Vanmeld Pty Ltd v Fairfield City Council
[1999] NSWCA 6
•5 February 1999
Reported Decision: 46 NSWLR 78
101 LGERA 297
New South Wales
Court of Appeal
CITATION: VANMELD PTY LIMITED v FAIRFIELD CITY COUNCIL & ANOR [1999] NSWCA 6 revised - 17/02/99 FILE NUMBER(S): CA 40420/96 HEARING DATE(S): 27 August; 1998 JUDGMENT DATE:
5 February 1999PARTIES :
VANMELD PTY LIMITED
FAIRFIELD CITY COUNCIL
THE MINISTER ADMINISTERING THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979JUDGMENT OF: Spigelman CJ at 1; Meagher JA at 179; Powell JA at 186
LOWER COURT JURISDICTION: Compensation Court LOWER COURT FILE NUMBER(S) : LEC 40032/95 LOWER COURT JUDICIAL OFFICER: Bignold J
COUNSEL: P Hall QC / E Strasser (Appellant)
M Tobias QC / J Webster (Respondent)SOLICITORS: Jennifer E Darin (Appellant)
Deacon Graham & James (1st Respondent)
Christine Hanson, Department of Urban Affairs & Planning (2nd Respondent)CATCHWORDS: Administrative Law; statutory interpretation; procedural fairness; privative clause; whether procedural fairness required; contents of procedural fairness; whether a time limiting privitive clause will exclude the requirements of procedural fairness ACTS CITED: Casino Control Act 1992
Environmental Planning and Assessment Act 1979 (NSW)
Environmental Planning and Assessment Amendment Act 1985 (NSW)
Interpretation Act 1987 (NSW)
Administrative Decisions (Judicial Review) Act 1977 (Cth)DECISION: Appeal dismissed
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEALCA 40420/96
LEC 40032/95
SPIGELMAN CJ
MEAGHER JA
POWELL JAFriday 5 February 1999
VANMELD PTY LIMITED v FAIRFIELD CITY COUNCIL & ANORThe Appellant sought a declaration of invalidity of a specified clause (cl 13(3)) of a Local Environment Plan (“LEP”). While a draft LEP was publicly exhibited and a public hearing was held in accordance with the provisions of the Environmental Planning and Assessment Act 1979 (“EPA Act”), the LEP which was adopted by the Council differed from the draft. The draft LEP affected the Appellant’s land, relevantly, by requiring consent for any landfill on its land, which consent could not be given unless the Respondent Council, or the Court on appeal, was satisfied of various matters and after consideration of the Council’s Flood Management Policy. As adopted cl 13(3) prohibited fill altogether.
HELD, dismissing the appeal:
(i) (By the court) The inclusion of cl 13(3) in the LEP was not invalid:
(a) the Respondent did not fail to comply with a condition precedent to the exercise of the power to amend the draft LEP;
(b) the Respondent did not act for an improper purpose or mala fides in resolving to include cl 13(3) in the LEP;
(c) the inclusion of the provisions of cl 13(3) in the LEP was authorised by the EPA Act.
(ii) (Per Powell JA, Meagher JA; Spigelman CJ dissenting).
The inclusion of cl 13(3) in the LEP was not invalid by reason of the failure to accord the Appellant procedural fairness. The EPA Act does not indicate a legislative intention that a council making an environmental instrument is subject to a duty to accord procedural fairness to a person who may be affected beyond the specific consultation and notification requirements of the Act.
(iii) (Per Spigelman CJ) Discussion of application of principle in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 to a failure to accord procedural fairness.ORDERAppeal dismissed with costs.
- 65 -THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEALCA 40420/96
LEC 40032/95
SPIGELMAN CJ
MEAGHER JA
POWELL JAFriday 5 February 1999
VANMELD PTY LIMITED v FAIRFIELD CITY COUNCIL & ANOR
JUDGMENT
1 SPIGELMAN CJ: The Appellant seeks a declaration of invalidity of a specific clause of the Fairfield Local Environment Plan 1994 (“the Fairfield LEP”), which clause impinges upon land owned by the Appellant.
2 The Appellant’s land is zoned 6(d) under the Fairfield LEP, being a Recreation Tourism Zone. On the land the Appellant conducts a tourist attraction known as the Magic Kingdom.
3 The clause in the Fairfield LEP to which objection is taken is subclause 13(3):
“13(3) A person must not place fill in a floodway in zone 6(d) (the Recreation Tourism zone) in Lansvale.”
4 The Appellant’s land is in the floodway within the area specified. The restriction on the placement of fill will, by reason of the fall of the land, impede the ability of the Appellant to further develop its land. Accordingly, its interests were significantly affected by the insertion of subclause 13(3). The Court was informed that the subclause affected a public golf course and six private landowners, including the Appellant.
The Adoption of Subclause 13(3)
5 The relevant procedural steps were as follows:
(i) In June 1990 the Council resolved to prepare a comprehensive draft local environment plan for the City of Fairfield (“the draft LEP”) pursuant to s54 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”);
(ii) between March and June 1992 the draft LEP was publicly exhibited, in accordance with s66 of the EPA Act;
(iii) the draft LEP was re-exhibited from 17 August to 9 October 1992;
(iv) between December 1992 and May 1993 the Council, by a subcommittee, held a public hearing into submissions received concerning the draft LEP, pursuant to s68(1) of the EPA Act;
(v) the Council, by its sub-committee, prepared a written report of the public hearing in May 1993, pursuant to s68(2) of the EPA Act;
(vi) on 15 June 1993, the Council adopted the recommendations of the public hearing report and made amendments to the draft LEP, including the amendment in issue in these proceedings, purportedly pursuant to s68(3) of the EPA Act.
