless representations are made to the contrary and the Board has had the opportunity to review chose representations.
3 The Board agree [sic] that if, for a specific reserve plan or Marine Farming Development Plan, the PEVs need to differ from those proposed in this Brief, the Board shall have an opportunity to comment on the PEVs as an individual case."
According to its minutes, the Board resolved as follows at its meeting on 23 June 2000:
"Resolved: To endorse the revised process for the inclusion of Protected Environmental Values in the Marine Farms Development Plans and reserve management plans (under the National Parks and Wildlife Act 1970)
Resolved:To agree that these will be the final PEV's for all marine farming development plans or reserve management plans unless representations are made to the contrary and the board has the opportunity to review those representations.
Resolved:To agree that if, for a specific reserve plan or Marine Farming Development Plan, the PEV's need to differ from those proposed in the brief (State Policy On Water Quality Management ‑ Protected Environmental Value, Marine Farm Development Plans And Park Management Plans, Agenda Item 6.88, dated 6 June 2000), the Board shall have an opportunity to comment on all PEV's as an individual case."
The Board adhered to its standard wording in this instance. Consequently, cl 3.11 of the Plan reads as follows:
"3.11 Protected environmental values
The Following PEV have been set for all marine farming zones prescribed by the Pitt Water Marine Farming Development Plan January [sic] 2001 under Part 3-Water Quality Objectives 7.1A, B and E of the State Policy on Water Quality Management 1997:
A Protection of Aquatic Ecosystems
(i) Modified (not pristine) ecosystems
(a)from which edible fish, crustacea and shellfish are harvested;
B Recreational Water Quality and Aesthetics
(i) Primary contact water quality
(ii) Secondary contact water quality;
E Industrial water supply ‑ Aquaculture."
The plaintiff contends that the determination of the Board evidenced by cl 3.11 was ultra vires. Its contentions as to that point are as follows. The Board's determination was made in purported pursuance of cl 10.2 of the State Policy. Clause 10.2 enabled it to make a determination only by agreement with "the planning authorities with jurisdiction over those waters". It was a planning authority with jurisdiction over the waters known as Lower Pitt Water. There was no agreement between the Board and it. The determination was therefore not made in accordance with cl 10.2, and must be a nullity.
The plaintiff relies on the following definition in cl 4.1 of the State Policy:
"'planning authority': | Means a municipality or a Marine Board constituted under the Marine Act 1976 (Land Use Planning and Approvals Act 1993), the Secretary of the Department of Primary Industry and Fisheries (Marine Farming Planning Act 1995) and the Director of the National Parks and Wildlife Service (National Parks and Wildlife Act 1970)." |
The plaintiff is a council established by the Local Government Act 1993, s18(1) and Sch3. In the Land Use Planning and Approvals Act 1993, s3(1), "municipality" and "planning authority" are each defined to mean "a council". The plaintiff is clearly a "planning authority" within the meaning of the definition in cl 4.1 of the State Policy. The critical question is whether it was, in relation to the waters that were the subject of the impugned determination, a planning authority "with jurisdiction over those waters" within the meaning of cl 10.2. It contends that it was. The defendants contend that it was not.
The Local Government Act, s16, commences with the following provisions:
"16 ¾ (1) The State is divided into municipal areas.
(2)A municipal area is an area specified in Column 1 of Schedule 3.
(3)A municipal area includes ¾
(a) any accretion from the sea adjoining it; and
(b) any part of the sea-shore to the low-water mark adjoining it."
In column 1 of Sch3 to that Act, the plaintiff's municipal area is specified as "CPR 3510". It is common ground that that is a reference to Plan No 3510 in the Central Plan Register, a copy of which has been tendered as an exhibit. That plan shows that the southern boundary of the plaintiff's municipal area runs along the southern shore of Pitt Water from a point on the landward side of the causeways to Sandy Point, at the mouth of the Pitt Water estuary. That is to say, it shows that all of Lower Pitt Water is within the plaintiff's municipal area. The plan includes a note that reads "Municipal boundary extends to Low Water Mark and includes all islands and offshore rocks adjacent to the coastline of this Municipality".
