State of South Australia v Tanner

[1988] HCATrans 276

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 arid PETRONELLA

TANNER, SOUTH AUSTRALIAN

PLANNING COMMISSION and PLANNING

APPEAL TRIBUNAL

Respondents

~ILSON J

BRENNAN J

DAWSON J

Tanner (2)

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 17 NOVEMBER 1988, AT 3. 15 PM

Copyright in the High Court of Australia

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MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with my learned

friend, MRS R.E. CANT, for the appellant.

(instructed by the Crown Solicitor for South

Australia)

MR B.R.M. HAYES, QC: If the Court pleases, I appear with

my learned friend, MR J.E. SCANLON, for the

respondent, Tanner. (instructed by Ward & Partners)

WILSON J:	The Registrar has been advised by the Deputy
Secretary of the Planning Appeal Tribunal that
they will not be represented at this hearing
and will be pleased to abide by any decision
of the Court.  He has also been advised by
Mr Dancis,  secretary of the South Australian
Planning Commission, that they do not wish to be heard at the hearing of this appeal and are content to abide by the decision of the Court.
Mr Solicitor?
MR DOYLE:	Your Honours, I hand up in manila folders a

copy of the outline and in each folder is a

copy of the materials which we said in our list

of authorities would be provided to the Court

and also two or three pages from one case which

was not on our list of authorities.

WILSON J: · Thank you.

MR DOYLE:	Your Honours, I was proposing, before developing
the submissions, to give the Court a very - as brief as I can - survey of the operation of the PLANNING
ACT in its relation to the development plan.
Of course, if members of the Court are sufficiently
familiar with both of them for that 'to be unnecessary,
I will not, but rather than waste time on it I inquire whether the Court would find it helpful
if I did that?
WILSON J:	I think we would, Mr Solicitor.
MR DOYLE: If the Court pleases. Then, if Your Honours

could have before you the PLANNING ACT, 1982. on section 47(1) which provides that:
The PLANNING ACT controls the use of land throughout

Subject to this Act, no development shall be. undertaken without the consent of the

relevant planning authority.

Development itself is widely defined in section 4(1)

and I just invite Your Honours' attention to

that definition in due course but it is a very

extensive definition.

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The system hinges on a document called

"The Development Plan", and that plan is recognized

by the Act itself and on that I refer Your Honours

to section 40(1), in which Your Honours will

see that the development plan is subject to amendment

under this Part, the document approved by resolution

of both Houses of Parliament as "The Development

Plan".

In section 41(1) prov1s1on is made for

amendment to the development plan by a supplementary

development plan.

Your Honours, the development plan is

a very lengthy document and it contains a statement

of objectives, proposals and principles to be

applied by planning authorities.

BRENNAN J: ·

By virtue of what provision is it that the

planning authorities must apply the development
plan?

MR DOYLE: 

Your Honour, that is by virtue of section 47(9),

in particular, which provides that:

In deciding whether to consent to a proposed

development under this section, a planning

authority -

(a) shall have regard to the provisions

of the Development Plan so far as they

are relevant .

(Continued on page 4)

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MR DOYLE·(continuing): Also, the development plan comes

into play because section 47(3) provides that

where development of a particular kind is

expressed by use of the word "permitted" in the

development plan to be permitted absolutely

or conditionally, then it is permitted, and

also by section 47(5) where development of a

particular kind is expressed by use of the

word "prohibited" in the development plan to

be prohibited then:

subject to subsection (6), such

development is prohibitied within

that area.

Perhaps while I am on that, it is convenient

just to mention one other feature of this Act

which is a change from the previous Act and

that is that despite what subsection (5) says there is in truth under this Act now no truly

prohibited development because subsection (6)

goes on to provide that:

Where a development is proposed that would, apart from this subsection, be prohibited

..... the relevant planning authority may

consent ..... -

(a) where the relevant planning is a

council - the -

planning -

Commission	concurs .....
or

(b) whre the relevant planning authority is

the Commission - the Minister and ..... the

council concur.

So there is, in truth, under this legislation no

respects the plan is brought into play. truly prohibited development, but in those three As I said, Your Honours, the plan is a

statement of objectives, proposals and principles

to be applied by planning authorities. The

very broad pattern is that the plan is broken up

into sections and so what you will find is a section
of the plan relating to a region and, if we take

this case as an example, the outer metropolitan

region for Adelaide and the plan will state objectives,

proposals and principles for the outer metropolitan
area or region. Then the region is broken up into
sub-areas, generally each sub-area being the area
of a district council and then for that sub-area
there will again be statements of objectives,
proposals and principles and also harking back to

those stated generally for the whole region.

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DAWSON J:  I might have missed it, Mr Solicitor, the

principles of development control are to be

got from?

MR DOYLE:	From the development plan.
DAWSON J:	They are one and the same thing, generally

speaking?

MR DOYLE:	Yes, where is Your Honour reading from?
DAWSON J:	I was just looking at section 47(5):

prohibited by the principles of

development control.

MR DOYLE:	That is by virtue of definition, Your Honour. The principles are contained in the development
plan.
DAWSON J:	I see.
MR DOYLE:	If Your Honours could keep the Act open for

a moment, but in the papers which have been

provided to the Court, the first document in

the manila folder, which was underneath the

outline, should be the portion of the development

plan relating to the outer metropolitan area.

If Your Honours could just glance at that for

a moment and I will just refer to it to give

Your Honours a picture of the structure? Your Honours

will see, first of all, that is headed "outer

metropolitan". It says:

The part of the State to which this

part of the development plan applies

is shown on -

begins a statement of a number of objectives and

a map, to which it refers and describes the area.

when Your Honours look through these you will see

they are fairly broadly expressed. The objectives

continue for a number of pages, they are all numbered.

Then, on page 9 - - -

WILSON J: .This outer metropolitan area includes the

subject property?

MR DOYLE:  Yes, Your Honour. Then, on page 9, begin

"Proposals" and then on page 10 begin "Principles"

and the principles become more specific. As

Your Honours read on, when_you come to page 13 you

will see two things: first of all, for those who

are just jumping ahead a fraction, some principles

there relating to watershed protection, but also

the principles then become quite specific by

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paragraph 32 in that it provides that certain

kinds of development are prohibited in the

Mount Lofty Ranges watershed, exclusive of certain

townships.

As it happens, Hahndorf, the town within

which the subject land is,is one of the townships

and so those particular kinds of development are

not prohibited by virtue of that provision in

Hahndorf.

(Continued on page 7)

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MR DOYLE (continuing): So, Your Honours, that is an

example of the structure of the development plan.

Under the Act, as I have already indicated, it

is usually the local council which is the relevant

planning authority but in certain situations the

relevant planning authority is the South Australian

Planning Connnission. I will not bother Your Honours

with the details of when that is but if Your Honours, in due course, look at section 47(2) and section 8(1)

they provide for situations in which the relevant

planning authority becomes the Planning Connnission.

There are also provisions by virtue of which

in certain situations the council must consult

with the Planning Connnission and also provisions

by virtue of which there cannot be an approval

unless the Elanning Connnission concurs. Your Honours,

I have always referred to section 47(9) which

requires the provisions of the plan to be

considered when a council is deciding whether to

give consent.

WILSON J: Before you go on, just before I leave the outer

metropolitan area plan and clause 32, you have

observed that it expressly excludes the township

of Hahndorf?

MR DOYLE:	Yes.
WILSON J:	Is there anything else in the plan that refers

to that area then -applies any principles to it?

MR DOYLE:  No, Your Honour, the principles for Hahndorf

are contained in a particular plan for Hahndorf

to which I will come in a moment. So referring

to the document which is presently before

Your Honours the objectives in it apply to the

township of Hahndorf but the principles do not.

WILSON J:  I see, thank you.

MR DOYLE:	Your Honours, section 47(9)(b) provides that in making a decision under the plan a planning
authority must:

not make a decision that is seriously

at variance with those provisions

of the plan. Another feature of the Act and the

plan is that the plan provides guidance to

planning authorities without rigidly tying their

hands.

BRENNAN J: The copy of the Act as at January 1982 has

been amended I take it?

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MR DOYLE:	Yes, it has, Your Honour.	I think I can give

Your Honour the date of the amendment although

because I am working from an amended Act I am

not certain that the date I am giving you is

correct, but I think by Act No	71 of 1985
the amendment was made.

BRENNAN J:	Yes.
MR DOYLE:	The history to that, Your Honours, was that originally the Act simply provided that the planning
authority must have regard, and presumably Parliament
took the view that the plan needed to be given a
little more weight in the process and so subparagraph (b)
was inserted to provide that the planning authority

• •	should not make a decision that was seriously
at variance with the provisions of the plan.

BRENNAN J:	Is it section 27 of	Act No. 71 of 1985?
MR DOYLE:	Yes, thank you, Your Honour.	Your Honours,

I am not going to read from this case but just in case it is relevant to complete the picture it has been held that a decision, which is

seriously at variance with the provisions of

the plan is a nullity, that that was held by

the Full Court in the REG V THE CITY OF MUNNO PARA

EX PARTE: JOHN WEEKS, 46 SASR 400. I simply

refer Your Honours to that case as giving part

of the picture of the way in which the Act

interacts with the plan.

