Town of Gawler v Minister for Urban Development and Planning

[2011] SASC 26

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Application for Judicial Review)

TOWN OF GAWLER v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ORS

[2011] SASC 26

Judgment of The Honourable Justice Duggan

25 February 2011

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW

The Gawler & Barossa Jockey Club Incorporated (“GBJC”) and Thoroughbred Racing SA Ltd (“TRSA”) have embarked on a redevelopment of the Gawler racecourse – the proposed redevelopment includes the sale of land (“the surplus land”) owned by GBJC – application was made to the Minister for Urban Development & Planning (“the Minister”) to amend the Development Plan of the Town of Gawler so as to rezone the surplus land from Special Uses Zone to Neighbourhood Centre Zone – application for judicial review of decision of Minister made pursuant to s 26 of the Development Act 1993 (SA) (“the Act”) to approve the Development Plan Amendment (“the DPA”) – application seeks order in the nature of certiorari quashing the Minister’s decision to approve the DPA and a declaration that the Minister’s decision to approve the DPA is invalid and of no effect.

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - OBSERVANCE OF PROCEDURES

Consultant engaged by TRSA forwarded draft DPA to Department of Planning & Local Government (“DPLG”) – whether, in light of involvement of consultant, the Minister fulfilled the requirement of the Act that he “prepare” the DPA and whether, as required by the Act, the DPA was based on investigations initiated by the Minster – whether DPA was prepared after the Minister considered the advice of a person with prescribed qualifications in compliance with s 26(3) of the Act.

Held: Minister entitled to rely upon DPLG in approving formulation of DPA document – DPLG not acting as mere conduit in forwarding draft DPA prepared by consultants to Minister – Minister prepared proposal for DPA in accordance with s 26(1) of the Act – no requirement that investigations upon which DPA based be carried out personally by the Minister – Minister complied with requirement in s 26(3) of the Act to consider the advice of persons with prescribed qualifications before preparing DPA for consultation.

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS - APPREHENSION OF BIAS

Whether there was a reasonable apprehension of bias in respect of the Minister’s decision to approve the DPA – whether, in determining this issue, the Court is entitled to have regard to statements made by the Minister in Parliament.

Held: No apprehension of bias – when acting pursuant to s 24(1)(g) of the Act, the Minister is required to form an opinion on appropriateness of DPA – involvement of TRSA consultants and a lobbyist does not support case of apprehended bias on the part of the Minister.

Whether there was a denial of procedural fairness in the process undertaken by the Minister under the Act.

Held: There was no denial of procedural fairness by the Minister.

ENVIRONMENT AND PLANNING - ENVIRONMENTAL PLANNING - DEVELOPMENT CONTROL - APPLICATIONS - GENERALLY - AMENDMENT TO PROPOSAL

Whether an alteration made by the Minister to the DPA pursuant to s 26(8)(b) of the Act was substantially different from the proposal set out in the DPA released for consultation.

Held: The alteration in the amended DPA was within the power of the Minister in order to give effect to a matter which had arisen in the course of the consultation process – amendment did not alter the basic concept put forward in the DPA which had been made available for consultation.

Whether the gazettal of the approval of the DPA by the Minister was ineffective when the Gazette notice stated that the Minister acted pursuant to s 26(8)(a) of the Act as opposed to s 26(8)(b).

Held: The reference in the Gazette to s26(8)(a) of the Act did not render the gazettal ineffective.

Application for judicial review dismissed.

Development Act 1993 (SA) s 3, s 8, s 9, s 24, s 24(1)(g), s 25(11)(b), s 26, s 26(1), s 26(1)(a), s 26(3), s 26(5a), s 26(5c), s 26(5c)(b), s 26(5d), s 26(8), s 26(8)(a), s 26(8)(b), s 26(9); Supreme Court Act 1935 (SA) s 31; Authorised Betting Operations Act 2000 (SA) s 6(1)(a); Development Regulations 2008 (SA) reg 11A, reg 11A(1)(c), reg 86; Migration Act 1958 (Cth) s 501, s 502; Correctional Services Act 1982 (SA) s 67(7); Bill of Rights 1689 (UK) Article 9; Parliamentary Privileges Act 1987 (Cth) s 16, referred to.
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Watson v The State of South Australia [2010] SASCFC 69; Prebble v Television New Zealand Ltd [1995] 1 AC 321; Rann v Olsen (2000) 76 SASR 450; Toussaint v Attorney General of Saint Vincent and the Grenadines [2007] 1 WLR 2825; Upham v The Grand Hotel (SA) Pty Ltd and the Development Assessment Commission (1999) 74 SASR 557, discussed.
Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87; Hamilton v Al-Fayed (No 1) [1999] 3 All ER 317; Cornwall v Rowan (2004) 90 SASR 269; Wilson v First County Trust Ltd [2004] 1 AC 816; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Kioa v West (1985) 159 CLR 550; Hancock Development Corporation Pty Ltd v Corporation of the City of Tea Tree Gully & Ors (1986) 42 SASR 584; R v City of Salisbury; Ex parte Burns Philip Trustee Company Limited (1986) 42 SASR 557, considered.

TOWN OF GAWLER v MINISTER FOR URBAN DEVELOPMENT AND PLANNING & ORS
[2011] SASC 26

Application for Judicial Review

1. DUGGAN J:          Section 24 of the Development Act 1993 (SA) (“the Act”) provides that the Minister for Urban Development and Planning (“the Minister”) may amend a Development Plan. The procedure which the Minister must follow in order to approve an amendment is set out in s 26 of the Act.

2. In the present case the Minister approved an amendment to the Development Plan of the Town of Gawler which had the effect of rezoning land owned by the Gawler & Barossa Jockey Club Incorporated (“the GBJC”).  The plaintiff is the Town of Gawler (“the Council”).  It seeks judicial review of the Minister’s decision to approve the amendment.  The principal orders sought by the Council are as follows:

   1.A declaration pursuant to s 31 of the Supreme Court Act 1935 (SA) that the Minister’s decision to approve the Gawler Racecourse Development Plan Amendment on 16 February 2010 is invalid and of no effect.

   2.An order in the nature of certiorari quashing the Minister’s decision to approve the Gawler Racecourse Development Plan Amendment.

   3.An order in the nature of prohibition prohibiting the Minister from proceeding to consider the Gawler Racecourse Development Plan Amendment.

   The legislation

3. Section 24 of the Act prescribes the circumstances in which the Minister may exercise the power conferred by the section. The circumstance which is relied upon in the present case is contained in s 24(1)(g) which enables the power to be exercised –

   Where the Minister considers that an amendment to a Development Plan is appropriate because of a matter which in the opinion of the Minister is of significant social, economic or environmental importance. 

4. The first step in the procedure is for the Minister to prepare a “Development Plan Amendment” (“DPA”). This must comply with the requirements set out in s 26(1) of the Act. They are as follows:

   (1)If the Minister is considering an amendment to a Development Plan, the Minister must first prepare a proposal, to be called a “Development Plan Amendment” (or DPA), that complies with the following requirements:

   (a)     the DPA must be based on investigations initiated by the Minister for the purposes of this section;

   (b)     the DPA must include an assessment of the extent to which the proposed amendment—

   (i)accords with the Planning Strategy; and

   (ii)accords with other parts of the Development Plan; and

   (iii)complements the policies in Development Plans for adjoining areas; and

   (iv)satisfies the requirements prescribed by the regulations;

   (c)     the DPA must include—

   (i)an explanation of the proposed amendment and a summary of the major policy changes (if any) that are proposed; and

   (ii)a summary of the conclusions drawn from the investigations and assessments referred to above; and

   (iii)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);

   (d)     the DPA must include an assessment of the extent to which the proposed amendment accords with relevant infrastructure planning (with respect to both physical and social infrastructure) identified by the Minister for the purpose of this section;

   (e)     the DPA must include any other matter prescribed by the regulations.

5. The DPA may only be prepared after the Minister has considered the advice of a person with prescribed qualifications.[1]

   [1]    Development Act 1993 (SA) s 26(3).

6. When the Minister has prepared a DPA, it must be dealt with in accordance with one of three processes which are described in s 26. In the present case, the Minister purported to apply Process B. Section 26(5a) prescribes Process B as follows:

   (a)     the Minister will refer the DPA to any government Department or agency, and any council, that, in the opinion of the Minister, has a direct interest in the matter (and any other body as the Minister thinks fit) for comment within a period of 8 weeks (and if a response is not received by the Minister within this period then the Minister may assume that the particular Department, agency, council or other body does not desire to provide any comment);

   (b)     the Minister will release the DPA for public consultation, in accordance with the regulations, over a period that is at least concurrent with the period that applies under paragraph (a).

7. Section 26(5c) deals with public consultation. It states:

   (5c)In addition to any requirement prescribed by the regulations, the Minister must, for the purposes of undertaking the public consultation required above—

   (a)     allow interested persons to make representations in writing to the Minister in relation to the matter over the period that applies for the purposes of public consultation; and

   (b)     ensure that at least 1 meeting is held where members of the public may attend and make representations in relation to the matter (although if no written representation under paragraph (a) indicates an interest to be heard, a meeting need not be held); and

   (c)     arrange for a committee of the Advisory Committee (which may, but need not, include members of the Advisory Committee) to consider any representations made under paragraph (a) or (b) and to provide advice to the Minister in relation to those representations.

