Tweed Shire Council v Gales Holdings Pty Ltd & Anor

[2007] HCATrans 264

[2007] HCATrans 264

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S36 of 2007

B e t w e e n -

TWEED SHIRE COUNCIL

Applicant

and

GALES HOLDINGS PTY LTD

First Respondent

MINISTER FOR INFRASTRUCTURE AND PLANNING

Second Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 25 MAY 2007, AT 3.20 PM

Copyright in the High Court of Australia

MR J.J. WEBSTER, SC:   I appear with my learned friends, MS S.A. DUGGAN, and DR S. BERVELING for the applicant.  (instructed by Stacks/Northern Rivers Solicitors)

MR T.F. ROBERTSON, SC:   May it please the Court, I appear for the respondent.  (instructed by Woolf Associates)

CALLINAN J:   Yes, Mr Webster.

MR WEBSTER:   Your Honour, what this case does, in our submission, is to raise the important principle of administrative law, namely, where there is a statute and where it sets out what the statutory decision‑maker has to make, in other words, where there are specific provisions within a statute that has to be followed by a person who carries out, or bound to take out and carry out a statutory function, whether the objectives of that Act are a matter which also has to be taken into account.  In other words, look at the scope and purpose of the Act.

This case can be properly summarised, I think, into three basic questions.  Firstly, where there are relevant matters for consideration within a statute, namely, that are specified specifically when you are preparing and doing a statutory function, do you look to the objectives of the Act to expand upon the matters that the decision‑maker has to take into account, because that is what this decision virtually says?

Secondly, in judicial review proceedings, is it open for the Court of Appeal to traverse the merits of the case, in other words, the merits of the determination, upon the basis that the Court of Appeal itself considers the merits of the particular factual criteria for it itself to come to a decision that it was a relevant matter to take into account by the decision‑maker?  I will take your Honours to that decision but it is where his Honour Justice Tobias makes that decision at page 157, paragraph 173.  What he says there is taking into account those merit situations and looking at the objectives of the Act there was a document that should have been taken into account.

What we also say is that the third thing that arises in this case is that even if the Court of Appeal was correct, in other words, one is to look at the objectives of the Act to see what the scope and nature and purpose of the Act is and what it required to be considered, is it appropriate that one extends the Peko‑Wallsend principle to take in a material which is not final and remains incomplete at the time that the decision has to be made, in other words, it was not material which was the most accurate and up‑to‑date material in the terms of the Peko‑Wallsend‑type principle?  This particular consideration arose in the context of the making of a local environmental plan or amending a local environmental plan by the Minister pursuant to the provisions of the Environmental Planning and Assessment Act.  However, can I point out the effect of this decision on administrative decisions is one that goes beyond just that particular criteria. 

The context of the factual background to the actual lead‑up to this decision is set out in our submissions at pages 3 to 28, that is, the application book 179 to 185.  I do not think it is necessary for me to take you to the context of those findings because it is not on the findings of those facts that the context of this particular appeal has to be considered.  These proceedings basically concern the making by a Minister of a local environmental plan.  In making that local environmental plan the Minister has to take into account a number of statutory criteria, the least of which is, of course, section 69, a report from the Director‑General to him as to the nature of the local environmental plan to be considered and what has to be done.  Those specific provisions go far beyond it. 

If I can ask you to the material that we supplied with the Court of Appeal documents you will see we have incorporated various extracts from the Environmental Planning and Assessment Act.  That should be before you in the documents we handed up yesterday.  If you go to the first page, page 43, past the opening page, you will see Division 4 talks about “Local environmental plans”.  Section 54 is the first one that is of some importance, namely, “Decision to prepare draft local environmental plan”.  Subsection (1) says:

(1)A council may decide to prepare a draft local environmental plan in respect of the whole or any part of the land within its area.

More importantly, if you go over the page to (4) and (5):

(4)A council or councils, as the case may be, shall inform the Director‑General of the decision to prepare a draft local environmental plan and of the land to which it is intended to apply.

(5)Following the decision to prepare a draft local environmental plan, the council or councils may, subject to and in accordance with this Division, prepare the plan.

In other words, there is a specific provision that they will do it in accordance with this Division.  The next part I should take you to is section 57 which of course is about the “Preparation of environmental study”.

(1)Where a council decides to prepare a draft local environmental plan or is directed to do so by the Minister under section 55, it shall prepare an environmental study –

More particularly, if you go over then to section 61 on the next page you will see that:

The council shall prepare a draft local environmental plan having regard to the environmental study prepared by the council under section 57.

