The Cheltenham Park Residents Assocation Inc v Minister for Urban Development and Planning - [2009] SASC 303

SUPREME COURT OF SOUTH AUSTRALIA
(Land and Valuation Division: Application for Judicial Review)
THE CHELTENHAM PARK RESIDENTS ASSOCATION INC v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ORS
[2009] SASC 303
Judgment of The Honourable Justice Bleby
25 September 2009
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND INSTRUMENTS - SOUTH AUSTRALIA
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
Application for judicial review of decision by first defendant to approve amendment to Development Plan – amendment involved rezoning land previously used as racecourse to allow residential development – whether first defendant failed to take a relevant consideration, namely flood plain mapping for the catchment area, into account – whether decision so unreasonable that no reasonable decision maker could have so exercised the power – whether first defendant failed to take a relevant consideration, namely an open space proclamation, into account.
Application for judicial review dismissed – first defendant not required to take flood plain mapping into account – plaintiff did not establish that first defendant failed to take flood plain mapping into account – decision not manifestly unreasonable – open space proclamation not a matter that first defendant was required to take into account.
Development Act 1993 (SA) s 8, s 9, s 22, s 26, s 27; Town Planning Act 1929-1957 (SA); Local Government Act 1999 (SA) s 191, Sch 1A; Local Government (Stormwater Management) Amendment Act 2007 (SA); Local Government (General) Regulations 1999 (SA) reg 15(c), referred to.
Foster v Minister for Customs and Justice (2000) 200 CLR 442; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, applied.
Jones v Dunkel (1959) 101 CLR 298, distinguished.
Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1, discussed.
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, considered.

THE CHELTENHAM PARK RESIDENTS ASSOCATION INC v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ORS
[2009] SASC 303
Land and Valuation Division
BLEBY J.
Introduction

On 14 August 2008 the Minister for Urban Development and Planning made a decision pursuant to s 26(8) of the Development Act1993 (SA) (“the Act”) to approve a Development Plan Amendment entitled “Cheltenham Park Racecourse Development Plan Amendment” (“the DPA”).
The DPA made amendments to the Charles Sturt (City) Development Plan in relation to the land then occupied by the Cheltenham Park Racecourse owned by the third defendant, the South Australian Jockey Club Inc (“the SAJC”). The racecourse land is an area of approximately 49 hectares known as Cheltenham Park, located approximately 9-10 kilometres northwest of the central business district of Adelaide. The impetus for the DPA arose from a desire of the SAJC to sell the racecourse land. At that time it was designated under the Development Plan as “a Special Uses Zone, reflecting its historical use as a racecourse”. The land was also subject to a declaration by the Governor dated 29 June 1961 under the then Town Planning Act 1929-1957 (SA) declaring it to be open space and further declaring that the land “shall not be subdivided into allotments for sites for residences, shops, factories, or other like premises”. Under the DPA the land has been rezoned to allow for residential development and other uses.
The land was also located in the Torrens Road drainage catchment for which the Stormwater Management Authority had some responsibility under the provisions of Schedule 1A of the Local Government 1999 (SA). The Torrens Road drainage catchment is a large area which lies partly within the City of Charles Sturt and partly within the City of Port Adelaide Enfield local government areas.
In March 2008 the City of Charles Sturt Council released, as part of its stormwater management plan, a flood plain mapping of the Torrens Road catchment. This indicated that, of the 7,924 properties located in or adjacent to the catchment, some 3,495 properties were at risk of flooding in a 1 in 100 year flood event.
The action
The plaintiff is an incorporated association. Its objects are, among other things, “to encourage and promote the participation of people in the civic and environmental affairs of Cheltenham Park and the neighbouring areas of the City of Charles Sturt and the City of Port Adelaide Enfield”, and to “advocate on behalf of people who have an interest in their City and who seek a remedy to adversity that is beyond their control”.
By a summons for judicial review filed on 17 November 2008, as subsequently amended, the plaintiff sought orders for judicial review against the Minister and the State of South Australia. On the application of the SAJC, it was joined as a party to the action on 11 March 2009.
By its application the plaintiff seeks to quash the DPA approved by the Minister on any one of three grounds. The first is that the Minister failed to take a relevant consideration into account in the exercise of his powers under s 26 of the Act by failing to take into account the flood plain mapping for the Torrens Road catchment area.
The second ground is that the Minister’s exercise of power under s 26 of the Act was so unreasonable that no reasonable decision maker could have so exercised the power.
The third ground is that the Minister failed to take a relevant consideration into account in the exercise of his power by failing to take into account the existence and effect of the proclamation made by the Governor on 29 June 1961.
The legislative requirements
The process to be followed by the Minister in amending a development plan is set out in some detail in s 26 of the Act. As it affected the making of this particular amendment s 26 then provided:
26—Amendments by the Minister
(1)If the Minister is considering an amendment to a Development Plan, the Minister must first prepare a draft Plan Amendment Report based on investigations initiated by the Minister in relation to the matter and the advice of a person with prescribed qualifications appointed by the Minister.
(2)A Plan Amendment Report must assess the extent to which the proposed amendment—
(a)     accords with the Planning Strategy;
(b)     accords with other parts of the Development Plan;
(c)     complements the policies in Development Plans for adjoining areas;
(d)     satisfies the requirements prescribed by the regulations,
and include—
(e)an explanation of the proposed amendment and a summary of the major policy changes (if any) that are proposed; and
(f)a summary of the conclusions drawn from the investigations referred to above; and
(g)a draft of the amendment, or a draft of the relevant section of the Development Plan as amended (with the amendments shown in a distinctive manner).
(3)The Plan Amendment Report may incorporate any material prepared by a council under section 25 in relation to an amendment which was proposed under that section.