8. Section 26(5d) states:

   (5d)The Minister may seek the advice of the Advisory Committee—

   (a)     on any proposed alterations to the amendment; and

   (b)     on any other issue that should, in the opinion of the Minister, be referred to the Advisory Committee.

   The Advisory Committee referred to is the Development Policy Advisory Committee (“DPAC”) established pursuant to s 8 of the Act. Its members, who are appointed by the Governor, are required to have wide experience in areas such as urban and regional planning, local government, environmental conservation, and in the provision of community services. The functions of the DPAC which are set out in s 9 include advising the Minister on any matter relating to planning or development that should, in the opinion of the DPAC, be brought to the Minister’s attention and to provide advice on the policies that govern the administration of the Act.

9. Section 26(8) states that, after following the procedures set out in the section:

   (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.

   Any approval which is given pursuant to s 26(8) must be gazetted.[2]

   [2]    Development Act 1993 (SA) s 26(9).

   The factual background

10. The GBJC is the registered proprietor of land known as the Gawler Racecourse.  The GBJC has conducted horserace meetings on the land for many years.  The land is located in the Special Uses Zone of the Development Plan of the Council.  The Special Uses Zone encourages development for community use such as parks and recreational facilities.  Commercial and business uses are discouraged in the Special Uses Zone and “shops” are classified as a non‑complying use.

11. Following a study into the future of the South Australian racing industry, the results of which were published in May 2007, it was decided to redevelop the Gawler Racecourse so as to enable it to take on a more significant role in thoroughbred racing in the State.

12. The South Australian Government provided a grant of $6 million as a contribution towards the redevelopment. The redevelopment was in the hands of Thoroughbred Racing SA Ltd (“TRSA”) and the GBJC. TRSA is the body designated to control horseracing in South Australia pursuant to a proclamation made under s 6(1)(a) of the Authorised Betting Operations Act 2000 (SA).

13. It was decided that it would be necessary to obtain further funding for the redevelopment through the sale of land adjacent to the racecourse (“the surplus land”) which is owned by the GBJC.  The surplus land comprises 4.3 hectares of land in a triangular shape bounded by Main North Road, Barnett Street Gawler and the racecourse proper.

14. In May 2008, TRSA engaged Connor Holmes Pty Ltd (“Connor Holmes”), planning and development advisors, as consultants for the proposed redevelopment of the surplus land.  In addition, a lobbyist, Mr Nick Bolkus, was retained to assist in negotiations with the government.

15. On 11 July 2008, Connor Holmes wrote to the Minister requesting that he exercise his power under s 26 of the Act to amend the Development Plan of the Town of Gawler so as to rezone the surplus land from Special Uses Zone to Business Zone, thus enabling the “optimum disposal” of the land to partially fund the development of the racecourse.

16. The letter went on to say:

    Concurrent with the GBJC obtaining the development approval from the Corporation of the Town of Gawler for the Gawler Racecourse upgrade and associated multi-purpose building and facilities, TRSA (in association with the GBJC) now seeks a Ministerial Development Plan Amendment (under S24(1)(g) or (h) of the Development Act, 1993) to rezone the identified surplus vacant land adjacent to the racecourse to enable its optimum disposal to fund the racecourse redevelopment.

    Should the Minister favour the re-zoning approach, then the TRSA would be willing to fund the Development Plan Amendment and provide the consultant team expertise to undertake the investigations and deliver the necessary documentation for the re-zoning, always recognising that a decision to accept the document and proceed with the re‑zoning remains at the absolute discretion of the Minister.

17. The Minister responded to the letter on 25 September 2008 in the following terms:

    I refer to your letter dated 11 July 2008 regarding the Gawler Racecourse redevelopment proposal by Thoroughbred Racing SA (TRSA) and the Gawler and Barossa Jockey Club (GBJC).

    Having considered the material provided to me, I advise that I have formally initiated investigations pursuant to sections 24 and 26 of the Development Act 1993, for the drafting of a Development Plan Amendment (DPA) that will:

    ·    investigate the rezoning of the racecourse land that is surplus to the requirements of TRSA and the GBJC; and

    ·    review the current zoning policies and procedural (ie notification etc) requirements of the Special Uses Zone in light of proposed redevelopment and racecourse upgrading.

    I note in your letter that TRSA is offering to fund and undertake investigations for the preparation of the DPA.  I thank you for this offer and request that any relevant information be forwarded directly to Planning SA.

    If you have any questions please contact Mr Steven Copus of Planning SA who has been appointed to manage the DPA, on direct telephone number 8303 0659 or by email at [e-mail].

18. On the same day, the Minister wrote to the Mayor of the Town of Gawler advising that he had initiated investigations pursuant to ss 24 and 26 of the Act for the drafting of a DPA that would affect the Development Plan for the Town of Gawler. He pointed out that he had formed the opinion that the initiation of the DPA process was appropriate because the matter was of significant social, economic or environmental importance and that he was acting pursuant to s 24(1)(g) of the Act. The Minister said that the DPA would investigate alternative zoning options for the surplus land. He said it would also review the current Special Uses Zoning which applied to the racecourse.

19. In the meantime, the Department of Planning and Local Government (“DPLG”) had been providing information and advice to the Minister in relation to the request for the DPA. Ms Caroline Chapman was the manager of the team responsible for analysing and reporting on the DPA. Ms Chapman is Team Leader of the Ministerial Plans section of DPLG. She explained in an affidavit dated 10 September 2010 filed in this matter that, in recent times, DPLG has not had the resources to progress DPAs that are considered urgent. She said a practice had developed whereby the investigations required by s 26 of the Act can be conducted by non-departmental personnel who liaise with DPLG personnel and submit their work to departmental personnel for review. She said the final advice that DPLG gives to the Minister in respect of a DPA before its release for consultation is the responsibility of DPLG alone; it is not prepared or reviewed externally, nor is it shown to external consultants.

20. On 2 September 2008 Ms Chapman prepared a minute for transmission to the Minister’s Liaison Officer through the Acting Director, Policy, Planning SA.

21. The minute summarised the steps which would be required in the processing of the DPA:

    ·    Response by the Minister seeking the relevant documentation.

    ·    The TRSA or GBJC would submit the draft investigations, masterplan and policies to the Minister and request that these form the basis for a formal Ministerial DPA.

    ·    The Minister would formally initiate a DPA process, having been provided with the necessary information to appropriately inform the scope of the proposed DPA.

    ·    Following the formal Initiation, the draft investigations and policies would be checked by Planning SA, and subject to any additional work being required, a DPA document suitable for public and agency consultation would then be prepared.

    ·    Once prepared, it would then be submitted to the Minister for consideration for public consultation.

    ·    Following the Minister’s agreement to release the DPA on public consultation, the Development Policy Advisory Committee (DPAC) would take carriage of the consultation process.

    ·    DPAC would assess submissions and provide advice to the Minister at the conclusion of the consultation process.

1. In a subsequent minute to the Minister, DPLG set out the background to the application for the DPA and recommended that the Minister initiate investigations into the preparation of the DPA by following Process B as set out in s 26(5a) of the Act. On 25 September 2008, the Minister advised that he would initiate the relevant investigations. On 11 December 2008, Ms Chapman and Mr Gibson from DPLG met with Mr Osborn and Ms Orford, from Connor Holmes. One of the matters discussed was the use of the surplus land. The following is an extract from the notes of the meeting:

   ·    Retail is likely to be highest use, but it has its challenges.

   ·    Investigations indicate that the sale of the land for business/commercial purposes would be sufficient to support the funding of the redevelopment.

2. At about this time, the Minister was advised that consultants for TRSA and the GBJC were undertaking investigations for the consideration of the Minister and DPLG.

3. Ms Chapman stated in her affidavit that she received a draft copy of a DPA from Connor Holmes on 22 December 2008.  The draft proposed that the main change to the Development Plan for the Town of Gawler would be the rezoning of the surplus land from Special Uses to a Commercial Zone.

4. Although the draft contemplated a commercial use for the surplus land, paragraph 3.3 under the heading of “Retail Analysis” states:

   As a general rule, increased population growth, household formation and therefore household expenditure will increase supportable retail floor space.

   It is likely that a full retail analysis would provide support for additional retail floor space within the southern areas of Gawler, based on a cursory review of existing and known planned centres (in terms of rezoning proposals).

   Such a retail analysis may also determine that the highest and best use of the surplus land is retail, with the land potentially suited as a Neighbourhood Centre.  However the retail centres being considered as part of the DPA relating to Evanston South is potentially sufficient to cater for the immediate residential growth in the southern areas, with a full and comprehensive retail analysis required to determine any substantive additional capacity that may support the large scale retail development of the surplus land.

   Based on the above, this DPA proposes only a high level retail overview to determine the present retail distribution within the surrounding area.

5. On 3 February 2009 Mr Osborn sent the following email to Ms Chapman:

   Further to our discussion last week, I have received confirmation that TRSA wish to proceed to include retail as part of the highest and best use investigations for the Area Affected.

   As mentioned we had not pursued this to date as part of a risk minimization strategy.  However things have changed.

   Please advise if this is considered to be within the scope of the Initiation Document or whether a formal request is required to seek a variation.

   If retail is considered part of the intended highest and best use analysis a retail study is obviously needed as part of any justification and would be supplied as a matter of course.