Now, Your Honours, I mentioned that the plan can be amended by a supplementary development

plan and as I have already put to Your Honours

the subject land is in the area known as the

Mount Lofty Ranges watershed. A supplementary

development plan was in fact prepared in respect

of that area. I just mention now again, to avoid

confusion, the area known as the Mount Lofty Ranges

watershed was an area·created, as it were, by

regulations under the WATERWORKS ACT. (Continued on page 9)

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MR DOYLE (continuing): So it was an area already existing

or defined by virtue of regulations under the
WATERWORKS ACT but it was used as a planning
area and so a supplementary development plan
for the Mount Lofty Ranges watershed was prepared

and made to apply to that same watershed area. And that plan was in force on an interim basis

at the time of the relevant application and so

had to be considered by the planning authority.

Your Honours, the area known as the Mount

Lofty Ranges watershed and so the area which
was the subject of the supplementary development

plan is at page 18 in the appeal book.

Your Honours will see that it is quite an extensive

area, stretching in the south from Myponga through

to the north bordering on the Barossa Valley,

a town of Williamstown, and I think that would

be probably a distance of getting on for

100 kilometres. And although I am jumping across

for the moment to the WATERWORKS ACT, I just

indicate to Your Honours that the regulations

under the WATERWORKS ACT which created this

watershed area also divided it into the two zones
which are indicated by the hatching which is
shown in the bottom right-hand corner of the
plan and, putting it broadly, the area of
watershed zone I, they are areas which are closer
to reservoirs or water collection areas and

watershed zone II is simply the balance of the

area.

So that was the area the subject of the supplementary development plan. Your Honours,

the supplementary development plan for the

watershed area is in the appeal books commencing

at page 14. And if I could again just give

Your Honours, from the appeal book, some very

brief background to the development plan and

I do not do this simply out of general interest

but these were matters drawn on by the Full Court

in their judgments.

First of all, at page 15 appears an

explanatory statement. This is not part of the
plan itself but it was part of the material before

the court in relation to the validity of the

regulations. At page 15, about line 10, perhaps

line 13, the statement appears:

It is now possible, in certain circumstances,

for additional allotments to be created,
which, in turn, is likely to result in an
increased intensity of land use and a
corresponding increase in the pollution

of surface and underground water resources

in the Mount Lofty Ranges Watershed.

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So, first of all, in effect, increased intensity of use and then it goes on to say:

There is also a need to strengthen existing

rural land use policies to ensure that
polluting intensive urban uses are

restricted to delineated township areas

and that the more intensive and potentially

polluting agricultural activities are

controlled.

So some distinction is drawn between township

areas in the watershed and other areas and concern

both for the polluting intensive urban uses and

for the intentive and potentially polluting

agricultural activities.

And at page 15, line 30, it does appear

that the intention of the plan was to, as it

say:

addition of policies, specifically
objectives and principles of development
control, applying to land within the Mount

Lofty Ranges Watershed but outside defined townships.

So this supplementary development plan primarily applied to land - in fact, I cannot quite say

exclusively but almost entirely applied to land

outside defined townships.

WILSON J:  Has it any relevance to Hahndorf?

MR DOYLE: It does have some relevance to Hahndorf,

Your Honour, because it introduced objectives

into the planned outer metropolitan area which

did apply to Hahndorf· because the objectives

did, but in so far as it introduced principles,

it was not relevant to Hahndorf. But this material

was treated by the court as relevant also to

the question of the validity of the regulations

simply in terms of whether they were a valid

exercise of the regulation-making power.

And, Your Honours, the problem of pollution,

a little more is said about it at page 19 and

I will not stay to read that now but invite

Your Honours' attention to it in due course.

(Continuing on page 11)

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MR DOYLE (continuing):  To the extent that it may be relevant,

I also invite Your Honours' attention to page 23

line 25 and the following lines. It would appear

from them that at least, in terms of the planners,

it was envisaged that the regulations under the

WATERWORKS ACT would continue to apply because they

are referred to as relevant to control on animal

husbandry activites and the tenor of the statement

that is there appears to assume that they will

continue to apply. So, Your.Honours, that is the

background to the supplementary development plan; a concern with pollution in the watershed area and

putting it in non-technical terms, the concern

expressed was that, almost inevitably, that the level

of pollution would increase. What the plan did,

specifically, can be seen if you turn to page 38.

That attachment A contains two statements of

objectives. They were - by this supplementary

dvelopment plan as I have already put to the Court -

inserted into the objectives for the outer

metropolitan area and so they became relevant to

Hahndorf.

In the document I gave Your Honours, which is

the up-to-date version, they appear at page 9. They

now have different numbers but that is only as a result

of subsequent changes and renumbering. They are

still the same objectives, although with different

numbers, if Your Honours want to glance at that

page 9 of the outer metropolitan plan. They are

numbered there as objectives 36 and 37.

WILSON J: Well, this incorporates the supplementary plan, then.

MR DOYLE:  Yes, Your Honour. The document Your Honours have

before you headed, "Part IX - Outer Metropolitan" is,

as far as I am aware, up-to-date to the moment. Now,

Your Honours,the supplementary development plan also

put in principles and, at page 39 of the appeal book

appear principles which we can ignore; they are put

into a plan for the metropolitan area which is
irrelevant for this case.	At page 40 appear

principles as attachment C which were put into the

outer metropolitan plan but, because of that exclusion

for defined townships they do not apply to Hahndorf

and that exclusion appears on page 40 just above

line 25, where it says:

exclusive of the land contained within the

townships described in Table OM/1.

And Hahndorf was one of those townships. Then, just

to complete the picure and I am sorry that it is so

complex, but planning law seems to be tending that way,
if Your Honours could then look at another document

which was provided to Your Honours in the manilla

folder and it is headed, "District Council, Mount Barker -

Hahdorf Zoning."

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WILSON J: Is it premature for me to ask, Mr Solicitor,

having regard to that exclusion of the land in

townships, as to whether there are any prohibitions

applicable to Hahndorf in the outer metropolitan

development?

MR DOYLE:	No, Your Honour, it is certainly not premature, and
my understanding is that in the outer metropolitan
part of the plan there are no prohibitions which
would apply within the town of Hahndorf. Any
prohibitions for Hahndorf we will find in the plan
for Hahndorf itself. If Your Honours could then look
at the Hahndorf plan, that is, "District Council,
Mount Barker - Hahndorf Zoning." I have provided Your Honours with a supplementary development plan. This is a plan which was in force on an interim basis
at the time of the application and, being a
supplementary development plan it again has an
introductory statement which does not become part of the plan.

(Continued on page 13)

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MR DOYLE (continuing):  At page 2 - I am sorr~ Your Honours,

I think that introductory statement would have been

part of this plan but I do not think it matters

either way. At page 2 of the Hahndorf plan you

will see under the heading "Objectives":

The objectives for the Outer Metropolitan

area apply to the township of Hahndorf.

And that is how those objectives I referred to

a few moments ago get picked up.

BRENNAN J:  What plan is this supplementary to, could I

ask?

MR DOYLE:  Your Honour, this is called a supplementary

development plan because it is an amendment to

the original development plan. It creates a new

plan for Hahndorf and I am not sure, to be quite

honest, Your Honour, whether there was previously

a plan for Hahndorf or whether this was the first

one but it would still be called a supplementary

development plan because it is an addition to the

development plan as it existed.

BRENNAN J: Is it right then to take this document as the

exhaustive provisions dealing with the planning

of Hahndorf?

MR DOYLE: Exhaustive, Your Honour, as long as you bear

in mind what is stated under "Objectives" that

you have to also take into account the objectives

for the outer metropolitan area.

BRENNAN J:  So that just picks up from the other document

those objectives and imports them into this document.

MR DOYLE:  Yes. Mr Hayes, Your Honour, suggests that it

may not pick up every objective because, obviously,

at times it will depend, of course, on the terms

of the objective when you look at it and so there

may be some objectives which when you read them

you would realize could not apply to Hahndorf.

And so continuing with the Hahndorf plan: it states

that the objectives for the outer metropolitan

area apply. Then it goes on to deal specifically

with the Hahndorf area and on page 2 Your Honours

will tirst of all see some objectives stated, then

towards the bottom of the page some proposals and
they continue on to page 5 and then come principles.

And now it does not pick up principles from the

outer metropolitan plan, it states its own principles

and as it happened the particular land we are concerned

with here straddled two zones and it happened to

be partly in the historic township zone, which

is named at page 7, and it also happened to be

partly in the residential 1 zone which is created

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or named at page 10 and for each of those zones
prohibited uses were identified - and if I can

just take Your Honours to page 8 because as far as I am aware the prohibited uses were the same

in each of the two zones - paragraph 8:

The following kinds of development are prohibited in the Historic Township Zone -

and in the fourth-to-last one:

intensive animal keeping.