(vii) on 13 October 1993 the council submitted the draft LEP as amended to the Department of Planning, pursuant to s68(4) of the EPA Act;
(viii) on 16 March 1994 the Council re-submitted the draft LEP as amended to the Department of Planning, as finally drafted by Parliamentary Counsel;
(ix) on 12 August 1994 the Minister made the LEP, pursuant to s70 of the EPA Act.
6 At the time the draft LEP was publicly exhibited it did not contain subclause 13(3). That subclause was inserted at a meeting of the Council on 15 June 1993. The steps by which cl 13 was amended were as follows:
(i) A sub-committee of the Council, called the Draft City Plan Sub-Committee, conducted public hearings into the draft LEP and heard submissions thereon.
(ii) The public hearing report compiled by that Sub-Committee, was presented to the Priority and Direction Committee of Council which, in turn, referred the report to a Special Council Meeting, together with a recommendation that the report of the Sub-Committee should be adopted, “except those items referred”.
(iii) Amongst the items that had been “referred”, for consideration of the Special Council Meeting, was an item proposed by the Mayor, Alderman Lord. This item was described in the minutes of the Priority and Direction Committee as an item “which relates to the issue of landfill in the Recreation 6(d) - Tourism Zone”.
(iv) At the Special Council Meeting held on 15 June 1993 a resolution was carried to adopt the recommendations “except those items referred”.
(v) The minutes of the Special Council Meeting indicate that the Mayor stood down from the chair to speak on the issue of landfill in the Recreation 6(d) - Tourism Zone.
(vi) The amendment was moved by another Alderman. As corrected in the course of the evidence before Bignold J, it said:
“No filling in a floodway in a Recreation Tourism Zone in Lansvale.”
7 This is the motion that became subclause 13(3).
8 Until the amendment, cl 13 stated:
“13(1) Land Within the City of Fairfield must not be cleared or filled for any purpose except with the consent of the Council.
(2) The Council must not grant consent to the filling of land unless it is satisfied that
(a) the landfill as required for the reasonable economic use of the land or for the provision of utility services;
(b) appropriate measures are proposed to ensure that there will be no adverse impact on waterways or private or public properties;
(c) the landfill will not adversely affect flow characteristics, flood behaviour or water quality or promote erosion;
(d) the landfill will contain no putrescible waste or hazardous material; and
(e) in the case of proposals to fill swamps or wetlands, the ecological and nutrient trapping values of the site have been assessed.”
9 Furthermore, cl 11 of the draft, and final, plan provided:
“11(1) The Council must not consent to the erection of a building or the carrying out of a work on flood liable land unless the provisions of the Council’s Flood Management Policy that relate to the proposed development have been taken into consideration. Copies of the Flood Management Policy are available for inspection of the Council’s Office.”
10 Accordingly, until the adoption of subclause 13(3), the draft LEP affected the plaintiff’s land, relevantly, by requiring consent for any landfill on its land, which consent could not be given unless the Council, or the Court on appeal, was satisfied of the matters listed in subclause 13(2) and after consideration of the Council’s Flood Management Policy. Subclause 13(3) prohibited fill altogether.
11 Alderman Lord gave evidence in the proceedings. She said during the course of cross examination:
“I was the one who actually spoke on any filling at all in the floodway in the Lansvale Peninsula because illegal filling had been taking place over the years in the nursery, in the golf course, in Bindaree Street where there are say half a dozen private houses and another nursery and in the Magic Kingdom site and we - as I have lived there for a lot of years - we as residents were not allowed to put an inch of soil on our properties and yet all of this filling went in, in a floodway and I was totally opposed to any of it. And as far as I was concerned, the officers may have had the ability to refuse it but they hadn’t in the past and I wanted this clause in to stop the officers from having the power and I might say that the Council had been taken to court many times and the Land and Environment Court had also allowed filling to do ahead on this land so I was trying to stop the officers from having the opportunity to say on its merits, this could go ahead but not thinking collectively of all the other filling which is what they do and also the courts being allowed to do the same thing, because all the filling went on there … So far as I was concerned I was not against Magic Kingdom, I was against the entire Peninsular in the floodway having any filling. I was against the entire Peninsular and the floodway having any filling. I was against the officers being given the ability, through this LEP to say well, we have the ability not to allow it to happen but they did allow it to happen.” (AB 726)
12 She also said, with respect to cl 13, in its form before the Special Council Meeting:
“It didn’t tie the officers down enough or the courts down - I wanted something specific that the officers couldn’t work their way around.” (727)
13 Subsequently the following exchange took place:
“Q Well you’ve told us that some of the reasons that you wanted to see clause 13(3) inserted was that you weren’t prepared to trust the Council’s staff in administering clause 13(1) and (2) is that correct?
A That’s right.
Q And you weren’t prepared to trust this Court in administering clause 13(1) and (2)?
A That’s right.” (735)
14 Clause 13(3) was not subject to any public exhibition. Nor was the Appellant afforded any opportunity to make submissions with respect to it. His Honour expressly found that the Council did not have any practice by which the Appellant could have acquired any expectation that it would be afforded an opportunity to make submissions with respect to minor amendments of a draft LEP. There was no challenge to this finding.
The Decision of Bignold J
15 The proceedings in the Land and Environment Court were commenced on 6 March 1995. This was more than three months after the promulgation of the LEP on 12 August 1994, the date of publication in the Government Gazette. Section 35 of the Act states that the “validity of an environmental planning instrument” can only be questioned in legal proceedings if those proceedings were “commenced … within 3 months of the date of … publication in the Gazette.”