   TRSA are eager for this not to delay the process to (sic) much and we have committed to undertake the retail study within 2 weeks, should we receive the green light.

   I look forward to your response.

   Ms Chapman replied saying that the initiation documentation predominantly envisages business and commercial consideration.  She asked what type of retail was now being contemplated.  Mr Osborn replied:

   Bulky goods is sought as part of the DPA as presently drafted (and as allowed in the current Business Zone).  We assume that this allows for a hardware shop or similar (ie akin to Bunnings/Mitre 10).

   The intention now is to broaden, towards more ‘mainstream’ retail (ie supermarket/specialty).  As such, the result could be an Activity Centre of some kind.

6. Mr David Gibson, Senior Planning Officer at DPLG, emailed Mr Osborn on 11 February 2009 as follows:

   Our view is that the current Initiation Document would allow for the investigation of retail uses over the surplus land.  We do however need to confirm this with the CEO and the Minister’s Officer.  In the mean time, I will have an initial look around here to see what has been done in respect to recent retailing investigations at Gawler.

   Once we have a better understanding of the issues that may arise from the new proposal, we will be able to give you a better indication of timing.

7. In due course Ms Chapman decided that it was acceptable to include in the draft DPA a rezoning of the land for retail purposes.  At this stage, the draft was being prepared for the Minister’s consideration before it went out for community consultation.

8. On 3 July 2009, the Chief Executive of DPLG noted in a minute to the Minister that, on 24 February 2009, the Mayor of the Town of Gawler had written to the Minister concerning the investigations in relation to the DPA.  The minute states that the letter identifies a number of critical concerns to the Council and requests that serious consideration be given to them in formulating the DPA.  The minute identifies the following issues put forward by the Council for the consideration of the Minister:

   ·    the potential for land use conflicts with the Gawler High School

   ·    traffic management in the locality, taking into account increased demand from the racecourse development and development generally

   ·    implications on the town’s centre hierarchy

   ·    implications on the aesthetic value of the racecourse as open space and the town’s historic structure and character

   ·    the impact of billboard and other signage on the aesthetic value of the town’s entrance

   ·    sustained and unmet demand for tourist accommodation in the town

   ·    opportunities for stormwater management initiatives on the racecourse land.

   The Initiation Document signed by you on 25 September 2008 sets out the primary investigations for the DPA.  Many of the issues raised by Council are identified in the Initiation Document and are already being investigated as part of the DPA.

   The minute refers to recent advice by TRSA of their preference for the DPA to consider broader retailing opportunities on the surplus land.  It is noted that previous investigations identified Business Zoning as a possible option.  The memorandum points out that the Council is not supportive of retail uses occurring on the surplus land.  The memorandum continues:

   With respect to higher order retailing, your Initiation Document clearly seeks to identify the ‘highest and best use’ of the surplus racecourse land.  Whilst the supporting text of the Initiation Document flags business zoning as a possible use, it is not absolute, nor does it preclude other uses from being investigated.

   A draft DPA has been prepared accordingly and is currently being reviewed by the Department.  The Dept will consider the submissions raised by Council prior to forwarding the DPA to you for your consideration and release for formal consultation.

9. Connor Holmes forwarded a retail study to DPLG on 9 July 2009.  It dealt in particular with the possible impact on nearby retail centres of retailing operations on the surplus land.  Ms Chapman states in her affidavit that the study was passed on to Mr Michael Edwards, a member of DPLG staff who she understood had experience in retail analysis, to comment on the study.  He reported that the retail analysis provided by Connor Holmes was “defensible”.  Ms Chapman said that the draft DPA was progressed on the basis that there was adequate analysis supporting a retail rezoning.

10. Ms Andrea Jorgensen is presently the Senior Planner in the Strategic Policy Unit of DPLG.  In July 2009 she was appointed the principal planner in charge of the review of the DPA.  She worked under the direction of Ms Chapman.  Her task was to review a revised DPA drafted by Connor Holmes so that the document could be presented to the Minister for his consideration as a DPA to be released for public consultation. 

11. The version which she worked on bears the date 16 June 2009.  She and other members of the team suggested amendments and comments.  The use suggested for the surplus land was “Neighbourhood Centre”.

12. After completing this work a draft DPA incorporating amendments made by DPLG was forwarded to the Minister who authorised its release for public consultation on 14 October 2009.  The document was released on the following day. 

13. The accompanying memorandum prepared by DPLG made the following comments on the use of the surplus land:

    ·    Surplus Land – Neighbourhood Centre

    Investigations undertaken into the highest and best use of the surplus land considered commercial/business activities, tourism, education and retail.  It was determined that a Neighbourhood Centre is best suited to the site.

    The proposed Neighbourhood Centre is expected to have minimal impact on the trading levels of existing centres, including the District Centre, or delay the establishment of future planned centres in the region.  The retail study analysis used a number of assumptions such as household expenditure and household formation rates that may be considered subjective in nature, as well as taking into consideration the predicted expansion of residential populations in the area.  On this basis, the policy framework proposes to limit the amount of retail floor space to reflect existing population levels but provide for expansion of the floor space in due course.

    Having regard to the above, the consultation process for the DPA will provide an opportunity for agencies, the general public and Council to highlight any issues in relation to proposed retail development on the site, which could then be used to inform the final policy position expressed in the DPA or identify areas that may require further clarification or analysis.

    ·    Surplus Land – Education Facilities

    The Gawler High School, located adjacent the Gawler Racecourse has been earmarked for development as per a super school in the draft 30-year Plan for Greater Adelaide.  In addition, the draft Plan for Greater Adelaide also identifies the establishment of an Early Childhood Development Centre in Gawler.

    The Department of Education and Children’s Services (DECS) has advised that it has commenced a proposal to purchase part of that land identifies as surplus to the Gawler Racecourse that is adjacent the Gawler High School to facilitate the expansion and/or childhood centre.  The land proposed for this purpose is identified as that land south of the proposed realignment of Barnet Road.

    As negotiations for the purchase of this land within the timeframes of this DPA have not been finalised, a flexible policy approach has been proposed to provide for the development of education facilities within the proposed Neighbourhood Centre Zone.  Should DECS not commit to the purchase of the land, policies provide for its development for conventional centre activities.

    ·    Traffic Management

    A Traffic Study by Murray F Young & Associates (refer Appendices) undertaken to review the impact of the proposed development of the surplus land has identified the need for the realignment of roads within the affected area, however, largely as a result of continued residential expansion in the district that has changed traffic conditions.  In particular, the proposed changes include:

    ·Para Road to intersect directly with Main North Road and Potts Road with traffic signals

    ·Barnet Road diverted through the surplus land to intersect with Main North Road at the Morrow Road intersection

    ·Morrow Road intersection with Main North Road managed as a left-in / left‑out only intersection.

    The Department for Transport, Energy and Infrastructure has provided provisional support for the proposed changes.

14. Ms Jorgensen stated in her affidavit that the section in the DPA dealing with retail analysis was largely written by her and differs substantially from the original draft provided by Connor Holmes.

15. Ms Jorgensen said that on 14 December 2009 she received a lengthy submission from the Town of Gawler for presentation to the DPAC.

16. The closing date for submissions was 9 December 2009.

17. The draft DPA which was released for consultation purposes requested that submissions be sent to the Presiding Member, DPAC.  Anyone wishing to speak at a public meeting about the DPA was invited to make that request.  It was stated in the document that if no one made such a request, no public meeting would be held.  Ten submitters requested a public meeting.  The meeting was held on 17 December 2009.

18. The DPAC considered the draft DPA and the submissions which were made in respect of it.  The Presiding Member reported in due course on the submissions to the Minister.  According to this report, 19 submissions from the public were received.  Those submissions were summarised at some length for the Minister.

19. Responses were also received from 14 State government agencies and these, in turn, were summarised and forwarded to the Minister.

20. Submissions made by the Town of Gawler were summarised as follows:

    ·    Retail and traffic investigations flawed, the investigations commissioned by Council identify alternative conclusions.

    ·    Traffic investigations commissioned by the Council identify that increased traffic volumes will overwhelm the road network and that the proposed intersection management solutions will not be adequate.

    ·    Retail/Neighbourhood Centre investigations commissioned by the Council identify that the proposed Neighbourhood Centre will result in serious economic impact on existing and proposed centres, and that the proposed centre will effectively operate as a District Centre.  The proposed Centre should be postponed until after centres planned for Evanston Gardens and Gawler East are developed.  Retail floor space should be capped at 2000 square metres.

    ·    Tourist accommodation in the Recreation Zone is unlikely to be delivered and should be included in the surplus land area.

    ·    The Council has prepared a range of alternative options for the development of the surplus land, with the preferred option outlining a Mixed Use Zone that includes provision for the expansion of the school.

21. A more extensive summary of the Council’s submissions comprising seven pages was included in an appendix to the DPAC report provided to the Minister.

22. Against this background, the DPAC provided advice to the Minister.  It recommended that the DPA was in a form suitable for approval subject to 10 recommendations which were identified in the report.  The report also summarised additional amendments recommended by DPLG.  Several recommendations related to traffic.  The recommendations dealing with rezoning are set out later in these reasons.

