The Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning
[2010] SASC 93
•9 April 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
THE CHELTENHAM PARK RESIDENTS ASSOCIATION INC v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ORS
[2010] SASC 93
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Vanstone)
9 April 2010
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND INSTRUMENTS - SOUTH AUSTRALIA - GENERALLY
ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - PLANNING SCHEMES AND INSTRUMENTS - POWERS WITH RESPECT TO PLANNING SCHEMES
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - RELEVANT CONSIDERATIONS
Appeal by Cheltenham Park Residents Association Incorporated against decision of Judge of Supreme Court dismissing claim of Residents Association for judicial review of decision of Minister to approve an amendment to a Development Plan - Residents Association asserted that in approving the amendment to the Development Plan, the Minister failed to consider whole of catchment stormwater management and flood plain mapping - alternatively, Residents Association contended that if Minister required to consider stormwater management and flood plain mapping, Minister's advisors ought to have brought particular details of that material to Minister's attention - alternatively, Residents Association contended that if Minister did have regard to that material, the decision to approve amendment to the Development Plan was manifestly unreasonable - Residents Association contended that the decision of Minister should be subject to judicial review - whether Residents Association had standing to bring proceedings - whether Minister required to take into account flood plain mapping and stormwater management in approving amendment to Development Plan - whether Minister failed to take that material into account - whether Advisory Committee failed to bring relevant material facts to Minister's attention - whether decision of Minister manifestly unreasonable.
Held: Appeal dismissed - residents Association has necessary locus standi - consideration of legislative scheme under Development Act - in approving amendment to Development Plan, Minister not required to take into account whole of catchment stormwater management and flood plain mapping - evidence established that to extent that stormwater issues and flood mitigation were raised, Minister considered these issues - Advisory Committee not required to bring facts asserted by Residents Association directly to Minister's attention - decision of Minister to approve amendment to Development Plan not manifestly unreasonable.
Development Act 1993 (SA) s 8, s 9, s 22, s 23, s 24, s 26, s 32, s 33 and s 35 ; Development (Development Plans) Amendment Act 2006 (SA) Sch 1, cl 5(6); Local Government Act 1999 (SA), referred to.
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Foster v Minister for Customs and Justice (2000) 200 CLR 442; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291; Truth about Motorways v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591; Re Beggs and State Planning Commission; Ex parte Helena Valley/Boya Association (Inc) (1990) 2 WAR 422; Re MacTiernan; Ex Parte Coogee Coastal Action Coalition Incorporated (2005) 30 WAR 138; Xenophon v State of South Australia (2000) 78 SASR 251; Kirk v Industrial Relations Commission of New South Wales (2010) 262 ALR 569; Jones v Dunkel (1959) 101 CLR 298, considered.
THE CHELTENHAM PARK RESIDENTS ASSOCIATION INC v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ORS
[2010] SASC 93Full Court: Nyland, Gray and Vanstone JJ
NYLAND J: I agree that the appeal should be dismissed for the reasons expressed by Gray J.
GRAY J.
This appeal seeks to address the concerns of a Residents Association about stormwater management.
Background
The plaintiff and appellant, the Cheltenham Park Residents Association Incorporated, sought judicial review of a decision of the first defendant and first respondent, the Minister for Urban Development and Planning, to approve an amendment to a Development Plan. At the heart of the Residents Association’s case is an assertion that the land comprised of and formerly known as the Cheltenham Park Racecourse provides an opportunity to address potential stormwater management issues, including storage and re-use and the prevention of flooding. This potential is said to have State-wide, inter-Council, whole of catchment and local community benefits. The Residents Association asserted that in approving the amendment to the Development Plan for the area containing the racecourse, the Minster did not consider or did not give adequate consideration to this potential.
The evidence established that the “Tonkin Report” of 2003 addressed stormwater management issues. That report anticipated that further studies would be undertaken. On 11 March 2008, a report addressed to the City of Charles Sturt containing flood plain mapping was released. The Council referred the report to the Minister. The Residents Association’s contention is that the Minister, in approving the amendment to the Development Plan, did not consider stormwater management, and in particular, the flood plain mapping report released in March 2008. It was said that the Minister was obliged to consider this material and did not do so. Alternatively, it was contended that even if the Minister was not obliged to consider stormwater management and flood plain mapping, his advisors should have drawn that material to his attention. It was said that they did not do so. In the further alternative, it was argued that if the Minister did have regard to stormwater management and flood plain mapping, the decision to approve the amendment to the Development Plan was, in the circumstances, manifestly unreasonable. The consequence of these contentions, it was submitted, was that the Minister’s decision should be the subject of an order of review.
The Residents Association does not seek to enforce any private right. It is not alleged that there has been any denial of a personal statutory right. The Residents Association seeks to enforce a public right, or alternatively, the performance, according to law, of a public duty.
The Minister, and the second and third defendants and respondents, the State of South Australia and the South Australian Jockey Club Incorporated, in opposing the appeal, raised a challenge to the entitlement of the Residents Association to bring the proceedings. I have reached the conclusion that the Association does have the necessary locus standi and does have an entitlement to bring the proceedings and to prosecute this appeal. It is convenient to set out my reasons for this conclusion later.
