Tip Top Dry Cleaners P/L v Minister Govt E'Prises No. Dcaat-97-1044 Judgment No. D3931
[1998] SADC 3931
•22 December 1998
TIP TOP DRY CLEANERS PTY LTD
v THE MINISTER FOR GOVERNMENT ENTERPRISES
(DCAAT-97-1044)
[1998] SADC D3931
Judge Trenorden
Miscellaneous Appeal
This matter is an appeal, pursuant to Section 47(1)(a) of the Petroleum Products Regulation Act 1995 by Tip Top Dry Cleaners Pty Ltd against the decision of the Minister for Government Enterprises delivered on 19 April 1998, by which he refused an application made on 22 October 1997 for the grant of a licence to make prescribed retail sales of motor fuel from premises proposed on land being allotments 97, 98, 99, 100 and 101, Section 69, Hundred of Noarlunga, the street address being 92-94 Main South Road, Old Noarlunga (“the subject land”).
The appellant also appealed against the decision of the Minister for Industrial Affairs made on 6 July 1997 whereby he refused a similar application for a licence, in relation to the same land. The appeal against the Minister’s decision of 6 July 1997 is not proceeding.
The appellant seeks an order that its application dated 22 October 1997 for the grant of a licence to make prescribed sales of petroleum products, be approved, and that a licence be granted to the appellant pursuant to Section 9 of the Petroleum Products Regulation Act.
The Petroleum Products Regulation Act provides that a person must not sell petroleum products by retail sale unless authorised to do so pursuant to a licence (Section 8(1)). An application for the issue of a licence must be made to the Minister in a manner and form approved by the Minister (Section 13(1)). The Minister has the sole power to issue or refuse to issue a licence under the Act (Section 9(1)). However, the Minister must refer an application for the issue of a licence authorising prescribed retail sales of petroleum products to the Petroleum Products Retail Outlets Board (“the Retail Outlets Board”) for its recommendation, and the Retail Outlets Board must made a recommendation to the Minister, with written reasons (Section 14).
Section 15(2) of the Petroleum Products Regulation Act sets out the matters which the Minister must take into account in making a decision on an application for the issue of a licence. Subsection 15(2) of the Act provides:
“ 15. (2) The Minister must take the following matters into account in making a decision to which this section applies:
(a).... the protection of employee and public safety and health; and
(b) the protection of the environment; and
(c) .. whether the premises and plant proposed to be used or in use by the applicant or licensee comply with this Act and other relevant laws; and
(d) the applicant’s or licensee’s record of compliance with this Act and other relevant laws; and
(e).... in the case of a decision relating to prescribed retail sales of petroleum products–
(i).... the suitability of the premises from which the prescribed retail sales are to be made; and
(ii)the number of other premises (if any) within a distance of three kilometres from the prescribed retail sales of petroleum products may be made; and
(iii).. the need for facilities and services to be provided at the premises for the assistance of motorists in the event of vehicle breakdown; and
(iv)the extent to which the interests of retail customers for petroleum produces will be served; and
(v).... the extent to which fair and reasonable competition in the retail sale of petroleum products will be affected; and
(vi)any other matter relevant to the orderly provision of services in the area of prescribed retail sales of petroleum products; and
(f)..... any recommendation of a person or body to which the matter has been referred under this Part”.
The Minister is only obliged to give written reasons for his decision where he either grants an application contrary to the recommendation of the Retail Outlets Board or refuses an application contrary to the unanimous recommendations of that Board (Section 95(3)).
The Retail Outlets Board is established by Schedule 1 to the Petroleum Products Regulation Act. Its function is expressed by clause 2 of that Schedule to include the function of making recommendations to the Minister in respect of matters referred to the Retail Outlets Board under Part 2 (of the Act). The Retail Outlets Board is required to take into account the matters that the Minister is specifically required to take into account, pursuant to Section 15(2) of the Act, in making a recommendation to the Minister on an application for the grant of a licence for the sale of petroleum products by retail. The Act does not oblige the Retail Outlets Board to conduct a hearing, but the Board may invite interested persons to make written or oral submissions in relation to a matter and may inform itself in such manner as it thinks fit. The Retail Outlets Board has the power to require a person to furnish specified information in writing and to attend before the Board and answer questions put to him or her by it. The Board is obliged to keep accurate minutes of its proceedings and a decision of the Board is the decision of the majority of the members present and voting, at a meeting of the Board.
