State of South Australia v Tanner

[1988] HCATrans 280

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A32 of 1988

B e t w e e n -

THE STATE OF SOUTH AUSTRALIA

Appellant

and

PHILLIP TANNER and PETRONELLA

TANNER, SOUTH AUSTRALIAN
PLANNING COMMISSION and PLANNING

APPEAL TRIBUNAL

Respondents

WILSON J

BRENNAN J

DAWSON J

Tanner(2)

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 18 NOVEMBER 1988, AT 9.48 AM

(Continued from 17/11/88)

Copyright in the High Court of Australia

C2Tl/l/PLC 18/11/88

45

WILSON J: Yes, Mr Solicitor.

MR DOYLE: If the Court p'leases. Could I go back, just for a

moment, to Your Honour Justice Dawson's example

of - I think it was the two cockatoos in the cage -

it did occur to me, thinking about it, that it may

well be that, of course, that would not amount to

erecting, constructing, enlarging or establishing.

Now, I do not, for a moment, deny that other examples could be given and I doubt my friend will shower the Court with examples, but I do just want

to make the point that, in the end, one has to bear

in mind that the regulation seems to be directed

at structures of a permanent nature.

DAWSON J: But, in any event, you say it is one of the fish

that is caught in the net that is legislatively cast.

MR DOYLE:	Yes, and in my submission, just flowing on from that and also the allusion Your Honour Justice Brennan
made yesterday to the notion of fraud on a power,
in a sense I accept that the presence of purpose
in the regulation-making power. is also a limitation on the scope of the power, It both, as it were, informs one as to the scope of the power and also obviously limits it. But in the end, perhaps the
central issue in this case is whether one can say
that this general rule is invalid because, in some
cases, it will clearly prohibit things.: which, standing alone, are not sources of pollution and
one says, "Is it invalid even though, in most of
its applications,it is prohibiting things which
are sources of pollution." And when one bears in
mind that, in my submission, it is fpr the maker
of the regulation to choose how he will work towards
his end, as long as he uses the authorized means,
prohibition of use~and that it is not for the court to substitute its judgment as to how far he should
go.

It will only be, in a truly extreme case, that

are caught, that, in the end, the exercise of the	one will say that, because of the wrong fish that
regulation-making power goes beyond power and, in
my submission, it is particularly important to bear
in mind that, when the power is to make general
rules, it is in the nature of general rules that,
from time to time, they will hit cases that one could
say, in a sense, were not intended to be hit.

BRENNAN J:  But that rather begs the question, does it not?

For example, if one were to take the definition of "zoo"

and looking at it as a power which has to be exercised

in order to catch the relevant fish ~ ~- -.

MR DOYLE:	Yes.
BRENNAN J:	- then would one not have to define "zoo" in a way to include aviaries which are big aviaries and
to exclude the cockatoos in the cage?

C2Tl/2/VH	46	18/11/88
Tanner(2)

MR DOYLE:	Well, in a sense, with respect, Your Honour, that is part of the issue here. My respectful
submission is that perhaps it comes down to an element of judgment on the part of the Court in
exercising its role. But the complaint really
is, putting it slightly differently, they have
gone too far and they have not done what
Your Honour has said. But,in my respectful
submission, one has to bear in mind that it is
for the maker of the regulations to decide how
far he needs to go and it can, in my submission, be said that there will. also be some small
aviaries that would be sources of pollution
because we are talking of a regulation which
is to apply throughout an area and a number of
relatively small aviaries are placed in strategic
or sensitive areas throughout the area. It
might, in fact, be sources of pollution but perhaps the complaint really is a combination
of saying, "Well, they have not been more selective
as to area and they have not been more selective as to size."
In my submission,that tends to highlight that one is then beginning to move into the area
of substituting the court's judgment for what was the best way of achieving the end as distinct
from, in my submission, asking whether they could reasonably have considered that it was
necessary to do this.
BRENNAN J:	But the definition is one of "birds for display",

is it not?

MR DOYLE:	Yes.
BRENNAN J:	And one cannot immediately see a connection

between displaying a bird or birds and the

occasioning of pollution as a result of that

display?

MR DOYLE:  No, I accept that, Your Honour, when one gets

down to the detail of the definition. It may

well be that the draftsman was working on the

basis that birds for display would not only be

contributing their own pollution, that is, as

birds, but because of their tendency to atitract
people and what would go with it, that that in turn

would be a source of pollution which all highlights,

in my submission, how the more one thinks about it

the more one can see why the draftsman would have

been concerned and, in my submission, the more one

should be cautious about saying he has gone overboard.

But I do not for a moment deny that in the end that

final test does have to be applied.

WILSON J:  The words "for display" might exclude those

occasions when a bird or two is simply held in a

C2T2/l/MB	47	18/11/88
Tanner(2)

domestic setting for personal or private

enjoyment, not for display.

MR DOYLE:  Yes, that is so, which perhaps indicates that ~eally

it was the attraction of people that was his

major concern not primarily the number o:6.,

birds because obviously two birds for the pleasure

of one's children causes as much pollution as

two birds to bring customers, viewed as birds.

So his concern probably is really the attraction of the people.

(Continued on page 49)

C2T2/2/MB	48	18/11/88
Tanner(2)

WILSON J: Then that brings its own difficulties when it

is applicable to a town, does it not, though?

MR DOYLE:  Yes, and that was part of the court's criticism

but, _again, this was where the court drew on

the contrast between the way the supplementary

development plan treated differentially towns

and rural areas in the watershed and the way

the regulations did not. And again, it is a

valid point but, in my submission, once again,

in the end the court was really moving into

the area of substituting its own judgment as to how far it was necessary to go and really saying there was a better way of doing this and,

in the end, in my submission, it was saying no

more than that.

Your Honours, in my submission yesterday

1 drew a contrast between the scope of

paragraph XX and paragraph XXIV. Could 1 just

refer very briefly on that point to a case of

PAULL V MUNDAY, (1976) 9 ALR 245. My purpose

in drawing that contrast between paragraphs XX

and XXIV was to stress the width of paragraph XXIV

and what 1 suggest is that in PAULL V MUNDAY

we have a power which was more like paragraph XX

and 1 just want to point that up to make the

point as to the width of XXIV.

As the headnote indicates, there the power

was to:

make regulations for or with respect to
"regulating, controllin~ and prohibiting

the emission of impurities from fuel

burning equipment -

and the analogy is XX:

regulating controlling or prohibiting the

impairment of the quality of water -

The regulation which they_ in fact made was	one .prohibiting the lightin~ of fires in the
open and the ar~ument was, 1n favour of validity, "Well, if you llght any fire in the open you
are going to be emitting some air impurities"
What the court said was, "This is not a power
to strike at the source of impurities; this is
a power to regulate the emission of impurities.", and the court said that the regulation went beyond
power because it struck at source not at the emission and this emerges in particular at
page 250 in the judgment of the then Chief Justice
at line, about 11, he said:

C2T3/l/ND	49	18/11/88
Tanner(2)

MR DOYLE (continuing):

When the relevant words of the definitions

are substituted ..... that paragraph in effect

states that. regulations may be made for or

with respect to regulating, controlling and

prohibiting the emission of smoke or gases

from an open fire .....

As a matter of logic and language a power

to make regulations for or with respect to

regulating,controlling or prohibiting the

emission of air impurities from fuel burning

equipment or any air impurity source does

not enable regulations to be made prohibiting

the use of such equipment or source. On the

contrary, it is implicit in the expression

of a power in those words that the equipment

or source will continue to exist and function.

