State of South Australia v Tanner

[1988] HCATrans 186

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al9 of 1988

B e t w e e n -

STATE OF SOUTH AUSTRALIA

Applicant

and

PHILLIP TANNER,

PETRONELLA TANNER,

S.A. PLANNING COMMISSION and

PLANNING APPEAL TRIBUNAL

Respondents

Application for special leave

to appeal

Tanner

MASON CJ

WILSON J

BRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 26 AUGUST 1988, AT 10.14 AM

Copyright in the High Court of Australia

AIT3/l/HS	1	26/8/88
MR J. J. DOYLE, QC	Solicitor-General for South Australia:	If the Court

pleases, 'r appear with MISS R.E. CANT for the applicant.

(instructed by the Cro1wn Solicitor for South Australia)

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

learned friend, MR J. SCANLON, for the respondent.

(instructed by Ward & Partners)

MASON CJ:	Yes, Mr Solicitor.
MR DOYLE:	If the Court pleases, in this case the Full Court

held that regulations under the WATERWORKS ACT
directed to controlling water pollution were

inconsistent with and repealed by the PLANNING ACT

and the court also held that regulations were beyond

the regulation-making power. The first point in
respect of which special leave is sought is the
finding of the court that control of land use in this

State is to be regarded as exclusively the province

of the PLANNING ACT, and the second point in respect

which special leave is sought is the proper approach

to be taken to the construction of a power to make

regulations when the power is expressed as it was here

in terms of a result to be achieved, and it is

submitted that both of these matters are of general
importance.

As to the first point, Your Honours, there are many land uses in this State, and no doubt in other

States, in respect of which it is necessary to obtain

a consent not only under the planning legislation

but also under other legislation. Sometimes that

other legislation will be expressed specifically in

terms of controlling land use, as was the case here.

If Your Honours look at page 96 of the book Your Honours

will see there the power to make regulations and, in

particular, Your Honours will note that paragraph 24 refers to regulations controlling or prohibiting the

use of land. So that is an instance of legislation

expressed specifically in terms of land use, but not

uncommonly one finds legislation which relates to an

activity, such as the sale of liquor, but because the	licensing scheme is tied to premises and use of land,
in effect it is also a control of use of land and, again, it is not uncommon to find with such
legislation that the grant of the licence will involve
a consideration of matters of the same character or
quality as are considered under the PLANNING ACT.

We have provided to the Court, Your Honours, some

copies of legislation which I refer to simply for the
purposes of illustration, and I do not want to delay

matters with unnecessary illustrations, but, Your Honours,

in that bundle, I think on top, is just an extract from

the WATERWORKS ACT, but immediately under it is an

extract from the MEAT HYGIENE ACT and if Your Honours

would look at section 22 from that Act, Your Honours

will see there that in section 20 the Act controls

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the operation of slaughtering works and section 22

provides for licensing of them, and in subparagraph (c)

the authority is to have regard to the location of

slaughtering works, or the proposed location, and

one would expect that the authority would consider

matters such as environment and surrounding use of

premises.

There are one or two other illustrations,

Your Honours, which I will not take the Court to, but

they illustrate the point that there is other

legislation which, in effect, controls land use and

requires the controlling body to have regard to

matters similar to those which would be considered

under the PLANNING ACT, although clearly not as broad.

I would accept they would be more limited.

MASON CJ:  And the legislation has a different statutory object

or purpose in each case.

l1R DOYLE:  Yes, Your Honour, a quite different object.

Your Honour, the importance of this decision, in my

submission, is that it gives rise to real doubt as

to the extent to which earlier statutes, that is earlier

than the PLANNING ACT, which regulate land use

expressly, or which have that effect, can validly apply

if their effect is that a land use which may be

permitted under the PLANNING ACT is either prohibited

under the other legislation or subject to consent and,

in particular, the doubt arises when the consent-

giving process involves consideration of matters which

would also seem to arise under the PLANNING ACT.

Your Honours, it is my submission that the

decision does seem to be contrary to the general trend

of authority in relation to planning legislation.

I know this is a rather sweeping proposition, but

generally in this State, and in other places, planning

legislation has been seen as operating cumulatively.