(4)     The Minister must then—
(a)    refer the Plan Amendment Report to any council that in the opinion of the Minister has a direct interest in the matter for comment within the time determined by the Minister (being not less than the time that applies under paragraph (b)); and
(b)    release the Plan Amendment Report for public consultation in accordance with the regulations. [See note 1].
(6)Where a proposed amendment designates a place as a place of local heritage value, the Minister must, on or before the day on which the Plan Amendment Report is released for public consultation under subsection (4), give each owner of land constituting the place proposed as a place of local heritage value a written notice—
(a)     informing the owner of the proposed amendment; and
(b)inviting the owner to make submissions on the amendment within the period that applies under subsection (4)(b).
(7)     The Minister must seek the advice of the Advisory Committee—
(a)     on the matters raised as a result of public consultation under subsection (4); and
(b)     on any submissions made under subsection (6); and
(c)     on any proposed alterations to the amendment.
(8)     The Minister may then—
(a)     approve the amendment; or
(b)     alter the amendment and approve the amendment as altered; or
(c)     decline to approve the amendment; or
(d)divide the amendment into separate amendments (with or without alterations) and approve one or more of those amendments and, as to the remaining amendment or amendments, give further consideration to any outstanding issues and then, if or when the Minister thinks fit, reconsider the amendment or amendments (with or without alterations) and exercise, in relation to the amendment or amendments, any power conferred on the Minister under this subsection to approve, or to decline to approve, the amendment or amendments.
(9)     The Minister will give an approval under subsection (8) by notice in the Gazette.
(10)A notice under subsection (9) must fix a day on which the amendment will come into operation (and the relevant Development Plan or Plans will then be taken, from that day, to be amended in the manner set out in the amendment).
(11)Despite a preceding subsection (but subject to the operation of subsection (12)), if—
(a)the Minister is authorised to proceed with the consideration of an amendment because of the operation of section 24(1)(a)(iva); and
(b)a Plan Amendment Report has been prepared by the relevant council under section 25; and
(c)the Minister is of the opinion that a policy contained in the Plan Amendment Report is of substantial interest to the Government of the State and should be adopted to achieve consistency with the Planning Strategy,
then—
(d)     the Minister may rely on a Plan Amendment Report (or part of a Plan Amendment Report) prepared under section 25 rather than under this section (with or without modifications made by the Minister); and
(e)     unless substantial modifications have been made under paragraph (d), the Minister is not required to undertake public consultation on a Plan Amendment Report (or part of a Plan Amendment Report) on which the Minister is relying under paragraph (d) if public consultation has already been undertaken on the Plan Amendment Report by a council under section 25; and
(f)     the Minister is not required to seek the advice of the Advisory Committee under this section to the extent that advice has already been obtained under section 25.
(12)The Minister must refer a proposal to act under subsection (11) to the relevant council for comment within a period (of at least six weeks) determined by the Minister and if during that period the council, by notice in writing, objects to the Minister's proposed action then the Minister must seek and consider the advice of the Advisory Committee before acting.
Note—
1      The steps set out in subsection (4)(a) and (b) may be undertaken concurrently.
The amendment must then be referred for a process of Parliamentary scrutiny and possible disallowance under s 27.
In brief, the process involved in this case required the preparation by the Minister of a Plan Amendment Report based on the investigations and advice referred to in sub-s(1). The report was required to assess the extent to which the proposed amendment met a number of criteria specified in sub-s (2), and was required to contain a draft amendment of the Development Plan.
The Minister was then required to refer the Plan Amendment Report to any relevant council and for public consultation in accordance with the Regulations. After the public consultation the Minister was required to seek the advice of the Development Policy Advisory Committee constituted under the Act (“the DPAC”) on the matters raised as a result of the public consultation and on the proposed alterations to the amendment. It was only after that process was completed that the Minister could then either approve the amendment, alter the amendment and approve the amendment as altered or decline to approve the amendment.
One should not lose sight of the fact that the Act required that the Plan Amendment Report be the Minister’s proposal, initiated by the Minister, based on the investigations and the advice referred to in sub-s (1). The consultation process that followed was to invite submissions on that proposal. The Minister was free to afford as much or as little weight as he considered appropriate to any submissions so made.
It must also be borne in mind that the procedure prescribed by s 26 applies to a relatively minor amendment to a Development Plan as well as to an amendment of great significance attracting widespread public interest. This amendment was in the latter category, involving a complete rezoning of 49 hectares of urban land. It was bound to attract widespread public interest and a great number of submissions covering many aspects of town planning. It would be impracticable, in such a situation, for the Minister to give personal attention to every submission that was made. In an amendment of this significance the Minister would require substantial collation, refinement and summarisation of a large volume of material.
The relevant facts
There is no complaint in this case that the Minister failed to comply with s 26(1), (2), (4) or (7). In other words, there is no attack on the process adopted by the Minister.
The Minister’s Plan Amendment Report, which I have referred to as the DPA, was published for public consultation on 25 October 2007. It was concerned with the rezoning of the whole of the area occupied by the Cheltenham Park Racecourse. It was not concerned, as such, with wider infrastructure requirements to meet a future risk of flooding across the entire Torrens Road catchment. It proposed a rezoning of the site to enable it to be used for a variety of purposes, namely for housing at various densities and ancillary community facilities, for open space accessible to the public for various recreation purposes and for some stormwater detention/water recycling purposes.
In relation to stormwater and flooding the DPA contained the following:
The context for considering stormwater management over the Cheltenham Park Racecourse is contained in the Tonkin report (March 2003) entitled “Torrens Road Drain Catchment”.
In broad terms the stormwater management system in the area is adequate utilising underground drains and road reserves to accommodate stormwater flows. This is consistent with normal practice nationally and internationally.