The appeal under the Petroleum Products Regulation Act lies to the Administrative & Disciplinary Division of the District Court [Section 47(1)(a)]. Section 52 of the District Court Act 1991 applies to the hearing of appeals to this Division of the Court, as follows:
“ 52 (1) In the exercise of a statutory jurisdiction conferred on the Court in its Administrative and Disciplinary Division–
(a)the Court is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(2) The Court, in its Administrative and Disciplinary Division, is bound by the rules of evidence in–
(a) disciplinary proceedings; and
(b) proceedings related to contempt.”
The respondent Minister chose not to participate in the hearing of the appeal. Counsel for the Minister informed the Court that the Minister did not consider it appropriate for him to appear before this Court to seek to have his decision upheld, or in any other way to assist the Court, except to formally place before the Court the record of proceedings before the Retail Outlets Board, the reports provided to the Board, the Board’s recommendation and reasons, and the Minister’s decision. Given his instructions, counsel for the Minister sought and was granted leave to withdraw, having earlier informed the Court that the Minister would abide the decision of the Court.
The Court has wide powers on the hearing of an appeal. Subsection 47(11) of the Act provides:
“ 47. (11) The Court may, on the hearing of an appeal–
(a).... affirm, vary or quash the decision appealed against or substitute, or make in addition, any decision that the Court thinks appropriate; and
(b) make an order as to any other matter that the case requires (including an order for costs).”
The Court is not merely reviewing the Minister’s decision to refuse to grant a licence, nor is it hearing an appeal against the recommendations of the Retail Outlets Board. The Court is considering afresh whether the appellant should be granted a licence, as sought : The Shell Company of Australia Limited v Minister for Industrial Affairs (No 3) (unreported) Judgment number D3504, delivered 1 November 1996, and Australian Independent Retailers Pty Ltd v Minister for Industrial Affairs (No 2) (unreported) Judgment number D3872, delivered 18 August 1996. Much has been written about whether an appeal against the decision of an authority should be heard according to the adversarial or the inquisitorial process. I do not propose to add to that existing volume here. However, this Court is entitled to expect that the Minister would appear upon the hearing of the appeal, to assist the Court, given that the legislature has seen fit to provide a right of appeal to a disappointed applicant, and that an appeal is to be conducted by way of a fresh hearing. It is expected that the respondent Minister would participate, not in order to defend his decision, but to assist the Court, in the public interest, to consider the relevant law and criteria in making its decision. The emphasis is on the provision of assistance to the Court.
I respectfully endorse the approach of Northrop J in his judgment in McDonald v Director-General of Social Security (1984) 6 ALD 6, a decision of the Full Court of the Federal Court on an appeal from a decision of the Administrative Appeals Tribunal, as to the role of an authority whose decision is appealed, in an administrative appeal, at pp 18-19:
“..... The Tribunal is not bound by the rules of evidence. It has before it all the material that was before the person who made the decision under the Act and which is the subject of the review before the AAT. Additional material may be placed before the AAT. As a matter of convenience, the Director normally appears to assist the Tribunal, but the Director-General is not to be treated in the same way as a party to proceedings before a Court. In Sordini v Wilcox (1982) 42 ALR 245, a review under the Administrative Decisions (Judicial Review) Act 1977, the administrative body whose decision was being reviewed appeared before the court. At 255 Northrop J said: ‘Counsel for the respondents stated that each of the first three‑named respondents, being the members of the Review Committee, would abide by the order of the court. Counsel for the respondents, very properly, made substantive submissions on behalf of the Commission. Where there are no adversary parties appearing before an administrative body, as in this case, it is important that the court receive assistance of counsel appearing for the administrative body making the decision which is being challenged under the Judicial Review Act.’
It is equally important that in reviews by the AAT of decisions by administrative bodies such as the Director-General, or his delegate, in which there were no adversary parties, the AAT receive the assistance of persons acting on behalf of the administrative body. Likewise, in appeals of this court from the AAT on questions of law, it is important that the court receive the assistance of counsel appearing for the administrative body. This practice, however, which gives the outward appearance of an adversary system, should not be allowed to obscure the true position, and in particular to justify the introduction of concepts of onus of proof into the determination of claims under the legislation where no onus of proof in the legal sense arises.”