23. On 16 February 2010 the Minister agreed with the recommendations of the DPAC. 

    The “preparation” of the DPA

24. Section 24 of the Act defines various circumstances in which the Minister may prepare a DPA. Section 24(1)(g), which is the relevant circumstance in this case, is broadly expressed. It leaves to the Minister’s consideration whether an amendment is appropriate because of a matter “which in the opinion of the Minister is of significant social, economic or environmental importance”.

25. It is to be stated that, apart from the broad scope permitted by the definition of the circumstances which might give rise to the initiation of an amendment under this subsection, the assessment of those circumstances is left to the opinion of the Minister.

26. Although the document which the Minister is required to prepare pursuant to s 26 of the Act is described as a “Development Plan Amendment” and must contain the information prescribed in s 26(1), it is appropriately described in the Act as a “proposal” and is to be prepared when the Minister is “considering an amendment”. The amendment cannot be approved unless the detailed procedure prescribed by the Act, including the consultation process, has been followed.

27. It is conceded by Mr Roder SC, for the plaintiff, that the Minister is not required to personally formulate the proposal.  It is further conceded that, in formulating the proposal, the Minister is entitled to seek the assistance of consultants and receive assistance from DPLG.  However, Mr Roder submits that the extent of involvement by TRSA and Connor Holmes resulted in a situation whereby it could not be said that the proposal was “prepared” by the Minister.

28. I reject this argument.  The Minister would always be heavily reliant upon the relevant government department in approving the formulation of a technical document of this nature.  Nor is it surprising that he would liaise with the statutory body, TRSA.  DPLG was prepared to receive the draft from Connor Holmes acting on behalf of TRSA as a working document on the understanding that it would have to be approved or, if necessary, amended by the department before transmission to the Minister for his consideration.  It is clear that the draft was prepared by a person or persons with relevant planning experience.  Furthermore, as already observed, Ms Jorgensen of DPLG stated in her affidavit that the section in the DPA dealing with retail analysis was largely written by her.

29. This is not a case of DPLG acting as a mere conduit in forwarding a draft DPA to the Minister.  In addition to the amendments made by Ms Jorgensen, an expert in DPLG advised that the retail analysis provided by Connor Holmes was defensible.  It was then left to the Minister to decide whether he would authorise the release of the DPA for public consultation.

30. In my view the procedure to be followed under the Act, up to and including the release of the DPA for consultation, was followed. In particular, I find that the Minister “prepared the proposal” as required by s 26(1) of the Act.

    Investigations initiated by the Minister

31. Next, Mr Roder draws attention to the requirement in s 26(1)(a) of the Act that the DPA “must be based on investigations initiated by the Minister for the purposes of this section”. According to the plaintiff’s submission, the DPA was based on investigations initiated by TRSA and not the Minister.

32. I disagree with this contention. 

33. It is true that Connor Holmes carried out various investigations on behalf of TRSA before presenting their draft. However, these steps were part of a request to the Minister seeking a Ministerial DPA. This is evident from the letter written by Connor Holmes to the Minister on 11 July 2008. The Minister replied on 25 September 2008 advising that he had formally initiated investigations for this purpose pursuant to ss 24 and 26 of the Act. He noted that TRSA was offering to fund and undertake the investigations and requested that any relevant information be forwarded to the department.

34. It is clear from these events that the Minister was instituting investigations which would help to form the basis of a future DPA.  Again, there is no requirement that the investigation be carried out personally by the Minister or, for that matter, by DPLG.

35. In my view there was sufficient compliance with s 26(1)(a).

    Advice from a qualified person

36. Section 26(3) of the Act provides that the DPA may only be prepared after the Minister has considered the advice of a person with prescribed qualifications. Regulation 86 of the Development Regulations 2008 (SA) (“the Development Regulations”) relevantly provides as follows:

    86—Qualifications in planning

    (1)The qualifications specified in subregulation (3) are prescribed for the purposes of sections 25(4) and 26(3) of the Act.

    …

    (3)The following qualifications are specified:

    (a)     corporate membership of the Urban and Regional Planning Chapter of the Planning Institute of Australia Incorporated; or

    (b)     such qualifications or experience in urban and regional planning, environmental management or a related discipline as are in the opinion of the Minister appropriate.

37. According to the plaintiff’s argument, the Minister failed to comply with the requirements of s 26(3).

38. In my view the advice must be obtained before the Minister prepares the proposal referred to in s 26(1). The scheme set out in s 26(1) contemplates that the investigations to be instituted by the Minister would take place before the preparation of the proposal for the DPA. The sense in which the word “prepare” is used in s 26(1) indicates that the preparation refers to the steps which are taken in formulating the DPA prior to its release for consultation.

1. DPLG provided advice to the Minister throughout the process including the period before the completion of the prepared DPA and its release for consultation.

2. On 18 September 2008 a minute, referred to in Ms Chapman’s affidavit as the “Initiation Minute”, was forwarded by DPLG to the Minister. It advised on the various procedural steps in relation to the DPA which were required by the Act and included a section entitled “Advice from a person with prescribed qualifications”. The preamble to this section stated:

   Advice from a person with prescribed qualifications

   Section 26(3) of the Development Act 1993 prescribes that a DPA may be prepared only after the Minister has considered the advice of a person with prescribed qualifications.  For this Minute Mr Steven Copus has provided the necessary advice, which follows: …

   This section then set out advice in relation to the jurisdiction to prepare a Ministerial DPA, a statement of background facts in relation to the proposed development of the racecourse, an identification of the key issues relating to planning, the methods which the DPA must address from a planning viewpoint, and the investigations which would be required in order to prepare the DPA.  On 25 September 2008 the Minister accepted the recommendations contained in the minute.

3. Planning officers of DPLG gave further advice to the Minister in a minute forwarded to him through the Acting Director, Policy at DPLG on 9 December 2008.  The primary purpose of the minute was to provide an update on the progress of the DPA.  Reference is made in the minute to the fact that early investigations indicate that the surplus land might be suitable for commercial/business use and could easily be annexed to the adjoining Business Zone.  It also sets out policies contained in South Australia’s Strategic Plan and the Planning Strategy for Metropolitan Adelaide (December 2007) which are relevant to the DPA.  They include policies on the economic environment, preventative health and water resources.

4. On 30 September 2009 Ms Jorgensen drafted a minute which was forwarded to the Minister through the Director of Planning in DPLG and the Chief Executive of DPLG.  It gave extensive advice on planning issues associated with the DPA.  It recommended the release of the draft DPA for public consultation.  Attached to the minute was the DPA which incorporated the changes made to the Connor Holmes draft.  The Minister approved the advice on 14 September 2009.

5. I am of the opinion that the circumstances outlined above establish that the Minister complied with the requirement in s 26(3) of the Act to consider the advice of persons with prescribed qualifications before preparing the DPA for consultation.

   Apprehension of bias

6. According to the plaintiff’s argument, there is a reasonable apprehension of bias in respect of the Minister’s decision to approve the DPA.  Mr Roder stated that no allegation of actual bias was being made.  According to the argument the reasonable apprehension of bias arises from a semblance of prejudgment on the part of the Minister as revealed by the circumstances in which he acted.  Emphasis is placed on the dealings between TRSA and the Minister and the alleged failure to disclose that relationship and the role of Connor Holmes.

7. In dealing with a submission of this nature, it is essential to have regard to the role and powers of the decision-maker.  This consideration was emphasised by Hayne J in Minister for Immigration and Multicultural Affairs v Jia Legeng (“Jia’s case”).[3] His Honour said:[4]

   In the case of a court, it will usually be self-evident that the issue, if an issue of fact, is one which ought to be considered afresh for the purposes of the particular case by reference only to the evidence advanced in that case. Other decision-makers, however, may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision. Indeed, as I have already pointed out, the notion of an “expert” tribunal assumes that this will be done. Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker.

   [3] (2001) 205 CLR 507.

   [4] (2001) 205 CLR 507 at [187].

8. In Jia’s case the Minister for Immigration and Multicultural Affairs (“the Immigration Minister”) appealed against decisions of the Full Court of the Federal Court which held that the Immigration Minister had been affected by actual bias in cancelling the visas of the respondents and declaring them to be excluded persons. The Immigration Minister had acted pursuant to powers conferred by ss 501 and 502 of the Migration Act 1958 (Cth). The claim of actual bias rested on public statements made by the Minister in relation to the case of one of the appellants.

9. The High Court held that in neither case was the claim of actual bias made out.  In their joint judgment Gleeson CJ and Gummow J stated:[5]

   [5] (2001) 205 CLR 507 at [61]-[63].

   As the facts of the present cases show, the powers conferred upon the Minister by ss 501 and 502 form part of a statutory scheme which involves a complex pattern of administrative and judicial power, and differing forms of accountability. The Minister is a Member of Parliament, with political accountability to the electorate, and a member of the Executive Government, with responsibility to Parliament. As French J recognised in his decision at first instance in the case of Mr Jia, the Minister functions in the arena of public debate, political controversy, and democratic accountability. At the same time, the Minister’s exercise of statutory powers is subject to the rule of law, and the form of accountability which that entails. In relation to an applicant for, or holder of, a visa the Minister, either personally or through a delegate, may be an initial decision-maker, a party to proceedings for administrative or judicial review, and the holder of a power of cancellation and exclusion under ss 501 and 502.