Water Sensitive Urban Design principles will be utilised throughout the site (see planning Strategy policy – Water Resources 2).
The two fundamental principles for stormwater management on the site are:
·outflows from the developed site not to exceed the current outflow from the undeveloped site; and
·water quality standards being achieved by a variety of methods, including individual allotment collection of impurities, wetlands, aquifer storage, etc.
The area of wetlands needed for water quality purposes is in the order of 4 to 6 hectares, well within the area to be set aside as public open space.
Consideration has also been given to aquifer storage and recovery (ASR) for the site by URS (May 2006). In general terms, an ASR scheme is feasible if the Cheltenham Park Racecourse is rezoned for residential development, although for it to be commercially viable a purchaser of the reclaimed water needs to be identified.
URS has also undertaken a study into the operation of a wetland (September 2006), which was also based on an area ranging from 4 to 6 hectares.
From this extract it can be seen that stormwater collected within the site was proposed to be disposed of within the site so as “not to exceed the current outflow from the undeveloped site”.
In relation to public open space the DPA proposed a major area of approximately 13 hectares and said:
It is desirable that this open space be contained within one parcel and that it be designed and developed to accommodate a range of passive and active recreation facilities, revegetation and stormwater management initiatives (likely to require in the order of 6 hectares in total).
In the proposed amendments to the Development Plan under the heading “Desired Character” of the Residential Zone the amendment included:
The area of regional open space should incorporate:
…
(b)stormwater management areas in the form of wetlands, creek lines and permanent water bodies, including an aquifer storage and recovery system.
…
Objective 6 provided:
Sustainable development outcomes through innovation in stormwater management, waste minimisation, water conversation, energy efficiency and urban biodiversity.
Proposed Principle of Development Control 36 provided:
Development should address environmental sustainability and seek to:
(a)manage stormwater on site or provide satisfactory infrastructure needed to manage flows and water quality in a sustainable manner;
(b)     provide for stormwater re-use;
(c)     maximise the use of solar energy and natural light;
(d)     minimise the lifecycle costs of infrastructure to the community;
(e)     minimise water use;
The proposed 13 hectares of public open space was shown as occupying the north-western corner of the site and included areas of stormwater retention.
The period of public consultation in respect of the draft DPA ended on 11 January 2008. There was a series of public consultation meetings held by the DPAC in the weeks that followed.
On 11 March 2008 the City of Charles Sturt received a report from its Manager, Engineering and Construction with the flood plain mapping of the Torrens Road catchment previously commissioned by the Council. It is this flood plain mapping that the plaintiff alleges was not taken into account by the Minister. On 12 March the Council sent a copy of the report and of the map showing areas of potential flooding in respect of a 1 in 100 year flood to the Minister. Accompanying the letter and report was a recommendation of the Council which included:
That diversion of stormwater from the Torrens Road Catchment be investigated as part of the Cheltenham Racecourse Development for the purpose of developing enhanced wetlands and ASR to mitigate peak stormwater flows and reduce the pollutant loads going to the Magazine Creek.
The letter was “noted” by the Minister on 17 March 2008.
On 21 May 2008 the acting Director, Planning Policy, Planning SA and the acting Executive Director, Planning SA jointly signed a minute to the Minister, the subject of which was “Cheltenham Park Racecourse DPA Approval and Revocation of Open Space Proclamation”. It was a 10 page minute recommending that the Minister sign an attached Cabinet submission regarding the revocation of the open space proclamation and that he approve the Cheltenham Park Racecourse Redevelopment Plan Amendment pursuant to s 26(8) of the Act.
The attachments to the minute included the DPAC Public Consultation report in accordance with s 26(7) of the Act and contained the DPAC’s advice on matters raised as a result of public consultation and any proposed alterations to the draft DPA. The report made specific reference to the Torrens Road catchment flood plain mapping in an important section of the report relating to stormwater management in the following terms:
2.4.2 Stormwater Management
The potential use of the Cheltenham site for stormwater management and harvesting, is an issue which has been raised in many of the public submissions. Common themes include the need to make use of Adelaide’s scarce water resources through stormwater re-use; the need to reduce the impacts of urban runoff on coastal waters and reducing flood risk. Some submissions have also suggested that the water management regime, should be designed to ensure that no stormwater leaves the site.
In relation to stormwater management, the DPAC has been advised of the following:
· Previous studies prepared for the City of Charles Sturt and the Land Management Corporation, have generally focused on the potential use of land at Cheltenham for wetlands and an aquifer storage and recovery (ASR) scheme. The DPAC has noted that further investigations are required to ascertain the viability of an ASR at the Cheltenham site.
· The City of Charles Sturt and the City of Port Adelaide Enfield, have indicated their intentions to prepare a Stormwater Management Plan (SMP), for the Torrens Road Catchment, following the release of floodplain maps in March 2008.
As you are aware, SMPs are prepared under the Local Government (Stormwater Management) Amendment Act 2007, which provides the legislative means to manage stormwater in urban areas.
Although the DPAC did not identify any amendments to the draft DPA in respect to stormwater management, depending on the outcome of investigations into the potential introduction of an ASR and the SMP process, concern is expressed that the development of the Cheltenham site may affect the site’s ability to respond to wider stormwater management and reuse issues. For instance, the area required for stormwater management purposes, is likely to be greater if surface detention/retention of stormwater is used to support stormwater reuse (possibly in combination with ASR).
[Emphasis added].

It will be noted that the Minister was alerted to the fact that stormwater management plans were prepared under the relevant provisions of the Local Government Act 1999 (now contained in Schedule 1A of that Act referred to above) and that the question of the use of the racecourse site for wider stormwater management and reuse was specifically raised.