16 Bignold J, applying his own earlier decision of Breitkopf v Wyong Council (1996) 90 LGERA 269, construed s35 in the same way as he had formerly construed s104A of the Act i.e. to be a time limitation provision rather than an “ouster” clause or “privative” clause to which, in his Honour’s view, the Hickman principle did not apply. (R v Hickman Ex parte Fox and Clinton (1945) 70 CLR 598, esp at 614-617).
17 A different view has been taken by her Honour Justice Pearlman, Chief Judge of the Land and Environment Court, in Coles Supermarkets Australia Pty Limited v Minister for Urban Affairs and Planning (1996) 90 LGERA 341. In that case her Honour applied the Hickman principle to s35 of the Act. In this respect, Pearlman J followed Stein J, as Stein JA then was, in Yadel Investments Pty Limited v Roads and Traffic Authority (NSW) (1989) 72 LGERA 409 and Calkovics v Minister for Local Government and Planning (1989) 72 LGERA 269. Her Honour has reaffirmed the position she has taken in this respect in P W Ryegate & West v Shoalhaven City Council (1996) 91 LGERA 417 and WYkanak v Rockdale City Council unreported, Land and Environment Court 20 July 1998. The issue was referred to, but not resolved, in this Court in Londish v Knox Grammar School (1997) 97 LGERA 1.
18 The reasons of Pearlman J in WYkanak were referred to with approval in Pulver Cooper and Blackley Pty Ltd v Johnson NSWCCA 22 September 1998 at 33 per Rolfe AJA, with whom Sheller and Beazley JJA agreed. However, this reference did not encompass the difference between the reasoning in Coles Supermarkets and other judgments, with respect to the application of s35 to a challenge based on a failure to accord procedural fairness. It will be necessary to return to this difference below.
19 On the basis that s35 constituted an absolute bar to the proceedings, Bignold J dismissed the application.
20 Bignold J also considered the “alternative basis” that the Hickman principle did apply. Although he said that this was put aside “for later separate determination”, his Honour considered it. He indicated that he would reject, on the facts, the Appellant’s case that the Council was actuated by mala fides or an improper purpose with respect to the adoption of subclause 13(3) of the Fairfield LEP. He would in any event have held that the improper purpose propounded by the Appellant was not sufficient to establish bad faith in the sense of the Hickman principle.
The Appeal
21 As argued, the Appellant challenges the validity of subclause 13(3) on four grounds:
(i) The LEP did not satisfy the requirements of the EPA Act for the promulgation of an LEP, insofar as it included subclause 13(3).
(ii) In the alternative to (1), the inclusion of subclause 13(3) constituted a breach of the common law rules of procedural fairness.
(iii) The power to promulgate the LEP was exercised for an improper purpose or in bad faith.
(iv) The prohibition in subclause 13(3) is not authorised by the EPA Act.
22 The respondent Council submits that none of these alleged defects occurred. In any event, it submits, s35 of the EPA Act operates as a bar to each of them. It is only necessary to deal with s35, if the Appellant were to make out a case on one of these four grounds.The Legislative Scheme
23 Part 3 of the Act is concerned with Environmental Planning Instruments. The sequence of steps for the preparation of a Local Environmental Plan is:
(i) Decision by the Council, or by the Minister, to prepare an LEP (ss54, 55).
(ii) Preparation of an environmental study (s57).
(iii) Consultation with public authorities (ss62, 63).
(iv) Preparation of draft LEP (s61).
(v) Submission of draft LEP to the Director (s64).
(vi) Certificate from the Director to permit public exhibition (s65).
(vii) Public exhibition, after notice, of the draft LEP and environmental study, specifying the period during which submissions may be made (s66).
(viii) Any person may make submissions in writing (s67).
(ix) Holding of a public hearing in respect of a submission, where requested and so resolved by Council (s68(1)).
(x) Report of the public hearing (s68(2)).
(xi) Council may make alterations to the draft LEP, with or without further public exhibition (ss68(3) (3A) (3B)).
(xii) Submissions of public submission, report and draft LEP to the Director (s68(4)).
(xiii) Report by the Director to the Minister (s69).
(xiv) Making of the LEP by the Minister (s20).
(xv) Publication of the LEP in the Gazette (s34(5)).
(xvi) Public access to the LEP at the Department and the Council (ss34(6) and (8)).
24 Sections 68 and 70 are of central significance in this case and I set them out in full:
“68(1) Where -
(a) a person making a submission so requests; and
(b) the council considers that the issues raised in a submission are of such significance that they should be the subject of a hearing before the council decides whether and, if so, what alterations should be made, the council shall, in the prescribed manner, arrange a public hearing in respect of the submission.
(2) A report of the public hearing shall be furnished to the council and the council shall make public the report.
(3) The council shall consider the submission and the report furnished pursuant to subsection (2) and may make any alterations it considers are necessary to the draft local environmental plan arising from its consideration of submissions or matters raised at any public hearing.
(3A) An alteration made by a council pursuant to subsection (3) need not relate to a submission.
(3B) The council may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to subsection (3). The provisions of this section and sections 66 and 67, with any necessary adaptations, apply to any such exhibition of a draft plan, but not so as to require a further certificate under section 65.
(4) The council shall, subject to and except as may be provided by the regulations, submit to the Director-
(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); and
(d) a statement-
(i) to the effect that the provisions of sections 66 and 67 and this section relating to public involvement in the preparation of the draft plan have been complied with;
(ii) specifying the environmental planning instruments and directions under section 117 that have been taken into consideration;
(iii) giving details of any inconsistency between the draft plan and any instrument or direction referred to in subparagraph (ii) and the reasons justifying the inconsistency; and
(iv) giving details of the reasons justifying the exclusion of provisions of the draft plan under subsection (5) or the exclusion from the application of the draft plan of any land under that subsection.