Now, I just want to make the point that in

paragraph XXIV the legislature has deliberately

gone wider and not only has it enabled the making

of regulations dealing with the undesired result,

it has specifically turned its mind to regulations

aimed at the source. And in my submission, when

one aims at sources of impurities it is almost
implicit in that that because it is preventive

action that one is getting in ahead and likely

to be striking at things which, in a sense, seem

less significant because you are preventing the

problem arising. So, I do not want to overstate

it but in my submission that contrast between

XX and XXIV, which is pointed up by PAULL V MUNDAY,

is significant.

Could I then go to the final part of the

submissions on the question of inconsistency between
the PLANNING ACT and the WATERWORKS ACT' and before

I go to the judgment of Justice Jacobs just

summarize our points as to why we say on the

traditional approaches there is no inconsistency.

First of all the two Acts have different purposes:

one is the control of pollution in an identified

area of special concern - a watershed, the other

is a general regime of planning control. They can

operate cumulatively because there is no direct

clash between them. The WATERWORKS ACT, in my

submission, can be seen as the earlier and specific

Act. The PLANNING ACT is the later and general

Act and so to the extent the maxim generalia specialibus is helpful, in my submission, it is

helpful in our way here. And the fact that pollution

is a planning factor and also the basis of

paragraph XXIV is not, in my submission, of any

particular significance.

C2T4/l/AC	50	18/11/88
Tanner(2)

MR DOYLE. (continuing):  We turn then to look at what

Justice Jacobs said at page 71, and this

really seems to be at the heart of the case. Having

said briefly how the PLANNING ACT anct the plan

operated, at line 35 he said:

of critical importance is section 47(6)

which goes so far as to authorise a planning

authority to consent to a development

which is expressed to be prohibited in

the Development Plan. It seems to me

impossible to reconcile the blanket

and unqualified prohibition on development

of the kind referred to in Regulation 37.2.1

with the power of a planning authority to

consent to the self same development.

If I can just pause there for a moment, His Honour

is saying you cannot reconcile the fact that

anything can be consented to and yet here is

an absolute prohibition in the regulations and,

in my submission, this is central. But, in my

submission, His Honour has misstated or misunderstood

the nature of the planning consent and it really

goes back to the purposes of the legislation.	The
PLANNING ACT says, in effect, "A restraint on
the use of your land is now imposed on you for

planning reasons which may be lifted by operation

of the plan directly, if the plan says the use is

permitted, or may be lifted by the giving of a

consent." But when it is lifted, in a sense

what happens is that to the user of the land is

said, "The planning restraint which was imposed

is now lifted and for planning purposes, or

as far as planning law is concerned, you may

proceed." It is not a case where, talking

notionally of the legislator and the PLANNING ACT,

he is saying, "You may now proceed for all purposes";

he is simply saying, "As far as planning controls

are concerned, you may now proceed". In my

submission when one bears that steadily in mind

the suggested inconsistency disappears because

there is nothing inconsistent with that proposition and
the proposition of the legislator saying "but with
another purpose in mind, I now say to you that
never the less you may not use this particular

piece of land in this particular area".

(Continued on page 52)

C2T5/l/JM	51	18/11/88
Tanner(2)

MR DOYLE (continuing):  So in my submission it really goes

back to the nature of the consent and the purposes

of the legislation so it is not a case of simply an

authorization clashing with a prohibition. And in fact last night, Your Honours, I was looking again

at GERHARDY V BROWN, and I only want to read just

one line from it, Your Honours, the reference is
(1985) 159 CLR 70,and I do not think this was the

passage Your Honour Justice Brennan had in mind

yesterday but it just struck me on this point.

Your Honour said there, this sentence:

There is an inconsistency between a State

law which purports to authorize the doing of

an act and a Connnonwealth law which prohibits

the doing of such an act and the State law

is to the extent of the inconsistency invalid.

Now at first one might think, now we would apply that

here and say there is an inconsistency between the

PLANNING ACT which purports to authorize the doing

of an act and the WATERWORKS ACT which prohibits the

doing of that same act. But in my submission we have

to bear in mind the nature of the authorization in

the PLANNING ACT and it is an authorization to proceed
notwithstanding the restraint which the PLANNING ACT
itself has, in a sense, potentially imposed. And it

is only an authorization to proceed, notwithstanding

that restraint. So it is simply saying, for planning

purposes you may proceed but now go out and see what

other restraints imposed for other purposes there are

which might prevent you proceeding. And, in my

submission - - -

BRENNAN J:	That argument would be strong if the definition section of "development" was expressed as being for the
purposes of this Act, but the definition section simply
gives a meaning to ··!ldevelopm~ner- _as that term is found throughout the Act~ Then one comes to section 47 and
the question then is whether the words "without the
only a condition upon the prohibition of development consent of the relevant planning authority" are not
but the empowering of the authority to give consent
to development as defined.  Now if development as
defined includes doing:•what is prohibited by the
PLANNING ACT, section 47 then operates to confer upon
the relevant planning authority the power to give
consent to that thing which happens to be a development?

(Continued on page 53)

C2T6/l/SR	52	18/11/88
Tanner(2)

MR DOYLE:  Yes. Your Honour, the only answer I can make

to that is to say that,in my submission, the

power which is conferred on that approach which
Your Honour postulates is a power, I would notionally

of history, as it were, for reading the power

say, for the purposes of planning law and it

is a power which speaks only for those purposes.

that way because the planning law was imposed

probably in most States in Australia at a time

when there were all sorts of legal restrictions

on uses of, land which continued to operate and,

in my submission, it was traditionally seen as

operating on top of them and so the power or
authorization which was given was specifically

and limited to a power or authorization for planning

purposes.

WILSON J: Justice Brennan says that you put ·the words,

"For the purposes of this Act" in. In a sense

they are there in the opening words of section 4(1)

in this Act.

MR DOYLE:  Yes.

WILSON J: It may achieve something of the same effect.

MR DOYLE:  Yes. Perhaps my argument is that even if the

words are not there in the introductory words

that one really has to read the Act as a whole

as saying that, and saying, in section 47(1),

"For· the purposes of this Act -

no development shall be undertaken

without -

a consent given for the purposes of this Act.

So, Your Honours, in my submission, that really is central to this case, namely whether

one does rightly, as I submit, treat the PLANNING

ACT as imposing its own restraint on what would	otherwise be a common law right to use land and
then saying under certain conditions that restraint
will be lifted and treating it very much as with
confined operation and saying nothing as to other
restraints.

Could I, just on that.general topic, also

make the point that in the case of ASSOCIATED

MINERALS V WYONG SHIRE COUNCIL, from which I

read yesterday and I am not going to read again
today, there, where the suggested clash was between

the MINING ACT and planning legislation, it is

significant that the mining leases under the

M;NING ACT contain the usual covenants requiring

C2T7/1/SDL	53	18/11/88
Tanner(2)

the lessee to work his mine and yet, nevertheless,

the Privy Council said there was no inconsistency

between the MINING ACT and the Planning Ordinance
which said, in effect, "You cannot work your

mine unless you get a planning consent", and

yet there was the positive obligation to work

your mine. The Privy Council referred, in

particular, to the differing purposes of the

legislation.

(Continued on page 55)

C2T7/2/SDL	54	18/11/88
Tanner(2)

MR DOYLE (continuing):  So, Your Honours, I submit that passage

of Justice Jacobs' judgment really is central to the

issue. Then, at the fifth line on the page, he says:

There is in short~

this is page 72 again -

a manifest inconsistency when the regulations prohibit that which the later Act may permit.