The Land Use Planning and Approvals Act, s7, makes provision for a municipality to exercise its powers under that Act in relation to tidal waters. That section provides as follows:
"7 ¾ A municipality may exercise its powers under this Act in respect of ¾
(a)any accretion from the sea, whether natural or unnatural, adjoining its municipal district; and
(b)any part of the sea-shore to the low-water mark adjoining its municipal district; and
(c)all bridges, jetties, wharves, boat-houses and other structures partly within its municipal district and partly in or over the sea adjacent to its municipal district; and
(d)any area of the sea directly adjoining its municipal district in, on, over or under which any use or development is related to, or affects, the use of any adjacent land, subject to section 20(7)(c) and (d)."
However that section relates only to the exercise of a council's powers outside its municipal area. Lower Pitt Water is within the plaintiff's municipal area.
The Land Use Planning and Approvals Act makes provision for the contents and effect of planning schemes in s20, which contains the following relevant provisions:
"20 ¾ (1) A planning scheme for an area ¾
(a) must seek to further the objectives set out in Schedule 1 within the area covered by the scheme; and
(b) must be prepared in accordance with State Policies made under section 11 of the State Policies and Projects Act 1993; and
(c) may make any provision which relates to the use, development, protection or conservation of any land in the area; and
(d) …
…
(2) Without limiting subsection (1), a planning scheme may ¾
(a) …
(b) regulate or prohibit the use or development of any land; and
(c) …
…
(7) Nothing in any planning scheme or special planning order affects ¾
…
(d) marine farming in State waters
…
(11) subsection (7)(d) does not apply in respect of the following:
(a) any bridge, jetty, wharf, boathouse, shed, pipeline or other structure used in connection with marine farming that is constructed wholly or in part on, or above, the high water mark;
(b) a use or development on any accretion from the sea.
(12) In this section ¾
'fishing' means fishing as defined in the Living Marine Resources Management Act 1995 and conducted in accordance with that Act;
'marine farming' means marine farming as defined in the Marine Farming Planning Act 1995 and conducted in accordance with that Act and the Living Marine Resources Management Act 1995;
'proclaimed wharf area' means the area of a wharf the boundaries of which have been defined, altered or redefined under the Marine Act 1976 before the commencement of the Port Companies Act 1997.
'State waters' means State waters as defined in the Living Marine Resources Management Act 1995."
In s3(1) of that Act, "land" is defined to include "land covered with water" and "water covering land".
The Land Use Planning and Approvals Act, s22, contains the following provisions as to the preparation of planning schemes:
"22 ¾ (1) A planning authority may prepare a draft planning scheme in respect of such area as it may determine.
…(6) An area in respect of which a planning scheme is prepared may comprise ¾
(a)the whole or any part, or parts, of a municipal district of the relevant municipality; and
(b)the whole or any part of the area referred to in section 7(d); and
(c)any area in that municipal district covered by an existing planning scheme or special planning order."
There is a planning scheme in force in the plaintiff's municipal area. It is the Sorell Planning Scheme 1993. It was made pursuant to the Local Government Act 1962. It purports to cover the whole of the plaintiff's municipal area, including Lower Pitt Water. The zoning of the various areas comprising the municipal area is shown on a series of maps that form part of the scheme. The waters of Lower Pitt Water are coloured white on the maps, as is land in the rural zone. However it is not contended that the waters form part of the rural zone. The plaintiff's case is that the waters are unzoned. That proposition was not challenged by the defendants. The islands in Lower Pitt Water are shown to be zoned as open space.