The application of the Residents Association was heard in June 2009.[1] The trial Judge received into evidence without objection affidavits filed by the parties.[2] The tender included exhibits to the affidavits. One of the deponents, Colin John Pitman, an engineer, presenting evidence on behalf of the Residents Association, was cross-examined on discrete matters. However, the primary facts were not in dispute.
[1] The Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning & Ors (2009) 105 SASR 326; [2009] SASC 303.
[2] Affidavits of Trevor John White sworn 22 January 2009, 30 March 2009 and 3 April 2009; Affidavits of Steven Copus sworn 5 March 2009 and 12 March 2009; Affidavit of Adrian John Katic sworn 10 March 2009; Affidavits of Brenton Wayne Wilkinson sworn 17 March 2009 and 9 April 2009; Affidavit of Colin John Pitman sworn 1 April 2009; affidavit of Stephen James Kenny sworn 5 May 2009.
The Judge dismissed the claims of the Residents Association. The Judge took the view that the Minister was not required to take flood plain mapping into account; that in any event the Residents Association did not establish that the Minister failed to take flood plain mapping into account; and that the decision of the Minister was not manifestly unreasonable.
Before coming to discuss the issues on the appeal, it is appropriate to set out the approach to be adopted to a review of the Minister’s decision.
When a decision made fails to take into account a relevant consideration in the exercise of a discretion, a jurisdictional error is committed. This ground is only made out where there is a failure to take into account a consideration that the decision-maker was bound to take into account.[3] What factors a decision-maker is bound to take into account in making a particular decision is to be determined by construction of the statute which confers the power.[4] An obligation to consider a matter may arise by implication from the subject matter, scope and purpose of a statute.[5]
[3] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J), 55-56 (Brennan J); Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 452, 480 (Kirby J).
[4] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39 (Mason J), 56 (Brennan J).
[5] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J), 56 (Brennan J).
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Brennan J observed:[6]
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.
In Foster v Minister for Customs and Justice Gleeson CJ and McHugh J referred to the observations of Brennan J and noted:[7]
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]
An obligation to consider a matter should not be implied too readily in respect of an unconfined discretionary power.[8] This was addressed by Deane J in Sean Investments Pty Ltd v MacKellar:[9]
[W]here relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.
[6] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 55 (Brennan J).
[7] Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 452.
[8] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J).
[9] Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375.
In reviewing a decision, the function of a court is confined to deciding whether a decision-maker has given proper, genuine and realistic consideration to the merits of the case.[10] In the absence of any statutory indication as to the weight to be given to a particular factor, it is generally for the decision-maker and not the court to determine the appropriate weight to be ascribed to factors taken into account.[11]
[10] Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291 at 292 (Gummow J).
[11] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 (Mason J), at 55-56 (Brennan J).
The Legislative Scheme
The Development Act 1993 (SA) establishes a scheme for the creation and publication of planning policy and for the regulation of development and planning throughout the State of South Australia.
Planning Strategy
Under the scheme, a Planning Strategy for development within the State must be prepared and maintained by the “appropriate Minister”.[12] The Planning Strategy is a policy collation, and may incorporate documents, plans, policy statements, proposals and other material designed to facilitate strategic planning and co-ordinated action on a State-wide, regional or local level.[13] It may be expected to be general in its level of prescription and can be described as being in the nature of a guideline. It has been described as “aspirational in intent”. As section 22(8) states:
The Planning Strategy is an expression of policy formed after consultation within government and within the community and does not affect rights or liabilities (whether of a substantive, procedural or other nature).
The Development Act does not prescribe any factors that the Planning Strategy must address.
[12] Development Act 1993 (SA) section 22(2):
The appropriate Minister must ensure that a Planning Strategy for development within the State is prepared and maintained.
[13] Development Act 1993 (SA) section 22(3):
The Planning Strategy may incorporate documents, plans, policy statements, proposals and other material designed to facilitate strategic planning and co-ordinated action on a State-wide, regional or local level.
The Minister released the Planning Strategy for Metropolitan Adelaide in December 2007. In its introduction the Strategy states:
The Planning Strategy provides a physical and policy framework to assist in reaching the various targets outlined in the South Australia’s Strategic Plan (2004). The Planning Strategy is integrated with, and should be read in conjunction with, other specialist plans, including the Strategic Infrastructure Plan for South Australia (2005), the Housing Plan for South Australia (2005), the State Government’s 20 year water strategy, Water Proofing Adelaide (2005), the State Natural Resources Management Plan (2006), Adelaide and Mount Lofty Ranges Initial Natural Resources Management Plan (2006) and South Australia’s Waste Strategy (2005).
The Metropolitan Adelaide volume of the Planning Strategy:
·provides a framework for development based on principles of ecologically sustainable development and management of the Adelaide metropolitan area;
·creates an environment of certainty for investors, state agencies, local government and the community by providing a clear indication of the State Government’s policy direction for the physical development of the metropolitan area.
In particular, the maps, policies and strategies contained in this Planning Strategy provide direction and a resource for metropolitan councils undertaking strategic and planning processes, including strategic management plans, Development Plan reviews and Development Plan Amendments under the Development Act 1993.
Development Plans
Section 23 of the Development Act provides for the preparation and publication of Development Plans for the purposes of the Act. A Development Plan should seek to promote the provisions of the Planning Strategy and may set out or include planning or development objectives or principles relating to inter alia “the natural or constructed environment and ecologically sustainable development”, “urban or regional planning”, and the “management, conservation and use of natural and other resources”.[14]
[14] Development Act 1993 (SA) section 23(3).