In other words, there is a specific requirement that they shall have regard to that study when they are preparing the plan.  Section 62 sets out the consultation that has to take place, the wide concept of public consultation and with other government authorities.  Section 66 talks about the criteria of the “Public exhibition of draft local environmental plan”.  In other words, there is a criteria of public exposure and public exhibition and also a consideration of those particular submissions and reporting on those in that circumstance.  That is in section 68.  It must considered.  There must be a report made on them.  If you go down to the bottom in subsection (4):

The council shall, subject to and except as may be provided by the regulations, submit to the Director‑General:

(a)details of all submissions,

(b)the report of any public hearing,

(c) the draft local environmental plan and the reasons for any alterations made to the plan pursuant to subsection (3) –

namely, whether you want to change something.  Then the final two sections are section 69 where there is a “Report by Director‑General”:

The Director‑General shall furnish a report to the Minister as to:

(a)whether the draft local environmental plan submitted under section 68(4) is inconsistent with any State environmental planning policy, regional environmental plan, or relevant direction under section 117 –

et cetera.  Then, section 70 is the making of the plan and the Minister makes the plan.  So there are specific provisions contained which set out basically what is the nature of the operation and the duty that a council has in making a local environmental plan.  In this case the respondents contended before the trial judge that the failure for the Council to consider a material consideration led to its invalidity.  For convenience, if your Honours go to the application book at page 67 you will see the grounds that were set out by the respondent here, the applicant there, as to the nature of the challenges that were being made, essentially three.  The first of those, as you will see in paragraph 151 on page 67:

(i)the failure of the Council take into account relevant considerations, namely (a) the JHD Retail Assessment –

which are being carried out by the respondent –

and (b) the draft Retail Strategy prepared for the Council by Core Economics ‑ ‑ ‑

CALLINAN J:   Were these submissions to the Council?  The Council had to advertise and receive submissions, is that right?

MR WEBSTER:   Yes, your Honour.

CALLINAN J:   Were these submissions to the Council?

MR WEBSTER:   I am sorry?

CALLINAN J:   Under the scheme, when the Council has a draft, does it not have to place it on public exhibition?

MR WEBSTER:   Yes.  It did, yes.

CALLINAN J:   And then it may receive submissions from interested members of the public or anybody?  Anybody at all can make a submission?

MR WEBSTER:   That is correct, yes.

CALLINAN J:   Were these parts of a submission by anybody?

MR WEBSTER:   Were these two reports?

CALLINAN J:   Yes.

MR WEBSTER:   The JHD report was.  The Core Economics Report, at the time, there were three versions of them, two drafts and then a final draft.  Not one of the three drafts have been given to the Council to consider at any stage during their consideration and certainly it was not given to the person who did the environmental study.  The studies themselves, as the trial judge ‑ ‑ ‑

CALLINAN J:   I have not read these but does the JHD Retail Assessment contain any information or rely in any way upon the Draft Retail Strategy prepared for the Council by Core Economics?

MR WEBSTER:   The allegation is that that was a document which dealt with the criteria of retail use of the site and therefore was a matter that Council should have taken into account.

CALLINAN J:   It was the Council’s own document, was it, the Core?

MR WEBSTER:   Core Economics, they were employed by the Council.  The Council employed them to do a retail strategy for the Shire, in other words, the Tweed Shire, not for this particular site, although this site ‑ ‑ ‑

CALLINAN J:   But the site is in the Shire?

MR WEBSTER:   Yes, and this site was certainly considered in the Core Economics report.  In other words, it was a matter which at various stages through the three drafts, the final draft – certainly there was a consideration of this site as being a potential for a district centre or a retail centre.  There was a criticism about the fact that it did not have enough area to be able to cater for various types of uses but certainly that was it.

CALLINAN J:   At any rate, it had been commissioned by the Council ‑ ‑ ‑

MR WEBSTER:   Commissioned by the Council.

CALLINAN J:   And it was not irrelevant to this site?

MR WEBSTER:   It was not irrelevant to the site but the circumstances were, as found by the trial judge, which was not contested in any way, shape or form in the Court of Appeal, that it was incomplete and not a document which in the circumstances fell within the concept one sees in the Peko‑Wallsend, namely, it is a matter which is the latest accurate and up‑to‑date information that should be taken into account.

CALLINAN J:   Where does the Peko‑Wallsend say that is only exclusively the latest and best information and must be taken into account?