The actual recommendations of the DPAC were as follows:
1.The Development Policy Advisory Committee considers the draft Cheltenham Park Racecourse Development Plan (DPA) is in a form suitable for approval, pursuant to section 26(8) of the Development Act 1993, subject to the amendments detailed in the Summary of Submission tables contained in Attachment A being made.
2.The DPAC also wishes to advise the Minister of the following:
(a) Depending upon the investigations regarding the development of an ASR system and the preparation of an SMP for the Torrens Road Catchment, the development of the Cheltenham site may impact on the ability to respond to stormwater management and reuse issues in the Catchment.
(b) Measures should be taken to ensure that open space is provided in a manner consistent with the intent of the draft DPA and that provision is made for its adequate and ongoing maintenance.
[Emphasis added].
It can be seen that the issue of the use of the site in response to a further stormwater management plan could be impacted by the development of the site. This was no doubt in response to the release of the flood plain mapping for the Torrens Road catchment and the intention of the City of Charles Sturt and the City of Port Adelaide Enfield to prepare a stormwater management plan for the catchment. Notwithstanding that, the DPAC considered that the DPA was “in a form suitable for approval, pursuant to s 26(8) of the Development Act”, subject to certain amendments being suggested by the Committee.
The report from the DPAC had attached to it a summary of public submissions, together with comments on them and recommended actions. Item 3 of the submission summary was as follows:
Comments that the DPA fails to properly address the pressing need for land in Adelaide to better manage our scarce and shrinking water resources. Suggest that the site provides a wonderful opportunity to better manage and recover urban runoff.
The use of the site for water management would not preclude its use as public open space, which is lacking in the western suburbs.
There was an extensive comment on that item. It is desirable to repeat it in full, as the general thrust of the comment finds its way into the body of the report. The comment was as follows:
The Local Government (Stormwater Management) Amendment Act 2007 provides the legislative means to manage stormwater in urban areas.
That Act provides for:
·the establishment of the Stormwater Management Authority (SMA), which was established on 1 July 2007
·the preparation of guidelines that have been issued by the SMA for the preparation of Stormwater Management Plans (SMP) – the Stormwater Management Planning Guidelines (SMPG) were approved by the Natural Resources Management Council in July 2007
·the mandatory referral of SMPs to the NRM Board
·the approval of SMPs by the SMA following advice from the NRM Board.
SMPs are initiated by council(s) (or at the direction of the SMA or at the request of the relevant regional NRM Board) and are based on a catchment area approved by the relevant NRM Board.
In this regard, the SMPG provides that:
SMPs will provide a template for more consistent management of stormwater in individual catchments that is aimed at addressing existing problems and capitalising on opportunities for providing a range of benefits through multi-objective planning, including reuse where feasible.
SMPs are also used for developing budgets, specifying cost apportioning arrangements between councils where needed, and allocating state support funds (matched by councils) across those catchments that are covered by the plans.
It has been suggested in other submissions on the DPA and elsewhere that Cheltenham Racecourse could be used to manage stormwater from both the Torrens Road catchment in which the racecourse is situated, as well as the Port Road catchment.
The following observations are made in relation to this:
·the feasibility of redirecting water from the Port Road catchment to the Cheltenham Racecourse has been the subject of consideration by the City of Charles Sturt. The Cheltenham Racecourse – Wetland/Aquifer Storage and Recovery Reassessment report, prepared by URS in May 2006 for Council, suggests that the Port Road catchment should not be used as a water source on the basis that it (a) diverts stormwater from one catchment to another (and hence may impact adversely on the adjoining Port Adelaide Enfield Council) (b) would cost more to obtain stormwater from this catchment and (c) it is unlikely to be technically viable to gravity flow the stormwater to the site due to difficulties avoiding existing infrastructure.
·the diversion of a stormwater from one catchment area to another goes against the general philosophy of the USMP mentioned above, which supports a catchment based approach.
·the Port Road catchment area is the subject of a SMP prepared by the City of Charles Sturt, and approved by the SMA in 2007 – the SMP provides for stormwater management works along Port Road to address water quality and potential for ASR/stormwater reuse.
The Charles Sturt and Port Adelaide Enfield councils have indicated their intentions to commence a SMP process for the Torrens Road catchment. In relation to this:
·floodplain mapping for the Floodplain Mapping for the Torrens Road catchment was released on 11 March 2008, which should assist in preparing n SMP for the catchment
·the Port Adelaide Enfield Council’s submission (see submission P143) seeks a catchment based approach consistent with the SMPG to address existing drainage problems in its area that fall within the Torrens Road catchment
·the SMA wrote to the City of Charles Sturt in February 2008 seeking advice on opportunities for stormwater management including aquifer storage and recovery.
As the Development Plan can only relate to a specific Council area and can not address funding arrangements for stormwater management works and on-going maintenance, including works used to mitigate existing flood issues in an adjacent council (i.e. within the Port Adelaide Enfield Council), an SMP process would provide a more appropriate mechanism to address wider catchment issues.
In considering the potential use of open space at Cheltenham for stormwater management and reuse, URS (May 2006) observed that, based on available data, no technical impediments have been identified that would prevent the successful incorporation of wetlands and an ASR scheme at Cheltenham. However, the viability of the project has not been established due to uncertainties about the possible level of future residential development, cost of works etc.
A more recent study looked into the potential to incorporate a wetland system into the development of Cheltenham. The analysis was based on data for the Torrens Road drainage catchment upstream of the racecourse site – estimated to comprise some 420 hectares. The analysis adopted a general rule of thumb that a wetland area of between 1% and 1.5% of the contributing catchment will provide enough storage to ensure water passing through the wetland is delayed long enough for significant pollutant removal will occur. Given a catchment of 420 hectares, a wetland of 4 to 6 hectares was assumed.