But the Full Court here, in a very broadly

expressed proposition - - -

MASON CJ:  Mr Solicitor, perhaps we have heard sufficient

from you on this aspect of this ground.

MR DOYLE:	Yes.
MASON CJ:	You might now turn your attention to the ultra vires

question, because there is not much point in your

succeeding in this application on this point if it

is likely to transpire on the appeal that you fail on

the ultra vires question.

MR DOYLE:  Yes. If the Court pleases, I will go to that point

then. Your Honours, in relation to the ultra vires

point, it is my submission that the court, while

purporting to apply well-established principles in its application from them,really did lay down what

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appears to be a new principle and a new approach and,

in particular, in my respectful submission, it took

an approach which, in principle, is contrary to the

authorities and which, in substance, amounted, in

my submission, to the court substituting its own

judgment for the means by which the relevant object

was to be achieved for the judgment of the regulation-

making authority.

Could I begin just by referring to the power to

make regulations which is, as I mentioned earlier, at
page 96, and there were two relevant bits of power,

if the Court pleases - paragraph 20 and paragraph 24. Paragraph 20, in my respectful submission, is notable

for its width because it empowers regulations which

are simply for regulating controlling or preventing the

impairment of the quality of water within a watershed,

and this was a watershed, and then paragraph 24 is

noteworthy, in my submission, for appearing to envisage

specifically what was done here, that is make

regulations:

controlling or prohibiting the use of land

within a watershed -

and then the words on which attention focused -

so as to reduce or prevent the

deterioration or pollution of any

water within a watershed -

Could I just make one or two observations about the

facts, Your Honour, because, in my respectful submission,

they were significant in this case. Some limited

factual material was put before the court and I would

just like to refer the Court to three short passages

in it to make the point in relation to it. First of

all - this is at page 63, Your Honours, of the book,

at point 9, at the very bottom of the page, and I am

reading from a document that was before the court and

an affidavit was filed-	from a witness deposing to
the same effect:

If the rapid deterio~ation in the quality
of water collected in the Mount Lofty Ranges

Watershed is to be slowed it is important that the intensification and type of land uses in the Watershed be controlled.

So the first point was - and we submitted this was

relevant for the regulation maker - there was an

existing problem. These were not regulations intended

to cope with a problem that was foreseen and was to be

forestalled.	There was an existing problem and
pollution was already a problem.	The other point,

Your Honours, emerges from page 61, at about line 17,

a paragraph beginning:

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Effectively, all privately owned land in

the Watershed is already developed to some

extent. The only change that can now

occur, in response to the development

pressure that exists, is an overall
intensification of land use.

So, secondly, one could say, in effect, that come what may the problem was going to get worse because

people were already living in the watershed area and

there was no way in which that development could be

prevented, and so there was an almost unpreventable

intensification in land use and so a worsening of

the problem. Then at the bottom of that page the

point was made at about line 32 that certain - a

reference was made to existing controls under the

WATERWORKS ACT as prohibiting the establishment of

certain piggeries and other intensive animal husbandry projects, and the tenor of the material was that these

uses had a particular ability to cause pollution.

So our submissionwas that, first of all, the regulation

maker was given a power to deal with an existing

problem and one which was an increasing problem and

so it was appropriate to approach the power bearing

that in mind and bearing in mind that the regulation

maker might consider it necessary to deal particularly

stringently with new sources of pollution, bearing in

mind that, come what may, there was pollution there

already and, come what may, it was going to increase.

Your Honours, the applicant's submission in that

context was that the matter was to be tested objectively

and that it was a question not of the court

exercising its own judgment but of deciding whether
the regulations could reasonably have been adopted as

a means of attaining the ends stated by the power. The applicant's submission is, in fact, sunnnarized

by His Honour Justice Millhouse at page 119, at

line 20, and he said there:

Moreover it -

that is the regulation -

fails even on the test which Mr Doyle

propounded: whether the Governor could

reasonably regard the Regulation as a
means of achieving by general rules the

objects specified in section 10 of the

WATERWORKS ACT.

Now, Your Honours, the particular regulation was one which imposed a prohibition on zoos, as defined,

piggeries and feedlots, as defined, throughout the

watershed area. When one looks at how His Honour

Justice Jacobs dealt with the problem of validity, it is my respectful submission that the departure

from established principles emerges. At page 103,

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Your Honours, he begins at the top of the page by examining the operation of the regulation, he says:

without recourse to the evidence.