No more than one Development Plan may relate to any particular geographical part of the State.[15] A council area may be the subject of one or more Development Plan.
[15] Development Act 1993 (SA) section 23(2).
No development may be undertaken unless the development is an approved development.[16] A development will be approved only after a relevant authority has assessed it against, amongst other things, the provisions of the appropriate Development Plan.[17] With the exception of “complying developments”, any development that is assessed as seriously at variance with the Development Plan must not receive consent.[18]
[16] Development Act 1993 (SA) section 32.
[17] Development Act 1993 (SA) section 33(1).
[18] Development Act 1993 (SA) section 35(2).
The legislative scheme provides for an integrated system rather than a uniform system. While decision-makers at the State and local level may pursue the interests of particular aspects of the community with respect to a development or area the subject of a Development Plan, such interests are to conform to certain broad policies and objectives. Generally speaking a development will not be approved if it is seriously at variance with the relevant Development Plan, such plan promoting the Planning Strategy.
As an integrated system, the planning framework allows planners and authorities at the local level in considering planning and development, to address the social, natural, economic, environmental and health requirements of the immediate community in a way that is consistent with State policy. The framework necessarily reflects that approaches to planning and development across the State will not be homogenous due to differences in prevailing circumstances at a local level.
Amended Development Plans
Relevant to the present proceedings, section 24(1)(g) of the Development Act permits the Minister responsible for administering the Act - at all relevant times, the Minister for Urban Development and Planning - to prepare an amendment to a Development Plan where the Minister considers it is appropriate because of a matter which in the Minister’s opinion is of significant social, economic or environmental importance. A Development Plan is amended in the same manner as it is created.[19] An amendment to a Development Plan by the Minister must proceed in accordance with the process set out in section 26 of the Development Act.
[19] Development Act 1993 (SA) section 23(7).
A draft Development Plan Amendment is to be based on investigations initiated by the Minister[20] and must include an assessment of the extent to which the proposed amendment accords with the Planning Strategy, accords with other parts of the Development Plan, complements the policies in Development Plans for adjoining areas, and satisfies the requirements prescribed by the regulations.[21]
[20] Development Act 1993 (SA) section 26(1).
[21] Development Act 1993 (SA) section 26(2).
The Minister must refer the draft Amendment to any council which in the opinion of the Minister has a direct interest in the matter in addition to releasing the draft Amendment for public consultation.[22]
[22] Development Act 1993 (SA) section 26(4).
An Advisory Committee is established by the Development Act to, inter alia, 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,[23] and to advise the Minister on proposals to amend Development Plans.[24] The Advisory Committee consists of ten members each appointed by the Governor for his or her relevant experience in a specified field.[25] The Minister must seek the advice of the Advisory Committee on, inter alia, the matters raised as a result of public consultation.[26]
[23] Development Act 1993 (SA) section 9(1)(a).
[24] Development Act 1993 (SA) section 9(1)(c)(iv).
[25] Development Act 1993 (SA) section 8(2).
[26] Development Act 1993 (SA) section 26(7).
Having received the advice of the Advisory Committee, the Minister may either approve the Development Plan Amendment, alter the Amendment and approve it as altered, decline to approve the Amendment or divide the Amendment into one or more Development Plan Amendments and approve one or more.[27]
[27] Development Act 1993 (SA) section 26(8).
Neither the content of a Development Plan nor of an amendment to a Development Plan is in any way fixed by the Development Act. What is required is that the proposed Plan or Amendment be assessed against the Planning Strategy, other parts of the Development Plan, the interface of such Plan or Amendment with adjoining Plans, and any requirement of the Regulations.
It is to be noted that there were no Regulations made pursuant to the Development Act that fixed a factor or factors against which the Minister was obliged to take into account in determining whether or not to prepare an amendment to a Development Plan.
The Development (Development Plans) Amendment Act 2006 (SA) came into operation on 27 September, 2007. Schedule 1, clause 5(6) provides:
A Plan Amendment Report which, before the commencement of this clause, has been initiated by the Minister under section 26(1) of the principal Act (as in force immediately before that commencement) may continue to be subject to the provisions of the principal Act as if this Act had not been enacted until the relevant amendment is approved (with or without alteration) or otherwise dealt with by the Minister under section 26(8) of the principal Act, subject to the qualification that the relevant Plan Amendment Report may be referred to as a Development Plan amendment.
In the present proceeding the Minister initiated the preparation of a draft Plan Amendment Report on 18 May, 2007. The process initiated by the Minister continued according to the Development Act.
Preliminary Observations
Locus Standi
By notice of contention, the Minister and the State challenged the standing of the Residents Association to bring the within proceedings and to prosecute the appeal. The Minister and the State in their written outline developed a lengthy submission challenging the locus standi of the Residents Association.
The trial Judge considered it unnecessary to determine the question of standing in view of the conclusion that he reached on the merits of the matter.
The Residents Association drew attention to the observations of Gaudron J in Truth about Motorways v Macquarie Infrastructure Investment Management Ltd:[28]
It is well established that prohibition may issue to a person who has neither a direct nor special interest in the subject matter of the proceedings constituted by an application to obtain that relief.
