Town and Country Planning—Regulations—Regulation, control or prohibition of use of land within watershed so as to cause deterioration or pollution of water—Regulation prohibiting construction of piggery, zoo or feedlot in watershed—Validity—Whether regulation impliedly repealed by subsequent planning statute prohibiting development of land without consent—Waterworks Act 1932 (SA), s. 10(1)XXIV - Waterworks Regulations 1974 (SA), reg. 37.2—Planning Act 1982 (SA), s. 47.
Decisions
WILSON, DAWSON, TOOHEY AND GAUDRON JJ. The first and second respondents, Mr and Mrs Tanner ("the respondents"), are the owners of land in the town of Hahndorf in the Mount Lofty Ranges in South Australia. They wish to develop the land in accordance with the provisions of the Planning Act 1982 (S.A.). The proposed development comprises a number of shops and offices, an aviary and carparks. A development application was approved by the District Council of Mount Barker subject to the concurrence of the South Australian Planning Commission. That concurrence was required because on the respondents' land stands "Thiele Cottage", an "item of the State heritage" within s.48 of the Planning Act. In due course the Commission resolved not to concur in the granting of approval and consent to the development was therefore refused. The respondents appealed from that decision to the Planning Appeal Tribunal. In the course of the hearing of the appeal a question arose as to the relevance to the issues in the appeal of reg.37.2 of the Waterworks Regulations 1974 (S.A.) made pursuant to the Waterworks Act 1932 (S.A.). As will be seen, the purported effect of reg.37.2.1 is that it prohibits absolutely the erection of an aviary on the respondents' land. The hearing of the appeal was stood over to allow the respondents to consider their position.
2. The respondents then instituted these proceedings in the Supreme Court of South Australia, seeking a declaration that reg.37.2 is beyond the power to make regulations contained in s.10 of the Waterworks Act. Alternatively, they sought a declaration that the Planning Act, in conjunction with the Development Plan made in accordance with its provisions, operates to supersede and impliedly repeal the regulation. The matter was heard by the Full Court of the Supreme Court. By majority (Jacobs and Millhouse JJ., Cox J. expressing no opinion), the Court declared that reg.37.2.1 is ultra vires the Waterworks Act and invalid. In addition, the Court was unanimously of the opinion that reg.37.2.1, in its application to the respondents' land, is inconsistent with s.47 of the Planning Act and therefore can have no effect on the proceedings before the Tribunal.
3. We turn first to the question of validity. The Waterworks Act is the principal legislation governing the supply of water in South Australia. Section 10(1) provides that the Governor may make regulations, inter alia: "XXIV. for regulating, controlling or
prohibiting the use of any land within a watershed or…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
South Australia v Tanner [1989] HCA 3
Case
[1989] HCA 3
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal by the State of South Australia against a judgment of the Full Court of the Supreme Court of South Australia, which had allowed an appeal by Mr. Tanner against a decision of Jacobs J. The dispute concerned the validity of a notice issued by the Commissioner of Police under section 52(1) of the *Police Offences Act 1953* (SA) requiring Mr. Tanner to attend a police station for the purpose of obtaining his fingerprints and photograph. Mr. Tanner had refused to comply with the notice, and the Commissioner sought to enforce it.
The central legal issue before the High Court was whether the Commissioner of Police had the power to issue a notice under section 52(1) of the *Police Offences Act 1953* (SA) to a person who had not been arrested or charged with any offence. The Court was required to interpret the scope and application of section 52(1), which permitted the Commissioner to require a person to attend a police station for the purpose of taking fingerprints and photographs if the Commissioner believed on reasonable grounds that the person had committed or had been charged with an indictable offence.
The High Court, by majority, held that the power conferred by section 52(1) was not limited to persons who had been arrested or charged with an offence. The Court reasoned that the language of the section did not expressly or implicitly impose such a limitation. Instead, it focused on the Commissioner's belief that the person had committed or been charged with an indictable offence. The Court applied principles of statutory interpretation, emphasizing that the plain meaning of the words should be given effect unless it led to an absurd or unreasonable result. The majority found that the power to obtain identifying material from individuals suspected of serious criminal conduct, even without arrest or charge, was a legitimate exercise of legislative power.
Consequently, the High Court allowed the appeal, setting aside the judgment of the Full Court of the Supreme Court of South Australia and reinstating the order of Jacobs J. This meant that the notice issued by the Commissioner of Police to Mr. Tanner was valid, and he was required to comply with its terms.