It follows that the planning scheme does not restrict or regulate the use or development of Lower Pitt Water. Because of the Land Use Planning and Approvals Act, s20(7)(d), the planning scheme cannot be amended to affect marine farming in Lower Pitt Water in any way. However the plaintiff has jurisdiction over Lower Pitt Water as a planning authority in a number of senses. If the existing planning scheme were amended to regulate or prohibit activities other than marine farming in Lower Pitt Water, the plaintiff would be the planning authority in relation to the waters in question. For the purpose of the amendment process under the Land Use Planning and Approvals Act, Pt3, Div2, it is the planning authority with jurisdiction over those waters. Under the Local Government Act, s20(1), its functions include the following:
"(b)to facilitate and encourage the proper planning and development of the municipal area in the best interests of the community;
…
(d)to develop, implement and monitor strategic plans for the development and management of the municipal area".
The provisions that I have referred to were all in force at the time of the making of the impugned determination. In my view they compel the conclusion that the plaintiff was a planning authority with jurisdiction over Lower Pitt Water. It is true that it could not have exercised the powers of a planning authority in relation to marine farming, but that is only because the Land Use Planning and Approvals Act, s20(7)(d), limited its powers in that respect. Many other sorts of uses and developments can take place in waters that form part of a council's municipal area. One of the objectives of the resource management and planning system of Tasmania is "to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State": State Policies and Projects Act, Sch1, cl 1(e). A State Policy is required by s5(1)(a) of that Act to seek to further the objectives set out in Sch1 thereto, including the objective I have quoted. The Acts Interpretation Act 1931, s8A(1), requires an interpretation that promotes the purpose or object of an Act to be preferred to an interpretation that does not. That provision extends to subordinate legislation, including the State Policy, by virtue of the Acts Interpretation Act, s5(1). The interpretation that I have adopted, which requires the sharing of responsibility between the Board and councils, is a purposive one as required by s8A(1).
Counsel for the defendants relied upon the Land Use Planning and Approvals Act, s20(7)(d), submitting that that provision specifically excludes areas designated for marine farming, such as marine farming zones, from the jurisdiction of the plaintiff. In my view that submission was misconceived. When the Board made the impugned determination, the Plan was not in force. Assuming that it is not a nullity, it did not come into force until it received ministerial approval on 16 April 2003. There were therefore no marine farming zones in Lower Pitt Water when the Board made the impugned determination. Further, s20(7)(d) does not exclude any areas or zones from the jurisdiction of councils. It limits, but does not extinguish, the powers of councils in relation to State waters. That is because it limits the scope of planning schemes and special planning orders not by reference to zones or areas, but by reference to an activity, namely marine farming.
It surprises me that, when it made the impugned determination, the Board purported to determine the "protected environmental values" for areas of water that, at that stage, had not been specified as marine farming zones in a finally approved marine farming development plan, and whose boundaries and status were expected to be determined at some future stage by another authority, namely the Minister. It was obviously intended that determinations under cl 10 would be made in respect of "specific bodies of water". See cl 10.1. I doubt that it was intended that determinations under cl 10 were to be made in respect of areas of water to be defined at a later date. There is nothing in cl 10 to suggest that the Board or any other decision-making authority had the power to delegate any of the powers conferred by cl 10, such as the power to determine the areas within which a particular set of "protected environmental values" would apply. Delegatus non potest delegare. However these points were not argued by counsel, and I therefore express no conclusion in relation to them.
In my view the plaintiff was a planning authority with jurisdiction over Lower Pitt Water at the time of the impugned determination; the Board therefore had no power to make a determination under cl 10.2 in relation to Lower Pitt Water or any parts of it without the agreement of the plaintiff; and, since there was no agreement between the Board and the plaintiff, the impugned determination was ultra vires.
Counsel for the defendants submitted that the impugned determination was made pursuant to cl 10.5, not cl 10.2, and therefore did not require an agreement between the Board and any other authority. It will be recalled that cl 10.5 provided that all planning schemes and equivalent planning instruments were to identify the "protected environmental values" for specific bodies of water within five years of the State Policy coming into operation, and that the "protected environmental values" were to be designated or reviewed through a catchment-based consultative process. Because of the wording of cl 10.5, decisions or determinations pursuant to it could only be made by the authorities that had power to make or amend planning schemes or equivalent planning instruments. Assuming that a marine farming development plan was such an "equivalent planning instrument", the only decision-maker who could have made a decision identifying the "protected environmental values" for a body of water in such a plan pursuant to cl 10.5 was the Minister. However it is common ground that the impugned determination was not made by the Minister but by the Board. That is consistent with the use of the past tense in cl 3.11 of the Plan, which does not purport to constitute a determination as to the "protected environmental values" for any body of water, but does no more than to recite, "The Following PEV have been set …". The submission as to cl 10.5 was misconceived.