   In R v Anderson; Ex parte Ipec-Air Pty Ltd, Kitto J said:

   “It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself ... The courts, while claiming no authority in themselves to dictate the decision that ought to be made in the exercise of such a discretion in a given case, are yet in duty bound to declare invalid a purported exercise of the discretion where the proper limits have not been observed.”

   In the same case, it was also said that there is “a significant difference between a discretion given to a minister and one given to a departmental head”. The context in which that difference was being considered concerned the right to act on the basis of governmental policy, the implication being that, when a power is reposed in a Minister, the statute, in the absence of an indication to the contrary, would be taken to contemplate that the Minister would be entitled, within the limits of any other constraints that may be found in the statute, to act in accordance with such policy. There are other consequences that flow from the circumstance that a power is vested in, and exercised by, a Minister. Relevantly to the present case, they include the consideration that the conduct of a Minister may need to be evaluated in the light of his or her political role, responsibility and accountability.

   (Footnotes omitted)

   Later in their reasons Gleeson CJ and Gummow J referred to the reasons of French J at first instance and Cooper J in the Full Court and said:[6]

   … both French J and Cooper J evaluated the statements and conduct of the Minister in the light of his political functions and responsibilities. This is a matter of importance. In considering whether conduct of a decision-maker indicates prejudgment, or in some other respect constitutes a departure from the requirements of natural justice, the nature of the decision-making process, and the character of the person upon whom Parliament has conferred the decision-making capacity, may be of critical importance. French J was right to consider the Minister's conduct in relation to the radio interview, and the letter to the President of the Tribunal, in the light of the fact that he was “an elected official, accountable to the public and the Parliament and entitled to be forthright and open about the administration of his portfolio which ... is a matter of continuing public interest and debate”[7].

   [6] (2001) 205 CLR 507 at [78].

   [7]    Jia v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 87 at 106.

10. Jia’s case was discussed in Watson v The State of South Australia[8] which was an application for judicial review of a decision of the Governor in Council refusing to order the release of a prisoner on parole. It was argued that Cabinet, which advises the Governor, had predetermined the matter for decision. Section 67(7) of the Correctional Services Act 1982 (SA) empowers the Governor to accept or reject a recommendation of the Parole Board to release certain prisoners.

    [8] [2010] SASCFC 69.

11. Doyle CJ (Anderson J concurring) stated:[9]

    The decision to refuse to release Mr Watson on parole was, each time it was made, a decision in respect of which the Premier, the Attorney-General and possibly other Ministers could be questioned or challenged in Parliament. The decision was, and was likely to be, the subject of some public interest, and to attract comment in the media. There is no reason why the Premier or the Attorney-General should not explain and defend their decision. There is no reason why they should not, within the limits of the CSA, indicate a policy or attitude to such cases, or to the case of Mr Watson in particular. In material before the Court, the Leader of the Opposition was referred to as having said that in Government she would be slow to depart from the recommendation of the Board. Equally, it was open to the Premier to say, as he did, that the Cabinet would make its own decision, and to emphasise that it would not hesitate to depart from a recommendation by the Board. It would be legitimate for the Premier or the Attorney-General to indicate that certain types of cases would be approached in a particular manner. Of course, as is acknowledged in the citations above, the power under s 67(7) must be exercised lawfully. But when the power is conferred on a political body, and is open to challenge in Parliament and in the community generally, the exercise of that power is to be approached in a quite different manner from a power vested in a court or in an independent tribunal, when questions of bias and prejudgment arise.

    [9] [2010] SASCFC 69 at [65].

12. Reference has been made to the circumstances in which the Minister in the present case is empowered to amend a Development Plan.  They include the situation where the Minister considers the amendment appropriate because of a matter which, in the opinion of the Minister, “is of significant social, economic or environmental importance”.[10]  It is clear that such matters might well be influenced by government policy for which the Government is answerable to Parliament.  Furthermore, the exercise of the power is premised on the Minister’s opinion as to the significance of these broad considerations.

    [10]   Development Act 1993 (SA) s 24(1)(g).

13. When acting pursuant to s 24(1)(g) of the Act, the Minister is the initiator of the procedural process which may result in an amendment of the Development Plan. It is a condition precedent to the preparation of the amendment that the Minister forms the opinion that the amendment is appropriate because of its significant social, economic or environmental importance. In forming this opinion it is to be expected that he would consult with various sections of the community.

14. These considerations, particularly the requirement that the Minister must form an opinion on the appropriateness of the DPA at the commencement of the process, leave little scope for the operation of the principle of apprehended bias based primarily on the appearance of prejudgement. That is not to say that there is no requirement for the Minister to give consideration to the submissions made during the consultation process and to the subsequent advice of DPAC. It is inherent in the process prescribed by the Act that the Minister take those matters into account. However, there is no constraint on the Minister’s role to consult and take advice from a variety of sources in the preparation of the DPA.

15. Mr Roder relies on a number of matters which he submits justify upholding the allegation of apprehended bias through prejudgment.  It is important to have regard to the combined effect of the considerations which are put forward.  However, of necessity, they must be discussed individually.

16. The matters relied upon are as follows:

    (1)There is evidence that Mr Bolkus, the lobbyist retained by TRSA, attended a meeting with the Minister and Mr Stephen Holmes, a Director of Connor Holmes, on 3 September 2008.  According to the evidence, the discussion related to a number of projects of significance to the State.  An email from Mr Richard Dwyer, a principal of Connor Holmes, to Mr Ian Hart, from TRSA, dated 4 September 2008 states that at this meeting:

    Nick Bolkus raised the issue of the Ministerial DPA required to rezone the surplus Gawler racecourse land.

    Mr Dwyer continues in the email with the observation that:

    Based on discussions at this meeting, it is understood that the Minister has resolved to undertake a Ministerial DPA to re-zone the land, and that it is likely to be announced this Monday 8 September 2008.  Accordingly, the Ministers advisor (George Vanco) has requested that we prepare a letter confirming the ‘scope of investigations’ that would be undertaken in the Ministerial DPA.

    (Emphasis in original)

    (2)The investigation in relation to the DPA was funded by TRSA. 

    (3)TRSA was assigned the role of investigating and preparing the DPA.

    (4)There is a significant level of interaction in relation to the redevelopment between the Minister and Connor Holmes.

    (5)On Tuesday 15 October 2009 the Honourable M Parnell asked the following question of the Minister in Parliament:

    By way of supplementary question, has the minister been lobbied in relation to the future of the Gawler Racecourse by former senator Nick Bolkus?

    The Minister replied:

    No, the Hon. Mr Bolkus has not lobbied me in relation to that matter.

    On the same occasion in the course of further discussion in Parliament on the Gawler Racecourse redevelopment the Minister answered an interjection[11] as follows:

    [11]   The interjection was not recorded in Hansard.

    If I was there I would be accused of influencing the outcome.  People have already suggested that somehow there has been the involvement of Mr Bolkus and so on.  Since this development plan came up I certainly have not spoken to Mr Bolkus at all in relation to this matter – [a further interjection] – during the period this matter has been proposed.  It was something put forward by the Thoroughbred Racing South Australia and the Gawler race club some several years ago.

    (6)The answer given by the Minister in Parliament on Thursday 15 October 2009 when asked the following question by the Honourable M Parnell:

    In relation to the ministerial development plan amendment, can the minister advise what role private planning consultants played in the writing of that plan; and, in particular, was Connor Holmes involved?

    The Minister replied:

    As I said, this is a ministerial development plan amendment, which is obviously under the control of the government.  Who actually did the work for the Gawler Racecourse I will have to check.  I will get the information from the department and respond to the honourable member as to who prepared the proposal on behalf of the racing authority.

    I remind the honourable member that, again, it being a ministerial development plan, it is the department that conducts the process.  Obviously, input comes from the racecourse because we need to know what they were proposing.  It would not make much sense if you were to do a development plan amendment that did not reflect what the racecourse was proposing.  That would be a bit bizarre.  So, of course, we will reflect what they want.  As to which consultants they have used, I will seek that information.

    (7)As part of an answer to Parliament on 15 October 2009, the Minister summarised the proposal to redevelop the Gawler Racecourse.  In the course of doing so, he made the following comments about rezoning:

    The state government has committed $6 million towards the upgrade, with the balance of the funds to be sourced from the sale of 4.3 hectares of surplus land at the southern end of the racecourse. Thoroughbred Racing SA and the Gawler and Barossa Jockey Club have identified land south of the racecourse and bordered by the Main North Road and Barnett Street as being surplus to their needs following the reconfiguration of the track layout.

    This reconfiguration and the proposed sale of the surplus land has prompted a request to rezone a section of the surplus land south of the reconfigured racecourse so that it can be used for other purposes that will benefit the Gawler community. After speaking with the Town of Gawler and other stakeholders, the Department of Planning and Local Government has prepared a draft plan amendment. Members of the public are now being invited to have their say on this proposed rezoning.

    Through this ministerial development plan amendment, a portion of the surplus land is proposed to be rezoned as neighbourhood centre. This will allow residential, retail and service business development as well as the provision of community facilities. The remainder of the land has been earmarked for the proposed expansion of Gawler High School. The ministerial DPA also creates an opportunity to realign the local road network to improve traffic management. Anyone who has been in that area, particularly at times when the school is closing in the evenings from Monday to Friday, would be well aware of the need for this. It will also be able to more appropriately rezone the racecourse and associated facilities. This includes a new recreation zone to support the core use of Gawler Racecourse for training and racing purposes.