(5) In submitting the draft local environmental plan, the council may exclude certain provisions thereof or exclude from the application thereof part of the land to which the draft plan applied (in this section referred to as the deferred matter) which, in its opinion, require or requires further consideration but which should not prejudice the consideration by the Director and the Minister of the draft plan as submitted.
(6) The council may subsequently take action under this section in respect of the deferred matter, without having to publicly re-exhibit that deferred matter, as if it were a draft local environmental plan.
(7) More than one public hearing may be held in respect of any submissions, and one hearing may be held in respect of more than one submission.
(8) The regulations may make provision for or with respect to the conduct of a public hearing.”
“70(1) After considering the Director's report made under section 69, the Minister may-
(a) make a local environmental plan-
(i) in accordance with the draft local environmental plan as submitted by the council under section 68(4); or
(ii) in accordance with that draft plan with such alterations as the Minister thinks fit relating to any matter which in the opinion of the Minister is of significance for State or regional environmental planning;
(b) direct that action be taken in accordance with subsection (3); or
(c) decide not to proceed with the draft local environmental plan.
(1A) Without limiting subsection (1)(a)(ii), the alterations that may be made by the Minister relating to any matters which in the opinion of the Minister are of significance for State or regional environmental planning may comprise changes of substance to the draft local environmental plan and may arise from submissions or otherwise from the Minister's consideration of the matters in the draft plan.
(2) A local environmental plan shall apply to such area or part of such area as is described in that plan.
(3) The Minister may (but need not) direct the council to publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to this section or section 68, and the provisions of this section and sections 66, 67, 68 and 69 shall, with any necessary adaptations, apply to that plan.
(4) Where the Minister decides to make a plan in accordance with subsection (1), the Minister may exclude certain provisions thereof or exclude from the application thereof part of the land to which the draft plan applied (in this section referred to as the deferred matter) which, in his or her opinion, require or requires further consideration but which should not prejudice the making of the local environmental plan .
(5) The Minister may subsequently take action in accordance with this section in respect of the deferred matter as if it were a draft local environmental plan submitted under section 68(4).
(6) Where the Minister decides not to proceed with a draft local environmental plan under subsection (1)(c), the Minister shall give such directions to the council as the Minister considers necessary in relation to that decision.
(7) The Minister shall inform the council of his or her decision under subsection (1) and, except where the Minister decides to make a local environmental plan in accordance with the draft local environmental plan as submitted by the council under section 68(4), the reasons therefor, and may at the same time give directions to the council as to the procedure to be followed in connection with making his or her decision known to the public.
(8) Notwithstanding anything in this section and without affecting the power to make alterations pursuant to subsection (1), the Minister may make a local environmental plan with such alterations as the Minister thinks fit, being alterations that do not affect the substance of the provisions of the plan as submitted by the council or as altered pursuant to subsection (1).”
25 A person must not carry out development, as broadly defined by the EPA Act, where such is prohibited by an LEP (s76B) or, where consent is required by an LEP, without consent (s76A). Proceedings may be brought to remedy or restrain the breach of either s76A or s76B (ss123, 124). Furthermore, contravention of either s76A or s76B constitutes an offence against the EPA Act (s125) and may be enforced by proceedings for an offence (ss126, 127).
26 As originally enacted in 1979, s35 of the EPA Act stated:
“35 The validity of an environmental planning instrument in relation only to any failure to comply with any formal or procedural requirements of this part (including the regulations in force in connection therewith) with respect to its making shall not be questioned in any legal proceedings except those commenced in the Court by any person within three months of the date of its publication in the Gazette.”
27 By Schedule 7 of the Environmental Planning & Assessment Amendment Act of 1985 s35 was substituted and a new s104A was inserted. The new, and current, form of s35 is:
“35 The validity of an environmental planning instrument shall not be questioned in any legal proceedings except those commenced in the Court by any person within three months of the date of its publication in the Gazette.”
28 The same Schedule to the Amendment Act inserted into Part 4 of the Act, dealing with Environmental Planning Control, the following section:
“104A The validity of the consent shall not be questioned in any legal proceedings except those commenced in the Court by any person within three months of the date on which the granting of consent has been publicly notified in accordance with the regulations.”
29 The Explanatory Memorandum referred to Schedule 7 of the Amendment Act in these terms:
“… to make provision with respect to the validity of the environmental planning instruments and development consents.”
30 In his second reading speech, the then Minister for Planning and Environment referred to these sections in the following terms:
“Provisions to impose reasonable time limits on challenges to environmental planning instruments and development consents, which enables greater certainty in the development process.” (Hansard NSW Parliament 26 November 1995 p10638)
First Ground of Appeal: Ultra Vires
31 In his submissions to the Court Mr P Hall QC, who appeared for the Appellant, identified the first ground of appeal in terms of “clear non-compliance with conditions precedent to the exercise of the power.”
32 Breaches of two “conditions precedent” were identified:
(i) The amendment did not arise from the public submissions.
(ii) The amendment was not publicly exhibited.
33 In Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28, McHugh, Gummow, Kirby and Hayne JJ considered the effect on the validity of an exercise of a statutory power of a failure to comply with an aspect of a statutory scheme. Their Honours said:
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends on whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issues.” [91]
34 Their Honours went on to accept the analysis in Tasker v Fulwood (1978) 1 NSWLR 20, 23-24, in which this Court rejected the traditional distinction between “directory” and “mandatory” requirements and posed the test in the following terms:
“A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid. … In determining the question of purpose regard must be had to the language of the relevant provision and the scope and object of the whole statute”. (Tasker v Fulwood, 24)
35 This approach has long been adopted by this Court and it has now been authoritatively approved in the Project Blue Sky judgment [93].