The area required for a wetland at Cheltenham could be accommodated within the 17 hectares of open space based on previous estimates. However, the land requirements attached to wider stormwater management initiatives could be impacted by investigations into an ASR scheme and the outcomes of a SMP process.
For instance, the area required for stormwater management purposes may be greater if surface detention/retention of stormwater is used to support stormwater reuse (possibly in combination with ASR).
In this context, the rezoning of the Cheltenham site to accommodate housing development may reduce the ability to respond to stormwater management and reuse issues.
[Emphasis added].
Under the heading “Recommended Actions” in relation to item 3 the DPAC said:
No action required as part of the DPA.
However, the submission from the Port Adelaide Enfield Council on the DPA should be forwarded to the SMA for information to consider the need for a SMP for the Torrens Road catchment area by the relevant councils. This should include consideration for the need to address wider catchment issues, particularly flood risk in areas downstream from the Cheltenham site.
[Emphasis added].
Also attached to the DPAC report was a summary of government agency submissions. There were several relevant submissions from the Adelaide and Mount Lofty Ranges Natural Resources Management Board. The first was that the Board:
Supports the development of a wetland and Aquifer Storage and Recharge (ASR) scheme within the proposed open space areas, and suggest that the reuse of any stored water should also addressed.
The DPA should also include policy direction on:
·diverting stormwater from the whole of the racecourse to the wetland and ASR scheme
·a bio-filtration system
·swales
·filtration trenches to recharge soils
Advises that a permit will be required to inject water into an aquifer and a licence needed when taking water from an aquifer as part of an Aquifer Storage and Recover (ASR) scheme
The DPAC’s comment on this submission was as follows:
The [Desired Character Statement] and [Principles of Development Control] 36(b) provide for stormwater management and re-use. This should be read in conjunction with Council-wide policy addressing stormwater issues at different hierarchical levels.
In this regard, existing Council-wide policy (including policy specifically on residential development) provides a comprehensive basis to address stormwater management at land division and subsequent development stages.
Importantly, the Local Government (Stormwater Management) Amendment Act 2007 provides an appropriate legislative means to manage stormwater in urban areas.
Notably, that Act provides for the preparation of Stormwater Management Plan (SMP) in consultation with the relevant NRM Board, including a mandatory referral to the Board before being considered by the Stormwater Management Authority (SMA).
Guidelines for the preparation of SMPs generally support a whole of catchment approach to stormwater management, and can address matters that cannot be covered by development policy such as cost apportioning between councils where catchments cut across jurisdictional boundaries.
Given that the SMA may direct a council or councils (either of its own motion or at the request of a regional NRM Board) to prepare an SMP, and the other advantages attached to the SMP process, there would appear to be significant capacity for the NRM to address stormwater management and reuse issues more holistically via that process, rather than through a DPA specifically concerned with the Cheltenham site.
The Charles Sturt and Port Adelaide Enfield councils have indicated their intentions to commence an SMP process for the Torrens Road catchment.
[Emphasis added]
In respect of that submission the DPAC considered that no action was required.
Another submission from the Adelaide and Mount Lofty Ranges Natural Resources Management Board was that the DPA should consider “a whole of catchment approach (i.e. taking water from Torrens Road)”. The DPAC’s comment on that was as follows:
Beyond the scope of the DPA – see previous comments in relation to the preparation of SMPs.
In considering the potential use of open space at Cheltenham for stormwater management and reuse, it is noted that:
·       preliminary investigations indicate that no technical impediments have been identified that would prevent the successful incorporation of wetlands and an ASR scheme at Cheltenham, but the viability of the project has not been established due to uncertainties about the possible level of future residential development, cost of works etc
·       an analysis using data for the Torrens Road drainage catchment upstream of the racecourse site – estimated to comprise some 420 hectares, suggests a wetland area of between 4 to 6 hectares will provide enough storage to ensure water passing through the wetland is delayed long enough for significant pollutant removal to occur
·       floodplain mapping for the Torrens Road catchment was released in March 2008 – the Port Adelaide Enfield Council’s submission on the DPA requests that the potential use of land at Cheltenham to address existing drainage problems in its area that fall within the Torrens Road catchment be taken into account
·       the two councils affected by the Torrens Road catchment have indicated their intentions to undertake an SMP process for the catchment.
The estimated area required for a wetland at Cheltenham could be accommodated within the 17 hectares of open space. However, the land requirements attached to wider stormwater management initiatives could be impacted by investigations into an ASR scheme and the outcomes of an SMP process.
For instance, the area required for stormwater management purposes is likely to be greater if surface detention/retention of stormwater is used to support stormwater reuse (possibly in combination with ASR) or to assist in mitigating catchment flood issues.
In this context, the rezoning of the Cheltenham site to accommodate housing development may reduce the ability to respond to stormwater management and reuse issues.
[Emphasis added]
The final relevant submission was that the DPA “should including flood mapping in the area, as it is a high risk area. Policy should be introduced to protect development against a 1:100 year flooding event”. The DPAC’s comment was:
The City of Charles Sturt (in conjunction with the Port Adelaide Enfield Council) has prepared Floodplain Mapping for the Torrens Road catchment, which was released on 11 March 2008. That mapping indicates that most of the Cheltenham site is not significantly affected by flood – some areas around the periphery of the site are shown to be flood affected (i.e. along the rail corridor and Cheltenham Parade in particular).
In this regard, the existing Development Plan includes council-wide policy to ensure land division is undertaken to mitigate the potential impact of flood. Notably, PDC 245 seeks to ensure major and minor stormwater systems cater for a 1:100 year flooding event.
Consideration of the flood mapping at the catchment level would be more appropriately addressed through the preparation of an SMP, as mentioned previously.