I respectfully submit that that is not so. Then he moves

on to the more. sweeping proposition which I submit is

really at the heart of his thinking:

but that only serves to confirm that control
of land use ought now to be regarded as
exclusively the province of the PLANNING ACT,

with the result that a regulation purporting

to control land use, and in a different way,

must be regarded as impliedly repealed.

Now, that is why I said to Your Honour Justice Brennan

yesterday that, as I read His Honour, it would not

have mattered if this particular regulation had been

in terms, "unless the minister permits." His Honour

does seem to say that control, of land use is

exclusively the province of the PLANNING ACT and,

in my submission, it would follow, on that reasoning,

that it would not matter if the other regime was a

permissive one. And the consequences of that ·

are quite startling when one thinks about it. If

that is really what he saying, that there can be

only one regime of land use control and other regimes

are excluded, even regimes which are subject to
permission, then where do statutes like the

LICENSING ACT stand? Or, take one that does not have a specific cross-reference to planning, one of

the others - I think the WASTE CONTROL ACT. In my

submission, it would seem that they also would be

inconsistent and if one really wants to work that

through, I understand that in Victoria now brothels

may be operated legally and are subject to planning	controls. Perhaps I should not - perhaps that
irrelevant for what I want to say.

If I go to South Australia where they are not

legal, in the SUMMARY OFFENCES ACT one might find

a provision, "No person shall use premises as a

brothel." There is an absolute prohibition. But

just assume that under the PLANNING ACT - no, I think

on reflection that example does not take me anywhere -

it perhaps proves the very converse,. I think,if

there was a specific prohibition. I think I have

walked into a little error there, Your Honours, and

I will retreat from that.

So, Your Honours, my submission is that that passage

at page 72, line 10, really indicates that in

His Honour's view, any other regime was excluded, and

C2T8/l/VH	55	18/11/88
Tanner(2)

I just contrast there what His Honour Justice Millhouse

said at page 81, line 26. His Honour seems to have

taken the narrower view; he says:

The sections of the PLANNING ACT together

with the Development Plan and the Supplementary

Development Plan contemplate control of the

same subject matter as does the regulation but

not necessarily prohibition which is all that
the regulation does.

In my respectful submission, it is hard to see any real difference be~ saying, "it is inconsistent to

have the PLANNING ACT saying you mayido this,"

and the regulation saying, "you may not," and, on

the other hand, the PLANNING ACT saying, "you may

do this," and the regulation saying, "You may not

unless someone says you can." In my submission, in

the end, the same central inconsistency is there.

So, for those reasons, Your Honours, it is my

submission that there is, in fact, no inconsistency between either the PLANNING ACT and the regulations

or, alternatively, the PLANNING ACT and paragraph XXIV

Could I finally, then, Your Honours, just refer to

two or three sections in case it might be thought

they have some bearing on that particular issue.

(Continued on page 57)

C2T8/2/VH	56	18/11/88
Tanner(2)

:MR DOYLE (continuing):  The first one is section 58 of

the PLANNING ACT. In a limited way the PLANNING

ACT does address its relationship with other

legislation. Subsection (1) provides that:

Where the demolition of buildings is prescribed

as a form of development ...... this Act. ~ .. .

does not prevent or otherwise affect the
demolition of a building ..... if the demolition
is required under the provisions of some

other Act.

It is dealing with a different problem; this Act

saying something is prohibited or controlled and

another Act saying, "You must do it." But, in any

event, there it addresses that problem in favour

of the other Act. Similarly, under subsection (2)(a),

in relation to cutting trees, where that:

'· )

is required under the provisions of some

other Act -

and subparagraph (b). Subparagraph (c) simply

seems to be an exemption in favour of the Crown.

In the next two sections, 59 and 60, the Act addresses its interaction with the MINING ACT,

and that seems best approached by starting at

section 60 which provides that:

Except as provided in this Part, :this Act

does not prevent, or otherwise affect,
operations carried on in pursuance of any

of the MINING ACTS.

So it seems to take mining operations outside the

scone of the PLANNING ACT. But then in section 59(1)

provides for the advertising of:

applications ..•.• for mining production

tenements -

and in subsection (3) provides that if:

a mining production tenement are of major

social, economic or environmental importance

then certain parts of the Act will apply. So the

Act seems to create a special code for mining, basically putting it outside the PLANNING ACT

but in limited circumstances bringing it back

in. It is my submission that no particular

general conclusions can be drawn from those

provisions which are of assistance here but I

just draw them to the Court's attention because

that is one place where the Act does address

its interaction with other Acts.

C2T9/l/MB	57	18/11/88
Tanner(2)

WILSON J:  Is it the effects of section 58 to render the

PLANNING ACT inapplicable so that one does not have

to seek any permission under that Act? It is

not a case of concurrent operation?

MR DOYLE:  That is how I read it, Your Honour, that if you

are within section 58. So assume for instance:

that under the BUILDING ACT for safety reasons

you were ordered to demolish a building, as

I read section 58(1), there would be no question

then of having to get any planning consent to

demolish assuming that demolition in a

particular case was a;.·prescribed form of development.

They are my submissions, if the Court pleases.

WILSON J: Thank you, Mr Solicitor. Yes, Mr Hayes.

MR HAYES:  If the Court pleases. The regulation-making

power with which we are concerned - and this is

what we would like to emphasis to the Court -

is one which is in fact qualified in its terms.

Paragraph :XXIV'we would, with respect submit,

ought not to be construed in the disjunctive way which my learned friend put it, namely, that the

power, as he says, is inter alia to prohibit a

specified land use and then go to see whether

the regulation made pursuant to that power fits

in with it. Rather we say you ought to look

at the regulation-making power as being a power
to prohibit land use in a watershed so as to
prevent the pollution or the deterioration of

water within that watershed.

(Continued on page 59)

C2T9/2/MB	58	18/11/88
Tanner(2)

MR HAYES (continuing): That is the purpose behind the

regulation-making power. Indeed, we would submit

that is what ·the regulation-making power is about.

It is qualified in its terms. It is not a general

power. It is not a power, for example, of the

kind in some of the cases which have referred
to "the power to suppress nuisance" .or a power

for "the better rule of government". This is

a specific power and it is a power which is

qualified in that way.

The regulation which is made pursuant to

that power is unqualified in its terms. There

is no provision,.the Court will see, in the regulation

which links it to the purpose. The prohibition,

the outright prohibition. of specified land uses,
with no relevant linkage to the purpose of avoiding

or preventing the increase _in the deterioration

of the water supply or pollution, we say, is

a regulation made in excess of that qualified

power.

On whatever test one adopts, and if one

takes, for example, the TASMANIAN DAM's case,

which I think was referred to, we would say that

there is. no reasonable proportionality between
the designated purpos~ in this case the prevention

or the reduction of pollution of the watersheds

and the means of achieving that purpose, iri this

case a blanket prohibition on specified land

uses,within this very large area of land.

One cannot ignore, in our respectful submission, to determine whether there is this reasonable

nexus or proportionality between the purpose

and the power. the existing circumstances that apply .. These watersheds apply, as the.evidence indicates, over a vast area. Within the watersheds
there are some 16 townships and within those
townships there are areas which are expressly

designated as tourist areas - Hahndorf being

one of them. We say those are relevant factors

which the Court can have regard to in determining
whether in the circumstances of this case the
purpose is being achieved by the means chosen

to try and achieve that.

WILSON J:  How would you suggest the rewording of 37.2.1

t o make i t v a 1 i d , Mr Haye s .- s o a s t o g i v e e f f e c t

to the purpose?