It was contended that in accordance with this authority, the Residents Association had locus standi. It was acknowledged that as a matter of discretion, a “stranger” having made out jurisdictional error in respect of a decision may still be refused relief in the form of the writs on the grounds that the “stranger” lacked a peculiar grievance. It was said, however, that this is a different and lesser requirement from the “special interest” envisaged by equity. The Residents Association claimed that it had a sufficient grievance beyond that of an ordinary member of the public in the matter,[29] having regard to, inter alia, the representative character of the Residents Association, the purpose for which it was formed and the interests of its members.
[28] Truthabout Motorways v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 611.
[29] Re Beggs and State Planning Commission; Ex parte Helena Valley/Boya Association (Inc) (1990) 2 WAR 422; Re MacTiernan; Ex Parte Coogee Coastal Action Coalition Incorporated (2005) 30 WAR 138.
In the written submissions filed on behalf of the Minister and the State, it was claimed that the decision of this Court in Xenophon v State of South Australia[30] supported the proposition that the Residents Association did not have standing. In response, the Residents Association argued that the relevant observations in Xenophon were made prior to the High Court decision in Truth About Motorways, and no longer represented the law. The relevant paragraphs in Xenophon are as follows:[31]
In the case of an applicant for certiorari, it is clear that an applicant need not necessarily be a party to the proceedings or decision under challenge: see, for example, R v Glenelg Town Corporation; Ex parte Pier House Pty Ltd [1968] SASR 246. A party aggrieved, that is, whose interests are affected, is entitled as of right to have his or her claim considered. Nevertheless, members of the general public, having no particular interest in the matter, may be granted standing as a matter of discretion: R v Surrey Justices (1870) LR 5 QB 466 at 473-474. As appears in various texts on the subject, the application of this principle has been variable: De Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th ed, 1995), pp 628-630; M Aronson and B Dyer: Judicial Review of Administrative Action (1st ed, 1996), p 703. Generally speaking, however, what is needed is a person with "a peculiar grievance of their own beyond some grievance suffered by them in common with the rest of the public": R v Nicholson [1899] 2 QB 455 at 471; R v Surrey Justices (at 474). Instances of the sort of grievance to provide standing are given by the cases cited by Aronson and Dyer, p 704, namely, persons suffering economic loss, including business loss from competition, aesthetic harm to land if it adjoins or is close to the subject land, familial concern in a coronial inquest and parties to impugned proceedings, or persons who have objector status in the proceedings. Standing has also been afforded to a party who claims that his opponent in legal proceedings has been unlawfully granted legal aid: Tectran Corp Pty Ltd v Legal Aid Commission (NSW) (1986) 7 NSWLR 340.
All this raises the question whether there is any material difference in the test for standing to seek injunctive or declaratory relief, on the one hand, and certiorari and perhaps prohibition, on the other. A "special interest", for the purposes of equitable relief, can be likened to a party aggrieved where, as the cases allow, that includes a peculiar grievance beyond that suffered by the public generally. At least one author suggests that in present terms any differences in Australian law between the two approaches have disappeared: Aronson and Dyer, p 662.
Certainly, cases evidencing the relaxation of rules as to standing for equitable remedies have been cited in cases involving claims for orders in the nature of certiorari. See, for example, Tectran Corporation Pty Ltd v Legal Aid Commission (NSW) (at 342).
In my opinion, in circumstances where, as here, either remedy may be sought, and is sought in the alternative, there is no point in maintaining a distinction, if such exists, on the question of standing to sue.
[30] Xenophon v State of South Australia (2000) 78 SASR 251.
[31] Xenophon v State of South Australia (2000) 78 SASR 251 at 267-268 (Bleby J), Lander J concurring at 256.
Insofar as these observations are in conflict with the observations of Gaudron J in Truth About Motorways, I do not consider that they should be followed.
During oral submission by the Solicitor-General, the stance adopted in the first and second respondents’ written submission was abandoned. The Solicitor-General accepted that the Residents Association had standing to sue, but contended that as a matter of discretion, if they made out their case, they should be refused relief because of a lack of special interest.
In my view the Residents Association had standing, and had their claims been established, they would have been entitled to relief.
Privative Provisions
In respect of the Residents Association’s submission that the Planning Strategy is a mandatory relevant consideration when considering an amendment to a Development Plan, the trial Judge concluded that even if the Development Plan Amendment were contrary to a provision of the Planning Strategy, this would not assist the Residents Association. In this respect, the Judge referred to section 22(10) of the Development Act:[32]
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; …
According to counsel for the Minister and the State on appeal, this privative provision represented an insurmountable hurdle to any claim by the Residents Association that the Development Plan was inconsistent with the Planning Strategy.
[32] The Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning & Ors (2009) 105 SASR 326; [2009] SASC 303 at [51] (Bleby J).
The issue of privative provisions has recently been the subject of High Court analysis in Kirk v Industrial Relations Commission of New South Wales.[33] In that case, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed:
[33] Kirk v Industrial Relations Commission of New South Wales (2010) 262 ALR 569; [2010] HCA 1 at [94]-[100].