And he says at about line 6:

that the Regulation is so wide in its

unqualified prohibition as to go beyond

the stated purpose of the power pursuant

to which it was made. 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 pollution.

In my respectful submission, thatis a clear departure

from the established principles which are that you do

not test the validity of a general regulation by

saying will it operate in particular cases in a way

such that taking the particular case one could say

it was not really necessary to deal with that

individual case. Now, I accept that His Honour

has not pointed to just one case and said, "There is

one case where your regulation goes too far,

therefore it is invalid", but in my submission

the test he poses is not a proper one and is contrary
to principle because in the end he does seem to say
that this regulation must be invalid because it

proceeds on an assumption that every instance of these

would be an unmanageable problem; but, in my

respectful submission, the test is, could one

reasonably say, as a general rule, that in this area,

and bearing in mind the existing problems, it is

necessary to prohibit these identified uses, piggeries,

feedlots and zoos, bearing in mind, in my respectful

submission, that inevitably when one lays down any

general rule one acknowledges that cases will always

be found and indeed quite a number of cases will be

found where it could be said it was not really

necessary to deal with those cases.

MASON CJ:  Was there an alternative regime of control which was

put forward as a clearly obvious suitable protection

against which the regime in question appeared to be

extravagant and unreasonable?

MR DOYLE:	Yes. His Honour may have considered there was an alternative regime, Your Honour, and could I answer
that by going to two further portions of his judgment.
At page 104, at line 10, he refers to regulation 37,
and that is the regulation which contains the
absolute prohibition - I will refer only to zoos, as
that was the use in issue. The same regulation, Your Honours, said that in the watershed area, in
certain other more limited parts of the watershed

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certain uses were prohibited absolutely, and

then there were certain other uses which were

prohibited only subject to consent. I might make

that clearer, Your Honours, if I just ask the Court
to glance at a map which appears at page 56, just

so I can explain concisely and more clearly what

the regulations did.

That map, Your Honours, outlines in heavy black the watershed area, and it was a significant area.

Now, what the regulation did was, first of all, say

for the whole area zoos, piggeries and feedlots are prohibited. Then for the more limited areas marked with diagonal lines the regulations said in those

limited areas certain other uses are prohibited,

but only in those areas, and then for the balance,

that is the white area, it said there are certain

other uses which are prohibited subject to consent.

So that was the structure of the regulations.

Going back to page 104, His Honour at line 10 seems

to be saying that it is impossible to spell out of

regulation 37 as a whole any justification for

prohibiting zoos, piggeries and feedlots throughout

the whole area when, in other subregulations, more
limited prohibitions have been included so that for

some areas there are absolute prohibitions, for other

prohibitions subject to consent. So, in my

respectful submission, he seems to reason on the

lines, "Well, the draftsman has found it possible

to be more discriminating with other uses. Why couldn't

he have been more discriminating with these uses?",

but again, in my submission, that comes perilously

close, if not indeed amounting to say, "In my

judgment, he could have done it another way".

This becomes all the more striking, Your Honours,

when we go on from page 104, His Honour refers to the
affidavit which was filed and could I ask Your Honours
to go over to page 108 and at the bottom of page 108,

about line 28, he is referring to what was put in the

development plan, and the development plan was the

document to which one referred under the planning

act when deciding whether or not to give the consent. did talk of pollution, as one would expect, but it

approached the problem somewhat differently. First

of all, it distinguished between township areas and

rural areas, which one would tend to expect with the

development plan, and secondly under the development

plan, although certain uses were prohibited in the

watershed area, they were not prohibited absolutely

because under our PLANNING ACT there is no such

thing as an absolute prohibition. Uses are

prohibited uses, but even then a consent may be

gained but by a more tortuous path. So having

referred to what was done under the development plan,

and referred to the fact at about line 30 that a

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distinction was drawn between townships and rural

areas he then went on to say - I just cannot pick

up the particular bit which I had in mind,

Your Honours, but he did appear to rely on the fact that the development plan dealt with the problem

differently - and again one might say, in a more

discriminating manner, distinguishing between

townships and urban areas - but at page 110, where

his reasoning is really epitomized, he says at line 10:

Regulation 37.2.1 -

which is the impugnedregulation -

fails to recognise that the purpose

can, and therefore should, be achieved

without a blanket prohibition.