Your Honours, we have also provided to the Court

a copy of one page from the planning regulations,

page 4, and that contains the definition of

"intensive animal keeping" and it is defined as

including:

a feed lot, piggery, poultry battery, dairy,

kennel and stable -

but that definition is not precisely the same as
the definition contained in the relevant regulations
because as Your Honours have read - when I say
the relevant regulations I mean the ones under

the WATERWORKS ACT - - -

WILSON J:  Under the WATERWORKS, yes.

MR DOYLE:  Yes. Because if Your Honours have read them

Your Honours will see that the regulations under the WATERWORKS ACT give their own defintions to

some of those terms. So the position then was

that in relation to the subject land being where

it was,by virtue of the principles for Hahndorf

intensive animal keeping was a prohibited use but

because of the way our Act works that did not mean

it could not possibly be done, what it meant was

that the local council had to get the concurrence

of the Planning Commission and because the

WATERWORKS ACT regulations also applied to this

land, the subject land was subject to the operation

of regulation 37.2 of those regulations.

(Continued on page 15)

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WILSON J:  Do those plans expressly associate the WATERWORKS

ACT or the continued operation of the WATERWORKS

ACT?

MR DOYLE:  No, Your Honour, the only reference to the WATERWORKS

ACT is the one alluded to earlier in the introductory statement to the supplementary

development plan.

WILSON J: Yes, about the history?

MR DOYLE:  Yes.

BRENNAN J: Is it submitted on either side, do you know, whether

intensive animal keeping in the supplementary

development plan includes an aviary?

MR DOYLE: I would not be submitting - well I will perhaps have to qualify

that a little because the term is sutticiently wide,

perhaps, that some aviaries could be caught but

I certainly would not suggest that any aviary was

caught but perhaps I should qualify my answer,

Your Honour, and say that it may be that a larg,ish

aviary with a lot of birds could fall within intensive

animal keeping.

BRENNAN J: 

I do not know whether it is relevant, but for

the purposes of these proceedings, is it contended
that the aviary which was included in the development

proposed was intensive animal keeping?

MR DOYLE: 

My understanding of the history of the proceedings,

Your Honour, is that they did not get to the stage

where that issue had to be decided. Your Honour,

the course of the proceedings, as I understand it, was

that the point that Your Honour has asked me was

raised in the course of proceedings before the Planning

Appeal Tribunal but because insufficient evidence had

been given as to precisely what was involved in the

aviary the question of whether in fact it was intensive

animal keeping had not been thoroughly debated and,

in particular, no ruling had been given by the Tribunal.

And all I can say from our point of view is that the

aviary appears to be a large one and might be
intensive animal keeping, but for present purposes,--we

ourselves do not know without further evidence whether

it is or is not.

WILSON J: Ordinarily you would not readily associate birds

with animals but the definition of ''zoo" in the

WATERWORKS ACT does and you take your pick.

MR DOYLE:  Yes~ So, Your Honours, having noted then that the

land was subject to that prohibition on intensive

animal keeping, but noting the difference in

terminology between the provision in the plan and the

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WATERWORKS ACT regulations, I think that is all I

need say for the purposes of that survey as to the

operation of the Act and its relationship to the plan.

If I could say just one or two brief things about the

WATERWORKS ACT,and we have again provided the Court

with copies of what are, I think, the only relevant

provisions from it and if Your Honours could look at

them for a moment.	Under section 9(a) is the power
by regulation to:

declare any land ..... to constitute a

watershed.

And that is the power under which the watershed, which

is in the appeal book, was created. Under section 9(2)

the power to divide the watershed into zones. And

then in section 10 appear:;va.rio_us~--powers to make regulation:

And, Your Honours, by ·and large tnis Act appears to oe

concerned with tpe supply of water by the minister but

there are provisions in it relating to pollution and

in particular in section 10 the regulation~making power,

paragraphs XX through to XXIV and it.is XXIV in particular

that is under consideration here.	They all relate
to pollution and to watersheds.	Then the last three

pages of the photocopies provided to the Court contain

provisions relating to pollution of the water supply. the supply of water it has provisions in it which

indicate that it also operates in relation to pollution

of waters.

(Continued on page 17)

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BRENNAN J: · Am I right in thinking that the Waterworks

Regulations with which we are concerned were promulgated after the amendment of the WATERWORKS

ACT in 1984?

MR DOYLE: I have a feeling, Your Honour, that they

may have been in the Act prior to then but

unfortunately the copy I have does not allow

me to tell right at the moment.

BRENNAN J: It is just that I noticed that there is an

amendment to paragraph xx, upon which some

reliance was placed, I think, in the court below

and that was amended, it seems, in 1984.

MR DOYLE:	Yes, the notation I have is that paragraph xx was amended in 1984 by adding the words in the
second line, "supplied by the Minister or that is".
BRENNAN J:	Yes.
MR DOYLE:	But what I can say, Your Honour, is - and I would check

this overnight - but looking at my complete copy

of the regulations, I have the impression that

regulation 37 was in them from the very outset.

Mrs Cant points out to me that at page 45 of

the appeal book, as it happens, Mr Harvey in

his affidavit refers to the regulations and their

introduction and appears to be saying there that

regulation 37 has been there since 1974.

WILSON J:	That would seem to be borne out by page 9 of the appeal book where regulation 37 appears and
other regulations that have been amended have
a notation concerning their amendment in the
margin.

MR DOYLE:  Yes. What Your Honours have in the appeal

book is photocopied from the complete set of

regulations which I have and that is why I said,

Your Honours, I thought from the layout of it

that it looked as if the regulations had been

there from the start although I was not absolutely

certain.

Your Honours, could I go then from the

background material to develop the submissions,

first of all, as to validity. Obviously,

Your Honours, the terms of the power to make

the regulation are important and so I will be

referring from time to time to the terms of

section lO(l)(xxiv).

Could I make these points about it,

Your Honours: it is a power to regulate, control

or prohibit:

the use of land within a watershed.

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So, clearly, it is within power to prohibit specified
uses of land if the land is within a watershed

and that is, for a start, precisely what the

regulation did. It prohibited certain identified

uses of land being land within a watershed.

In my respectful submission, the power

also obviously envisages preventive action aimed

at a use of land which will be a source of pollution

because it is a power to prohibit use of land:

so as to reduce or prevent the deterioration

or pollution.

So it does envisage what one would call "preventive

action".

Could I also draw a contrast betwen

paragraph xxiv and paragraph xx just to highlight

the scope of paragraph xxiv. Paragraph xx gives

a power:

for regulating, controlling or preventing

the impairment of the quality of water

within a watershed.

If the impugned regulation was based on that power there would, in my submission, be much

greater difficulty in justifying it because what

the regulation does is not strike directly at

an impairment of the quality of water, it strikes

at a use of land which might produce an impairment

of the quality of water.

(Continued on page 19)

I

C2T66/2/SDL	18	17/11/88
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MR DOYLE (continuing): In my submission, in that respect,

paragraph XXIV is wider than paragraph XX. in my submission, that if a person used land

in such a way 'so as to cause an impairment'',. that

then he should not so use the land. But it would

be doubtful, in my submission, whether

regulation XX would authorize a simple prohibition

on a use of land simply because the regulation

maker feared that that use might produce impairment

of water quality.

So I simply make those points to contrast

paragraph XX with paragraph XXIV which does

specifically authorize the regulation maker to

prohibit uses of land and, in my submission,

putting it in slightly different words, with

a view to reducing or preventing a deterioration

or pollution of any water. And so I submit that

it specifically permirn the prohibition of a use

of land with the purpose of or with a view to

preventing pollution, that must be what the power

means.

That being the power given, it is my

respectful submission that it is validly exercised

if the maker of the regulations could reasonably
conclude that the prohibition of the relevant

use would reduce or prevent pollution of water.

And in my respectful submission that is the test
which is to be applied on the question of validity.

And that is the proposition advanced at

paragraph 3 of the outline.

In applying that test, it is also my

respectful submission that matters of fact are

relevant and to be considered by the Court.

In paragraph 4 of the outline, Your Honours,

I refer to three cases, to none of which I wish

to go at the moment. But the first and the third

of them, FOOTSCRAY V MAIZE PRODUCTS and WILLIAMS

V MELBOURNE CORPORATION, were both cases in which

the validity of by-laws or regulations were

challenged.

And it is clear when one reads them that

the Court paid close attention to the factual
circumstances in which the by-laws or regulations
operated on the question of validity and the
question of validity was clearly considered in

the factual context. COMMONWEALTH FREIGHTERS

V SNEDDON was a case involving an issue under

section 92 but, likewise, there the point was

made that when constitutional validity depends

upon facts the court which must decide validity

must find the facts and, in my submission, the

same fundamental principle applies.

C2T67/l/ND	19	17/11/88
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I make that point, Your Honours, simply

because although it was made in the court below,

J us t i c e Jacobs , in h i s j u d gm en t , appears to have given it

only.a kind of grudging acceptance and appears
to have said, "Well, he wasn't sure that that
was right.", and, first of all, in a sense, to
have considered the validity of the regulations

in the abstract before looking at the material

that was put before him.