Understanding the law relating to privative provisions must begin from the proposition, stated by Dixon J in R v Hickman; Ex parte Fox and Clinton, that:
if in one provision it is said that certain conditions shall be observed, and in a later provision of the same instrument that, notwithstanding they are not observed, what is done is not to be challenged, there then arises a contradiction, and effect must be given to the whole legislative instrument by a process of reconciliation.
But the question presented by a privative provision is not just a conundrum of contrariety requiring a resolution of competing elements of the one legislative instrument.
In considering Commonwealth legislation, account must be taken of the two fundamental constitutional considerations pointed out in Plaintiff S157/2002 v Commonwealth:
First, the jurisdiction of this Court to grant relief under s 75(v) of the Constitution cannot be removed by or under a law made by the Parliament. Specifically, the jurisdiction to grant s 75(v) relief where there has been jurisdictional error by an officer of the Commonwealth cannot be removed. Secondly, the judicial power of the Commonwealth cannot be exercised otherwise than in accordance with Ch III. The Parliament cannot confer on a non-judicial body the power to conclusively determine the limits of its own jurisdiction.
In considering State legislation, it is necessary to take account of the requirement of Ch III of the Constitution that there be a body fitting the description “the Supreme Court of a State”, and the constitutional corollary that “it is beyond the legislative power of a State so to alter the constitution or character of its Supreme Court that it ceases to meet the constitutional description”.
At federation, each of the Supreme Courts referred to in s 73 of the Constitution had jurisdiction that included such jurisdiction as the Court of Queen’s Bench had in England. It followed that each had “a general power to issue the writ [of certiorari] to any inferior Court” in the State. Victoria and South Australia, intervening, pointed out that statutory privative provisions had been enacted by colonial legislatures seeking to cut down the availability of certiorari. But in The Colonial Bank of Australasia v Willan, the Privy Council said of such provisions that:
It is, however, scarcely necessary to observe that the effect of [such a privative provision] is not absolutely to deprive the Supreme Court of its power to issue a writ of certiorari to bring up the proceedings of the inferior Court, but to control and limit its action on such writ. There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queen’s Bench will grant a certiorari; but some of those authorities establish, and none are inconsistent with, the proposition that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it. …
That is, accepted doctrine at the time of federation was that the jurisdiction of the colonial Supreme Courts to grant certiorari for jurisdictional error was not denied by a statutory privative provision.
The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of State executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts. And because, “with such exceptions and subject to such regulations as the Parliament prescribes”, s 73 of the Constitution gives this Court appellate jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Supreme Courts, the exercise of that supervisory jurisdiction is ultimately subject to the superintendence of this Court as the “Federal Supreme Court” in which s 71 of the Constitution vests the judicial power of the Commonwealth.
There is but one common law of Australia. The supervisory jurisdiction exercised by the State Supreme Courts by the grant of prerogative relief or orders in the nature of that relief is governed in fundamental respects by principles established as part of the common law of Australia. That is, the supervisory jurisdiction exercised by the State Supreme Courts is exercised according to principles that in the end are set by this Court. To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. It would permit what Jaffe described as the development of “distorted positions”. And as already demonstrated, it would remove from the relevant State Supreme Court one of its defining characteristics.
This is not to say that there can be no legislation affecting the availability of judicial review in the State Supreme Courts. It is not to say that no privative provision is valid. Rather, the observations made about the constitutional significance of the supervisory jurisdiction of the State Supreme Courts point to the continued need for, and utility of, the distinction between jurisdictional and non-jurisdictional error in the Australian constitutional context. The distinction marks the relevant limit on State legislative power. Legislation which would take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power. Legislation which denies the availability of relief for non-jurisdictional error of law appearing on the face of the record is not beyond power.
[Footnotes omitted]
The above discussion demonstrates that the High Court has recognised a clear constitutional basis for supervisory judicial review of inferior courts and tribunals acting under State legislation. The Court discussed a clear demarcation with respect to a legislature’s power to limit judicial review between jurisdictional error and non-jurisdictional error. The Court highlighted the limits on legislation which would seek to take from s superior court the power to grant relief on account of jurisdictional error. As such, privative clauses which seek to limit a superior court’s power to grant relief in this context will be invalid.
In the circumstances of the present proceeding, for reasons that follow, the Residents Association has failed to establish its factual case in respect to what the Minister took or did not take into account when approving the amendment to the Development Plan. As a consequence, an examination of the validity or precise operation of section 22(10) is unnecessary in the circumstances. However, it is to be observed that insofar as section 22(10) purports to preclude review of decisions involving jurisdictional error, the decision of Kirk makes clear that this provision would be beyond State legislative power.
Mandatory Considerations
The Residents Association first submitted that the trial Judge erred in holding that the issue of whole of catchment stormwater management and, in particular, flood plain mapping was not a mandatory relevant consideration in respect of a decision to approve an amendment to a Development Plan.
The Judge reasoned:[34]
[34] The Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning & Ors (2009) 105 SASR 326; [2009] SASC 303 at [49]-[53] (Bleby J).
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 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.
Attention was drawn to section 26 of the Development Act which provides:
(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 Residents Association drew attention in particular to subsection 26(8) which empowers the Minister to approve an amendment to a Development Plan but does not expressly state all the factors which the Minister is bound to consider. It was submitted that as a consequence, the mandatory relevant considerations for the Minister were to be determined by implication from the subject matter, purpose and scope of the Act.