36 The Appellant submits that, subject only to s35, the intention of the Parliament was to invalidate any instrument which failed to comply with the scheme for public notice and exhibition found in Part III Division 4 of the EPA Act. Clause 13(3) was not included in the draft LEP when public notice and exhibition occurred under s66 of the EPA Act. Clause 13(3) was never publicly exhibited.
37 The importance of the process of public consultation in the formulation of local government plans has long been recognised. See eg Scurr v Brisbane City Council (No. 5) (1973) 133 CLR 242, 251-252, a judgment which was concerned with the City of Brisbane Town Planning Act, but which has been cited on numerous occasions in other jurisdictions since that time. The Appellant referred to a number of cases in which the failure to perform a statutory requirement led to invalidity. Each case must turn on the particular statutory regime.
38 The detailed scheme of consultation and public exhibition in the EPA Act, makes it clear that Parliament regarded the procedural steps as of considerable significance for the integrity of the process of formulating local environmental plans. The critical provision for present purposes is s68(3), which authorises the Council to make “alterations” to the draft LEP after public submissions have been received and a public hearing, if any, has occurred. However, such “alterations” are limited to those which the Council:
“…considers are necessary to the draft local environmental plan arising from its consideration of submissions or matters raised at any public hearing.”
39 The Respondent Council relied on ss68(3A) and (3B) which state:
“(3A) An alteration made by a council pursuant to subsection (3) need not relate to a submission.
(3B) The Council may (but need not) give public notice of and publicly exhibit, wholly or in part, a draft local environmental plan that has been altered pursuant to subsection (3) …”
40 The interrelationship between subsections(3) and (3A) is a matter of some difficulty. Whilst an alteration “need not relate to a submission”, it remains the case that the power to alter is restricted by reference to “considerations of submissions” or of “matters raised at any public hearing”. Whatever may be the effect of subsection(3A), it does not free a Council to adopt whatever amendments it likes, as if the words of qualification had been deleted from subsection(3). It is not, however, necessary to determine the proper construction of the nexus for which subsection(3) provides, in this case.
41 The Appellant’s submissions were directed, and directed only, to the proposition that the subject matter of subclause 13(3) did not in fact arise from the content of any “submission” or from any “matter raised” at a public hearing. Accordingly, it was submitted that there was a breach of what was described as a “condition precedent”, namely, the obligation for the contents of a local environmental plan to go through a process of public notice, public exhibition and receipt of submissions, which did not occur with respect to subclause 13(3).
42 The trigger of the power to make “alterations” is whether or not the Council “considers” such alterations to be necessary “from its consideration of submissions or matters raised at any public hearing”. The condition precedent to the power is not the fact itself - i.e. did the amendment actually arise from a submission or public hearing - but the opinion of the Council that it did so arise. (See eg The Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297). This is a particular kind of jurisdictional fact. (Craig Administrative Law 3rd ed pp368-370; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194, 198; the passage from Craig was also referred to with approval in Australian Heritage Commission supra 303 n 34).
43 The process by which the Council forms its opinion is not immune from judicial review, but the grounds on which such review must be based are as set out by Gibbs J in Buck v Bavone (1976) 135 CLR 110, 118-119 and subsequent authorities. (See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 257-277; Australian Heritage Commission supra 301, 303; Bruce v Cole NSWCA 12 June 1998 pp36-38. See also Parramatta City Council v Pestell (1972) 128 CLR 305 at 323).
44 Save insofar as it attacked the Council’s deliberations on the grounds of improper purpose or lack of bona fides, the subject of Ground 3 with which I will deal below, the Appellant did not challenge the formation of the opinion of the Council on any administrative law ground. Specifically, there was no suggestion that the Council did not “consider” the “alteration” to be “necessary” as, “arising from its consideration of submissions or matters raised at [the] public hearing”. This submission should be rejected.
45 In order to vitiate the Council’s decision on the Appellant’s case, the question - Did cl 13(3) arise from a submission or a public hearing? - would have to be a jurisdictional fact, so that the Council’s power to amend depends on the actual existence of a nexus between the amendment and a submission or matter raised at a hearing. The construction of cl 68(3) indicates that the relevant jurisdictional fact cannot be expressed in that way.
46 The Appellant’s second submission, under the first ground of appeal, was that the process miscarried by reason of the Council’s failure to publicly exhibit the amendment in cl 13(3). This must also be rejected.
47 Subsection 68(3B) makes it clear that the Council had a separate discretion to exercise with respect to public exhibition after any amendment. (See Coles Supermarkets Australia Pty Limited v Minister for Urban Affairs and Planning (1996) 90 LGERA 341, 346 per Pearlman J). The Appellant never challenged the decision not to advertise the amendment on any administrative law ground.
48 Whilst there are difficulties with the proposition that the amendment was such that it could be said to be so significant, that the LEP cannot be characterised as the product of a Part III Division 4 process, it is not necessary to decide the issue. (Cf Leichhardt Municipal Council v Minister or Planning (No 2) (1995) 87 LGERA 78, 84-88; Pearson “Environmental Planning Instruments - Consultation and Alteration” (1995) 12 EPLJ 352).