My submission is that it is clear when one

looks at cases involving delegated legislation

that facts can often be relevant to validity.

BRENNAN J: What facts? Facts which are brought before

the court?

MR DOYLE:  Yes, Your Honour, in my submission, and, although

it did not arise here, issues may arise as to

the scope of judicial notice but if we just take

this particular case, if the court had no

information before it as to how pollution occurs
in watersheds and as to what the problems of
pollution were, in my submission, it would be
very difficult for the court to assess the validity
of the regulations, just in the abstract without
information about how pollution occurs and how
the things dealt with by the regualtions might

cause pollution.

And so the submission was not being put

either here or in the court below that the facts

can alter the scope of the power. Clearly they

cannot. The submission simply is that they are
highly relevant to determine what we submit is
the question or the issue stated in paragraph 3,
whether the maker of the regulations could

reasonably have come to the necessary conclusion.

BRENNAN J:  But we are not involved in an examination of

what facts were before the maker of the

regulation, are we?

MR DOYLE:	No, Your Honour, not in my submission.
BRENNAN J:	And if it is a question of the Court's view,

is there any question of onus of proof or standard

of pr·oof?

MR DOYLE:  That matter was not raised, Your Honour, in

the court below and was not considered in the

judgments and I am not aware, Your Honour, of

any authority touching on that point, whether

he who asserts the validity carries some sort

of onus to persuade the court of facts or whether

it is who he attacks validity.

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BRENNAN J:  ..... saying it is exhaustive, but

I can remember saying something about it in

GERHARDY V BROWN.

MR DOYLE:  Yes. Perhaps if I could look at that overnight,

Your Honour, if I might?

BRENNAN J: Yes.

WILSON J: What facts do you want the Court to look

at? Is it Mr Harvey's affidavit, or is it

the -

MR DOYLE:  The affidavit, Your Honour, and the material

which appears in the introduction to the

supplementary development plan. That was put

before the court below and there was no issue
before that Court as to the propriety of the

court referring to it on the question of validity.

WILSON J:  Even though it follows the promulgation of the

regulation by some 10 years?

MR DOYLE:  Yes, Your Honour, because Mr Harvey's affidavit

in fact tends to tie it together and he, in effect,

says that that was material that was known at the

time and he has been involved in this area throughout

that time.

So, Your Honours, it is not suggested that,

as I said, the facts can alter the scope of the

power but it is submitted that facts can be

relevant an~ indeed, highly relevant to determine

whether the maker of the regulations could reasonably

have come to the necessary conclusion. In our·

submission, it is not for the court to substitute

its opinion as to whether the regulations will

in fact achieve the desired purpose. In our

submission, the power which is given is a power

to make regulations for a purpose, namely so as

to reduce or prevent the deterioration or pollution

of water and, in our respectful submission, the

Governor validly exercises that power if he makes
regulations for that purpose.	He goes beyond

the power if he could not reasonably have concluded
that the regulations would achieve, or be likely

to achieve the purpose. But he is within the

power, in our submission, if he could reasonably

have so concluded and, in our submission, the role

of the court is limited to considering whether he

could reasonably have come to that conclusion.

Your Honours, could I refer to two cases

now which, in my submission, support the general

proposition in paragraph 3 as to the test for

validity and the qualification in paragraph 5, which

is perhaps only another way of putting that general

C2T68/l/JM	21	17/11/88
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proposition? The first of them is WILLIAMS V MELBOURNE

CORPORATION, (1933) 49 CLR 142. Your Honours, in

that case, as the headnote indicates, the power was

to make by-laws regulating traffic in processions

and regulating the driving of cattle. That appears

in the footnote at the bottom of page 142. Regualtions

were made, limiting the streets in which cattle could be driven and the times at which they could be driven

in areas around Newmarket, and in substance

the complaint seems to have been, and this is from
the very last sentence of the headnote on page 142:

Evidence was adduced by the appellant to show that the by-law could in practice not

be complied with.

So, the argument appears to have been, in part at

least, that the by-laws were unreasonable and,

indeed, that occupied a good part of the judgments.

At about page 149, Mr Justice Starke, at the bottom

of the page, dealing with this argument, says:

The by-law deals with the passage of

cattle in and through the streets of the

city. It prohibits the use of most streets,

and permits the use of others. Such a

by-law concerns the subject of traffic, and

regulates it. Prima facie, therefore, it

is within the ambit of the power conferred

by the LOCAL GOVERNMENT ACT. It is said,

however, that the by-law is unreasonable,

and "cannot reasonably be regarded as being

within the scope or ambit or purpose of the

power." It is well settled that the Court

is not entitled to form its own opinion as

to the reasonableness of a by-law and if it

thinks it is unreasonable, though within the

scope of the powers granted, to declare it

invalid.

(Continued on page 23)

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MR DOYLE (continuing): Then a little further down - and this

is the passage I rely on in particular, just

above the reference to SLATTERY V NAYLOR, quoting

from an earlier case:

It is obvious that the question whether the

circumstances of the locality warrant the

exercise of a power is one of expediency

and not of competency.

In my submission, making the same general point,

that if what is done is within power then the

question of whether what has been done is the

most desireable and most suitable, that that is a question of expediency not of competency, and

the court's role is confined to judging whether

what is done falls within the ambit of the power.

That, Your Honours, is not as direct as one might

like but more directly in point for the purposes

of these submissions Mr Justice Dixon at page 155,

at the top of the page:

To determine whether a by-law is an exercise

of a power, it is not always enough to ascertain

the subject matter of the power and consider

whether the by-law appears on its face to

relate to that subject. The true nature

and purpose of the power must be determined,

and it must often be necessary to examine the

operation of the by-law in the local circumstances

to which it is intended to apply.

I rely on that in relation to my proposition as

to use of fact.

Notwithstanding that ex facie there seemed a sufficient connection between the subject

of the power and that of the by-law, the true

character of the by-law may then appear to

be such that it could not reasonably have been

adopted as a means of attaining the ends

of the power.

And, again, in my submission, in that passage is the essence of the proposition we are putting, that the test is whether it could reasonably have

been aqopted as a means of obtaining the ends

of the power.

In such a case the by-law will be invalid,

not because it is inexpedient or misguided
but because it is not a real exercise of

the power.

That is all I wish to read from that case, Your Honours.

The other case is FOOTSCRAY CORPORATION V MAIZE

PRODUCTS, (1942) 67 CLR 301. In that case,

C2T69/l/MB	23	17/11/88
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Your Honours, as appears from the portion of the headnote showing what was held by the C.ourt, the

relevant by-law making power was for suppressing

nuisances. The by-law which was made under it

is set out in the headnote and the by-law
prohibited the use of pulverized fuel unless

the relevant furnace had a chimney or flue with a

device which made it impossible for dust and

so forth to escape. There was evidence which

indicated that there was no known way of
entirely preventing the escape of dust, however,

there were appliances which would render the

escape of dust, minimal and quite innocuous.

And, again, the question arose as to the. validity

of the by-law.

Could I got to the judgment of Mr Justice Rich,

Your Honours, at page 308.

WILSON J:	Where do we find what the power was?
MR DOYLE:	Your Honour, in the portion of the headnote -

it is at least stated very briefly there, dealing

with what the court held, it was a power:

to make by-laws for "suppressing nuisances".

WILSON J:  I see, yes.

(Continued on page 25)

C2T69/2/MB	24	17/11/88
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MR DOYLE (continuing):  The paragraph which begins just below

the mid-point of the page which contains, of course, a

little warning to me and I am conscious of what His Honour

there says:

Authorities are of little use in determining

the validity of a particular by-law. The

appropriate steps are to construe the statute

under which the the by-law is made and then to

interpret it to ascertain whether it is

within the ambit of the statute. Municipalities

and other other representative bodies which are

entrusted with power to make by-laws are

familiar with the locality in which the by-laws

are to operate and are acquainted with the needs

of the residents of that locality andi.thus are,

I venture to think, better fitted than judges

to deal with their requirements. Such tests

as "unreasonable," "capricious" and "arbitrary"

appear to me to resolve into one test, namely,

validity.

If I could then retrace a little to .a little earlier

on the page where His Honour has referred to two

or three passages from the judgment of the trial judge

and, at about point 3, he says:

The learned trial judge referring to the evidence

says:  "The evidence shows first of all that

a nuisance of a grave character had been caused

by the deposit of dust, grit and ash, and that it existed from some time before the making of

the by-law. The evidence also shows that the

Council had ample grounds for believing that

those deposits and that nuisance arose from the

continued use of pulverized fuel.

And he goes on to quote further from the judgment but

appears to quote that approach with approval. Again,

in my respectful submission, what His Honour is there

saying is not, of course, that the court just hands

over to the by-law making authority the decision as to validity but, that when, as was the case here, a power is given to make a by-law relating to the

conditions of the locality, that the court's role is

to consider whether the by-law making authority could

reasonably have formed the judgment that the by-law

would achieve the purpose which was within power.