(Continuing on page 60)

C2Tl0/l/ND	59	18/11/88
Tanner(2)

MR HAYES: Well, it may be that an appropriate way of

dealing with it would be to identify those uses

of land and .the pollution potential that they have

and make regulations expressly prohibiting those

uses in circumstances where they are likely to

cause pollution. There are various ways of doing

that. fu one of the cases that I have referred

to, the COOPER V BORMANN case, Her Honour

Justice Mitchell in the South Australian Supreme

Court said that you have got to identify the purpose,

in that case it was the keeping of dogs so as to

be a nuisance - the regulation has got to say,

you must not keep dogs in circumstances where they

will be a nuisance.

WILSON J:  That magnifies problems of proof, does it not,

enormously?

MR HAYES:	Yes.
WILSON J:	For example, if _you wanted to prosecute someone

for breach of 37.2~1 -and you had to show that

the aviary was in fact a source of pollution or

likely to be a source of pollution - - -

MR HAYES:  Yes. And that we say is not an unreasonable

manner in which the regulation should be enforced.

DAWSON J:  A little bit hard when you are talking about

prohibition of land use, is it not? You cannot

prohibit the use of land so as not to do something

once you have prohibited it. What I have in

mind, you cannot prohibit the erection of aviaries

so as not to pollute - or it is difficult to do

it, is it not?

MR HAYES: It is if one approaches the regulation in that

way. It may be, however, that a more specific

regulation directed towards aviaries of certain

dimensions, certain sizes and certain numbers is

more - a court can then say, "Well, that is more

directly linked to that overall purpose", in the	same way as the keeping of animals in certain numbers
and certain circumstances in certain areas and
in certain enclosures. The court is more likely to say, we would say, "Well, there you have a more
reasonable nexus between that purpose and the purpose
in the enabling power".

(Continued on page 60)

C2Tll/l/AC	60	18/11/88
Tanner(2)

MR,. HAYES (continuing): But a blanket prohibition, which does

not have any nexus at all, it is a total prohibition

of all of those specified uses and it is relevant,

in our respectful submission, to highlight the instances
where, as my friend put it, the sort of fish that are

caught in that net. This sort of thing, as my friend

points out, numerous examples could be given of the

absurdity of the kind of situations which this would

prohibit outright. The keeping of two guinea pigs

in a ca~e in the back_-garden: that is caught, under

the terms of that. The keeping of just aviaries for

the display of birds, just canaries, lovebirds or

whatever they might, no matter how big or small:	they
are caught in this.

Now we say, in an area which contains, as I say,

something like.16 townships within the area of the

watersheds, that is an indication that this goes beyond

the reasonable restraints of that regulation-making

power.

BRENNAN J:  You said before, the Court is· l_ikely: to take a

certain view of these regulations. Why is it that it

is a matter primarily for the Court? Must it not be

that this conferring of power, with its limitation if that be accepted, is for application by the Executive

Government.and must the question not be whether the

Fxecutive Government, in the manner in which it is

purported to exercise the power, might reasonably have

done so?

MR HAYES: It is a question of degree. It is necessary for the

Court in determining whether, in our submission, the
Fxecutive Government has exercised its power within

the confines of the purpose to have regard to whether there is this reasonable nexus. And that, of itself, involves some level of judgment.

BRENNAN J: One can accept that very readily if the prohibition

on use was the use of land for needlework, for example,

which could have no possible connection with water

purity. But when one comes to the question of keeping

animals, however few or in whatever conditions within

an area, can one be so confident that the keeping of

animals is so removed from the purpose of the power that

the kind of exercise· of the power here can be impugned?

(Continued on page 62)

C2Tl2/l/SR	61	18/11/88
Tanner(2)

MR HAYES:  I think that is where I have

to say, with respect, that it is a matter of

judgment which I can only put on the basis

I do not dispute the tests of the reasonable

nexus between the purpose and the regulation.

We say in this case, in arriving at that conclusion, one must look at the question in

terms of: has it gone too far - has the total

prohibition on specified land uses, fullstop.

That is all this regulation says.

DAWSON J:	Can you not go further than is absolutely necessary and still be within power, if,
for instance, you have power to make a regulation
for the safety of people in the local park
and there is a regulation forbidding the taking
of dogs into the park.  Now, not all dogs are
dangerous, in fact most dogs are not, but
nevertheless for the few that are, can you not
make a regulation of that sort? What I mean
is, birds do pollute, although I am in doubt in that for a moment, but let us assume birds
do pollute and therefore, you ar.e able to
ban the keeping of all birds, notwithstanding
that in some instances the pollution would not
matter?
MR HAYES:	Once again we say, in response to that, it is

not dissimilar to the example given by

Justice Deane in the DAM's case of banning all

sheep merely because there is a possibility of

sheep having some sort of disease.

DAWSON J:  I am wondering - birds are flying around all

the time and if they do pollute, well there

are some instances which the planning regulations

cannot - the WATERWORKS ACT cannot cope with.

MR HAYES:  I can only answer that, with respect, in

coming back to saying that it has to be a

question of degree. The Court must take into

account, as indeed my friend pointed out in

the WILLI.A.i.~S V MELBOURNE CORPORATION case, the

situation it is dealing with. In that case

the court said, in the circumstance of Melbourne

and the circumstances which applied at that time,

it was not beyond the constraints of the power.

(Continued on page 63)

C2T13/l/JM	62	18/11/88
Tanner(2)

MR HAYES:(continuing):  We say apply the same test here and

it would mean 1 as I put on my outline on page 2,

the regulation involves such an actual suppression

of the use of land as to go beyond any restraint

which could reasonably be adopted for the purpose

of reducing or preventing water pollution.

DAWSON J:  In other words, it is not just a question

of location but, really, what can a cage full

of budgerigars· do that birds are not doing every

day?

MR HAYES:  Yes, that is right. And that is precisely

the approach the Court took in tne WILLIAMS V MELBOURNE

CORPORATION case; they looked at the circumstances

that applied at Newmarket in Melbourne; they

looked at whether or not there were alternative

routes to take the procession, or whatever it was,

and said in that case the actual suppression

did not go beyond a reasonable restraint. We

say Mr Harvey's evidence in this case does not

support the view that this is a reasonable restraint.

His evidence is no more than inevitably an

intensification of land uses within the hill

space - within the watersheds - has the potential

to, on an aggregation basis, of increasing :pollution.

And that is all his evidence says. I mean, one

would have thought that is self-evident and that

evidence was not necessary.

DAWSON J:  Mr Doyle's reply to that, of course, he would

say, "Really,·. what we are concerned with is the

display and the attraction of people'', but no

doubt you are going to deal with that and that

is another argument.

MR HAYES:  That is right, but the di.splay and the attraction

is again so wide in its terms, the regulation -

it is so wide that it cannot be read down, or
there is no reason to say it should be read down,

to saying, "Well, it excludes a small aviary

of four or five birds which are kept for domestic

purposes"; because on the reading of the regulation,

that is kept for display. There is no limitation

in that regulation. It may have been, again,

relevant and it might have been much more difficult

to attack the validity of the regulation if the

regulation went into a bit more detail as to

the circumstances in which that display - again,

link it to the ultimate object of preventing

pollution - to put that into the regulation.

To say, "It is in those circumstances that this

land use will be prohibited."

C2T14/1/SDL	63	18/11/88
Tanner(2)

MR HAYES (continuing): We say, again, that is lacking

in the regulation, lacking in this sort of

qualification. It is absolutely necessary if

it is to comply with the qualification in the

regulation-making power.