49 In my opinion, the first ground of appeal fails. No issue arises under s35 of the Act.
Second Ground of Appeal: Denial of Natural Justice
50 The obligation to afford procedural fairness is a doctrine of the common law which attaches to the exercise of public power, subject to any statutory modification of the common law in that regard. See Kioa v West (1985) 159 CLR 550, 576, 581, 632; Annetts v McCann (1990) 170 CLR 596, 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 574-575; Attorney General (NSW) v Quin (1989-90) 170 CLR 1, 57; Victoria v Master Builders Association of Victoria (1995) 2 VR 112, 138-139, 148, 157-160; Bayne “The Common Law Basis of Judicial Review” (1993) 87 ALJ 781. The view that the duty to accord procedural fairness is only an issue of statutory interpretation, consistently taken by Sir Gerard Brennan, has not prevailed. (See Kioa v West supra 609-616; FAI Insurance Ltd v Winneke (1982) 151 CLR 342, 407-413; Ainsworth supra 584-585).
51 A decision of the council is not the ultimate operative decision under Part III Division 4. The Minister must promulgate the plan under s70. However, before he can do so:
(i) The council must submit the plan to the Director, together with “the reasons for any alterations made to the plan” (s68(4)(c)) and a statement that the provisions of ss66 and 67 relating to public involvement “have been complied with” (s68(4)(d)).
(ii) The Director must furnish a report to the Minister as to whether the provisions of ss66, 67 and 68 “relating to public involvement in the preparation of the draft plan have been complied with” (s69(c)).
52 Although the Minister may refuse to make any plan at all (s70(1)(c)), he or she can only make a plan in the form submitted to him by the council (s70(1)(a)(i)). The only alterations he or she is empowered to make are limited to:
(i) “… any matter which in the opinion of the Minister is of significance for State or regional environmental planning”. (s70(1)(a)(ii) as explained in ss70(1A)).
(ii) The exclusion of a provision or provisions which “in his or her opinion require or requires further consideration …” (ss70(4)).
(iii) “… alterations that do not affect the substance of the provisions of the plan as submitted by the council …” (s70(8)).
53 By reason of these restrictions on the Minister’s authority, the decision by the council to amend a plan under s68(3) is of such significance that it is subject to judicial review. The council’s decision may “destroy defeat or prejudice a person’s rights, interests or legitimate expectations”, which is the authoritative test for the application of the common law requirement of procedural fairness (Annetts v McCann supra 598; Ainsworth v Criminal Justice Commission supra 576).
54 In these two joint judgments, the High Court adopted the test as articulated by Mason J in Kioa v West supra, where his Honour said:
“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention … But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:
‘… which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a ‘policy’ or ‘political’ decision and is not subject to judicial review.’ (Salemi (No 2) 1977 137 CLR at 452 per Jacobs J).
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. … 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. …
In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, ie in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, in the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.” (584-585)
55 In the present case the issue arises with respect to the construction of the power in s68(3) of the EPA Act to amend a draft LEP which has already been publicly exhibited. The two issues which arise are:
(i) Does the exercise of the power in the circumstances of the present case impinge on the rights, interests and expectations of the Appellant in the “direct and immediate way” to which Mason J referred?
(ii) Does the express legislative provision for public notice and public exhibition constitute a “clear manifestation” of a statutory intention that the common law duty to accord procedural fairness is to be excluded, with respect to the exercise of the power under s68(3)?
56 In considering the first of these issues it is important to recognise that the Appellant did not contend that the Council had created any form of expectation, by reason of past practice or otherwise, that it would engage in any form of consultation with affected landowners, with respect to amendments of the character found in subclause 13(3).
57 As Bignold J expressly found:
“I also note that both Mr Pagan and Alderman Lord gave evidence (which I accept) to the effect that it is not Council’s obligation or policy to notify landowners of minor and secondary alterations that are made to a draft LEP after it has been exhibited. They were of the view that clause 13(3) could be so characterised.”
58 The finding was not challenged. Accordingly, there was no occasion for the application in this case of the principle expressed most recently in the joint judgment of Brennan CJ, Dawson and Toohey JJ in Darling Casino Limited v New South Wales Casino Control Authority (1997) 71 ALJR 540, 541:
“…It should not be assumed that the exercise of a power conferred in general terms cannot be confined by the procedures adopted by a repository. If the power must be exercised in conformity with the rules of natural justice, a failure by the repository to adhere to a declared procedure may constitute or result in a failure to accord natural justice to a person whose interests are liable to affection by the exercise of the power. In such a case, an exercise of the power adversely to the interests of the person denied natural justice is liable to be set aside.”
59 The issue in the present case must be determined on the basis of the statutory power in s68(3), to be construed in the context of the legislative scheme of which it forms part.
60 It is important to recognise that the common law doctrine is not subject to the requirement found in the Administrative Decisions Judicial Review Act 1977 (Cth) that judicial review requires a decision of “an administrative character”. Although this statutory formulation is derived from the common law, nevertheless the administrative law jurisprudence of the Federal Court under the ADJR Act must be treated with caution in its application to a case based on the common law.
61 The relevant test is whether an amendment to a draft LEP under s68(3) affects an individual landowner in the “direct and immediate way” to which Mason J referred in Kioa v West.
62 It is relevant to note that the power may be exercised, and in the ordinary course is usually exercised, by promulgating a provision in terms of general language which often, perhaps usually, applies to significant numbers of landowners. However, there is nothing in the nature of the power which requires it to be exercised in this way. An amendment under s68(3) may apply to only a single landowner. This suggests that the issue is not whether an obligation to afford procedural fairness exists at all, but what is the content of such an obligation in a specific context.