Similarly, this Court would not determine this appeal in the appellant’s favour, only because no witnesses were called by the Minister to counter the evidence of witnesses called on behalf of the appellant.
Although the appeal against the first decision of the Minister was abandoned at the commencement of the hearing in this matter, the evidence before the Retail Outlets Board, the recommendations of the Board and the Minister’s decision in relation to that matter are relevant because they are referred to by the Board, and the evidence to some extent relied upon, the Board’s recommendation to the Minister on the second application, which recommendation the Minister adopted and which decision of the Minister is the subject of this appeal hearing. The Court received the material sought to be placed before the Court by the Minister’s representative before he withdrew, in relation to both the first and second decisions. The Court also had the benefit of submissions from Mr J Costello of counsel for the appellant, together with evidence from witnesses called on behalf of the appellant, and it viewed the subject land, and operating motor fuel retail outlets at Moana, Mitcham and Hallett Cove.
In determining an appeal under the Petroleum Products Regulation Act, the Court must consider afresh the application which was before the Minister. It must take into account matters which the Minister was required to take into account under the legislation. Those matters are set out in subsection 15(2) of the Act. The Court accepts the evidence in relation to paragraphs (a), (b), (c) and (d) of subsection 15(2) and finds that what is proposed in the application would not result in a less than appropriate standard of protection of employee and public safety and health or have inappropriate consequences for environment protection; that the premises and plant proposed would comply with the Act and other relevant laws, and that there is no evidence that the applicant has an unsatisfactory record of compliance with the Act and other relevant laws.
There was no disagreement as to any of the matters to which my attention is directed by Section 15(2)(e), except in relation to the suitability of the premises from which the prescribed retail sales are to be made. The issue which primarily concerned the Minister and the Retail Outlets Board, and was the reason for the latter recommending refusal of the application and for the Minister deciding accordingly, is as to whether the premises are suitable. The Minister’s reasons for decision include the following:
“I have considered the report from the Environment Protection Authority dated 10th December 1997, a copy of which is annexed. I have also considered the report prepared by an Inspector employed by the Department for Industrial Affairs (now part of the Department for Administrative and Information Services). That report which is also annexed addresses the criteria set out in Sections 15(2)(a), (c), (d), (f) and (g) of the Act.
Based on the recommendation of the Department for Industrial Affairs (now part of the Department for Administrative and Information Services) and the Department for Environment and Natural Resources I consider that the application satisfies the criteria set out in Sections 15(2)(a)-(d), (f) and (g) of the Petroleum Products Regulation Act 1995. I also note that the applicant would be required to apply for a licence to keep petroleum products at an appropriate time in the future.
I have considered the annexed recommendation of the Petroleum Products Retail Outlets Board dated 23rd January 1998. For the reasons expressed by the Board I consider that the application fails to satisfy all of the factors set out in Section 15(2)(e) of the Act, in particular Section 15(2)(e)(i).
I determine that the application should be refused.”
In its Reasons for Decision dated 23 January 1998, under the heading “The suitability of the premises from which the prescribed retail sales are to be made”, the Retail Outlets Board said the following:
“The Board still has major concerns over the fact that the only authorised egress from this proposed outlet is through an adjacent car park. By any measure a site operated by Tip Top Dry Cleaners Pty. Ltd. will pump very significant volume. The estimate from this site is some 600,000 litres per month and obviously to achieve that volume a very large number of vehicles will be serviced at the outlet. To have a situation where the only egress is through an adjoining car park the Board finds totally unacceptable and for this reason it does not believe that the premises as proposed could be considered in any way to be suitable. The Board also has some concerns in relation to the fact that fuel delivery tankers will have egress from the same location that motor vehicles will have ingress.
Even though it is proposed that tanker times would be restricted to avoid their presence during peak trading hours, there will still be serious potential for conflict due to the high volume of traffic that this site is proposed to attract, and the fact that the site is situated on a bend where the authorised speed limit is 80 kilometres per hour.”