Validity of the Plan
Under the Marine Farming Planning Act, Pt3, Div1 (ss15 – 31), the following steps have to be taken in the preparation of a marine farming development plan:
(i)An application must be made to the Minister for approval to prepare a draft plan: s16(1) and (2).
(ii) The Minister may grant the application: s16(3)(a).
(iii)The Secretary of the Department must notify the Marine Farming Planning Review Panel ("the Panel") of the Minister's approval no later than 14 days after that approval is given: s17(a).
(iv)If the Panel so determines, there must be consultation with such persons or bodies as the Panel specifies: s18(1).
(v)An environmental impact statement must be prepared: s23.
(vi)Draft management controls must be prepared: s24.
(vii)The Secretary, who is referred to in the Act as "the planning authority", must submit a copy of the draft plan to the Panel within 12 months after the Minister approves the preparation of a draft plan, or within any longer period that the Minister allows: s25(1).
(viii)The Panel must then decide whether or not the draft plan is suitable for exhibition: s25(2).
(ix)If the draft plan is considered suitable for exhibition, the Panel must refer it to the Minister for approval for it to be publicly exhibited: s25(2)(a).
(x)The Minister may then give or refuse approval to the public exhibition of the draft plan: s26(1).
(xi)If the Minister gives such approval, the Secretary must publicly exhibit a copy of the draft plan for two months and advertise it by public notice: s26(2).
(xii)Written representations in relation to the draft plan may then be made: s27.
(xiii)After the time for written representations has expired, the Secretary must prepare a report and forward it to the Panel: s28.
(xiv)The Panel must then consider the draft plan, the environmental impact statement, and the s28 report, and then either modify the draft plan, reject it, require the Secretary to modify a specified provision of it, or accept it without change: s29.
(xv)After the completion of any modifications, the Panel must recommend to the Minister that the draft plan be approved if it is satisfied that the draft plan, including any modification, is acceptable: s31(1)(a).
(xvi)The Minister may give final approval to the draft plan by signing it after considering any recommendation: s31(3)(a). Upon such approval being given, the Plan becomes a "marine farming development plan" within the meaning of the Act, as a result of the wording of the definition of that term in s3.
Those steps were followed in relation to the Plan. The draft plan was approved for public exhibition under s25 on 21 July 2001. It was while the draft plan was on public exhibition that the Act was amended to include s21(1)(ga) ¾the provision requiring that a draft plan be consistent with State Policies made under the State Policies and Projects Act, s11.
Counsel for the plaintiff submitted that one effect of s21(1)(ga) is that a draft plan that is not consistent with a State Policy cannot be the subject of valid ministerial approval under s31(3)(a). I reject that submission. Section 21(1)(ga) imposes a requirement only in relation to draft plans. Draft plans can be modified under ss29 and 30 prior to the Panel recommending final approval under s31(1)(a) and the Minister giving final approval under s31(3)(a). There is nothing in the Act to suggest that a draft plan may not be modified under s29 or s30 so as to make it inconsistent with a State Policy. In my view Parliament left open the possibility of a draft plan being modified so as to make it inconsistent with a State Policy, and thereafter given final approval. Just as the State Policies and Projects Act, s13(3B), leaves the implementation of a State Policy to the discretion of decision-makers, this Act permits the relevant decision-makers, on a discretionary basis, to make marine farming development plans that are inconsistent with State Policies. All that s21(1)(ga) requires is that the decision-makers start with a draft that is consistent with every applicable State Policy before exhibiting it and inviting public comment.