MR WEBSTER:   Your Honour has the Peko‑Wallsend Case?

CALLINAN J:   Yes.

MR WEBSTER:   If your Honour goes to page 44, the two basic tests are set out.  I take you to the paragraph that commences under a quotation on page 44:

The Act does not expressly state that the Minister is bound to take into account the Commissioner’s comments on the matters in pars (a) to (d) of s 50(3) in exercising his power under s 11(1)(b) to decide whether or not he is satisfied that a land grant should be made.  But a consideration of the subject matter, scope and purpose of the Act indicates that such a finding is necessarily implied by the statute.

In other words, the first test is to look at the contents of the statute itself, the provisions of them.  He then goes on to say:

The factor that leads irresistibly to this conclusion is the specific requirement in s 50(3) that the Commissioner comment in his report on each of the four matters enumerated in the sub‑section, including of course detriment . . . The legislature was clearly concerned that the Minister should not overlook crucial considerations which might counterbalance or outweigh the fairness and justice of granting the land when making his decision –

That is the first test.  The second test is down the bottom:

The second question, which lies at the heart of this appeal, is whether the Minister is also bound to take into account submissions made to him which correct, update or elucidate the Commissioner’s comments on detriment . . . the detriment that may be occasioned by a proposed land grant is a factor vital to the exercise of the Minister’s discretion, it is but a short and logical step to conclude that a consideration of that factor must be based on the most recent and accurate information that the Minister has at hand.

That is further emphasised if you go to page 45.

CALLINAN J:   That is just another way of saying the best evidence or the best material available at the time.

MR WEBSTER:   At the time, correct.

CALLINAN J:   Available at the time.

MR WEBSTER:   Available at the time.  What his Honour the trial judge found was this was not material which was capable of falling within that description.  In other words, it was incomplete.

CALLINAN J:   It was the Council’s own commissioned report.

MR WEBSTER:   Yes, they did.

CALLINAN J:   The Council got it for a purpose, did it not, to use it and rely on it to some extent?

MR WEBSTER:   No, what the Council did, at the time of the trial the Council had resolved to make Core Economics go back and do it all again because it was not properly done.

CALLINAN J:   Was this before or after the proceedings had been commenced?

MR WEBSTER:   After the proceedings had been commenced but before the proceedings had been determined.  In other words, in October 2004 the Council had resolved that the report was not complete and it had to be done again.

CALLINAN J:   All right.  In any event, I think we understand your submission on that, but certainly the JHD Retail Assessment was part of the submission, is that right?

MR WEBSTER:   Yes, that was part of the submission but that was not relied upon in the Court of Appeal, I hasten to say.

CALLINAN J:   All right.  You continue.  I just wanted to know the status of those documents.

MR WEBSTER:   Thank you, your Honour.

CALLINAN J:   You were on page 67 of the application book.

MR WEBSTER:   I had mentioned, your Honour, the three distinct grounds of appeal but the other matters of appeal were all dismissed by the trial judge and by the Court of Appeal.  The only one that remained was to consider the draft strategy prepared for the Council by Core Economics.  There was no doubt that not one of the three drafts that were prepared in respect of the Core Economics report were not given to the Council, but, your Honours, the circumstances are that that was not material, as his Honour the learned trial judge found, which were the basis upon which one could say the Council was required to take that into account.

CALLINAN J:   Mr Webster, where do we see the Court of Appeal dealing with those documents?

MR WEBSTER:   Your Honour, the relevant paragraph, that is, the criteria ‑ ‑ ‑

CALLINAN J:   No, with the documents that the Court of Appeal said the Council should have had regard to and they are the Core Economic’s draft reports, are they?

MR WEBSTER:   His Honour dealt with this particular document when you look at page 147, you will see that it was dealing with what the submissions were about “given Core Economics understanding”, et cetera.  His Honour Justice Tobias went through the whole of the report and looked at and, we say invalidly, looked at the merits of the whole situation to see whether that report in fact was something which may have affected the consideration as to the likely zoning of this land.

CALLINAN J:   That is only a question of construction of the documents, is it not?

MR WEBSTER:   True, your Honour, but as Justice Basten said in this case, the fact is that the trial judge found it was incomplete, in other words, not a document that the Council should take into account, found that Mr Jardine, who was the strategic planner, who had in fact decided not to give the report to the Council, was a valid decision made by him.  There was never any challenge to that decision.  There was never any evidence given that that report was a document that may influence the Council insofar as the decision was concerned and the finding of his Honour ‑ ‑ ‑

CALLINAN J:   Does that not have to be an objective consideration?  You could not call all or any of the councillors to say that he or she – indeed, I do not think it is a council there, is it, administrators have been appointed there, have they not?