There it was suppress nuisance and what His Honour was, in effect, saying was, "Well, this council could

reasonably have concluded that it was necessary to

make such a stringent provision in relation to

furnaces even though, as the evidence showed, it was

virtually impossible, if not impossible, to construct

an appliance which would prevent all ash and the like

escaping.

C2T70/l/VH	25	17/11/88
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MR DOYLE (continuing):  At page 310, in the judgment of

Mr Justicve Starke, there His Honour, after referring

to a number of authorities, is citing with approval,

I think, a passage from the judgment of

Chief Justice Irvine in JENNER V SHIRE OF MILDURA

and he adopts it. I just wish to pick out part

of what he adopts and, at about the middle of the

page, after the reference to KRUSE V JOHNSON

and the other two cases, appear the words:

Where a thing is of such a character

that it can be a nuisance, it is to

rest with the local authority to say whether

it shall be considered to be a nuisance

in the particular locality for which they

have power to make by-laws. The court

can say whether it is reasonably possible

for the prohibited act or thing to be

a nuisance; but they cannot say whether

it should or should not be forbidden in

the particular locality.

Again, in my respectful submission, that is the

germ of the submission which we are putting

here. The Court's role is to say whether the

thing could reasonably be considered a nuisance;

it is- for the by-law making authority to decide

whether it should, in fact, be prohibited as

such.

Again, as the passages that I have read

to Your Honours will have indicated, it is clear
that the Court, in relation to the issue of validity,

was paying close attention to the particular

facts put before it.

Your Honours, conscious that there are

real limits on the extent to which one can use

what is said in one case for the purposes of

another in deciding an issue such as this, it

paragraph 3 is, in fact, expressed in general is my submission that what we have put in	terms the approach which has been taken in this
Court and is the proper approach to be taken
in considering the validity of delegated legislation
particularly, at least, where it contains a purposive
element and where one cannot resolve the question
necessarily entirely by looking just at the legal
operation of the delegated legislation.

In my sul::mission, that is true here but; for1 a start,

withoot scme.,facts the Court really would have no way of knowing
whether the prohibition of certain things had any relationship,
to reducing~, or preventing pollution in a watershed but once
it has -the factual ~material before it then,, in my sul::mission,
its:. role: is;; to consider :whether in: the ligfit of that material, the

rnakers of the,regulations :could reasonably have considered.

that what was being prohibited was, in fact, appropriate to

reduce or prevent pollution of the water.

C2T71/l/SDL	26	17/11/88
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BRENNAN J:  Did this problem arise in, was it FOLEY V PADLEY,

the RUNDLE M.ALL case?

MR DOYLE:  Your Honour, I thought about FOLEY V PADLEY and

this is the sort of case where one looks at case

after case and finishes up discarding them. But

the difference in PADLEY V FOLEY was that there
the regulation-making power was expressed in terms

of when it was "in the opinion of the council"

and so I decided in the end that perhaps the

introduction of those words made a difference.

So, Your Honours, it is clear and accepted, for

the purposes of our submissions, that the belief

of the regulation-maker that a prohibition will

achieve a certain end cannot bring the prohibition

within power if the means chosen are not within

power. In other words, you cannot, as it were,

go outside the power to achieve something even

though you can demonstrate that you will, in fact,

achieve the desired object. Always the means chosen

must be within power. But whereas here they are

clearly within power, in the sense that the regulation

does prohibit a use of land and it is land within

a watershed then, in my submission, if the means

chosen are within power the exercise of the

regulation-making power is within power if the
regulations are apt to achieve the stated purpose
and the Court's role is confined to considering

whether the regulation-maker could reasonably have

come to that conclusion

Your Honours, it was only when sitting 1n

Court yesterday listening to one of my learned

friends reading from RICHARDSON V THE FORESTRY COMMISSION

that it struck me that some of the words used there,

although dealing with a different problem, possibly

were apt to express in slightly different terms

the proposition which I am seeking to put and so

I would just seek to go to them, also briefly.

That is RICHARDSON V FORESTRY COMMISSION,

(1988) 164 CLR 261 and copies of these pages were

provided to Your Honours in the manila folders. (Continued on page 28)

C2T72/l/AC	27	17/11/88
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MR DOYLE (continuing):  Your Honours, the first page I have

extracted is page 292 and there the Court was concerned
with the issue of whether certain provisions of the

relevant Act were within the external affairs power

as being related to the implementation of the

obligations under the relevant convention. And,

Your Honour Justice Mason and Your Honour Justice Brennan

there said at the top of the page, and this is in
some ways, when one thinks about the facts of this

case, a statement of principle which is helpful:

No doubt some of the acts prohibited

by section 16(l)(a), (b) and (c) may be so

trivial that they do not present a significant
risk of real impairment to the world heritage

characteristics of the land in question.

• •

And one could read,"pollution of the water supply"-

None the less the class of acts prohibited,

namely treefelling and removal in the course

of forestry operation ..... are generally speaking

acts involving a potential risk of injury to

any qualifying areas ..... It is therefore

appropriate to single them out as objects of

prohibition unless the plaintiff consents in

writing ..... We should have thought that only

by such a means of regulation is it possible

to ensure protection of the land in

conformity with the Convention. But it is not

necessary to go so far. It is enough to say

that, subject to the question which we have

reserved for later consideration; the provisions

are a means for effectuating a desired end

which is within power.

And in my submission that, again, is a similar approach.

It is a question for the Court of whether they are

a means for effectuating a particular end and then

that is as far as the Court goes. Could I then just

invite Your Honour's attention also to page 303

which is the second page extracted and the reference	there in the judgment of Your Honour Justice Wilson,
about a quarter of the way down the page:

provided a law is capable of being reasonably

considered to be appropriate and adapted to

carrying out or giving effect to an object

that impresses it with the character of a law

with respect to external affairs -

I would change that to read, "provided the regulation

is capable of being reasonably considered to be

appropriate and adapted to carrying out or giving effect
to an object that impresses it with the character of
a law with respect to preventing the deterioration or

pollution of any water".

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MR DOYLE (continuing):  So, Your Honours, I do not, of course,

suggest for a moment that this case is directly

applicable but I draw on the word, "used" there

and in the other page from His Honour Justice Deane

as expressing the sort of proposition which I am
endeavouring to put to the Court. In particular,

Your Honours, two other submissions we make - and this is paragraph 6 of the outline - that if the

regulations are directed to an end within power,

by a means within power, it is not for the Court

to say that they go further than was necessary,

and I simply rely upon those well-known words

of Justice Dixon in HERALD AND WEEKLY TIMES,

at the page cited.

In my submission, that principle is equally applicable to delegated legislation. And one other

point which is made in the second-half of paragraph 6,

if what is authorized is the making of a general
rule, in my submission, it is not an argument
against validity to show that in some particular

applications of the general rule the result brought

about might not, considered in isolation or on an

individual basis, be within the power. The rule

is valid, in my submission, if in its general
application it is appropriate to the desired end

to be valid. It is not necessary to show that in every single case to which it applies the desired

end and only that end will be achieved. Again,

Your Honours, I would just draw on an analogy used

yesterday by my learned friend, the Solicitor for

the Cormnonwealth. In a sense it is the casting

of the net that is relevant not, as I recall him
saying, whether every time you cast it you haul
in only the right fish. It sounded apposite ,
yesterday when I was thinking about this case and,
in my submission, that does, in a sense, have a

relevance to the question of a regulation-making

power which is purposive such as this one is.

BRENNAN J:  Well, Mr Solicitor, there is a difference,

is there not, between a power which is conferred

in general terms but which may not be exercised

for a purpose which is alien to that for which

it was conferred and a power which is conferred

in qualified terms, the qualification being

expressed in terms of purpose 7

MR DOYLE:	Yes, Your Honour.
BRENNAN J:	In the first case the Court ±s concerned with the

problem of fraud upon the power. In the latter

one it is concerned about the scope of the power

conferred.

MR DOYLE:  Yes, Your Honour.

C2T74/l/MB	29	17/11/88
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BRENNAN J: Well, now, I do not know whether one needs

to read these cases with an awarness of the

distinction between those two classes?

MR DOYLE:  Yes. When Your Honour says "these cases", does

Your Honour mean all of them or are you

referring in particular to RICHARDSON?

BRENNAN J:  I am thinking particularly of RICHARDSON

and HERALD AND WEEKLY TIMES.

MR DOYLE: 

Yes, Your Honour, I am conscious that I have,

as it were, snatched cases from very different
areas and, as to RICHARDSON, I took it simply
because, in my submission, the words expressed,

in slightly different terms, the proposition
which I am endeavouring to put s the test of

validity.  As to HERALD AND WEEKLY TIMES, it

is my respectful submission that the principle

there is directly applicable to delegated legislation,
that if the means used within power and if the
object of the delegated legislation appears to

be within power, it is - if I can just put it slightly

differently - not for the court to say, "Well, this

is stricter than need be", if I can put it that

way. In that sense I mean that it is not for the

court to say that they go further than was necessary.

I do not deny, as I will deal with a little later

in my submission, that there is a role for the
court to say, "Well, in the end these regulations

just go so far that they go beyond power." In other

words, I do not deny a role for the court entirely.