BRENNAN J: Mr Hayes, I take the force of what you are

saying as a matter of impression from what I
suspect to be the relationship between birds

and pollutio~ but the Court is not an expert

in the relationship between birds and pollution.

How does one determine the existence or otherwise
of the requisite nexus when the subject-matter

of the regulation is one which has to do with a

matter of special knowledge and skill?

MR HAYES:  Perhaps I can answer~that in this way. The

regulation-making power contains its own limitation,

that is, so as to control or avoid pollution.

The regulation, in our submission, shoulcl be made

in a way which recognizes in the regulation itself

that limitation. How it does, it may do it in

a number of different ways for different land uses

if that is what it was sought to do, that is,

prohibit certain land uses which had that potential.

DAWSON J: If it had said, "Keeping more than two birds in

an aviary for public display'', you would say that

would be all riught?

MR HAYES:  That is right. Whether that is still reasonable

or unreasonable would be a matter of degree but

that brings it closer to the purpose that is sought

to be achieved. And that is precisely - that was

the case in COOPER V BORMANN which I do not want
to take the Court to because it just dealt with

a by-law limiting the number of dogs being kept

in a flat. There· the point was - our submission

is this: if it is a reasonable exercise of the

power to say, "You can't keep 50 pigs in your
backyard.", it is not unreasonable to see the link

between that and pollution in a watershed. It is

equally reasonable to say, "You can't keep X number

of dogs within an area of land no larger than so

many square metres." Again, there is a reasonable

nexus between the purpose and the regulation-making

power.

DAWSON J: It is not for the Court to say whether 10, 20,

40, 50 is the right number.

MR HAYES:  No, it is not.

DAWSON J: Then why is it for the Court to say that none is

not. the right -

MR HAYES:  Again, we come back to it is a question of degree

and, as I say, I can only point to the Court

C2Tl5/l/ND	64	18/11/88
Tanner(2)

has looked at that in the DAM's case and had to

make a judgment as to whether there was a

reasonable proportionality between the purpose sought to be achieved and the means to achieve

it. The Court looked at that in the HERALD AND

WEEKLY TIMES case and determined whether the means of effectuating the desired result in that case,

namely to control television services was being

achieved. They had to make a judgment and the

Court did the same in WILLIAMS V MELBOURNE

CORPORATION. It looked at the circumstances that

applied there and said, "This isn't an unreasonable

restraint' .... We say, "Look at the circumstances

that apply here." We do not invite the Court to -

if for example the regulation was qualified in

some way, then we would be doing what my friend,

Mr Doyle, says, asking the Court to substitute

its opinion for that of the makers of the

regulation.- if they had said, "20 dogs or 5 dogs

or 500 birds".

:::;

BRENNAN J:: Mr Hayes, does not all that assume that keeping

birds for display has no relevant connection with

the water purity of the water collected in the

catchment area to whi~h the regulation applies?

For all one knows, the literature on water

conservation might be bulging with cases of display

aviaries causing pollution.

(Continuing on page 66)

C2Tl5/2/ND	65	18/11/88
Tanner(2)

BRENNAN J (continuing):  How does one know that that is

not an appropriate criterion just as two, four

or 20 dogs might be. How does one determine it?

The DAM's case was quite different because, at

least speaking for myself, there was a regulation

there which was antithetical to the purpose for

which the power could be exercised. In other words,

conservation was at prejudice by reason of the

form of the regulation.	One cannot postulate that
of this regulation.

MR HAYES: In the DAM's case the Wilderness Regulations

expressly adverted to the building of the dam and regulation is directed towards what is sought to

be prevented. In answer to Your Honour's question,

if I can just turn to the regulation which is

in terms:

37.2.1 No person shall erect, construct,

enlarge or establish a piggery, zoo or

feedlot on any land within a watershed.

37.2.3 ..... "zoo" means any building .....

on any land upon or within which any animals,

birds, reptiles or any creatures whatsoever
are kept primarily for the purposes of display

or exhibition, irrespective of whether any

charge is made.

Now, we say that that, of itself, does not

link it to pollution. ·

BRENNAN J: Well, you say that but I wonder on what footing

you say it that is - - -

MR HAYES: Well, I can only invite the Court to look at

it from the basis of whether that is a reasonable

link. Just because it may be in some circumstances,

or it may not be, on the face of it that is not

a reasonable link to preventing pollution in the

same way as the primary prohibition against those

uses - there is nothing there to indicate a reasonable

link between the purpose and the regulation and

the way it is mad~.

WILSON J:  You are saying, in effect, we can take judicial

notice of the fact that animals excrete but white

mice might not excrete as much as cows.

MR HAYES:  I invite the Court to have regard to the

circumstances of this area - this case, and the
evidence given iu the case. Yes. And those are

circumstances which the Court can have regard to

in ~etermining whether it is reasonable or it is

not reasonable.

C2T16/l/AC	66	18/11/88
Tanner(2)

Ultimately, I recognize that this Court has

to make a judgment on that as to whether there

is this reasonable nexus. The Full Court did not

consider there was. We say that there is no error

in their approach, it is just that that was the

judgment which they made having regard to the

circumstances which applied in that area.

DAWSON J:  Why could you not say, it is only birds kept

for display and display usually carries with it

a large number of birds or animals to attract

rieople and it is reasonable to think they meant

'public display" when you look at the definition.And it 1s

the requirement of display which provides the

control, as it were, provides the nexus.

MR HAYES:  But we say, as Your Honour pointed out, that

it does not even have that additional public display.

DAWSON J:	But it speaks, "whether a charge is made or not" - which seems to suggest public display is what is
intended.
WILSON J:	· ..... exhibitions - - -
MR HAYES:	Well again, we have to read that into - that is my point about this regulation, we have got
to read all of that into, and make those assumptions,
before we can establish that link with the
pollution aspect.

BRENNAN J: Well, you would read a regulation down so as

to bring it within power, would you not?

MR HAYES:  We would read it down to bring it within power

but not, in our respectful submission, to make

the sort of assumptions that you need to make in

order to link it with the purpose.

(Continued on page 68)

C2Tl6/l/AC	67	18/11/88
Tanner(2)

MR HAYES (continuing):  I mean, Your Honours may well be right.

It might be public display; that is the way in wnich

the regulation ought to be read. It does not say that.

DAWSON J: If it is read that way then that suggests an

appreciable number of animals or birds are going to
kept but it does not exclude the possibility that

some people or person might put on display one or

two , but that is unlikely.

MR HAYES: Well, that is precisely our point, with respect, that

if one can read the regulation in that way, then you

are getting closer to establishing that link with

the purpose.

TOOHEY J:  But your quarrel, Mr Hayes, appears to be really

with the definition of "zoo," is it not? If one

took 37.2.1 on its own:

No person shall erect, construct, enlarge

or establish a piggery, zoo or feedlot on

anyland within a watershed.

There would not be much difficulty in seeing the

connection between that and pollution. Rather, the

problem arises because "zoo" has been defined in a

way that encompasses situations where the connection

is not so readily apparent.

MR HAYES:	Our problem would also, with respect, still be with
the regulation 37.2.1. with a:

piggery,zoo or feedlot -

because it does not, in our submission, follow that

those are necessarily or reasonable links with

pollution in the watershed.

TOOHEY J: Well, on the ordinary understanding of those terms,

it does not take a very giant. step to see a connection

between the existence of a piggery, a zoo as that is

ordinarily understood, or a feedlot, and the possibility

of contamination.

MR HAYES:  I accept that, Your Honour. The regulation then~.

as Your Honour points out, goes that one step further

and defines the zoo in that wide way which we say,

again, does not bear the relationship with the purpose.