[Emphasis added]
I return to the minute to the Minister dated 21 May 2008 to which the DPAC report and its attachments were attached. The minute referred not only to the DPA but also to the open space proclamation, providing a basis for the Minister to consider the revocation of that proclamation. Referring to the submissions that had been received the minute noted:
Most of the public submissions are opposed to the rezoning of the site, preferring that it be retained for public purposes including recreation and stormwater management.
A number of submission have, however, supported the DPA including the City of Charles Sturt and Local Member for Cheltenham, both of whom provided a detailed submission on the DPA and recommended changes to the policy framework.
The minute particularly drew the Minister’s attention to the question of stormwater management:
Stormwater Management
A large number of public submissions have commented on the potential use of the Cheltenham site for stormwater management and harvesting. Although DPAC has not suggested any amendments to the DPA in response to stormwater issues, it has noted that there is a potential opportunity cost in developing the land for housing.
The following matters relate to the issue.
·       None of the key government agencies or councils that are likely to have an interest in stormwater have raised any significant objections in relation to the way the DPA deals with stormwater or the amount of open space being provided that might accommodate stormwater management measures.
·       Both councils (Port Adelaide Enfield and Charles Sturt) affected by the Torrens road drainage catchment have indicated their intentions to progress a Stormwater Management Plan (SMP) for the catchment (timing unknown).
·       The viability or otherwise of an Aquifer Storage and Recovery (ASR) system at Cheltenham is to be investigated by the Land Management Corporation – this is expected to be addressed in the draft Commitment Deed.
·       The DPA is consistent with the Planning Strategy for Metropolitan Adelaide, which identifies the Cheltenham area as providing for economic and housing growth.
·       The use of the whole Cheltenham site or a much larger portion of it for stormwater purposes would also represent an opportunity cost.
Given Adelaide’s recent experiences in relation to water shortages and comments on the DPA from several local Members of Parliament, stormwater management is a key issue.
Further clarity about the potential role of the Cheltenham site for stormwater management will be provided via the SMP process and ASR investigations that can also inform the development assessment process.
[Emphasis added]
The minute drew attention to the fact that the racecourse was currently subject to the open space proclamation and that the proclamation would continue to have effect even in the event that the land was rezoned. It pointed out that the transitional provisions of the Act allowed the Governor to revoke the proclamation on application by the landowner, and that an appropriate request from the SAJC was made by letter dated 22 June 2006. The minute also noted that revocation was a decision made by the Governor, and that the Minister might wish to seek a determination in relation to that prior to approving the DPA.
Following receipt of that minute, and as recommendations had been made for amendments to the DPA, which amendments are not material to this action, the Minister gave instructions to amend the proposed DPA in accordance with s 26(8) of the Act. On 8 August 2008 the same officers submitted another minute to the Minister entitled “Cheltenham Park Racecourse Development Plan Amendment for Approval”. It was a five page minute, in effect by way of supplement to the earlier minute of 21 May. It referred to the documentation accompanying the 21 May minute which was also attached to this minute, and a number of features of the earlier minute were also repeated. The two short paragraphs relating to public submissions and support of the City of Charles Sturt were repeated, but the detailed discussion contained in the earlier report on the topics of open space distribution, residential density and stormwater management were not.
It was following this minute that the Minister gave formal approval to the amendment to the Development Plan pursuant to s 26(8) of the Act on 14 August 2008. The Minister gave no reasons. As was required by s 27 of the Development Act, the DPA was considered by the Environment, Resources and Development Committee of the Parliament. The plaintiff made a written submission to that Committee dated 10 September 2008 opposing the amendment. The submission did not mention the flood plain mapping of the Torrens Road catchment. It did refer to the importance of the racecourse site “for flood prevention and mitigation”, and asserted that “the Government has failed to ensure that the City of Charles Sturt has met its obligations as to flood mitigation under section 191(2) of the Local Government Act 1999 and Regulation 15(c) of the Local Government (General) Regulations 1999”.

A number of observations can be made about the process described above. The DPA provided for the retention and treatment of stormwater generated on the site as it was proposed to be developed to ensure that outflows from the developed site did not exceed outflows from the undeveloped site.
The Torrens Road catchment flood plain mapping was released after the period for public submissions on the DPA had closed, but the Minister was aware of the mapping by 17 March 2008 and was aware of the Council recommendation. The mapping was referred to and discussed by the DPAC in the report to the Minister required under s 26(7) of the Act, and the Minister’s attention was drawn to the fact that development of the site “may impact on the ability to respond to stormwater management and reuse issues in the catchment”. That summary from the DPAC’s report reflected the detailed comments of the DPAC in response to submissions concerning stormwater management, which comments were annexed to the report.
However, the DPAC also drew attention to the fact that stormwater management extended beyond the area covered by the DPA, and included the area of more than one council. It also pointed out that the Council was proceeding with the preparation of a stormwater management plan based on the mapping, that Parliament had put in place a process for stormwater management by amendment to the Local Government Act 1999 in 2007, that a Stormwater Management Plan process “would provide a more appropriate mechanism to address wider catchment issues”, and that a whole of catchment approach “was beyond the scope of the DPA”.
The Minister’s own immediate advisers took up the question of stormwater management. They pointed out the volume of public submissions on the issue and also the fact that “[n]one of the key government agencies or councils that are likely to have an interest in stormwater have raised any significant objections in relation to the way the DPA deals with stormwater”. They noted that stormwater management is “a key issue” and that “[f]urther clarity about the potential role of the Cheltenham site for stormwater management will be provided via the SMP process and ASR investigations that can also inform the development assessment process”. Nevertheless, the advisers recommenced that the Minister approve the DPA.