What I submit is that it is not for the court to

say, as I put a moment ago, "Well, they could've

done it by some less stringent regulations." That

is not an indicator of invalidity, but if what

has been done can be said to be just so disproportionate

to the object to be achieved, then the regulation,

although initially seeming to be within power, may

go beyond power.

So, the other general point I just made,

Your Honours, relying on SEELIGSON, from which
I do not wish to read, is that if what is empowered

is the making of a general rule, one must bear in

mind that it is the making of a general rule which

is empowered and you do not demonstrate invalidity

by showing that in some cases the application

of the general rule may appear to have little
bearing on the purpose for which the power was

conferred.

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MR DOYLE (continuing):  So, in the present case, it is not

relevant, in my submission, to argue that it was

not necessary to be quite as strict as the regulation

maker was or, that the regulation maker need not have

imposed the prohibition throughout the whole area,

that he could have broken the area up into pockets

and applied it in some, not in others. In my

submission, SEELIGSON shows that it not the proper

approach. So, to that stage, Your Honours, which is

really to the end of point 6 of the outline, it is

my submission that prima facie the regulation is

within power. Then one comes to what.are called the

second broad aspect in l(b) of the outline - can it be said that the means chosen were so extreme or so

lacking in proportionality that the regulation then

goes beyond power?

Your Honours, it is accepted that this is a test

which the Court can and must apply and that a

regulation might be invalid if the means chosen to

achieve the desired end were so excessive or disportionate.

Not that the Court disapproves of them but that the

Court concludes that they could not re~sonably have been regarded as falling within the power given and,

on that point, Your Honours, the court below referred

appeal book at page 61. Again, of course, that

to some remarks of His Honour Justice Deane in the in the

case was dealing with a very different issue but, in

relation to the external affairs power, at page 61

line 35 His Honour Justice Deane had referred to the:

need for there to be a reasonable proportionality

between the designated purpose or object and the

means which the law embodies for achieving.or

procuring it.

And His Honour went on to give the example of:

a law requiring that all sheep in Australia

be slaughtered -

as going beyond the power in relation to external	affairs power if it was based on an international
convention which required the taking of steps to safeguard against the spread of some obscure sheep
disease. In other words, it was just the reaction to the problem was so excessive that, applying to the present circumstances, it could not be regarded as being within power.

(Continued on page 32)

C2T76/l/VH	31	17/11/88
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WILSON J:  The cases you cited in WILLIAMS V MAIZE

PRODUCTS really encompass the question of

proportionality.

MR DOYLE:  That is so, Your Honour. The Australian cases

indicate that reasonableness is not itself a
separate test of invalidity but that a

regulation may be simply beyond power and, again,

not just because it is unreasonable but because

it is unreasonableness demonstrates that what

is being chosen or what is being done is not

something falling within the power. It is not

an expression of the court's disapproval of the

way the power is execised so much as a statement

that goes beyond the power.

In the present case, Your Honours, an analogy might be if the regulation had prohibited any use of land throughout the whole of the watershed,

other than leaving it in its natural state.

I say might because it is just conceivable that
evidence would demonstrate that even that was

a proper exercise of the regulation-making power.

But one would think that that sort of regulation,

even though it could be said, "Well, we have

prohibited the use of land, it is land within

the watershed and if we had sure that the land

is left entirely untouched, we'll obviously

prevent pollution.", one might well say, "Yes, but that is not something that would have been envisaged as falling within the power."

And it is not easy to formulate, in precise

terms, the precise content of that test. I simply

accept that at the end of the day some such limit

is imposed on the maker of the regulations but

my submission is, in the present case, that when

the means chosen are within power,when what has

been done clearly has a direct relationship to

the power in that it will tend on the evidence

to prevent pollution, it would have to be a very

clear case before the court could say that what

had been done could not then reasonably be

regarded as falling within the scope of the power.

And in my respectful submission, on the

material which the court had before it, it was

simply not open to the court to say that the

means chosen, this. particular regulation,was

so excessive as to fall outside the power given.

DAWSON J:	Do you test that, though, by the facts in this case or by hypothetical facts? How do you go
about it? For instance, it would seem here
that the regulation prevents you hanging a birdcage
out in front of a shop to attract custorrers with
two cockatoos in it.

C2T7 7 /1 /ND	32	17/11/88
Tanner(2)

'MR DOYLE:  Would it, Your Honour? I· suppose it IDuld. A cage

and two birds - I am just - - -

DAWSON J:  That would establish a zoo and a zoo is

defined as any enclosure or structure in which birds

are kept primarily for the purposes of display/

exhibition.

MR DOYLE:  Yes. I accept, Your Honour, that one is

entitled - - -

DAWSON J:  That is a hypothetical case. Do I look at that,

or do I just look at the facts here?

MR DOYLE:  Your Honour is, I accept, entitled to envisage

hypothetical cases because one must be entitled to

consider how the law may operate. My submission is

that the fact that one can postulate extreme cases to

which the regulation would apply - and I do not say

extreme in the sense of suggesting it is a silly
example, but cases where its application would seem

extreme - that to demonstrate that such cases would

arise does not demonstrate invalidity; however, I

accept that in the end a rather difficult judgment has

to be made because other cases could be put to me and

said, "Well, what about this and this and this?".

In my submission, in the end one has to come back to

a judgment in the light of the facts allowing proper

scope for the discretion of the regulation maker, and again back

to that question:  could. he reasonably havE:;. _CE)IlSidered that it

was necessary to go this far even though in going this

far he was going to catch cases which everyone would

agree there was no need to catch.

In my submission, it is very important to bear in

mind here that he is making a general rule and that in

the nature of things a general rule applying throughout

a varying area will, from time to time, overdo what is

desired. So there is no easy answer to what

Your Honour puts to me and I think I would have to

accept that if it could be shown that so many cases

of extreme application arose_- well, in the end that

would be a way of demonstrating that the by-law really

had gone beyond the regulation-making power; but,

in my submission, it is very important to approach it

from the premise that demonstrating even a number of

such instances is not enough; that we are dealing with

a power to make a general rule and that it is

foreseeable that almost all general rules will, from

time to time, strike at matters which considered in

isolation would not have been seen as within the power.

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MR DOYLE·(continuing):  The only other point I would make,

Your Honour, and this is almost a quibble, it

may be that there is some way in which the regulation

could be read down but I accept even if I could

read it down on that case, no doubt, someone

would quickly think of other instances which·

would demonstrate the basic point Your Honour

makes to me.

So, Your Honour, they are the reasons

why I submit that the regulation is within power

and I was then going to turn briefly to make

three or four criticisms of the approach of

Justice Jacobs to this particular point. Do

Your Honours want me to do that now, is that

convenient?

WILSON J:	Yes, we would like to continue for a few minutes.
MR DOYLE:	I will now go briefly to the judgment on this

point. Page 63, Your .Honours, line 10,
His Honour said:

Regulation 37.2. 1 is so wide in its unqualified prohibition as to go beyond

the stated purpose of the ,power -

with respect, I do not accept that.	Then he
says:

It must proceed upon the assumption that every piggery, every feedlot, even for

a single animal, every zoo, in every part of the vast area of this watershed ..... is

an unmanagable threat to the watershed

in terms of pol£ut±on.

In my respectful submission, if he meant that the

regulation was beyond power unless in every case

to which the general rule is applied it can be

demonstrated that it was required, and that there

was no other way of managing the problem, then

the test he was applying was wrong.because, in
my submission, that is not the way of testing
the validity of a regulation to ask, "Can I imagine
a case to which it would apply where it is not

really achieving what it sets out to achieve?" But, in my submission, even if he meant

that the regulation was invalid unless it was

essential for the regulation to go this far then,

again, he was applying the wrong test because

it is not for the Court to say, in my submission,

that it was or was not necessary to go this far.

His Honour is really substituting his own judgment

as to what is desirable for what is, in my submission,

the proper test: could the regulation maker

C2T79/l/SDL 34 17/11/88

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reasonably have considered, in the light of the

facts, that it was necessary to go this far bearing

in mind that every general rule has inherent

in it the ability from time to time to create

the hard case.

Then, at page 64, line 10, is another leg of his reasoning which, in my submission,

is wrong in principle. He refers to regulation 37.2.

That regulation was more discriminating,

Your Honours, in that, for water shed zone I

it imposed an absolute prohibition and for watershed

zone I I , the b a 1 an c e o f the are a , i t s a id , "Th es e

things are prohibited subject to consent".

(Continued on page 35)

C2T79/2/SDL	34A	17/11/88
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MR DOYLE (continuing):  And what His Honour says is -I

might have got the numbering wrong but in any

event he is contrasting the regulation impugned

with another regulation which distinguishes

between watershed zone I and II. He says:

It is impossible to spell out of Regulation 37

as a whole any justification for the blanket

prohibition is Regulation 37.2.1 quite apart

from the difficulty of reconciling 37.2.1

with other parts of the regulations.