TOOHEY J: It is really the definition that is the source of

the problem.

MR HAYES:	Yes.
TOOHEY J:	I am not sure where that takes you.

MR HAYES: Well, it enables us to say, with respect, that the

regulation does not fit in with the purpose and the power

because if the regulation is def i.ned in that way, then,

C2Tl7/l/VH	68	18/11/88
Tanner (2)

in our respectful submission, it is too wide.

Your Honours, the Full Court approached it, we say,

correctly and.made its judgment on this aspect.

I cannot get away from the fact that it is a

matter of judgment at the end of the day, as the

cases have indicated. I recognize the distinction

between the D.AM' S case and the HERALD AND WEEKLY TIMES;

they were dealing with a more general power. We say

if anything, that assists us because this is a much

more specific power in the regulation-making powers

and it is much more limited in the power itself.

WILSON J:	Did any of the members of the Court in the DAM' s case,
other than Justice Deane and Justice Brennan) discuss
the reasonabl~ proportionality.  They may have,
I just do not recall. Perhaps we all did.
MR HAYES:	Yes, I think the Chief Justice -

WILSON J:	Except the dissenting members.	Do not bother,
Mr Hayes.

MR HAYES:	I am reasonably sure that the Chief Justice dealt
with that.  Your Honours, I invite you to just
consider the PAULL V MUNDAY case which my friend
referred to because, we say, with respect, that that
does assist our argument. There the Court said
that the regulation was striking at the - was not
going to the source, not going to· th~- -banning of air ·impurities, it·wc9:si..going to the source that was producing those
air impurities. We say,that that is not dissimilar
to regulation 37.

(Continued on page 70)

C2Tl7/2/VH	69	18/11/88
Tanner(2)

MR HAYES (continuing): It does not go to prevent pollution,

it goes to prevent a particular source which may have

the effect of ·producing pollution and to that extent,

we say, PAULL V MUNDAY is supportive of the proposition

that we are putting. The references that I have given

in my outline to PAULL V MUNDAY, I do not think it is

necessary to take the Court to, but I have referred

specifically to those parts of the judgment which we

say is supportive of the argument that this regulation

strikes not at pollution, from a particular source,

but merely at the existence of a possible source and

that is the -

GAUDRON J: But is not that prevention?

MR HAYES:  Yes, it is prevention, but it is again, prevention

for that purpose, namely the pollution and this takes

us back to my earlier argument that it does not

prohibit the pollution of the watersheds, it merely

prohibits the use of land and we say that is beyond

power. Your Honour, I do not think I can take

that part of the argument much further because as -

DAWSON J: It really amounts to an...argumen..· that prevention,

in this. instance, is not b~tter than a cure?

MR HAYES:  Its prevention may not be necessary.

DAWSON J: Yes, I follow.

MR HAYES:  Can I turn to the second part of the argument and

that is the inconsistency between the PLANNING ACT

and the WATERWORKS and the regulation itself. It is

important, in our respectful submission, to consider

the scope of the PLANNING ACT and the nature of the

legislation itself.

(Continued on page 71)

C2Tl8/l/SR	70	18/11/88
Tanner(2)

MR HAYES (continuing): It is a very comprehensive piece of

modern legislation. It is designed, in our respectful

submission, to deal with issues of pollution.

It is structured in a way in which it deals with issues of pollution. The development plan, which

forms an integral part of the PLANNING ACT, is

prepared by either a council or the minister and

before it proceeds to the stage of being authorized

goes through a process of being approved by a
committee, that is, the advisory committee on planning.

Section 14 of the Act, Your Honours will see, that the advisory committee on planning is constituted by a number of people with a wide experience in

a whole range of matters including environmental

protection and, similarly, the South Australian

Planning Commission, which advises the minister,

comprises members who are drawn from people with

experience in matters of environmen~ planning.

So it is a very comprehensive Act. It deals

with the sort of matter which the regulation is
seeking to deal with, that is, the control of

land use. It deals with it for the purposes that

the regulation-making power sought to do, that is,

for the prevention and reduction of pollution in

the watersheds; it expressly deals with that.

Now, in those circumstances what we say is not

that the PLANNING ACT is inconsistent with the

WATERWORKS ACT. We say that a regulation made

under the WATERWORKS ACT many years ago is now

superseded by the more general PLANNING ACT which

deals with the same subject-matter of that

regulation.

BRENNAN J:  ... "".:: ..... repeal?

MR HAYES: It is repealed. There is, as Your Honour Justice Brennan

put it yesterday, no longer any basis upon which

that regulation, that particular regulation which

deals with prohibition can coexist with the more

comprehensive and recent statute. /

DAWSON J :- Is the regulation repealed or is the' section pro:_ tan to

repealed?

MR HAYES:  We say the regulation is repealed to the e~tent

that it seeks to prohibit a land use which the

more general Act enables that land use to be

utilized. We say that that is a clear inconsistency.

•(Continued on pag.e 72)

C2Tl9/l/MB	71	18/11/88
Tanner(2)

DAWSON J:  I do not know that it matters, but that

cannot be right, can it, because the regulation

is either within power or it is not, and

if it is not within power it must mean because -

I ,assume it otherwise would be - the section of

the WATERWORKS ACT is cut down, must it not?

MR HAYES:	We say that the regulation - - -
DAWSON J:	You must be saying that the planning legislation

repeals pro tanto the relevant section of the

WATERWORKS ACT?

MR HAYES:  I am not sure we need to go to that extent,

because there are authorities, with respect,

which suggest that if a regulation is made
which is inconsistent with the general law,

namely a statute -and the authority I have referred

to is the CITY OF PORT ADELAIDE EX PARTE GROOM case,

·~,

which is a trademarks case where the by-law was	;
made which was inconsistent with the State TRADEMARKS	~
ACT in terms of its penalty - the regulation was said to be ultra vires because it was inconsistent
with the general law.

WILSON J: Yes, but in this case you could give no effect to

paragraph XXIV because, on your argument, the

PLANNING ACT has covered the field of land use.

MR HAYES:  You can give effect to that in terms of controlling

and regulating. You can give effect to that.

WILSON J:  Why would you not run into the same difficulty,

that there is a prohibition in the PLANNING ACT

subject to relaxation given consent?

(Continued on page 73)

C2T20/l/JM	72	18/11/88
Tanner(2).

MR HAYES: What we would put is this: that in the one case

the PLANNING ACT does not prohibit outright the
use of land; the regulation does purport to

prohibit outright the use of that land. That

is inconsistent. If the WATERWORKS ACT did

not do that, there would not be the inconsistency.

The two Acts could lie side by side and operate side by side, controlling land use and regulating

land use in much the same way as the LICENSING

ACT does, as the WASTE MANAGEMENT ACT which my

friend referred to as the BUILDING ACT, and so

on. There is no inconsistency there; they can

operate side by side. They cannot operate side

by side where the regulation purports to prohibit

outright which the Act enables to be done.	We
say that is where the inconsistency lies and that is what the Full - - -

WILSON J: But you would also say, would you not, that

the WATERWORKS ACT cannot control in any manner

which is not reflected and consistent with the

PLANNING ACT's control.

MR HAYES:  We do not need to, in our respectful submission,

go that far and say that.

WILSON J:  No, but in order to test the proposition we

have to really identify how far the PLANNING

ACT is intended to go.

MR HAYES: Yes. It may be that - I do not know, I have

not tried to envisage all of those cases when placitum XXIV might be given some work to do,

because the point that we make - and I think

we say it can be tested on the usual basis of the

cover-the-field test where you have got the

prohibition and you have not in the other Act,

then that is surely - the regulation, - which is a

subordinate piece of legislation, ·must give

way to the statute which is designed to control

just that situation.