Ground 1 – Failure to take into account the flood plain mapping
If the plaintiff is to succeed, it must establish that not only did the Minister not take into account the particular flood plain mapping relied on by the plaintiff, but that the Minister was also required by the Act to take it into account. This second question depends upon the proper construction of the Act. In Foster v Minister for Customs and Justice[1] Gleeson CJ and McHugh J said:[2]
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[3] Brennan J said:
“The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power.”
The level of particularity with which a matter is identified for the purpose of applying this principle may be significant. A related question arises where the failure complained of is not a complete failure to address a certain subject, but a failure to make some inquiry about facts said to be relevant to that subject. … For the appellant's argument to succeed, there must be found in the legislation an implied obligation on the Minister to examine and investigate the contention at the level of particularity involved in the submission.
[Footnote omitted]
[1] [2000] HCA 38, (2000) 200 CLR 442.
[2] Ibid [22]-[23], 452.
[3] (1986) 162 CLR 24, 55.
In this case the primary question for consideration by the Minister was the rezoning of the racecourse site from one land use to quite different land uses. The DPA required input based on a variety of technical, planning and policy considerations. There is nothing in the Act which requires that, in developing a Development Plan Amendment, the Minister must take into account infrastructure requirements for stormwater flood control across the whole stormwater catchment of which the land in question forms part and, as the plaintiff acknowledged, which is not affected by flooding in the event of a 1 in 100 year flood event.
Section 26(2) of the Act required that a Plan Amendment Report must assess the extent to which the proposed amendment meets stated criteria. One of those criteria is the extent to which the proposed amendment accords with the Planning Strategy. The Planning Strategy is the strategy referred to in s 22 of the Act. It is a planning strategy for development within the State. It is necessarily in general terms. I was not referred to the detail of the Planning Strategy. It was not suggested that any policy or strategy contained in it required a development or development plan to incorporate systems for the collection, storage and disposal of off-site stormwater or to provide for flood reduction measures of the whole catchment in which the development is located. But even if the DPA were contrary to some provision of the Planning Strategy it could not assist the plaintiff. Section 22(10) of the Act relevantly provides:
(10) No action can be brought on the basis—
(a) that a Development Plan, or an amendment to a Development Plan, approved under this Act is inconsistent with the Planning Strategy; …
No argument was addressed to suggest that the Minister had failed to assess the extent to which the proposed amendment accords with other parts of the relevant Development Plan, or the extent to which it complements the policies in development plans for adjoining areas or the extent to which it satisfies the requirements prescribed in the Regulations, being the matters which, under s 26(2), the DPA was required to assess. The plaintiff’s first difficulty is, therefore, that there is nothing in the Act which points to a requirement that the Minister take the flood plain mapping into account.
However, the structure of the Act suggests that, even if he is required to take it into account, it is not a matter to which the Minister must give personal and detailed consideration. Because the consideration of a Development Plan amendment of this nature requires such a variety of technical, planning and policy considerations, the Minister, of necessity, must rely on advice from a number of quarters, both initially in formulating the Plan Amendment Report and as the consultation process proceeds.
The Act puts in place a series of filters whereby submissions are considered by others, summarised, and the more significant matters of concern are raised for the Minister’s attention. Of some significance in the process is the role of the DPAC. That is set out in s 26(7) of the Act.
The DPAC is constituted under Div 1 of Pt 2 of the Act. It consists of:[4]
[4]    See s 8(2).
(a)    a person who has wide experience in urban and regional planning, or a related discipline;
(b)    two persons with wide experience of local government;
(c)    person with wide experience in building design or construction;
(d)    a person with wide experience in environmental conservation;
(e)    a person with wide experience in commerce and industry;
(f)    a person with wide experience in agricultural development;
(g)    a person with wide experience in housing or urban development;
(h)    a person with wide experience in planning or providing community services;
(i)     a person with wide experience of the utilities and services that form the infrastructure of urban development.
The functions of the DPAC are contained in s 9(1). So far as is relevant they include:
(a) to advise the Minister on any matter relating to planning or development that should, in the opinion of the Advisory Committee, be brought to the Minister's attention;
…
(c) to advise the Minister (on its own initiative or at the request of the Minister) on—
…
(iv)proposals to amend Development Plans;
The DPAC has the important function of evaluating submissions from the public and from government and local government authorities in relation to a proposed Development Plan amendment. Its membership will ensure that most if not all relevant aspects of a proposed amendment are considered.
Because of the intervention of the DPAC the Minister is not required personally to evaluate every submission. The Minister is unlikely, without advice, to be able to evaluate many of the technical and planning issues which must be addressed. The scheme of s 26 requires that he be presented with a report from the DPAC which, among other things, will identify and evaluate the various submissions and which will identify various policy issues for determination. The Minister then makes a policy decision based on that evaluation.
This is not an unusual process. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd[5] an Aboriginal Land Commissioner was required to ascertain whether Aboriginal claimants to land were the traditional owners. If he found that they were he was to recommend to the Minister the granting of land to them and to identify in his report any detriment to persons or communities that might result if the claim were acceded to. Where the Commissioner recommended that a grant be made and the Minister was satisfied that it should be, the Minister was to recommend that course to the Governor-General. In the course of his reasons for judgment Gibbs CJ said:[6]
Of course the Minister cannot be expected to read for himself all the relevant papers that relate to the matter. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law.
[5] (1986) 162 CLR 24.
[6] Ibid 30-31.
Similarly, Brennan J, with whom Deane J agreed, said:[7]
The Department does not have to draw the Minister's attention to every communication it receives and to every fact its officers know. Part of a Department's function is to undertake an analysis, evaluation and precis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and precis is, of course, that the Minister's appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and precis of the material relevant to that decision.
[7] Ibid 65-66.