The draft plan that was approved for public exhibition on 21 July 2001 contained a clause as to "protected environmental values" (cl 3.2.6) in identical terms to cl 3.11 of the Plan as finally approved, which I have quoted above. As that clause was based upon the invalid determination of the Board, it may be that the draft plan was inconsistent with the State Policy, and would not have complied with s21(1)(ga) if that provision had then been in force. But it did not come into force until 19 September 2001. Furthermore, the amendments that took effect that day also resulted in the insertion into the Marine Farming Planning Act of s144A, which reads as follows:
"144A ¾ (1) Anything done under the provisions of Division 2 of Part 2 and Divisions 1, 2 and 4 of Part 3 before the commencement of the Marine Farming Planning Amendment Act 2001 is, on that day, taken to be done under those provisions as in force on that commencement.
(2) The Minister may give approval under section 31(3)(a) or 42(4) in relation to draft plans and draft amendments in respect of which anything was done before the commencement of the Marine Farming Planning Amendment Act 2001."
As a result of the enactment of s144A(1), the steps taken prior to 19 September 2001 in relation to the draft plan ¾ all taken under Pt3, Div1 ¾ must be regarded as having been taken in compliance with the relevant provisions of the Act.
Counsel for the plaintiff submitted that, when the Minister came to consider whether to give final approval pursuant to s31(3)(a), he could only give such an approval to an instrument that was a draft plan, and that the instrument before him was not a draft plan because it was not consistent with the State Policy, and therefore did not comply with s21(1)(ga), which had by then come into force. I reject that submission. The draft plan was a perfectly valid draft plan when it was approved for public exhibition under s25 on 21 July 2001. If I am wrong as to that, it is evident that s144A(2) was intended to enable a valid ministerial approval to be given under s31(3)(a) to a draft plan that would otherwise have been made defective by the enactment of the Marine Farming Planning Amendment Act 2001 ¾the statute that introduced s21(1)(ga).
It is true that the Plan is defective to the extent that cl 3.11 thereof inaccurately recites that certain "protected environmental values" have been set for all marine farming zones thereby prescribed, when no valid determination to that effect has been made. However that clause does not purport to impose any sort of restriction or requirement. It purports only to recite the earlier making of a policy decision which, if it had been validly made, would not have been binding on anyone, but would have been available to be taken into account by other decision-makers. Even if the Board's determination had been valid, cl 3.11 would be little better than surplusage. A clause inaccurately reciting that the sun rises in the west and sets in the east would not invalidate the plan. I see no reason why the presence of cl 3.11 would do so.
For these reasons, I am of the view that the Plan is not a nullity, but is a valid marine farming development plan.
Appropriate orders
By its statement of claim the plaintiff has sought declarations in the following terms:
"(i)aquaculture was not a use or value that existed in the area identified in the Marine Farming Development Plan Pitt Water 2001 as Lower Pitt Water at 27 September 1997, when the State Policy on Water Quality Management 1997 came into operation;
(ii)the protected environmental values in clause 3.11 of the Marine Farming Development Plan Pitt Water 2001 were determined by the Board of Environmental Management and Pollution Control ultra vires clauses 10.1 and 10.2 of the State Policy on Water Quality Management 1997;
(iii)the Minister's approval of the Marine Farming Development Plan Pitt Water 2001 on 16 April 2003 was ultra vires the provisions of the Marine Farming Planning Act 1995;
(iv)the Marine Farming Development Plan Pitt Water 2001 is invalid."
I will not make declarations in the terms of (iii) or (iv) because I have concluded that the Minister's approval of the Plan was not ultra vires, and that the Plan is valid. I will not make a declaration in the terms of (i), because there does not appear to be any controversy about the proposition that aquaculture did not exist in Lower Pitt Water as at 27 September 1997. There is no need for a declaration to that effect. It remains for me to consider whether a declaration in the terms of (ii) should be made or refused.