TOOHEY J: You have a further difficulty, I think, Mr Hayes,

in that "use" and "development" are not synonymous

terms. In so far as the PLANNING DEVELOPMENT

ACT is concerned, it is only a change in use -

that is:"use" unaccompanied by any sort of structure

or the like that attracts the operation of the

PLANNING ACT - whereas the WATERWORKS ACT seems

to be looking at "use" in its more general term.

C2T21/1/SDL	73	18/11/88
Tanner(2)

MR HAYES:  It is true that the PLANNING ACT deals with change

of use but also with structures. It is difficult to

see any circumstances in which the PLANNING ACT will

not deal with a use of land, unless it is an existing

use of land, which is not development because a use

of land either starts at some stage, unless it is an
existing use and it involves development or it

involves the use of buildings or structures on that

land which in turn will bring in development. So

there is really no need to define development to

include use of land in the PLANNING ACT because it -

BRENNAN J: Take the situation of somebody who was using land

within the waterworks area after the date in which the

PLANNING ACT came into operation for a piggery and

he had no permission under the ~ACT. Could

anything be done to stop him?

MR HAYES:  If he had no permission under the WATERWORKS ACT, yes.

BRENNAN J: What could be done to stop him?

MR HAYES:  He would have changed the use of that land - - -

BRENNAN J: No, I am suggesting that he had always conducted

a piggery···there.

MR HAYES:  Yes, but if one looks at the definition of "undertake

development" in the PLANNING ACT, to undertake

development which is , what, sections 46 and 4 7 - catches -

undertake development. Undertake development is defined

as meaning:

to connnence or proceed with development or

to cause, suffer or permit development to be

connnenced or proceeded with.

BRENNAN J: And what is a - development?

MR HAYES:  A development is a change of use of land or the

erection or construction et cetera of a building on
the land.	Now the -

BRENNAN J:  My hypothesis was that there would be no change

in use.

WILSON J: The use preceded the coming into force of the

PLANNING ACT?

MR HAYES:  Yes, certainly the Full Court in South Australia

has decided that in a :::-ecent case that where that

sort of situation arises that if that was an unlawful

use, and in Your Honour's example it would be an
unlawful use in that it has not got any approval, the

PLANNING ACT -

BRENNAN J:  Why does it need any approval?

C2T22/l/SR	74	18/11/88
Tanner(2)

MR HAYES:  I thought Your Honour said because it has not got

approval under the Waterworks Regulations.	So it is
an unlawful use.	The PLANNING ACT catches that

when it comes into force as preceding with development

or causing suffering or permitting the development

to proceed or be cormnenced with.

BRENNAN J:  I find that very difficult to fit into the words,

''development'_; 'l

MR HAYES: But, in our respectful submission, if that does

occur, that does not, in our submission, alter or

weaken our argument about the PLANNING ACT and its

relation to the Waterworks Regulations.

BRENNAN.J: But if your answer, based upon the Supreme Court of

South Australia's recent decision, is incorrect the

consequence of your argument is that anybody who has

been unlawfully conducting piggeries in the waterworks

area can continue to do so without penalty? The

WATERWORKS ACT has gone and there is nothing in the

PLANNING ACT to make it unlawful?

MR HAYES: Yes, in those circumstances that would be right.

BRENNAN J: It seems an extraordinary result, does it not?

MR HAYES:  Well it is and we say that that is not the result,

that is based on the proposition that that argument

-Your Honour put is wrong, that we say that is not·

the result~and it is caught. It does not h~ve the

protection of the existing use provisions· of the

PLANNING ACT.

WILSON J:  Do you happen to have the reference to that case off

hand?

MR HAYES: It is not reported. It is the DISTRICT COUNCIL OF

MUNNO PARRA V BATTERSBY. I will undertake .. t·o provide

the Court with copies.

(Continued on page 76)

., 1-

C2T22/2/SR	75	18/11/88
Tanner(2)

MR HAYES ( continuing) :  I hope I have got the effect of that judgm2nt

right. That ~s my recollection. It was only

handed down not that long ago.

MR DOYLE:  There is no one here who can contradict my

friend, so he can say what he likes.

MR HAYES:	I would not want to mislead the Court.
BRENNAN J:	No, I understand.

WILSON J:  We understand. We appreciate your just

relying on your recollection.

MR HAYES:  Thank you, Your Honour. Finally on page 4

of my outline I have merely referred to

the VICTORIA V COMMONWEALTH case because that

is the "cover the field" test of inconsistency

under section 109 of the CONSTITUTION, and

CITY OF PORT ADELAIDE EX PARTE GROOM, which

was the trademarks case which dealt with

the issue of whether a by-law or a regulation

could be inconsistent with an Act.

I wonder if I might just take the

Court, before I finish, to COOPER V BORMANN,

22 SASR 589? The headnote in that case sets

out the by-law making power:

Section 667(37a) of the LOCAL

GOVERNMENT ACT, 1934-1972, authorized

a municipal corporation to make by-laws

for (inter alia) "the prevention of the

keeping of animals or birds of any kind
within the municipality ... so as to be

a nuisance or injurious to health."

A municipal corporation made a

by-law providing:

"No person shall (except with the

consent in writing of the council) keep

more than two dogs in any premises

situated within any of the Residential

Zones 1, 2, 3 or 4 created by the

provisions of the Metropolitan Development
Plan.

It was held that that by-law was ulta vires and invalid. At page 591 of the judgment, Her Honour

Justice Mitchell deals with that, in the fifth

line she points out that the by-law:

applies to all dogs, whether kept as

domestic pets or otherwise. To the

extent to which it purports to apply
to dogs which are not kept as domestic
pets it is inconsistent with the

regulations -

C2T23/l/JM	76	18/11/88
Tanner(2)

She is dealing there with the regulations and said

that the regulations must prevail. Those are the

regulations made under the previous PLANNING AND

DEVELOPMENT ACT which we do not have in this

situation. Then, right down the bottom of that

page, in the last paragraph:

I turn to what appears to me to be

the more difficult question, namely,

whether the by-law is valid under the

power given by section 667(37a)iv of

the LOCAL GOVERNMENT ACT.

Then she deals with the nuisance aspect.	Over the
page, at page 592, the:

Act empowered the Local Authority to make

by-laws for the prevention of the keeping

of animals on any premises as as to be

injurious to health. The by-laws which

have been the subject of judicial

interpretation under the latter section

have been by-laws directed t9'fu'ards the

prohibition against keeping,-k.nimals in

close proximity to other premises -

- she refers to a number of cases.

The question for conside;ation is

whether clause (3) of by-la¢I, which

limits the number of dogs which may be

kept in certain premises, is a by-law

within the power to prevent the

keeping of dogs so as to be a nuisance

or injurious to health .. Clause (4) of

the by-law, which specifies that kennels

and yards are to be maintained on

premises when more than two dogs are

kept and requires kennels and yards to

be certain dimensions and constructed

of particular material and not be within

ten metres of any dwellinghouse, church,	schoolroom, hall or factory, clearly
relates to the keeping of dogs in such a .
way as not to constitute a nuisance or
to be injurious to health.

(Continued on page 78)

C2T23/2/JM	17	18/11/88
Tanner(2)

MR HAYES (continuing):  Now, I just pause there, we do not

have that sort of situation either in this case,

there the by-law went further and delineated all

these matters. Your Honour goes on:

But is the limitation of numbers of dogs

within the power contained ins. 667. The

power is not to prohibit the keeping of dogs

but so as to regulate the keeping of dogs

as to prevent that keeping being a nuisance or

injurious to health.