In my respectful submission, that again is contrary

to authority. It is not for the court to say

that something could and should be done a different

way. In my submission, it is quite clear,

particularly with a regulation which is expressed

in terms of a purpose to be achieved, but it is a

question of whether the maker of the regulations

could reasonably have adopted the regulations as

a general rule as a means adapted to achieving the

desired end.

Your Honours, I do not want to pore over the

authority in developing the argument, but in the end
one is left with the very strong impression that

the court has taken the view that it can, to a large

degree, make its judgment as to the suitability of

the means to the end.

MASON CJ:	But if one applies the proportionality test, and I am not saying that this is a case appropriate for
the proportionality test, but the Full Court applied
it,  are you not driven to an examination which
throws up the practicality of an alternative regime
of regulation beyond which it is not necessary to go, and therefore the instant regime turns out to be disproportionate?
MR DOYLE:	Your Honour, I would not deny that if leave is

given that the argument may include consideration
of those matters, and I appreciate that with the

question of the validity of delegated legislation

there probably never will be a case where one can

isolate the pure point of principle, in the end you

will always come back, to some extent, to the

particular regulations and the particular case.

MASON CJ:  Do you have anything to say about the

appropriateness of the proportionality test in this

case, as a criterion of validity?

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MR DOYLE:  My respectful submission is that - while I cannot

deny that it was able to be used, my respectful

submission is it is very much, as it were, a fall-
back test and that rather than applying it, in my
submission, at first instance, as this court did,

and saying, "Now, do we regard this as reasonably proportionate?", it should only be applied having

first of all posed the objective question, "Could

it reasonably be regarded by the regulation maker

as a means to the end?", and perhaps in some cases,

if it passes that test - perhaps it is hard to conceive

of the case where it would pass that test and then

fall at the second - Your Honour, I would not submit

that it could never be deployed in such a case.

My respectful submission is that it is really

being put right at the forefront and has rather

displaced what I submit is the correct objective

approach and rather than being.· as it were an

alternative and secondary way of testing validity,

it seems to have become the primary way and with the

the court in particular, in terms of proportionality,

applying very much its own assessment, in my

submission,in an impermissible way, of how otherwise

the objective could have been achieved. So in

relation to special leave my submission is that the

first point is really a very important point and

will cause considerable uncertainty because it is

quite unpredictable when statutes will bob up which

may seem to be inconsistent with the PLANNING ACT,
and while I would acknowledge that the second point
standing alone would not warrant the grant of special
leave, I would submit that special leave should

not be refused in this case because the first point

is entangled with the second point.

(Continued on page 10)

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MASON CJ:  I do not think we need trouble you further,

Mr Solicitor.	I think we will hear what the
respondent has to say at this stage.	Yes,
Mr Hayes.

MR HAYES: If the Court pleases, we oppose the grant of

special leave for two reasons: the first is

that we say that the decision of the Full Court

cannot be said to be plainly wrong and, secondly,

that this case - - -

MASON CJ:  The applicant does not have to show that it

is plainly wrong, does it?

MR HAYES: No. Well, it is not attended by sufficient

doubt to justify the granting of special leave.

And secondly, and perhaps more importantly, we

say that this particular case ought not to be
the vehicle for this point to be tested in the

High Court. That, we say, is an important matter

for the Court to take into account because at

the end of the day what is suggested is a regulation

which is peculiar in the sense that the arguments

are limited to the Waterworks Regulations and

to the PLANNING ACT.

It is not, in our submission, a case where

it is reasonably arguably that this case is going

to act as a precedent to cover all land use

situations as suggested. It will be limited

to its facts. It was dealt with on its facts
alone and it cannot be said, in our respectful
submission, that there is anything in the judgment
of the Full Court which would justify applying
a broad approach to this principle extending

into, for example, the LICENSING ACT, the HEALTH

ACT and the WASTE MANAGEMENT ACT and so on,

because the Full Court was only concerned with

dealing with the enabling power in the WATERWORKS

ACT for the making of this regulation and the

Full Court, in our respectful submission, looked

at and approached its task correctly by looking

to the purpose which was attached to the regulation- making power and concluded that in the circumstances of this case, and taking into account the

circumstances of this case, the fact that the

watershed extended over a large area, the fact

that there was an unreasonable extension of the

purpose and no reasonable proportionality between

that stated purpose and the regulation itself,

all limited to the individual facts of this case.