63 In Medway v Minister for Planning (1993) 30 NSWLR 646, Mahoney JA, with whom Sheller and Cripps JJA agreed, said:
“Where the persons relevantly affected by the exercise of a statutory power are numerous or difficult to identify, or identify in advance, it may more readily be inferred that it was not the legislative intention that, before the exercise of a power, the case sought to be made be formulated and notified.” (652-653)
64 Medway was concerned with a decision under s101(1) of the EPA Act, which empowered the Minister for Planning to direct that a council refer a development application of a specified character to the Department of Planning for determination by the Minister. The Court held that the Minister was not liable to afford joining landowners an opportunity to be heard before the Minister issued that direction. Two adjoining landowners had complained that they thereby lost the possibility of participating in the exercise by the council of its powers in the normal course. Mahoney JA gave weight to the fact that the persons who had lost the specific rights were a “much wider class” than adjacent landowners and that: “It would be difficult to identify all of them in advance” (653).
65 His Honour however also gave considerable weight to the particular circumstances of the specific case and described the persons who could object with respect to the particular development in issue as “a wider and more amorphous class” (653C). His Honour was, however, careful to add:
“It may be that in the case of a single application affecting only one person or several identifiable persons, different considerations may arise.” (653B-C)
66 His Honour concluded:
“The principle illustrated in Kioa v West and the cases to which I have referred is a general principle and a beneficial one. But what it will require to be done in a particular case will depend upon the circumstances and context of that case. It is, in my respectful opinion, wrong to treat the content of its requirements as fixed and inflexible.” (653F)
67 These two passages suggest that his Honour was not focussing on the existence of the duty to accord procedural fairness, but rather on its content in the specific circumstances of the case.
68 It is significant that Medway was concerned with what was said to be a legitimate expectation that a particular statutory procedure would be followed, which was said to support a challenge to the exercise of a statutory power, found in the same statute, which expressly provided that, in certain circumstances, that procedure would not be followed. In any event, the present case involves “several identifiable persons”, in the words which Mahoney JA indicated would involve a position in which his conclusion may have been different.
69 This issue arose in circumstances more closely analogous to the facts of the present case, in Coles Supermarkets supra. Pearlman J concluded that s35 of the EPA Act applied to prevent the Applicant in that case from pursuing each of their grounds of appeal, including the ground based on an alleged denial of natural justice (353.5). Nevertheless, her Honour went on to decide the substantive merits of each of the grounds in comments which, by reason of the s35 finding, were obiter.
70 The applicants in Coles Supermarkets had the advantage of covenants in a lease which required their consent to the redevelopment of a shopping centre. The Wagga Wagga Local Environmental Plan 1985, the validity of which was challenged in those proceedings, purported to empower the Council to override the effect of such a covenant, to permit the implementation of a development to which the Council had granted consent. There was evidence before the Court that the amendment, denoted No 14, was motivated by the very development proposal which affected the Applicant. Nevertheless the actual form of amendment to the LEP was in terms of general application. Pearlman J concluded, after reference to Medway:
“Amendment 14 is of general application. It is apt to affect the operation of any covenant, agreement or instrument, and not just clause 11.17. Those who might be affected by its operation comprise a ‘wide and amorphous’ class of persons. That demonstrates, I think, that the Applicants could have no legitimate expectation that they would be consulted by the Council or the Minister before the making of amendment 14.” (359)
71 Whether or not the exercise of a statutory power in the circumstances of a particular case is such as to activate the common law duty to accord procedural fairness before the exercise of that power, must depend on issues of substance and not form. I would not myself have regarded the form of the amendment in the Coles Supermarkets case as determinative of the issues before her Honour. The circumstance that the amendment was itself directed to the very application in question would, in my opinion, have been entitled to considerable greater weight than her Honour appeared to give it.
72 That is not to suggest that the actual decision in that case was not correct. It appears that the amendment to the Wagga Wagga LEP had been the subject of public notice and exhibition. The Applicants in the proceedings before Pearlman J had not made any submission with respect to the amendment as then proposed. Between the public exhibition and the final promulgation of the LEP, the Wagga Wagga Council had exercised the power in issue in the present case, i.e. s68(3), to amend the form of the draft LEP as publicly exhibited. Whilst complaint was made on ultra vires grounds as to the validity of that amendment, the change between public exhibition and final LEP was not itself the subject of challenge on the grounds of denial of natural justice. It was the whole of the amendment, both as originally promulgated and as finally adopted, to which the Applicants objected on the basis of a denial of procedural fairness. Her Honour could have rejected the case on the basis that the opportunity that had been afforded to the Applicants to make submissions in the context of the public exhibition - an opportunity of which they did not avail themselves - was a sufficient opportunity in all the circumstances. The change between the original public exhibition and the final plan as adopted was not material in this respect.
73 There are statutory powers which are of such general application and which involve such a significant policy content that, by their nature, they indicate an intention by the Parliament to exclude the obligation to accord procedural fairness. See for examples in the planning context: Minister for Urban Affairs & Planning v Rosemont Estates Pty Limited (1996) 91 LGERA 31, 91 per Cole JA; Save the Showground for Sydney Inc v The Minister for Urban Affairs & Planning (1997) 95 LGERA 33, 51-53 per Beazley JA. However, the relevant principle is that the duty is excluded only by “express words of plain intendment” (Commissioner of Police v Tanos (1957-58) 98 CLR 383, 396; J v Lieschke (1986-87) 162 CLR 446, 463; Annetts v McCann supra 598; Ainsworth v Criminal Justice Commission supra 576).
74 The fact that the exercise of a particular statutory power has effect on a wide range of persons, even in circumstances where the identity of all such persons is difficult to establish, will often impinge, not on the obligation to accord procedural fairness, but on the content of that obligation.