In relation to the Planning Strategy, section 22 of the Development Act, relevantly provides:
(1) In this section—
the appropriate Minister means the Minister to whom the Governor has from time to time, by notice in the Gazette, assigned the functions of appropriate Minister for the purposes of this section.
(2) The appropriate Minister must ensure that a Planning Strategy for development within the State is prepared and maintained.
(3) The Planning Strategy may incorporate documents, plans, policy statements, proposals and other material designed to facilitate strategic planning and co-ordinated action on a State-wide, regional or local level.
(3a) The Planning Strategy will be taken to include—
(a)the Objectives for a Healthy River Murray under the River Murray Act 2003 (as in force from time to time); and
(b) the objectives of the Adelaide Dolphin Sanctuary Act 2005; and
(c) the objects of the Marine Parks Act 2007,
and the appropriate Minister may, as the appropriate Minister thinks fit, make textual alterations to the Planning Strategy to incorporate those objectives into the Planning Strategy.
(3b) The Minister must ensure that the various parts of the Planning Strategy are reviewed at least once in every 5 years.
(3c) Different parts may be reviewed at different times but any review must include—
(a)an assessment of relevant trends in the strategies of the Government; and
(b)an assessment of the consistency between the part or parts under review and other major policy documents and strategies of the Government that are relevant to the material under review (as determined by the Minister),
(and may include other matters as the Minister thinks fit).
(4) The appropriate Minister must, in relation to any proposal to create or alter the Planning Strategy—
(a) prepare a draft of the proposal; and
(b)by public advertisement, give notice of the place or places at which copies of the draft are available for inspection (without charge) and purchase and invite interested persons to make written representations on the proposal within a period specified by the Minister.
(4a) Subsection (4) does not apply with respect to an alteration of the Planning Strategy pursuant to subsection (3a).
(5) The appropriate Minister must—
(a)make appropriate provision for the publication of the Planning Strategy; and
(b)ensure that copies of the Planning Strategy are reasonably available for inspection (without charge) and purchase by the public at places determined by the Minister; and
(c)ensure that notice of any alteration to the Planning Strategy is published in the Gazette within a reasonable time after the alteration is made.
(6) The appropriate Minister must, on or before 31 October of each year in respect of a preceding financial year, prepare a report on—
(a) the implementation of the Planning Strategy;
(b)any alteration to the Planning Strategy (including the general effect or implications of any such alteration);
(c)community consultation on the content, implementation, revision or alteration of the Planning Strategy;
(d) such other matters as the Minister thinks fit.
(7) The appropriate Minister must, within six sitting days after completing the report, cause copies to be laid before both Houses of Parliament.
(7a) The report required under subsection (6) may be incorporated into (and presented as part of) the annual report of the Minister under section 21.
(8) The Planning Strategy is an expression of policy formed after consultation within government and within the community and does not affect rights or liabilities (whether of a substantive, procedural or other nature).
(9) The Planning Strategy is not to be taken into account for the purposes of any application, assessment or decision under Part 4 (other than Division 2 of that Part).
(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; or
(b)that an assessment or decision under this Act (including an assessment or decision under Division 2 of Part 4) is inconsistent with the Planning Strategy.
The Residents Association submitted that at the relevant time the Planning Strategy outlined policies to be followed when formulating amendments to Development Plans. The Strategy contained policies relating to water resources management and to hazard avoidance, minimisation and management. It was emphasised that the Strategy expressly considered stormwater management from a whole of catchment perspective.
The Residents Association submitted that the terms of sections 22 and 26 required the Minister in approving an amendment to a Development Plan to take into account the terms of the Planning Strategy formulated under section 22. This was said to be a consequence of the terms of section 26(2)(a) and the fact that the strategy was a policy within the meaning of the statute. It was said that the terms of section 22(8) and (10) did not affect this conclusion. It was argued that section 22(8) merely provided that the Planning Strategy does not affect rights or liabilities and the effect of section 22(10) was that the Minister was not bound to follow the Planning Strategy. This, it was said, was distinct from the question of whether the Minister had to take the matter into account.
Counsel for the Minister and the State contended that on the proper construction of the Development Act, the Minister was not required to take into account whole of catchment stormwater management, or more particularly, the particular flood plain mapping relied on by the Residents Association. It was contended that the reasoning of the trial Judge, as set out above, was correct.
As earlier observed, the South Australian planning framework provides for an integrated system of planning and development intended to achieve the objects of the Development Act by providing for the creation of Development Plans that promote the Planning Strategy. The Plans and the Strategy serve as guidelines against which any proposed development and any proposed amendment is assessed. They reflect in their application, and facilitate, the variability to be expected in development necessary to meet the needs of local communities. Competing interests may be expected to arise. Benefits, resources, cost and opportunities lost must routinely be assessed in the formulation of a Development Plan. The framework leaves the identification and resolution of these issues to the Minister and the assessment authorities guided by, amongst other things, the Strategy. It is for the Minister to determine on the material before him, what factors are relevant and what weight should be accorded them: see the authorities cited above.
A Development Plan is limited in its focus. Alternate measures exist where a State-wide or whole of catchment approach is required.[35] The Development Act requires the Minister to assess the extent to which the amendment accords with the Planning Strategy. The Planning Strategy itself professes to be no more than a guideline. Neither the Development Act nor the Planning Strategy expressly obliges the Minister to consider whole of catchment flood mitigation in the course of determining whether or not to approve or amend a Development Plan. Neither implicitly obliges the Minister to consider whole of catchment flood mitigation in the course of determining whether or not to approve or amend a Development Plan.