Now, again, in my respectful submission, the mere

fact that other regulations, perhaps made under

the same power can be shown to have taken what

could be called a more lenient approach is neither

here nor there. Because again, the test is not

whether this is what the court thinks is appropriate,
the test is, as I have put it in paragraph 3 of
the outline. And to simply say that in the judgment
of the court it may be that the end could have
been achieved by a more lenient approach with this
regulation, in my submission, is in the end neither

here nor there.

Then at page 66, he has referred to the evidence

WILSON J:  But Mr Solicitor, the regulation with which we

are concerned makes no distinction between

zones I and II.

MR DOYLE:	No, it does not.
WILSON J: It is in fact a blanket prohibition.	I thought

you were questioning whether he had the right

regulation.

MR DOYLE:  No. My cirticism of him is that he draws a contrast

between the impugned regulation which is a blanket
prohibition throughout the whole watershed and

another regulation which imposes a blanket prohibition

for zone 1 and a power to dispense for zone I and II

he says: "Well, why could they not have done the

same thing in the impugned regulation?". In my

submission, with respect, that is neither here

nor there. That is not a pertinent question for

the court. Then at page 66 he refers to the

evidence which was advanced and at line 5 says: they fall short of justifying the blanket

prohibition imposed by Regulation 37.2.1.

And I would ask Your Honours to read this in due

course but my submission is that the whole tenor

of this is that His Honour is saying, in effect,

"In my opinion it was not necessary to do what

they did". And so it could be merely in cautious

language but, in my submission, he does seem to be applying the

test of whether he is satisfied that what was done was necessary.

C2T8O/l/AC	35	17/11/88
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MR DOYLE (continuing): Then at page 67, and this is in part why the supplementary development plan is important

factually, he refers to what is in the supplementary

development plan and he fastens on to the fact that

in the supplementary development plan the provisions

in relation to pollution are less stringent and

in particular that within the town of Hahndorf

all you have is a prohibition on intensive animal

keeping which is obviously not as stringent as the

regulation. But again in my submission, with respect,

that is irrelevant. It is not a question of whether

something different could have been done or whether

a different approach might have been taken. The

point is, well without wanting to say it again, what

I have put in paragraph 3 of the outline. And

all His Honour is really doing is saying, "Well, they

found a different way of going about it in the

supplementary development plan, why didn't they de

that in the regulations'.'. And, in my submission

overlooking the fabt that in any event the

supplementary development plan is a planning instrument

not a provision enacted under a regulation-making

power in a specific Act dealing with pollution.

And I would respectfully submit that His Honour's

whole approach is encapsulated in what he says at
page 70, line 11. He says:

Regulation 37.2.1 fails to recognise that the purpose can, and therefore should, be achieved without a blanket prohibition.

In my submission that clearly indicates that His Honour

really is approaching the matter on the basis that if
the court concludes that the purpose could have been

achieved by other means the regulation would go beyond

power. And I realise I have jumped through this very

quickly, but I do submit that when the preceding

passages are read as a whole that is the tenor of his

approach - the court substituting its judgment and

not applying the more objective test of whether the

regulation maker could reasonably have reached the
relevant conclusion.	Your Honours, that is all I wish

to say on the question of whether the regulation is

within power and if Your Honours want me to carry on and the WATERWORKS ACT.

WILSON J: Yes, unless you have some reason for wishing to

stop now, I would like you to continue.

MR DOYLE:  Thank you. Your Honours, on that second issue,

in my respectful submission the question is one of

inconsistency and implied repeal. And the court seems

to have said that the PLANNING ACT was inconsistent with

the regulation, although in my submission the basis of its

reasoning ~eally would appear to imply that the

PLANNING ACT was inconsistent with paragraph 24 of the

WATERWORKS ACT.

C2T81/l/SR	36	17/11/88
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MR DOYLE (continuing):  In other words, in my submission,

the Court, in effect, was really saying that the

enactment of the PLANNING ACT had effected an

implied repeal of ~ection lG paragraph XX!V

of the WATERWORKS ACT. My submission on this

general topic is that on none of the usual bases

for testing inconsistency of legislation emanating

from the one legislature does inconsistency arise

here.

BRENNAN J:  Why do you say at paragraphXXIV implied repeal,

why is it not simply an implied repeal of the

delegated legislation?

MR DOYLE:  Well, because, Your Honour, in my respectful

submission,what His Honour Justice Jacobs has said

is that it is inconsistent with the PLANNING ACT

that there be any other regime of control expressed

in terms of land use and on what His Honour has

said, in my submission, it is hard to see how

anything validly could be done under paragraph XXIV.
The power is expressed precisely in terms of

land use to prohibit control, use of lands so as

to cause pollution.

BRENNAN J: Anything by way of prohibition, perhaps?

MR DOYLE: Well, as I understand His Honour's judgment here

he seems to differ from Justice Millhouse.

Justice Millhouse did appear to say that a regime

of control which was not an absolute prohibition

could coexist with the PLANNING ACT, but

Justice Jacobs, as I will endeavour to show a

little later does appear to have said that the

PLANNING ACT is the exclusive source of controls· of land use and,as I read His Honour,it would not matter whether the other regime was an absolute

prohibition or a permissive one, it could not stand

alongside- the PLANNING ACT.

DAWSON J:  You virtually have to say that, do you not,

because a regulation made under a valid section

cannot be repealed by a section of another Act

unless it really repeals the section, or am I wrong in that?

MR DOYLE:  Yes, that would be my submission, Your Honour,

although· . I have looked for cases on that

and could not find any that say that. But,

in my submission, it is a matter of logic. It

does seem that if the regulation is within power

but is repealed by the enactment of later legislation,

that really you must be saying there is an
inconsistency between the source of power and

the later legislation.

C2T82/l/MB	37	17/11/88
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BRENNAN J:  Or you are saying that the earlier legislation

ceases to be capable of supporting the

inconsistent regulation?

MR DOYLE: Perhaps, Your Honour, I should qualify what

I said. I can evisage a regulation-making

power which covers a number of topics and

then later legislation, which would cause

one to say, "Well, the regulation-making power

has now contracted", but in this particular case,

in my submission, perhaps it is because of the

relatively specific nature of the regulation-

making power, there just seems to be no other

ambit for paragraph 24, if what His Honour says

is right.

So, Your Honours, I propose then to look

at this issue, just in terms of different approaches

to the issue of inconsistency, and my first

submission is that - and that is why I am talking

in part of the WATERWORKS ACT and not just the

regulations. If we look at the purposes of the

two Acts, the WATERWORKS ACT and the PLANNING

ACT, the WATERWORKS ACT in its relevant parts makes provision, first of all for specific

areas of the State, watershed· areas, and makes

provision for them with reference to a particular

matter, pollution of water. The PLANNING ACT

applies throughout the whole State and it

imposes controls which,when we look at the plan

itself,operate by reference to a very wide range

of matters. It is my respectful submission that

if one talks of the purposes of the legislation,

one can fairly say that their purposes are quite

different: the WATERWORKS ACT, relevantly, is

enacted with a purpose, or with a view to control

dealing with a specific problem in a particular,

and one would anticipate, limited area. Even

though the Act does not define for itself what a

watershed is, it is hard to see how watersheds

could be anything other than relatively limited

areas; and then the PLANNING ACT operates throughout

the whole of the State and by reference to a very

wide range of criteria. In my respectful submission,

that test of purpose is a useful one. Although again

in the end reliance on other cases is of very
limited.value, but could I refer the Court to

ASSOCIATED MINERALS V WYONG SHIRE COUNCIL, (1975) AC 538?

(Continued on page 39)

C2T83/l/JM	38	17/11/88
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MR DOYLE (continuing): There, Your Honours, a somewhat similar

problem arose because the appellant companies held

mining leases under which they were entitled "to go

ahead and conduct mining op ere. tions," and, as c:1ppear s
from the headnote, going over to page 539, there

was a Planning Scheme Ordinance for the Shire of Wyong -

I am reading between letters A and B which provided

in part that:

the subject land should not be used without
the consent of the council for the mining

of minerals and purposes ancillary thereto.

And the argument was that the MINING ACT was,

in relevant respects, inconsistent with the LOCAL

GOVERNMENT ACT which provided for the Planning

Scheme Ordinance and that the MINING ACT should prevail.

Dealing that particular point, Your Honours, at page 554

in the advice to the Privy Council, beginning at

letter C:

Both Acts apply or are capable of being applied

with complete generality to land in the State

of New South Wales. Can they, in relation to a

given piece of land, co-exist? In Their Lordships'

opinion they clearly can and do. The Acts have

different purposes, each of which is capable of

being fulfilled.