    This government takes seriously the views of the public and, as with all proposed ministerial rezonings, there is an extensive consultation process. We want to hear feedback from the community to ensure that we can improve any of the proposed rezonings and identify contentious issues that can be addressed before the final development plan amendment is gazetted.

    Members of the public, industry and community associations, government agencies, local councils and other interested parties are invited to lodge submissions by 5pm on Wednesday 9 December. These submissions will then be considered by the Independent Development Policy Advisory Committee, which will provide a report to the minister. The amended rezoning, when finalised, will then be incorporated into the Town of Gawler development plan and used to assess future development applications.

    The community consultation concludes with a public meeting at the Gawler Arms Hotel, 120 Murray Street, Gawler at 7pm on Thursday 17 December at which people will be able to speak to their submissions. All submissions lodged during the community consultation period will be available for viewing online at the Department of Planning and Local Government website from 9 December until 17 December. If it takes five or six hours and, if that is what the public wants, we are very happy to do that because, as I just said, we take our public consultation seriously.

    The role of TRSA, Connor Holmes and the lobbyist

1. Mr Roder points to the employment of Mr Bolkus by TRSA on what Mr Roder described as a substantial retainer to assist them in the Gawler Racecourse development project.  He points out that Mr Bolkus met the Minister in company with a representative from Connor Holmes and that there was a significant level of interaction in the process between the Minister and Connor Holmes.  According to the submission made by Mr Roder, these events might have contributed to a perception by an independent observer that the Minister was biased in favour of the rezoning aspect of the proposal.

2. As previously stated, it is essential to have regard to the statutory role of the Minister and the circumstances in which that role was to be exercised.  It is not in dispute that the redevelopment of the racecourse was a project which was of significant social, economic and environment importance.  The Minister was required to form an opinion as to the significance of these aspects before commencing the process for the DPA.  It is obvious that the initiative for projects such as this will frequently emanate from groups within the community.  It has been pointed out that TRSA is a statutory body charged with controlling horseracing in the State.  It is not surprising that TRSA would be involved in approaching the Minister in the way in which it did and that it would play a significant role in the discussions relating to the planning issue which was of financial importance to the redevelopment.  The overall redevelopment had important implications for the racing industry in South Australia.  Nor is it unusual in the present climate for a body such as TRSA to engage a lobbyist and a planning expert to assist with the proposals and make submissions to the relevant government department. 

3. I have already commented on the role of TRSA and Connor Holmes.  I have pointed out that their proposals concerning the DPA were submitted to DPLG and subjected to scrutiny by that department.  The Minister received comprehensive advice on the proposals from DPLG.  DPAC also provided comprehensive advice following public consultation.

4. In my view the involvement of TRSA, Connor Holmes and Mr Bolkus does not support the plaintiff’s case of apprehended bias on the part of the Minister.

5. The other matters relied upon are the statements made in Parliament by the Minister.  At the hearing there was no objection by the defendants to the admission into evidence of Hansard reports of the Minister’s answers to questions in Parliament relating to the Gawler Racecourse development.  However, after judgment was reserved, Dr Manetta, for the Minister, forwarded written submissions to the Court with the consent of the plaintiff in which objection was taken to the use of the Minister’s Parliamentary statements insofar as they might be used to establish that the Minister misled Parliament.

6. The argument raises the issue of Parliamentary privilege enacted in Article 9 of the Bill of Rights 1689 (UK).

7. The extent of the privilege has been discussed in a number of English and Australian authorities in recent years.[12]  In Prebble v Television New Zealand Ltd[13] the judgment of the Privy Council was delivered by Lord Browne‑Wilkinson.  His Lordship said:[14]

   [12]   See Prebble v Television New Zealand Ltd [1995] 1 AC 321; Hamilton v Al-Fayed (No 1) [1999] 3 All ER 317; Rann v Olsen (2000) 76 SASR 450; Cornwall v Rowan (2004) 90 SASR 269.

   [13] [1995] 1 AC 321.

   [14] [1995] 1 AC 321 at 332.

   If article 9 is looked at alone, the question is whether it would infringe the article to suggest that the statements made in the House were improper or the legislation procured in pursuance of the alleged conspiracy, as constituting impeachment or questioning of the freedom of speech of Parliament.

   In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges: Burdett v. Abbot (1811) 14 East 1; Stockdale v. Hansard (1839) 9 Ad. & El. 1; Bradlaugh v. Gossett (1884) 12 Q.B.D. 271; Pickin v. British Railways Board [1974] A.C. 765; Pepper v. Hart [1993] A.C. 593. As Blackstone said in his Commentaries on the Laws of England, 17th ed. (1830), vol. 1, p. 163:

   “the whole of the law and custom of Parliament has its original from this one maxim, ‘that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.’”

   According to conventional wisdom, the combined operation of article 9 and that wider principle would undoubtedly prohibit any suggestion in the present action (whether by way of direct evidence, cross-examination or submission) that statements were made in the House which were lies or motivated by a desire to mislead.

   Later in the judgment his Lordship said:[15]

   Moreover to allow it to be suggested in cross-examination or submission that a member or witness was lying to the House could lead to exactly that conflict between the courts and Parliament which the wider principle of non-intervention is designed to avoid. Misleading the House is a contempt of the House punishable by the House: if a court were also to be permitted to decide whether or not a member or witness had misled the House there would be a serious risk of conflicting decisions on the issue.

   And later:[16]

   For these reasons (which are in substance those of the courts below) their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading.

   …

   It is clear that, on the pleadings as they presently stand, the defendant intends to rely on these matters not purely as a matter of history but as part of the alleged conspiracy or its implementation. Therefore, in their Lordships’ view, Smellie J. was right to strike them out. But their Lordships wish to make it clear that if the defendant wishes at the trial to allege the occurrence of events or the saying of certain words in Parliament without any accompanying allegation of impropriety or any other questioning there is no objection to that course.

   [15] [1995] 1 AC 321 at 334.

   [16] [1995] 1 AC 321 at 337.

8. After describing the nature of the privilege in Rann v Olsen,[17] Doyle CJ said:

   This principle of non-intervention cannot be pressed too far. Clearly enough, there are circumstances in which a court can enquire into what has transpired in Parliament. The recent English decision of Hamilton v Al Fayed illustrates the care that is needed in applying this principle of non-intervention. In Egan v Willis (1998) 195 CLR 424 at 490 Kirby J made the important point that:

   “ ... it is important to avoid confusion between the right to prove the occurrence of parliamentary events and the prohibition on questioning their propriety, as for example, suggesting that a member had misled the House or acted wrongly or from improper motives.”

   It is also important to remember, as I have already pointed out, that a court is not precluded from making a finding on a matter simply because Parliament has considered or debated the matter, or by some means made a finding upon it. It is only when the Court is invited to challenge the parliamentary consideration of the matter that the principle of non-intervention operates: see Hamilton v Al Fayed at 1589.[18]

   (Footnote added)

   [17] (2000) 76 SASR 450 at [121]-[122].

   [18]   See also Cornwall v Rowan (2004) 90 SASR 269 at 362-396.

9. In Toussaint v Attorney General of Saint Vincent and the Grenadines,[19] the Privy Council commented on the distinction between proving the occurrence of Parliamentary events and “the embargo on questioning their propriety”.  Lord Mance, delivering the judgment of the Privy Council, said:[20]

   Consistently with this, the House of Lords has on a number of occasions stated that use may be made of ministerial statements in Parliament in judicial review proceedings. R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696 is an example noted by Lord Browne-Wilkinson in Pepper v Hart [1993] AC 593, 639f . Similar recognition of this “established practice” is found in the speeches in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 of Lord Nicholls of Birkenhead (para 60), Lord Hope of Craighead (para 113) and Lord Hobhouse of Woodborough: para 142. Further examples were noted in the Report of the Joint Committee on Parliament Privilege quoted by Lord Bingham of Cornhill, giving the opinion of the Board in Buchanan v Jennings (Attorney General of New Zealand intervening) [2005] 1 AC 115, para 16.

   [19] [2007] 1 WLR 2825 at [15].

   [20] [2007] 1 WLR 2825 at [16].

10. The distinction was also referred to by Lord Nicholls of Birkenhead in Wilson v First County Trust Ltd (No 2):[21]

    What is important is to recognise there are occasions when courts may properly have regard to ministerial and other statements made in Parliament without in any way “questioning” what has been said in Parliament, without giving rise to difficulties inherent in treating such statements as indicative of the will of Parliament, and without in any other way encroaching upon parliamentary privilege by interfering in matters properly for consideration and regulation by Parliament alone. The use by courts of ministerial and other promoters’ statements as part of the background of legislation, pursuant to Pepper v Hart, is one instance. Another instance is the established practice by which courts, when adjudicating upon an application for judicial review of a ministerial decision, may have regard to a ministerial statement made in Parliament.

    [21] [2004] 1 AC 816 at [60].

11. The plaintiff acknowledges that the principle of Parliamentary privilege applies in this case and does not argue that the Minister’s answers can be used to establish that he failed to disclose with frankness his dealings with Mr Bolkus and Connor Holmes.  However, it is argued that the fact that the Minister made the statements is relevant in establishing apprehended bias because what the Minister said might have given rise to a perception in the mind of the ordinary bystander that the Minister might not have approached the decision on the DPA with an impartial mind.