[35] See for example, Local Government Act 1999 (SA) Schedule 1A.
Did the Minister Take into Account Flood Plain Mapping?
The Residents Association complained - on the assumption that the Minister was under an obligation to take into account the flood plain mapping undertaken on behalf of the Charles Sturt Council – that the Minister did not do so.
The Judge relevantly concluded:[36]
… 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.
[36] The Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning & Ors (2009) 105 SASR 326; [2009] SASC 303 at [66] (Bleby J).
On appeal, the Residents Association challenged this conclusion. It was contended that as the Minister did not give evidence at trial, an issue of fact arose as to what precise information he did take into account in the process of approving the Development Plan Amendment. It was argued that inferences should be drawn from a number of documents that would then operate in conjunction with the principle in Jones v Dunkel[37] to lead to the factual finding that the Minister had not had regard to the particular flood plain mapping.
[37] Jones v Dunkel (1959) 101 CLR 298.
It was accepted that correspondence of 12 March 2008 from the Charles Sturt Council to the Minister made reference to the flood plain mapping and it was also accepted that this correspondence had been “noted” by the Minister. That correspondence was in the following terms:
Dear Minister
Torrens Road Flood Plain Mapping Project
I write to advise you that information relating to flood plain mapping prepared for the Torrens Road catchment area is now available to the public following the Council meeting held last night, Tuesday 11 March 2008.
As you be [sic] approached by constituents for comments, we felt it was prudent to provide you with the information as soon as possible after the Council report became public. Council reports are generally available to view via the Charles Sturt public website and at the Civic Centre the following day after Council meetings.
Accordingly, we have enclosed with this covering letter, a copy of the 11 March Council report and a colour copy of the A3 map showing the areas of potential flooding in the event that the Torrens Road area experiences a 1:100 year flood.
…
However, it was argued that a mere notation followed by a delay of some five months before decision, allowed the inference to be drawn that the Minister had not appropriately considered the flood plain mapping. Two further factors were said to support the drawing of this inference: first, the absence of any evidence that linked the information provided to the draft amendment of the Development Plan, and secondly, that on other occasions where the Minister did take into account further information in respect of the amendment of the Development Plan, he saw fit to publish an addendum setting out that information.
In my view, the Judge was correct to reject these submissions.
The Residents Association conceded both at trial and on appeal that the racecourse area itself was not necessarily affected by a one in 100 year flood event. The Development Plan Amendment required outflows of the developed site not to exceed current outflows from the undeveloped site. The flood plain mapping did not as such give rise to local stormwater issues at the racecourse site and the draft Development Plan Amendment did not alter this.
The Development Plan Amendment was not concerned in general terms with the management of stormwater across the entire catchment. No mandatory relevant consideration arose from new technical information concerning stormwater management across the entire catchment.
The significance of flood plain mapping in this proceeding was said to be the support it provided to the Residents Association’s earlier submission to the Advisory Committee and repeated in Court, that there was a better use for the land than that proposed; stormwater flood mitigation across the catchment, and wetland aquifer storage and usage.
The Residents Association’s advocation of an alternative use of the land does not make technical information that amplifies that submission a mandatory matter for the Minister to take into account under section 26 of the Development Act. This would be tantamount to saying that the latest technical information that may further a public submission as to a better use of the land must always be taken into account by the Minister even when already considered by the Advisory Committee. As the Judge observed:[38]
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.
[38] The Cheltenham Park Residents Association Inc v Minister of Urban Development and Planning & Ors (2009) 105 SASR 326; [2009] SASC 303 at [63] (Bleby J).
The correspondence of 12 March 2008 allows the inference to be drawn that the Minister did read and understand the correspondence. The material attached to the correspondence makes clear the potential link between the flood plain mapping undertaken and the racecourse development. Further, the Advisory Committee Report makes clear that the Minister was aware of the existence of flood plain maps and the intention to prepare a Stormwater Management Plan. To the extent that stormwater usage and flood mitigation were raised, the evidence demonstrates that the Minister considered such factors.
It is relevant to note that the Minister is not required to give reasons. Further, a Development Plan Amendment is not a judgment. Consequently, the failure to refer expressly to a matter does not give rise to an inference that it was not taken into account.
The Adequacy of Information before the Minster
The Residents Association contended that it was incumbent on the Advisory Committee, in its summary prepared for the Minister, to bring to his attention all material facts that he was bound to consider.
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd[39] 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:[40]
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.
[39] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
[40] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 30-31.
Similarly, Brennan J, with whom Deane J agreed, said:[41]
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.
[41] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 65-66.
In rejecting this submission of the Residents Association, the trial Judge reasoned:[42]
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.
…
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.
[42] The Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning & Ors (2009) 105 SASR 326; [2009] SASC 303 at [58]-[62] (Bleby J).
This ground of appeal carries with it the assumption that the Minister was obliged to take into account the flood plain mapping prepared on behalf of the Charles Sturt Council. This contention has already been rejected. However, as the matter has been fully argued, it is appropriate that I express my reasons with respect to this issue.