And pausing there, in my submission, the PLANNING ACT has its purpose in relation to this bit of land in

Hahndorf which can be fulfilled when a planning

decision is made whether or not the land can be used

for a given purpose. The WATERWORKS ACT relevantly

has a purpose which is expressed here by saying,

"the land may not be used." But, in my submission,.

that is not to deny to the PLANNING ACT the fulfilment

of its purpose, because its own purpose, its only

purpose, is to decide whether, for planning purposes,

the land may be used in a given way. And it goes

no further than that. (Continued on page 40)

C2T84/l/VH	39	17/11/88
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MR DOYLE (continuing): In particular, under the PLANNING

ACT you do not get a decision or a consent which

is an affirmative authorization to go ahead and

use the land, you get a consent which simply

removes one of what may be a number of constraints

on the use of the land. So my submission is

that if one approaches it in terms of purposes of the Acts as Their Lordships did there, they

do have quite different purposes, each of which

is capable of being fulfilled even though they

operate alongside each other.

BRENNAN J: Does development in the PLANNING ACT include

continuing uses of land?

MR DOYLE:  Your Honours are well acquainted with that problem

under our Act. I will try to state the position

accurately, Your Honours. As I understand it,

the position currently is that - an existing use

is protected but if in the course of using land

for an existing use you do something which would,
viewed in isolation, constitute a development,
say you want to put up a building, now, under
our Act, that is development and does require
planning consent.even though your existing use
might have been for such a type that one would
say the occurrence of that development would

have been envisaged.

BRENNAN J: Putting it in precise terms, if at the date

on which the PLANNING ACT came into force there

was a zoo being unlawfully maintained - that

is, unlawfully having re~ard to the provisions

of the WATERWORKS ACT, within the watershed area,

would the PLANNING ACT have said anything to

that situation?

MR DOYLE:  I am not sure, Your Honour, off hand whether

the provision as to existing uses has the word

"lawful':'· in it because if it refers only to existing

use as being lawfully conducted, then I suppose

it would follow that it would not be protected.

BRENNAN J: We areconcerned with sections 46 and 47 basically

are we not, and the definition of "development"?

noes development cover that situation? It is
not within (b) because it is not a change in

the use of land,

MR DOYLE:	I must say, it seems to me at the moment, Your Honour, that probably it would not be development and so it would not be caught.
BRENNAN J:	Then there is one area where there 1 s no

inconsistency in their operation.

MR DOYLE:  That is so, Your Honour.

C2T85/l/ND	40	17/11/88
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MR DOYLE (continuing):  Just to complete what I said,

Your Honours, section 56 now states the position

in relation to existing uses in terms which are

not simple and.it is, I think, an attempt to reverse
the effect of the decision of this Court in DORRFSITJN
in substance, although I do not pretend to be
completely familiar with all the ins and outs

of -

DAWSON J:  It does seem to speak of lawful use though,

does it not?

MR DOYLE:  Yes, I think it does, Your Honour. So, in my

submission, if we first of all apply that test

of purposes these two Acts can be seen as having

different purposes and the purposes of each as
being capable of fulfilment although the Acts

operate alongside each other. Secondly, in my

respectful submission - and this is of fundamental

importance - planning controls are a restraint

on what would otherwise be a right to use land

and a planning consent merely lifts a restraint.

It is not, as I said a moment ago, a warrant or

affirmative authority and so the fact that one

has a planning consent in no sense implies that

one now has an affirmative authority to use

land in a particular way. That leads into the

third general point I would make and that is

that, generally, both in the United Kingdom and

Australia planning controls do seem to have been seen as cumulative upon other systems of control.

It is quite easy to find examples, particular

examples. Liquor licensing would be one of the

simplest. Probably in every State, or in most of

the States, there is legislation under which a

licence must be obtained to conduct licensed

premises. Now, although the liquor licensing

legislation is not expressed in terms of land use,

from mobile - or apart from vehicles from which	in effect, it is a land use control, because apart
liquor is sold, basically the conducting of licensed
premises is the use of land and it is common that
one must get both a planning consent and a liquor
licence. So regimes of planning ~ontrol
have generally, in my submission, being seen as
cumulative upon other systems of control. In my
respectful submission it is important to bear in -
well, in my submission it is important that. although those other systems of control are generally
permissive, in other words, they do provide for the obtaining of approval to do the relevant activity,
conduct licensed premises nevertheless they are
other regimes of control which are seen as operating alongside the planning controls and as seen as operating alongside them even though, when the liquor licence is refused, then in a sense the planning consent
is sterilized.

C2T86/l/MB	41	17/11/88
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MR DOYLE (continuing): It has never been suggested that

for that reason the two regimes could not operate
together. And so, in my submission, it does not

matter even if the other regime in relation to some

particular matter takes the form of a simple outright

prohibition. So the second point is that

planning consents are not affirmative authorities
and thirdly, that planning controls have generally

been seen as cumulative upon other systems of control

of the use of land. It is also my respectful

submission, if one wants to look at it differently,

that the mere fact that under the planning legislation

factors are considered which are seen as relevant

to the other regime of control does not again

demonstrate inconsistency. And I have provided to

the Court examples from three pieces of legislation

to which I just seek to refer very briefly to make

that point, that there are other regimes of control

which are seen as capable of operating alongside the

planning controls even though there are factors

corrnnon to both, that is, factors for consideration,

and these are also in the manila folder if

Your Honours could just look briefly at them, one page from each of three statutes. The first one, I think, Your Honours, should be the LIQUOR LICENSING

ACT, section 62 and this relates to applications for liquor licences. Your Honours will see

section 62(l)(b) that the licensing authority has

to be satisfied:

that the grant of the licence is unlikely

to result in undue offence, annoyance,

disturbance or inconvenience.

Now that is a planning factor - the effect of the use

of land on those who live nearby. I acknowledge that

subsection (2) in the latest LICENSING ACT shows a

clear intent that the two pieces of legislation

operate alongside each other, but I would think that

any of Your Honours who have been involved in

liquor licensing laws would know that a provision such

as section 62(l)(b) has been very corrnnon in liquor

legislation, absent quite often a provision such as

section 62(2) and it has never been suggested there

was inconsistency even though two different controlling

authorities were having regard to similar factors.

(Continued on page 43)

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MR DOYLE (continuing):  The next Act is the MEAT HYGIENE ACT

which says nothing about its relationship to the

PLANNING ACT, but in section 22 dealing with licensing

of slaughtering works, subsection (l)(c) the

licensing authority has to have regard to the
location of slaughtering works, and one would think a

very obvious aspect of that again would be planning-

type considerations, what types of premises are nearby,

what effects.

Finally the WASTE MANAGEMENT ACT, section 17

dealing with licences for waste depots, subsection {l)(e):

having regard to the number and adequacy of

existing facilities ..... the granting of the

licence would not prejudice the orderly

development of waste management facilities - and I am not sure if this appears as one of the

objectives in the portion of the plan which I provided

to Your Honours, but orderly development of facilities

is one of the prime planning consideration~ In my

respectful submission, if a planning application

were made in relation to a waste management depot, the

planning authority would look at orderly development

of waste management facilities. So generally, in my

respectful submission, in these other regimes of

control which have been seen as capable of operating -
not generally - it has not been an obstacle to other

regimes operating alongside planning controls that those other regimes involve a consideration of the

same factors.

So if it is said against me the problem here

is that under the PLANNING ACT pollution is a relevant

matter and therefore you cannot have another regime

of control related to pollution, my submission is

that the fact that there is overlapping of relevant

factors is neither here nor there.

In my respectful submission, when we turn, in

particular, to the South Australian. PLANNING ACT from

those rather general submissions and ask are there any

features in this particular Act which mean that despite

those general propositions in paragraphs 9 to 12 of

the outline that there is inconsistency between this

particular PLANNING ACT and the WATERWORKS ACT.

(Continued on page 44)

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MR DOYLE (continuing):  The South Australian PLANNING ACT

differs, perhaps, from other legislation and

its predecessor, in my submission, only in two regards: one is that now the development plan

is moved to the forefront. Under the previous

legislation zoning regulations were created

under the PLANNING AND DEVELOPMENT ACT and

they operated as true regulations and so your

ability to use property was determined under those regulations. Now the plan is moved to the forefront, there are no such regulations and

the planning authority has regard to.the plan.

But, in my submission, that should not lead to

any different result.

The only other point, in my submission, which

can really be identified is that now under

the South Australian Act there is no such thing

as a truly prohibited use because even a use

which is described as prohibited may be consented

to if the Planning Commission concurs. But, in

my submission, that is not to the point unless

one takes the view that a consent is an

affirmative authorization. If a consent is

nothing more than the lifting of a restraint, then,

in my submission, the fact that there is no

absolute restraint under the PLANNING ACT is not

to the point. So, I submit, there is nothing

in particular about the South Australian PLANNING

ACT which warrants an approach different to that which I submit has been generally taken when

considering the operation of planning controls and
other statutory controls appearing to operate

alongside them.

Your Honours, could I then go, finally on

this part of the matter, to look at what

Justice Jacobs said on the issue of inconsistency,

in an effort to point out what I submit are the

errors in his approach?

WILSON J: Perhaps we will adjourn now, Mr Solicitor.
MR DOYLE:	Thank you, Your Honour.
WILSON J:	The Court will adjourn until 9.45 am

tomorrow.

AT 4.59 PM THE MATTER WAS ADJOURNED

UNTIL FRIDAY, 18 NOVEMBER 1988

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