12. I deal first with the statements referred to in paragraphs (5) and (6). 

13. The plaintiff relies on the decision of the Full Court in Rann v Olsen.[22]  In that case the plaintiff, Mr Rann, the then Leader of the Opposition in the Parliament of South Australia, issued proceedings for slander against the then Premier, Mr Olsen.  Mr Rann’s case was that, in an interview with journalists, Mr Olsen stated that Mr Rann lied when he told a Commonwealth Parliamentary Committee that Mr Olsen had leaked confidential information to the Opposition.

    [22] (2000) 76 SASR 450.

14. Part of Mr Olsen’s defence was that his statements were made on an occasion of qualified privilege in that they were in response to the allegations made by Mr Rann concerning a political matter.[23] One of the issues raised in the case was whether Mr Rann’s statements to the Commonwealth Parliamentary Committee could be led in evidence and, if so, for what purpose. This required consideration of the effect of s 16 of the Parliamentary Privileges Act 1987 (Cth) which provides as follows:

    [23]   Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

    16(1)For the avoidance of doubt, it is hereby declared and enacted that the provisions of article 9 of the Bill of Rights 1688 apply in relation to the Parliament of the Commonwealth and, as so applying, are to be taken to have, in addition to any other operation, the effect of the subsequent provisions of this section.

    (2)For the purposes of the provisions of article 9 of the Bill of Rights 1688 as applying in relation to the Parliament, and for the purposes of this section, “proceedings in Parliament” means all words spoken and acts done in the course of, or for purposes of or incidental to, the transacting of the business of a House or of a committee, and, without limiting the generality of the foregoing, includes:

    (a)     the giving of evidence before a House or a committee, and evidence so given;

    (b)     the presentation or submission of a document to a House or a committee;

    (c)     the preparation of a document for purposes of or incidental to the transacting of any such business; and

    (d)     the formulation, making or publication of a document, including a report, by or pursuant to an order of a House or a committee and the document so formulated, made or published.

    (3)In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

    (a)     questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

    (b)     otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or

    (c)     drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

15. For present purposes, it is unnecessary to consider what the Full Court said about the interrelationship between s 16 and Article 9. The plaintiff in the present case relies upon the view expressed by Doyle CJ that the statements made by Mr Rann to the Commonwealth Parliamentary Committee were admissible and relevant for the limited purpose of establishing one of the requirements of the defence of qualified privilege. These requirements, as they applied to the case, were identified by Doyle CJ as follows:[24]

    In my view the plea of qualified privilege will involve the following matters. First, proving what Mr Rann said, the circumstances in which he said it, and the extent to which his statement was published. Those matters are proved simply as matters of fact. Next, Mr Olsen will want to prove the significance for him of the reflection upon him, and the need for him to respond. This might involve the calling of some evidence, but might be so obvious as to be able to be dealt with merely by way of submission. In doing this Mr Olsen does not have to challenge the truth of what Mr Rann said, or Mr Rann’s credibility or motive. He need only show that what was said about him, and the circumstances in which it was said, called for a response. Thirdly, Mr Olsen will need to prove what he said, and the extent to which it was published. Finally, because malice has been pleaded, he will need to prove that he believed that what he said was true, and that he was not reckless about its truth. That will permit him to lead evidence and to ask questions about the leaking of documents, about his own involvement in the leaking of documents if that occurred, and about his own knowledge about that.

    [24] (2000) 76 SASR 450 at [62].

16. The Chief Justice pointed out that, in considering the defence of qualified privilege, the Court did not have to determine whether Mr Rann lied to the Commonwealth Parliamentary Committee, but it did have to decide whether Mr Rann, in fact, made the statements and if Mr Olsen honestly believed in the truth of his statement when he said that Mr Rann had lied.  It was held that the relevance of evidence as to Mr Rann’s statements to the Committee was restricted to the fact that he made the statement which was the subject of subsequent comment by Mr Olsen. 

17. In my view this situation cannot provide an appropriate analogy to the situation of the reasonable observer considering the statements of the Minister in Parliament in the present case.  The mere fact that the statement was made by the Minister contributes nothing to the perception of the reasonable bystander.  In order to be of such use, the bystander would have to compare those statements with events which occurred outside Parliament.  The statements made in Parliament by the Minister are of no assistance to the bystander in forming a view as to bias unless, by reason of other facts known to the bystander, the Parliamentary statements give the appearance of being misleading.  However, the assessment of the Minister’s statement in this way is prohibited by the principle of Parliamentary privilege.

18. It is arguable that the more lengthy reply to the Minister, which is set out at paragraph (7), comes into a different category.  In the case of this statement, there is no suggestion of inaccuracy or an intention to mislead; it is relied upon as being relevant to the Minister’s state of mind which is said to manifest itself simply by the making of the statement.  The use of the evidence in this way is an illustration of an assertive statement which is a relevant fact in itself.[25]  The statement by the Minister is of a general nature explaining the proposed redevelopment and the process for the DPA.  It can be inferred from the statement that the Minister favoured the proposal for redevelopment and a rezoning as part of that development.  However, he stressed the importance of taking seriously the views of the public in the course of the consultation process.  He emphasised the importance of listening to the views of the public which suggests that he had not closed his mind to any proposal which might differ in any respect from the DPA.

    [25]   JD Heydon, Cross on Evidence, ‘Rule against Hearsay’, looseleaf, Butterworths, (at service 122) [31095].

19. Mr Roder emphasises the Minister’s comment that “the amended rezoning, when finalised, will then be incorporated into the Town of Gawler Development Plan and used to assess future development applications”.  In this part of the statement the Minister was explaining the procedure to be adopted.  In my view it does not support a perception of bias based on prejudgment of the eventual outcome of the DPA process.

20. In my view the circumstances relied upon by the plaintiff do not create an apprehension of bias in relation to the approval of the DPA.

    Procedural fairness

21. It is also argued that there was a denial of procedural fairness in the process undertaken by the Minister. 

22. Reference has been made to the fact that DPLG received a draft copy of a DPA from Connor Holmes on 22 December 2008.  The rezoning contemplated in the draft was from Special Uses to Commercial Zoning.  However, the draft suggested that a retail analysis would provide support for additional retail space in this part of Gawler.  The draft DPA proposed a “high level retail overview to determine the present retail distribution within the surrounding area”.

23. On 3 February 2009, Mr Obsorn of Connor Holmes advised DPLG that TRSA wished to include retail as part of the highest and best use for the area.  He said that a retail study would obviously be necessary to support this proposal.

24. Eventually DPLG officers decided that it was appropriate to include a proposal for rezoning the land to permit retail activities.  Ms Jorgensen prepared the section in the proposed DPA dealing with the retail analysis.  This was after DPLG had received a retail study from Connor Holmes on 9 July 2009 which was referred to a member of DPLG staff with experience in retail analysis.

25. As stated, the Minister released the DPA for public consultation on 14 October 2009.

26. According to the argument, procedural fairness required the Minister to disclose the fact and substance of his communications with TRSA and its lobbyist and consultants before and after public consultation.

1. The approach to be taken in deciding whether the common law principle of procedural fairness applies in a statutory context was considered by Mason J in Kioa v West[26] where his Honour said:[27]

   Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation (Cth) (1963) 113 CLR 475 at 503-504, Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on “the particular statutory framework”. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting.

   [26] (1985) 159 CLR 550.

   [27] (1985) 159 CLR 550 at 584-585.

2. In Upham v The Grand Hotel (SA) Pty Ltd and the Development Assessment Commission[28] Doyle CJ and Bleby J stated:

   Finally, it is necessary to bear in mind that in deciding what is required as a matter of procedural fairness too much emphasis should not be placed upon the practices and procedures that are characteristic of judicial decision making. As Mason J said in Kioa v West (at 584):

   “The emphasis given in subsequent decisions to the presence and absence of these characteristics diverted attention from the need to insist on the adoption in the administrative process of fair and flexible procedures for decision making, procedures which do not necessarily take curial procedures as their model ...”

   [28] (1999) 74 SASR 557 at [76].

3. In Upham the appellant applied to the Development Assessment Commission (“the DAC”) to develop a hotel at Glenelg. The first respondent exercised a right given to it pursuant to the Act to object to the development. The Act gave it the right to make representations in writing and to appear before the DAC. The DAC refused the first respondent access to documents in its possession and an application to adjourn the hearing to enable the first respondent to consider that material. Doyle CJ and Bleby J said in their judgment:[29]

   A representor does not have to meet a case, and is not dealing with a case that is being put against him. Nor do we consider that a representor who opposes an application, and the applicant, are to be treated as if they were parties in an adversarial position. We consider that the scheme of the Act and of the Regulations makes it quite clear that the relevant authority makes its own enquiry into an application for a development consent. As we have already said, if the process is to be characterised, it is inquisitorial rather than adversarial. A person who makes a representation, and who is granted the right to be heard or is entitled to be heard, is not given by the Act or by the Regulations the status of a party to an adversarial dispute before the relevant authority. The status and role of such a person is a limited one. We do not consider that the part played by a representor is such that, for it to be meaningful, the representor must be accorded the same right to information as would be accorded to a party to an adversarial dispute, who has to meet a case against that party. In short, we do not consider that the role of a person who has been granted the right to be heard, or has the right to be heard, is such that it follows of necessity that that person must be given access to all significant information in the possession of the relevant authority.