The first material fact that the Residents Association asserted the Minister should have been advised of, was concerns as to the extent to which properties in the catchment were at risk of flooding from a one in 100 year flood event. The second material fact that it is asserted the Minister should have been advised of was, the availability of more recent information that suggested that the assumptions made by the 2003 Tonkin Report were incorrect and that, therefore, the major drainage system in the catchment did not provide protection from a one in 100 year flood event to upwards of 1,000 homes. The third fact was that by virtue of the inadequacies of the major drainage system, the stormwater system in the catchment was inadequate and did not meet national or international standards.
None of the properties referred to above are situated within the area the subject of the Development Plan Amendment. There is no evidence to suggest that the Development Plan Amendment would in any way exacerbate the risk of flooding. The fact of the extent to which properties are currently at risk does no more than illustrate a whole of catchment predicament. Again, once it is accepted that the Development Plan Amendment was not concerned in general terms with the management of stormwater across the entire catchment, there could be no mandatory relevant consideration arising from the risk to the catchment. The fact of the extent of the risk to properties not associated with the Development Plan Amendment was only relevant as an amplification of the Residents Association’s submission to the Advisory Committee that there was a better use for the land than that proposed; namely, for stormwater flood mitigation and wetland aquifer storage and usage. This fact was considered by the Minister.
Manifest Unreasonableness
The Residents Association contended in the alternative that the Minister gave so little weight to the flood plain mapping that the decision to approve the Development Plan Amendment was manifestly unreasonable.
The conclusion of the Judge was in the following terms:[43]
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.
[43] The Cheltenham Park Residents Association Inc v Minister for Urban Development and Planning & Ors (2009) 105 SASR 326; [2009] SASC 303 at [71]-[73] (Bleby J).
The Residents Association submitted that reasonableness should be assessed by way of the decision-maker’s own criteria and that in the present proceeding, those criteria were set out in the Planning Strategy. It was emphasised that the relevant parts of the Planning Strategy noted the importance of water management and hazard protection. It was then pointed out that there was nothing in the material accompanying the Minute to the Minister to suggest that the Minister had given any weight whatsoever to the information arising from the flood plain mapping in accordance with those criteria. It was submitted that the inference could be drawn that the Minister, if he took the information into account, ignored its significance. In particular, it was argued that there was no reference to two matters of particular relevance: the unique opportunity presented by the racecourse area to provide land for the management for stormwater arising from outside the racecourse area, and that the use of the racecourse area for such management was the only cost-effective manner in which the potential risk of flooding from the surrounding area could be ameliorated.
The South Australian Jockey Club, the third defendant and third respondent addressed this complaint. The Minister and the State adopted the Jockey Club’s submission. At the outset it was submitted that the Residents Association had not identified why no reasonable Minister could have approved the Development Plan Amendment. It was said that this was the relevant legal test and it had not been addressed or made out.
Counsel for the Jockey Club pointed out that the flood plain mapping reported on 11 March 2008 formed part of preparatory studies leading to the proposed establishment of a stormwater management plan under the Local Government Act 1999 (SA). No such plan had at that time been established. This process had been recommended from as early as March 2003 and the City of Charles Sturt had been working on a stormwater management plan for several years.
It is the Local Government Act that provides for the construction and management by local Councils of public stormwater infrastructure. It is that legislation which establishes the Stormwater Management Authority with the power to apply stormwater management funds to acquire lands for the purposes of carrying out public stormwater infrastructure works. Local Councils also have the power to acquire land for the purposes of that legislation. If either State Government or a local Council wish to implement the policy advocated by the Residents Association, then it would be open to the Stormwater Management Authority or the Council to purchase the racecourse land.
The Jockey Club pointed out that there was no evidence adduced at the trial that the flood plain mapping reported on 11 March 2008 identified the potential of flooding any worse than had been previously expected. It was said that in this circumstance it could not be said that the approval of the Development Plan Amendment was such an unreasonable decision that no reasonable Minister could have made it.
The Jockey Club addressed the evidence of Mr Pitman. It was said that the evidence as a whole, including the evidence of Mr Pitman, showed that there was no demonstrated or quantified benefit to properties in the Charles Sturt Council area if the Development Plan Amendment was refused, and the racecourse was used to address stormwater management.
Counsel for the Jockey Club suggested that the Residents Association’s contention can be summarised in the following manner: a speculative hope of future use of the racecourse area to take offsite stormwater - the benefits of which were undemonstrated and which would require substantial funding - was such a powerful opposing factor that no reasonable Minister could have approved the amended Development Plan.
In my view, there is no substance to the Residents Association’s submissions. I consider that the trial Judge was correct in reaching his conclusions on this issue.
Conclusion
I would dismiss this appeal.
VANSTONE J: I have the advantage of having read the reasons of Gray J in draft.
As to the matter of standing, I would prefer to leave for another day any perceived inconsistency between Xenophon v State of South Australia & Ors (2000) 78 SASR 251 and Truth About Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591 and to proceed on the basis that the Residents Association has demonstrated a grievance, the nature of which gives rise to an entitlement to bring the application and, if well founded, to secure relief.
However, as Gray J has set out, the appellant has not made good its grounds of appeal. I consider that the learned judge was correct in dismissing the application for judicial review.
I would dismiss the appeal.
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