In my view the plaintiff has at all material times had the necessary standing to apply for such a declaration because it is a planning authority with jurisdiction over the waters of Lower Pitt Water, without whose agreement the Board was not empowered to make a determination under cl 10.2 of the State Policy. Counsel for the defendants opposed the granting of any declarations on the basis that they were sought only as to abstract or hypothetical issues. I disagree. It is likely that administrative decisions will have to be made in the future in relation to marine farming in Lower Pitt Water. The makers of such decisions ought to take into account any determinations under cl 10.2 of the State Policy affecting the waters in question. A declaration to the effect that the determination recited in cl 3.11 of the Plan was ultra vires would therefore not relate to an abstract or hypothetical issue.
Counsel for the defendants submitted that a declaration should be refused because of delay on the part of the plaintiff in applying for declaratory relief. This action was commenced by a writ filed on 4 December 2003. However the plaintiff had been advised almost two years previously, by a letter dated 21 December 2001, that the Board had decided that the "protected environmental values" shown in the draft plan as at June 2001 were to be the "protected environmental values" for the proposed marine farming zones that would be shown in the final plan. The plaintiff appears to have treated the institution of court proceedings as a last resort, and to have spent almost two years thereafter pursuing political and administrative strategies to overcome the Board's decision. For a time it seemed it might be successful. Although the Panel made a recommendation on 20 February 2002 to the then Minister that he approve the draft plan, the Minister decided not to approve it, and referred it back to the Panel, pursuant to s31(5). After a certain amount of activity that I need not describe in detail, on 9 January 2003 the Panel made a fresh recommendation to the next Minister that he approve the Plan. He eventually did so on 16 April 2003. On 21 May 2003 the plaintiff's mayor wrote to the Minister requesting reasons for his decision, and suggesting that the Judicial Review Act 2000 was applicable. I think it might not have been, on the basis that the Minister's approval might have been a decision of a legislative character, as distinct from a decision of an administrative character that made that Act applicable. However I do not need to determine that point. The significant fact is that reasons were sought. The Minister responded by a letter dated 17 June 2003 setting out his reasons. In the meantime, a council officer had attempted to prevent the implementation of the Plan by issuing an environmental protection notice to the Minister on 21 May 2003. The Minister appealed to the Resource Management and Planning Appeal Tribunal, which held on 25 September 2003 that the notice was not validly issued. Thereafter the plaintiff considered its position and decided to commence this action.
It is clear that since December 2001 the plaintiff has not acquiesced in relation to the impugned determination of the Board. In my view mere delay and lapse of time are not of themselves sufficient to warrant refusal of a declaration. See Meagher, Gummow and Lehane's Equity Doctrines and Remedies, 4th ed, pars36-065 – 36-080. However delay resulting in a prejudice to others will sometimes warrant the refusal of declaratory relief. The defendants opposed the making of declarations as to the invalidity of the Plan and the Minister's final approval on the grounds that steps had been taken in reliance on the Plan's validity, particularly in relation to the granting of leases for marine farming purposes and associated commercial transactions. However it was not suggested at the trial that anyone would suffer any prejudice if a declaration was made as to the invalidity of the Board's determination if the Plan were held to be valid. Although future decision-making in relation to aquaculture in Lower Pitt Water should be undertaken having regard to the true state of affairs concerning the determination of "protected environmental values", the interests of anyone who relied on the assumed validity of the Board's determination would have to be taken into account in accordance with the requirement as to fairness contained in cl 1(b) of the objectives of the resource management and planning system of Tasmania. Under that provision, it is an objective of that system to "provide for the fair … use and development of air, land and water".
Mr Spence, who appeared for the defendants other than the State, submitted that the plaintiff should be refused relief because it was splitting its case by firstly seeking a bare declaration, with the intention of subsequently seeking substantive relief against lease holders who had acquired leases of areas in Lower Pitt Water. However there is no evidence that the plaintiff has, or has ever had, any such intention. I therefore reject that submission.
For these reasons, I conclude that there is no reason to refuse declaratory relief to the plaintiff.
I make an order declaring that the determination of the Board of Environmental Management and Pollution Control as to "protected environmental values" evidenced by cl 3.11 of the Marine Farming Development Plan Pitt Water June 2001 was ultra vires cl 10 of the State Policy on Water Quality Management 1997.
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