MR WEBSTER:   Yes, it was, your Honour, it was a council at the time.  It was sacked, subsequently, your Honour.

MR ROBERTSON:   Not, regrettably, because of this case.

MR WEBSTER:   Can I take your Honour to a few matters that I should take your Honour to because insofar as the decision by the learned judge was concerned, which I believe your Honour should be the basis upon which we say he was completely correct in what he did, if your Honour goes to page 68, after dealing with Peko-Wallsend he then said at the bottom of paragraph 155, “However, the subsidiary basis – he is referring to the previous paragraph where the respondent, the applicant in those proceedings, said there are two bases, the subsidiary basis was the Peko‑Wallsend-type principle.  He says:

However, the subsidiary basis does not qualify a material consideration – rather it imposes a requirement in respect of the quality (namely, it being up to date) of something that already qualifies as a material consideration.

His Honour found that it was not.  There was no challenge for that, only on a merit basis insofar as the Court of Appeal was concerned.  If your Honour goes to page 73, what his Honour found was, based upon looking at the Peko-Wallsend principle, in paragraph 163 that:

Accordingly, there is simply no basis in law or in fact for the Applicant’s claim that the Environmental Study was bound to consider the retail studies.

So, therefore, there was no failure in that regard.  But, more importantly, your Honour, can I take your Honours to page 67 where his Honour made distinctive findings.  Having referred to it in the report at paragraph 149, in 150, he said:

Finally, and importantly, it is to be noted that what I have said about the draft Retail Strategy must, in the light of the subject history of that planning study, be understood as my findings on the content of a draft study that (i) has not been reported to the Council as a collegiate body;  and (ii) has not been completed (and remained uncompleted more than 16 months after the third version had been submitted by the Consultant in January 2004).

So this was not immaterial.  It was something which, in the terms of Peko‑Wallsend, was the most accurate or latest information that could be provided.  It was, in the terms of Justice Basten who gave the dissenting decision, material which was just not capable, even on the Council’s own decision in October the same year, said it is not capable of assisting them in regard to the zoning of this area and has to be rejected.  Your Honours, in that context, can I take you to what Justice Basten said because, we say, whilst he was in the minority ‑ ‑ ‑

CALLINAN J:   Your time is actually up, Mr Webster.

MR WEBSTER:   I am sorry, your Honour.

CALLINAN J:   Just finish on this.

MR WEBSTER:   Can I refer your Honour to what his Honour, Justice Basten said, if I can just take you briefly to what he said, if your Honour goes to page 164, paragraph188 you will see how:

the present case is not directly analogous to Peko-Wallsend . . . 

This point of distinction is important;  the Council is not the authority with the power to make a local environmental plan, and the Minister may vary a draft plan –

et cetera.  That is the first point he said.  In other words, there is a difference to the context of Peko-Wallsend, it does not fit in that context at all.  The second thing is at paragraph 192 where he says:

In the present case, what was in issue was not the failure to take account of a specific fact, but the failure to have regard to an opinion expressed by a consultant, namely a report . . . engaged by Council

That report, as he said, was not one which was final and conclusive and your Honour will see that is also repeated in paragraph 196.  Paragraph 198, if I could just take you to the last part of that, line 33:

It was not suggested that Council erred in failing to defer its consideration of the draft Plan.  The correct approach is to ask whether, if Council itself had formed the view in fact formed by its planning officer, it would have erred in law.  In other words, it may be stuck with the opinion formed by its officer, but it was not argued that it could not delegate to an officer the power to form such an opinion.  However, to say that the Council (through its officer) erred in making a finding of fact, namely as to the materiality of the Core Economics material, is to engage in merit review of the fact-finding process, which is not open to this Court.

CALLINAN J:   Thank you, Mr Webster.  We need not trouble you, Mr Robertson.

MR ROBERTSON:   If the Court pleases.

CALLINAN J:   In our opinion, any appeal, if special leave were granted, would not enjoy such prospects of success as would warrant a grant of special leave.  Accordingly, the application is dismissed with costs.

MR ROBERTSON:   If the Court pleases.

MR WEBSTER:   If the Court pleases.

AT 3.43 PM THE MATTER WAS CONCLUDED