In this case the DPAC occupies a similar role, as did the Minister’s senior departmental advisers in the minutes which they prepared. It follows that if the flood plain mapping was a matter which the Minister was required to take into account, and if the DPAC and the Departmental advisers took account of the flood plain mapping and brought it into account in their advice to the Minister, it will have been considered in the manner contemplated by the legislation.
The DPAC carefully considered and reviewed all the submissions. There has been no complaint that it did not consider the plaintiff’s submission. It is also clear that it considered the flood plain mapping. It pointed out the relevant provisions of the Local Government Act with respect to stormwater management and that a stormwater management plan was being prepared for the Torrens Road catchment. It identified the possibility that the development proposed might preclude the use of the land for catchment flood mitigation.
The plaintiff had advocated in its submission an alternative use for the land by preserving it for open space, for stormwater flood mitigation and wetland aquifer storage and reuse. The flood plain mapping was another string to the plaintiff’s bow in favour of that use. It was considered and faithfully reported on by the DPAC. The Minister made his policy decision taking the report and recommendations into account. He was not obliged to consider and get further advice on the effect or possible consequence of what that mapping revealed. The Minister was made fully aware of the consequence for stormwater management in the Torrens Road catchment of proceeding with the DPA as proposed.
The plaintiff argued that as the Minister had not given evidence that he took into account the matters that arose from the letter of 12 March 2008 in which he was informed of the flood plain mapping, the principle of Jones v Dunkel[8] required that the inference should be more readily drawn that he did not consider the mapping.
[8] (1959) 101 CLR 298.
The principle of Jones v Dunkel is that the unexplained failure by a party to give evidence may enable, in appropriate circumstances, but does not require the drawing of an inference that the uncalled evidence would not have assisted that party’s case. It entitles the trier of fact more readily to draw any inference fairly to be drawn from other evidence by reason of the party not called being able to prove to the contrary had that party been called to give evidence. It does not permit an inference that the uncalled evidence would in fact have been damaging to the party not tendering it.
I agree with the submission of the defendants that in this case there was no evidence presented by the plaintiff which demonstrates, or from which an inference might be drawn, that the Minister failed to consider the flood plain mapping. Without such evidence, the principle of Jones v Dunkel has nothing on which to Act. It can not assist the plaintiff.
I reject this ground of the application.
Ground 2 – Manifest unreasonableness
The plaintiff submits that the Minister gave so little weight to the flood plain mapping information that the decision to approve the DPA was manifestly unreasonable in the sense discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation.[9]
[9] [1948] 1 KB 223, 230, 233-234.
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd[10] Mason J said of the principle:[11]
It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.
It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it.
[Footnotes and references omitted].
[10] (1986) 162 CLR 24.
[11] Ibid 40-41.
Mason J also added, in relation to a decision of a Minister of the Crown:[12]
[I]n conformity with the principle … that relevant considerations may be gleaned from the subject-matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion.
[12] Ibid 42. See also Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17, [63], [102], (2001) 205 CLR 507, 529, 539.
The Minister in this case was obliged to make a decision on the DPA which was in conformity with the requirements of the Act and, subject to those requirements, was in what he considered to be the public interest in the light of the information before him.
I agree with the submissions of the defendants that this is not a case of Wednesbury unreasonableness. To succeed, the plaintiff would have to demonstrate that the flood plain mapping was of overriding and compelling significance to discount almost entirely all the other factors which the Minister was entitled properly to take into account in the public interest, such as the need for infill housing, the desirability of securing open space accessible to the public as well as the desirability of ensuring that any future site development should include a wetlands component. To give such weight to the one single factor relied on by the plaintiff would itself constitute unreasonableness in the decision-making. The flood plain mapping spoke of rain flood events of 1 in 100 years. I accept the interpretation of Mr Pitman, who gave evidence, that statistically it means that there is a 1% chance of that flood level being equalled or exceeded in a particular year, and that the probability of it occurring in a period of 100 years is 63.4%.
This was one of the factors, if it was required to be taken into account at all, which could be said would have to be considered along with many others, and a policy decision then made by the Minister. I reject this ground of appeal.
Ground 3 – The open space proclamation
It is clear that the Minister was properly briefed on the nature and effect of the open space proclamation of 1961. However, it cannot be said to have had any bearing on the statutory process applicable to the rezoning of the racecourse land. If the rezoning was to take effect the proclamation had to be revoked. It was a proclamation made on the application of the SAJC, no doubt designed to ensure, as far as possible, that the SAJC would be able to continue to operate the premises as a racecourse without risk of interference.
The land having served its purpose as a racecourse, the revocation of the proclamation became appropriate and necessary if, after following the required statutory process, the Minister was to approve the DPA. I reject this ground of appeal.
Conclusion
I have only been required in this case to review the process adopted by the Minister in approving the DPA. It is not the function of the Court to descend into or to pronounce upon the planning merits of the Minister’s decision. A decision in favour of any use of the land will be regarded by some as a lost opportunity for another use which might be perceived as having equally compelling reasons to support it. Provided that due process has been followed, as I consider it has, the decision must remain.

The position was put, with respect, very clearly by Brennan J (as he then was) in Attorney-General for the State of New South Wales v Quin:[13]
The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
…
If it be right to say that the court's jurisdiction in judicial review goes no further than declaring and enforcing the law prescribing the limits and governing the exercise of power, the next question immediately arises: what is the law? And that question, of course, must be answered by the court itself. In giving its answer, the court needs to remember that the judicature is but one of the three co-ordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.
[13] (1990) 170 CLR 1, 35-37.
Finally, I have not overlooked the argument of the defendants that the plaintiff had insufficient standing to bring the application. In view of the conclusion I have reached on the merits is not necessary to consider that question.
The plaintiff’s application for judicial review is dismissed.