We say that does not, in our respectful

submission, justify the grant of special leave.

MASON CJ:  But the Full Court does seem to have treated

proportionality as a paramount test and that

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does seem, if that be so, to raise a matter

of considerable general importance in terms

of principle.

MR HAYES:  Your Honour, we say that it is perhaps not as

clear as my friend has suggested, that

proportionality test has been at the forefront

of the Full Court's decision. At page 99 of

the appeal book, His Honour Mr Justice Jacobs

there refers to the regulation and there then,

at line 11, says:

It is to be observed that the power 1n

Placitum xxiv is what might be called a

'purpose power', and it cannot be doubted

that the ambit of the power is limited by

the purpose. It is a power "to regulate

control and prohibit ..... so as to reduce

or prevent the deterioration or pollution

of any water within a watershed or
watershed zone", and the question in such

cases must be whether there is a sufficient

and proper - a word which seems to be

prefereable to 'reasonable' - nexus and

relationship between the authorised purpose

and the impugned regulation.

We say, with respect, that is a perfectly proper
and consistent with authority approach to take
to construing this regulation. And that is the

approach taken by the majority of the Full Court

in construing this regulation. The proportionality

test is referred to on page 100 - first of all,

before dealing with that, at page 100, His Honour
refers to the DAM case in this Court and
suggests that there are dicta in that case which

lends support to the test of a sufficient and

proper nexus or relationship between the power

and its purported exercise.

There is nothing, with respect, to suggest

that the objective approach which ig being put

as being the correct approach has not been adopted.

There is nothing to suggest, in our respectful

submission, that the Full Court has erred in

its approach to construing this particular

regulation.

MASON CJ:  But one would have expected to counterbalance

the rather strong emphasis on the proportionality

test, some reference to the judgment of this

Court in HERALD AND WEEKLY TIMES where the Court

was at pains to emphasize that it does not really

matter that the attempted scheme of regulation

goes beyond, in some instances, what might be

regarded as necessary to deal with the evil.

Now, there is no trace here that the court was

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applying its mind to that as a counterbalance

to proportionality.

MR HAYES:  In so far as the court has not referred to it

in its judgement I would acknowledge that. They

have not, but our respectful submission is one

ought not to read into the judgment that the

court has placed too much weight on the

proportionality test as opposed to looking at

it from the true objective point of view and

saying, "Well, is this?" and not saying, "In

certain circumstances" or "In the circumstance

of this case, has the regualtion gone too far."

It has looked and, following 600PER V BORMANN,

looked at the regulation-making power and looked

at the stated purpose in the enabling power and

said, "Well, this regulation goes beyond that

purpose."

I do not, with respect, think that it is

necessary at the stage of the special leave application

that - no doubt if would be argued if leave was

given, but our submission is that there is nothing

in the judgment of the majority which would

justify the grant of special leave merely by,

as it were, implying into the judgment that the

court may have given too much weight. But at

the end of the day we say that this really is

limited to the Waterworks Regulations here, it

has little - and ought not to be looked on as

a precedent for applying it over a number of

different statutes because it can be restricted

to the factual situation which is presented to

it. Additional evidence as tendered and accepted

on that.

Your Honours, just one final point on the

special leave application in support of our

proposition that this particular case ought not to be the vehicle for that is the circumstances

that this case came to the Full Court and, I

think, this appears in some of the judgments,
that it is in the nature of an interlocutory matter

at this stage in that the appeal is still pending

in the Planning Appeal Tribunal. The point was

taken by the Crown at a very late stage in the

proceedings in the course of that appeal and

this question of the regulation was raised by

the Crown at that stage. And the matter was

then stopped by the appeal tribunal and the

plaintiffs took out an application here to clear

up that point and the matter has now gone - if

it stays as it is, will be dealt with on the

merits by the Planning Appeal Tribunal.