   The role and status of such a person is significantly different from the role and status of the person whose procedural rights were considered in a number of the cases, such as Kioa v West. In a number of those cases the person whose rights were being considered by the High Court was the person whose rights or interests were the subject matter of decision, and it could properly be said that the purpose of the process was to decide a case put forward by the person or to enable the person to meet a case against him or her. The relevant administrative decision was being made in relation to the rights and interests of that person. But in the present case the person who is to be heard by the relevant authority is no more than a person who has particular rights under the Act and under the Regulations to receive notice, to make a representation and to be heard. That person has those rights only in relation to an application made by another person.

   [29] (1999) 74 SASR 557 at [91]-[92].

4. The procedure for public consultation under the Act has been summarised earlier in these reasons. This procedure is supplemented by reg 11A of the Development Regulations which provides for a public notice of a DPA to be given by publication in the manner designated in the Development Regulations. Regulation 11A(1)(c) provides that submissions received will be made available for inspection at a place specified in the notice from the time fixed for the close of submissions until the conclusion of any public meeting held pursuant to s 25(11)(b) or s 26(5c)(b) of the Act (or if no such meeting is to be held, until the decision is made not to hold the meeting). The DPAC convened a public meeting on 17 December 2009.

5. It is not disputed that the Minister was entitled to prepare the DPA having formed the view that an amendment to the Development Plan was appropriate.[30]  The procedure which then follows is not concerned with the nature of the advice or reasoning which might have led the Minister to form that view.  The consultation process is focussed upon the objective issues raised in the DPA.  In other words, the function of the consultation process is to receive comment on the proposals in the DPA, not to explore the motivation of the Minister.  I reject the argument that the Minister was required to disclose information beyond that which is set out in the DPA and that which is required under the Development Regulations.

   [30]   Development Act 1993 (SA) s 24(1)(g).

   The amendment to the DPA

6. The DPA which was released for consultation referred to the report on retail analysis which had been provided to DPLG by Connor Holmes.  The proposal in the DPA was for rezoning to a Neighbourhood Centre which permitted development for retail purposes.  Under the heading of “Retail Analysis” the DPA stated:

   The Report suggests that some 3,800 square metres of retail floor space could be supported at the proposed site (based on current figures) and that this could rise to some 5,200 square metres by 2015 and some 5,900 by 2020.  Available floor space will be limited by the availability of land and constraints imposed by the Development Plan (eg provision of car parking etc).  It is anticipated that this centre will comprise a full line supermarket, a range of specialty shops and commercial uses.

7. In its report to the Minister dated 15 February 2010, the DPAC stated:

   The Statement of Investigations has concluded that retailing can occur on the site, having regard to the nature of existing and proposed centres in the area.  Additional information from Connor Holmes is provided in submission P17 and supports the modelling which has been used to justify retailing at the site.

   The Statement of Investigations set out a cap on retailing of 5,900m² until the year 2020.  It has been clarified in the public submissions (P17) that the Connor Holmes retail analysis only considers the potential for conventional retail floor space and does not consider the potential for bulky goods.  This is addressed in Section 3.4.2 of the Statement of Investigations.

   It is noted that this did not translate over to the policy framework for the Neighbourhood Centre Zone which states that “The Centre should not exceed a gross leasable area of 3,800 square metres, but this may increase to 5,200 square metres in 2015 and 5,900 square metres in 2020’.

   DPAC is of the view that this is ambiguous and does not reflect that there are other uses which could be established in the Neighbourhood Centre Zone that would not have an impact on retailing in other centres (eg, office and other commercial activity such as consulting rooms).

   On the basis of the above and for procedural fairness reasons (noting that that draft DPA was released for consultation with a cap in place) DPAC is recommending that a single cap of 5,900m² be placed on retailing (excluding retail showrooms or bulky goods outlets) with no end date.  DPAC is of the view that the staged capping should be removed given the short timeframes involved and the potential uncertainty in respect to what happens with the site after 2020.

   (Emphasis in original)

8. The DPAC provided a list of recommended amendments to the DPA following the consultation process.  They included the following:

   4.A single cap of 5,900m² be placed on retailing (excluding retail showrooms or bulky goods outlets) in the Neighbourhood Centre Zone and that the staged capping be removed.  The relevant statement in the Desired Character statement should be amended to read as follows:

   Shops (excluding retail showrooms or bulky goods outlets) within the Zone should not exceed a total combined gross leasable floor area of 5,900 square metres.

   (Emphasis in original)

9. The Minister subsequently amended and approved the amended DPA.  The amendments to the DPA included the following:

   A single cap of 5,900m² has been placed on shops (excluding retail showrooms or bulky goods outlets) in the Neighbourhood Centre Zone.  Staged capping has been removed.

10. The amendments were made pursuant to s 26(8)(b) of the Act which empowers the Minister, following the consultation period, to “alter the amendment and approve the amendment as altered”.

11. The plaintiff contends that the alteration in the amended DPA relating to the allowable area of retail space was substantially different from that which was set out in the DPA which was released for consultation. It is submitted that, for this reason, the alteration by the Minister was not authorised by s 26(8)(b) of the Act.

12. The power to alter a Development Plan after consultation does not entitle the Minister to approve a DPA in a form which has the effect of thwarting the process for consultation set out in the Act and the Development Regulations. This would occur if the proposal which was finally approved involved such a radical change “that it could not be said that it was the original proposal that was being approved”[31] and that it was a “substantially different proposal from that which had been submitted”.[32] 

    [31]   Hancock Development Corporation Pty Ltd v Corporation of the City of Tea Tree Gully & Ors (1986) 42 SASR 584 at 591.

    [32]   R v City of Salisbury; Ex parte Burns Philip Trustee Company Limited (1986) 42 SASR 557 per Jacobs J.

13. It is necessary to consider the alteration in each case in order to determine the degree of change involved in the amendment.  The nub of the proposal in this section of the DPA was to rezone the surplus land from Special Uses to Neighbourhood Centre so as to permit retail development.  The original DPA provided for a gross leasable area of 3,800 square metres which it was thought could increase to 5,900 square metres in 2020.

14. The DPAC reported to the Minister that the public submissions revealed that the study upon which this recommendation was based considered only retail floor space and not the potential for “bulky goods” outlets.  The DPAC formed the view that it would be preferable, in view of the short time frames involved, to fix the cap at 5,900 square metres instead of adopting a graduated approach.  It was also decided to recommend that the cap should not apply to retail showrooms or bulky goods outlets.  As stated above, the Minister amended the DPA in accordance with this advice.

15. In my view, an alteration of this nature was within the power of the Minister in order to give effect to a matter which had arisen in the course of the consultation process.  It in no way altered the basic concept put forward in the DPA which had been made available for consultation.

    The gazettal

16. Section 26 of the Act provides for gazettal as follows:

    (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).

17. The approval which the Minister gave at the conclusion of the process incorporated the alterations which he authorised including that relating to the ceiling of the retail space. The statement of approval which he signed stated that the approval was made pursuant to s 26(8) of the Act.

18. Section 26(8)(a) empowers the Minister to “approve the amendment” and s 26(8)(b) states that the Minister may “alter the amendment and approve the amendment as altered”. The Minister had acted pursuant to s 26(8)(b) in that he approved the amendment after it had been altered. However, the notice in the Gazette of 18 February 2010 stated that he had acted “pursuant to s 26(8)(a) of the Development Act 1993”.

19. It is argued that what, in fact, was approved was the DPA released for consultation and not the final altered document.

20. In my view the reference in the Gazette to subsection 26(8)(a) of the Act instead of subsection 26(8)(b) does not render the gazettal ineffective. It is the approval under s 26(8) which must be gazetted. There is no requirement that the notice advise that the DPA has been amended. Furthermore, there is no doubt on the material before me that it was the altered DPA which had been approved.

21. In any event, it is the Minister’s decision to approve the DPA which is challenged in the summons and there would be nothing to prevent the Minister from directing that a supplementary notice be inserted in the Gazette out of abundant caution.

    Impermissible purpose

22. The plaintiff contends that the decision to approve the DPA was invalid because the approval was for a purpose outside the Act, namely, to maximise the profits of a developer. The submission referred to TRSA as “the developer”.

23. Section 3 of the Act lists as one of its objects the creation of Development Plans to advance the social and economic interests and goals of the community. Reference has also been made to the Minister’s role in amending Development Plans to advance matters of “social, economic or environmental importance”.[33]

    [33]   Development Act 1993 (SA) s 24(1)(g).

24. According to the evidence, TRSA’s involvement in the Gawler Racecourse redevelopment is to assist in providing a major racecourse to be used in conjunction with Allan Scott Park at Morphettville. In my view there is a clear nexus between these aims and the social and economic considerations which are identified as being within the objects of the Act.

25. It should also be said that TRSA is not properly described as a “developer” in this context.  As has been pointed out, TRSA is a statutory body charged with the oversight of horseracing within the State.  The racecourse is owned by the GBJC.  The Court was informed that the South Australian Government has contributed towards the cost of the redevelopment and TRSA has provided short term financial assistance.

26. I reject the argument that the rezoning is collateral to the purposes of the Act on the ground that it is designed to increase the profits of a developer.

27. The application for judicial review is dismissed.