Your Honour then refers to the COUNTRY ROADS case

and SWAN HILL V BRADBURY and then at the bottom

of page 593 Your Honour says in the last paragraph:

In the instant case the authorized purpose is the prevention of nuisance or injury to health

by the keeping of animals. Mr Howard submitted

that the by-law is valid in that the keeping

of more than two dogs in premises situated within the residential zonesin question is likely to create a nuisance and is likely to

result in a situation where injury to health

might occur. I do not think that it can be

said that the keeping of more than two dogs in

any premises in the area would be likely to have

either of those effects. In some premises this

might well be the likely result and:in other,
more connn.odious premises, the keeping of more

than two dogs would be unlikely to have any

such effect.

DAWSON J:  Well, that is the nub of the case, is it not?

She decided for herself, Her Honour did, that

keeping more than two dogs was not likely to have

this effect?

MR HAYES:	She decided that that was the case in ·a_ context of whether the by-law making power which limited
the by-law to that purpose, namely, so as to be
injurious or offensive to health was complied with.
Now, I acknowledge what Your Honour says and I acknowledge that this is my friend's argument,.
that she is substituting the Cour.t,'>s. opinion
for that of the body making the by-law.

DAWSON J: The parallel situation in this case would be

that we should decide that the keeping of birds

for the purposes of public display is not likely

to pollute the area, or the water?

MR HAYES:  I do not put it on that basis. I recognize that

Her. Honour there is making that judgment. I say

that parallel here is for the Court to decide
whether the keeping of birds for the purposes of

display and exhibition can reasonably be said to

C2T24/l/MB	78	18/11/88
Tanner(2)

be within the purpose of preventing pollution

and the answer·to that, in our submission, is

no, it cannot.

WILSON J:	Let me say, you are back on the power?
MR HAYES:	Yes.  I drew the Court's attention to that

because the Full Court referred to COOPER V BORMANN

and I think His Honour Justice Jacobs was of the

view that Her Honour Justice Mitchell was applying

the same proportionality test. I am not so sure

that that is what Her Honour did, but I say that

whatever COOPER V BORMANN says the test in this

case is	-· I have said that before - · that is
whether it is reasonable or not.	We say that

it is unreasonable and rely on the matters

referred to in MELBOURNE V WILLIAMS.

DAWSON J:  Is there any onus in these matters or is

there a presumption of validity of the regulation

or a presumption of regularity or anything that

assists one in an evenly balanced situation?

MR HAYES:  We say that there is no·-""." when one looks at the

validity the Court has to - there is no onus

one way or the other. You do not start by saying

that we must presume that this is ~valid by-law

because it is the very validity that is being

attacked. I do not know of any authority which

suggests that, in construing a regulation one

must endeavour to construe it within powers.

Your Honour Justice Brennan said it must be read in a way which one must try and bring it within power but I am not suggesting - - -

DAWSON J:  I had rather in mind that:_.it boils down to

something that is very like the question of fact

and on that question.,does anyone bear the onus?

(Continued on page 80)

C2T24/2/MB	79	18/11/88
Tanner(2)

MR HAYES:  I would not have thought that it is a question

of onus. I would have thought, with respect, it

is a question of seeing whether the given

circumstances· where they are facts assist the

Court in deciding whether itais a reasonable

exercise of the power or not.without there being an onus on one or the other party to say, "Well,

you know, we start from this basis or we start them in the circumstances of that case. The Court,
from that." The factual matters which are put,
in the case, for example of MELBOURNE CORPORATION

in this case, is entitled to look at the watershed,
the extent of the watersheds, the nature of the

watersheds and the controls and to say, standing

back and looking at all that, "Is this a reasonable

exercise of the power to achieve that purpose?"

If the Court pleases.

WILSON J: Thank .you, Mr Hayes. Yes, Mr Solicitor.

MR DOYLE: Just on that point raised by Youn Honour

Justice Dawson, there is a short para~raph on the

point in Pearce on Delegated Legislation,
paragraph 282. It is not, I regret to say, very
helpful because the author, in effect, begins by
saying that there seems to be a presumption of

validity but ends by saying that the Crown has

to show validity. So the paragraph seems to go

in a bit of a circle.

Your Honours, I am not aware of any other authority really that analyses that question.

WILSON J: If it was a prosecution for a breach of a by-law,

one would expect the prosecutor to carry such

an~ onus.

MR DOYLE:  With respect, I am not sure that I would accept

that, Your Honour, as to that particular issue.

My submission might be that, as to the validity,

· whether v a 1 i di t y ·_a r .i s es in a prose cut i on or

-~""' elsewhere, onus - whatever it is - should stay

the same otherwise conaeivably in a prosecution

a thing would have been delared valid bad validity

arisen·.in ordinary civil proceedings.

WILSON J: Yes, I was thinking of the prosecution to incline

one to an answer that the latter passage in Pearce

sounds inappr?priate.

BRENNAN J:  Why is there not an analogy to be drawn between

the validity of the piece of delegated legislation

which is impugned and the validity of a law made

under a limited constitutional power?

MR DOYLE:  My submission would be, Your Honours, that

such an analogy can and should be drawn. I do

C2T25/l/ND	80	18/11/88
Tanner(2)

not pretend unfortunately to have thou~ht through

this question of onus in advance but, 1n my

submission, that would be a natural way of testing

it and what I submit is the proper test rather

reflects - - -

DAWSON J: That does not help .very much because there are

those who say there is a presumption of liberty

there and those who say there is not.

BRENNAN J: That brings me to the question that I asked you

yesterday because it was in GERHARDY V BROWN,

159 CLR 142, where I referred to BREEN V SNEDDON

and adopted the approach of Chief Justice•Di~on

in that case. I would like to know, for the purposes

of your submission, do you contend for an analogy

between that approach and the approach to validity

in this case? Specific propositions are that there

is no question of onus nor any limitation to what

the parties choose to.put before the Court.

MR DOYLE:  On reflection, Your Honour, I think I would adopt

that approach, that it is a matter for the Court

to determine and not one appropriately analysed
in terms of onuses either way but simply to be

determined by the Court and that onuses probably

do not really have a part to play.

(Continuing on page 82)

C2T25l2/ND	81	18/11/88
Tanner(2)

BRENNAN J:  Doing the best it can?

MR DOYLE:  Yes. Your Honours, other than that, just very

briefly, in my submission, in the regulation
"display" should be read as meaning public display

and in relation to the importance of attracting

the public, without reading from it, I would just

remind the Court that at pages 46 to 47 of the

appeal book, Mr Harvey in his affidavit explained

why attracting the public does have particular

pollution potential.

One final point:  my learned friend's argument

could, in one sense, be summarized this way: what
he says is, you could validly under this power

provide, "no person shall erect a big piggery"

because he says, "Well, I can see that has pollution

potential". But then he says, "If you want to

deal with a little piggery, you would really have
to say, no person shall erect a little piggery

so as to cause pollution". And he is really just

saying that when it becomes more arguable whether

the thing is a source of pollution but in some

way the actual power contracts so that now you

have to tack on those words "so as to cause pollution"

before the regulation becomes invalid. And, in

my submission, that highlights that, in fact, his

approach does not properly fit with the scope of

the power that is given.

May it please the Court.

WILSON J:  Thank you, Mr Solicitor. The Court will consider

the matter.

AT 11. 13. AM THE MATTER WAS ADJOURNED SINE DIE

C2T26/1/AC	82	18/11/88
Tanner(2)