We say that is an important consideration

in using this particular case as the avenue for

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testing this question, particular as we say that

it is not immediately apparent in the judgments,

whilst, no doubt, if the case went on appeal

it may come out in the course of it that there

was too much weight placed on one aspect as opposed

to another. We say, in the circumstances of

this case, special leave ought not to be given

but if it is to be given one would have to make

a submission in relation to the terms upon which

it was to be given, bearing in mind that last

submission of mine.

BRENNAN J:  Mr Hayes, if the special leave were granted

and the appeal were to succeed, would that

determine the result of the proceedings which

are now pending?

MR HAYES:  That is difficult to answer conclusively because

it would determine this point and it would still

leave the matter before the Planning Appeal Tribunal
with the argument and with the need to consider

that should it go on an deal with the appeal

bearing in mind that there is a regulation which
places a total embargo on this use but there
may be other arguments in relation to whether

in fact as a matter of fact the use falls - I

am not saying it does not fall within the regulation,

it does, that was acknowledged, but there may

be some arguments which I cannot say to the Court,

"Yes" or "No" conclusively, which would enable

the Planning Appeal Tribunal to go on with the

hearing of the appeal.

BRENNAN J: In all events, the subject-matter which is

dealt with in these proceedings is both important

to the conduct of the further hearing before

the appeal tribunal and it would, of course,

finally conclude the issues to which these

proceedings were related.

MR HAYES:	To which these proceedings relate, yes.
MASON CJ:	You wanted to raise the matter of terms.	I

suppose you would ask for costs of the appeal

ND in any event, would you?

MR HAYES:  That is right, Your Honour, because of the

circumstances in which this matter has come about

and bearing in mind that the respondent Tanner

has just simply found himself in the position of being faced with this at a very late stage

after a fairly expensive exercise to date.

MASON CJ:  Yes. Does that conclude what you wish to put

to the Court, Mr Hayes?

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MR HAYES:	That concludes my submissions.
MASON CJ:	Mr Solicitor, we do not need to trouble you on the

grant of the application for special leave to

appeal but what do you say about the suggested

term as to costs?

MR DOYLE:  Only this, Your Honour. The point now raised

did arise after the appeal in the Planning Appeal

Tribunal was well underway.	The regulation had,
I believe, been overlooked.	However, whenever

it was raised, these issues would have been raised

so even if it had arisen on day one, it is likely

that validity would have been challenged in the

Full Court and if the same judgment had been

given, it is likely that the State would have

sought special leave. In my respectful submission,

my friend's point goes more to costs in the Tribunal.

It may well be appropriate, the State or those

representing it not having raised the regulation

until the hearing was well undersay that, if

the applicant in the end fails in the Tribunal

on this ground, that costs should be dealt with

in a way which compensates him for the fact that

the point was not raised at the outset but, in
my submission, regardless of when the point was

raised, the case was, on the course it has followed,

going to finish up here.	So, I would submit
that that order would not be appropriate.	The
relevant issue is costs in the Tribunal.

MR HAYES:  Your Honour, I wonder whether I might just make

comment on that. I do not think, with respect,

it is true to say that if the point had been

raised earlier we would still be in the situation
we are in today. This point was open to the

Planning Commission at the date at which it first considered the application, quite apart from

the appeal, whether there was or was not an appeal,

and it is a question - the point I make is that

with a total embargo at the date he had his the applicant for consent would have been faced	application dealt with by the Planning Commission,
who is a respondent to this, before any question
of an appeal to the Planning Appeal Tribunal
arose. He would have had the choice of saying,
"Well, that's it. I'll give it away now" as
opposed to, on the 15th day of hearing or whenever
it was that it was raised, then being faced with
a situation of, "You can't go any further".
He had no choice then but to embark on these
proceedings but I just do not accept Mr Solicitor's
suggestion that it would have ended up in the Full Court no matter when it had been raised.

AlT4/5/SH	14	26/8/88
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MASON CJ:	Yes, thank you, Mr Hayes.	The Court will grant

special leave to appeal in this case. It will

impose no term as to costs	as a condition of
the grant of leave or as a	condition of the appeal.

AT 10.53 AM THE MATTER WAS ADJOURNED SINE DIE

AlT4/6/ND	15	26/8/88
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