The appellant relies partly on the evidence of Mr Morias, a civil engineer employed by Transport SA, as to the suitability of the proposed premises. The proposed development of the premises as a “petrol retailing outlet and sales area with associated off-street carparking and landscaping” was the subject of an application dated 25 February 1997, to the City of Happy Valley, Noarlunga and Willunga (“the Council”) for provisional development plan consent under the Development Act 1993. As the proposed development provided for access from and to an existing primary arterial road, namely Main South Road, the Council was required pursuant to the Development Act to refer the application to the Commissioner of Highways, and have regard to the latter’s report. The application was duly referred. The Commissioner of Highways, in his letter to the Council dated 12 November 1997, which was drafted and signed by Mr Morias, advised that the proposal plans were acceptable subject to certain specified amendments being made. Of the three suggested amendments, two were incorporated into the 24 conditions of the provisional development plan consent granted on 27 November 1997 by the Council. The third amendment, which would involve works (a modification of the deceleration lane) on Main South Road and therefore was not something which could be directed by the Council under the Development Act, was added as a note to the provisional development plan consent. Equally, one authority need not revisit the decision of another authority, on the same issue.
Thus, the issue of the suitability of the premises, with regard to access from and egress onto Main South Road, is a matter which has been considered, by another authority under other legislation. It is not a matter which needs to be revisited by the Minister or this Court with respect to an application under the provisions of the Petroleum Products Regulation Act, because the recommendations of the Commissioner, incorporated into the provisional development plan consent are, by their terms, directed to the issue of safety of vehicular movement with respect to the arterial road and consequently the suitability of the subject land for the proposed development, in this regard. The Supreme Court of South Australia has warned against one authority usurping the role of another authority : Lane v Duxsel Pty Ltd & District Council of Stirling (1988) 143 LSJS 454.
The plans now before this Court (which were before the Minister) reflect what was approved by the Council. I was referred to decisions of the Motor Fuel Licensing Appeal Tribunal, which was established under the Motor Fuel Distribution Act 1973, but which is no longer in existence. In a decision of that Tribunal namely Mobil Oil Australia Limited and Motor Fuel Licensing Board & Ampol Limited & Others, No 1 of 1990, delivered 21 December 1990, His Honour Judge Roder considered whether the fact that planning authorisation had been granted under the Planning Act 1982, carried any weight in the determination of an application under the Motor Fuel Distribution Act. (The Planning Act was the predecessor of the Development Act 1993 and the Motor Fuel Distribution Act was the predecessor of the Petroleum Products Regulation Act 1995.) His Honour held that as the purpose of each statute differed, it mattered not whether planning authorisation had been obtained prior to an application under the Motor Fuel Distribution Act. With respect to His Honour, I take a different view. A relevant authority acting under the Development Act may have considered and determined a number of issues in deciding whether to grant consent. Where it is clear that a particular issue has been recently considered and determined, albeit within the framework of other legislation, it is not necessary for a second authority to revisit that issue, provided it is satisfied that precisely the same issue has been determined. The fact of provisional development plan consent may not, of itself, carry weight on the issue of the general suitability of premises, but the fact of either a direction or recommendation on a particular issue, by a specialist agency in response to a statutory referral, must carry weight with respect to the same issue.
It is sufficient that the proposal now before me incorporates the decision of the Council with regard to access, particularly that part of it made on the recommendation of the Commissioner of Highways. However, in case I am wrong in my approach, I have also considered the evidence on this issue which was before the Court.
The evidence of Mr Morias in this matter reflected the decision of the Council in this respect, adopting the advice of the Commissioner of Highways. Mr Morias is a civil engineer who has been with the Department of Transport (now Transport SA) working on traffic matters for the past 12 years. He became an accredited road safety auditor in 1996. Mr Morias drafted and signed the letter on behalf of the Commissioner of Highways to the Council. He is satisfied that the access arrangements for the premises, to and from Main South Road, will be satisfactory, provided that the deceleration lane on Main South Road, on the northern side of the subject land is widened, being designed and constructed to the standards of Transport SA, at the cost of the appellant. I accept the evidence of Mr Morias. I find that he is the expert to be preferred in matters of traffic safety with respect to arterial roads and access to and from an arterial road. His evidence was supported by that of Mr Hanslip, a consulting traffic engineer. Thus, I am satisfied that the premises would be suitable, with respect to access to and from Main South Road, both for fuel tankers and all other motor vehicles, provided the deceleration lane is widened as proposed, to the standards of Transport SA.
On the evidence before me, that part of Main South Road to which the subject land has frontage, and north and south of the subject land, is a controlled-access road proclaimed pursuant to Section 30a of the Highways Act 1926. Presently the subject land has an approved means of access only at allotment 99. This is not the proposed access. The Commissioner of Highways advised the Council that this access would be revoked, and a permit would issue for the proposed access, “on the basis of entry for all vehicles and exit for rigid tankers only”. As the Governor may make a proclamation in respect of a controlled-access road on the recommendation of the Commissioner of Highways, and a proclamation is necessary to alter the means of access to and from a controlled-access road, I am satisfied that the Commissioner has power to secure an undertaking for works to increase the width of the deceleration lane to the north of the subject land, prior to the land being used as a retail motor fuel outlet.
The other major concern of the Retail Outlets Board and hence, the Minister, was the proposed means of egress from the site by all vehicles except fuel tankers, namely through the adjoining shopping centre driveway and carparking area, to the egress point to Main South Road. In its June 1997 reasons, the Retail Outlets Board commented that it would be unique to have egress through an adjoining shopping centre, such a proposal would be certain to adversely impact on the safety and convenience of the existing shopping centre, and that therefore the premises would not be suitable. In its January 1998 reasons, the Board commented that “a situation where the only egress is through an adjoining car park ..... the Board finds totally unacceptable”, and therefore the premises could not be suitable. Having seen retail outlets at Mitcham and Hallett Cove which adjoin shopping centres, I am satisfied that what is proposed is not unique. More importantly, I am satisfied on the evidence, having regard to the width of the traffic aisle through the shopping centre, that there would be a re‑arrangement of the parking areas and the proposed “no right turn” sign at the point of exit from the subject land and entry onto the shopping centre land, and having viewed similar arrangements in operation at the two sites referred to above, that the proposed egress would not be unduly hazardous, for vehicles entering, or travelling or manoevring on, the shopping centre land, or for pedestrians walking through the shopping centre land. The arrangement will require care to be taken by drivers of motor vehicles, but not more so than for any visitor to a shopping centre. Thus, I am satisfied that the proposed egress from the subject land for motor vehicles other than fuel tankers does not constitute a reason to find the premises unsuitable.
There was a suggestion by the Commissioner of Highways that the Council should be satisfied that the applicant enjoyed a right of way over the shopping centre land. In the circumstances of the limited points of access to and from Main South Road, and the attitude of the Commissioner, the premises would only be suitable, in light of the Court’s findings above, if the applicant was able to show that it enjoyed a right for its customers to traverse the shopping centre land to the point of egress onto Main South Road. Having seen a letter to the solicitors for the appellant from the solicitors for AGD Pty Ltd (the owner of the shopping centre land) dated 7 April 1997, wherein AGD Pty Ltd agrees to allow vehicular access across its land, to the appellant “and its invitees to the proposed service station development”, and the contract of sale between the vendor of the subject land (AGD Pty Ltd) and the purchaser who was the applicant before the Council (Fadu Pty Ltd), including the special conditions, I am satisfied that the premises will not be developed unless the vendor, grants to the purchaser an easement providing such a vehicular right of way. I am also satisfied that the appellant in these proceedings, proposes to operate the motor fuel retail outlet for Fadu Pty Ltd, should that company become the registered proprietor of the subject land. In this regard I note that the contract names the purchaser as “Fadu Pty Ltd &/or nominee”. The companies are related.
I have considered all of the material placed before me, and am now satisfied that the premises, as proposed, are suitable for the retail sales of petroleum products. I have taken into account all other matters to which my attention is directed by Section 15(2) of the Petroleum Products Regulation Act, insofar as there was evidence before me and having regard to the reports and the other material and evidence provided to the Retail Outlets Board, the Board’s decision and reasons and those of the respondent Minister.
I am satisfied that the decision of the Minister made on 19 April 1998 should not stand and I now quash that decision. I would substitute a decision granting a licence to the appellant, but I will hear any submission as to the form of the order that I should make.
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