75 In Haoucher v Minister for Immigration & Ethnic Affairs (1989-90) 169 CLR 648 Deane J said:
“… the requirements of procedural fairness must be observed in any case where, by reference ‘to the particular statutory framework’ (see Mobil Oil Australia Pty Limitedv Federal Commissioner of Taxation (1963) 113 CLR 475, 504) it is proper to discern a legislative intent that the donee of governmental executive power or authority should be bound by them. There is a strong presumption of such a legislative intent in any case where a statute confers on one person a power or authority adversely and directly to affect the rights, interests, status or legitimate expectations of a real or artificial person or entity in an individual capacity (as distinct from merely as a member of a section of the general public).” (652)
76 His Honour went on to identify the direction of the case law with respect to the drawing of the distinction between occasions when a person is affected “in an individual capacity”, from the effect on that person arising merely as a member of “the general public”. He said:
“Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision making and where the question whether the particular decision affects the rights, interests, status or legitimate expectations of a person in his or her individual capacity is relevant to the ascertainment of the practical content, if any, of those requirements in the circumstances of a particular case and of the standing of a particular individual to attack the validity of the particular decision in those circumstances.” (653)
77 The first part of the immediately preceding passage was quoted with approval in the joint judgment in Annetts v McCann supra 598; and also by McHugh JA in Minister for Immigration & Ethnic Affairs v Teoh (1994-95) 183 CLR 273 at 311. In the latter case McHugh JA said:
“I think that the rational development of this branch of the law requires acceptance of the view that the rules of procedural fairness are presumptively applicable to administrative and similar decisions made by public tribunals and officials.” (supra 311)
78 It is also relevant to note that the fact that numerous persons are affected by the particular power exercised in the circumstances of a specific case, will also arise on the issue of discretion to grant relief. In Brooks v Minister for Planning & Environment (1988) 68 LGRA 91, to which I refer below on the mini-code argument. Hemmings J indicated that, if he had been wrong with regard to that question, he would have refused relief to the applicant who challenged the validity of an LEP on the basis that: “… it would work such an injustice as to be disproportionate to the end secured by enforcement of the legislation”. That was because: “That plan, of course, extends to a vast area and not just that of the subject applicants” (100).
79 The power in s68(3) can be exercised in so general a way and with so significant a policy content, that a Court will readily infer that no opportunity to make submissions should have been afforded. That is not, however because the statutory power by its inherent character excludes the common law duty. Rather it is because the content of the duty in a particular exercise of the power is such that the failure to provide an opportunity to make submissions is not, in all the circumstances, a breach of the duty.
80 The Court is not concerned with a provision of general application to all land lying in a floodway, in circumstances in which the number of such owners is large. The particular decision in issue in these proceedings - the inclusion of subclause 13(3) in the Fairfield LEP - is, in terms, specifically limited to a very small number of landowners who could be readily approached. In my view, cl 13(3) does impinge on the rights and interests of these landowners in a “direct and immediate way”.
81 Mr Tobias QC, who appeared for the Respondent Council, submitted, alternatively, that the scheme for public notice and exhibition, for which Part III of Division 4 of the EPA Act provides, was intended to constitute a mini-code for all consultation with persons affected by a local environment plan. This code for public notice was intended to apply to the exclusion of any private notice, which may otherwise have been required by the common law duty to accord procedural fairness. Accordingly, for purposes of the present case, s68(3B) expressly conferred a discretion on the Council as to whether a draft plan as amended should be subject to further public notice and exhibition. That discretion should be understood as substituting for any common law rights of private notice. As I have noted above, the exercise of that discretion was not separately challenged on any administrative law ground.
82 An argument of this character, with respect to the scheme of the EPA Act as then in force, was accepted by Hemmings J in Brooks v Minister for Planning & Environment supra, where his Honour said:
“The EPA Act has extensive provisions requiring advertising, exhibition and notice, but does not in terms require such personal notification to be given. A draft scheme may, as in this case, apply to a very large geographical area and a multitude of properties and owners, and I do not believe that this likelihood was overlooked by the legislature.
…
In this case the Council and the Minister, in my judgment, have observed all specified procedural steps and exercised all powers and duties adequately and in conformity with the provisions of the EPA Act for the making of the LEP.
In my opinion, an examination of the provisions of Part III of the EPA Act with respect to the making of environmental planning instruments and the mandatory provisions for exhibition and public participation makes it clear that Parliament has specifically directed its attention to the question of whether the rule is to apply or not, and the manner in which the discretion of the statutory authority or Minister is to be exercised. In my opinion, in substitution for the common law, Part III is an appropriate self-contained statutory code of ‘fairness’ prescribing the steps leading up to and the making of an LEP, and there has been total compliance therewith.” (99-100)
83 His Honour did not refer to the contrary views on this matter expressed by McLelland J in Sydney City Council v Ke-Su Investments Pty Limited (No 2) (1983) 51 LGRA 186, 202; see also Bradbury “The Duty to Observe Procedural Fairness in the New South Wales Planning System” (1995) 12 EPLJ 440. Similar conclusions have been reached with respect to the Victorian planning legislation as in force from time to time. See Attorney General (Victoria) v City of Knox (1979) 42 LGRA 402, 423; Mietta’s Melbourne Hotel Pty Limited v Roper (1988) 17 ALD 112, 114; Grollo Australia Pty Limited v Minister for Planning & Urban Growth & Development (1993) 1 VR 627, 637-640.
84 In the case of an amendment, after public exhibition, pursuant to the power in s68(3) of the EPA Act, Council must establish that the discretion with respect to further public notice and exhibition provided in s68(3B) is part of a mini-code designed to provide exhaustively for the circumstances in which notice of either a public or private character is to be given. If that is so then, where, as here, the discretion was exercised against any further public notice, no complaint can be made by those who may otherwise have been entitled to private notice at common law.
85 In my opinion, the decision of Hemmings J in Brooks has been superseded by the much more stringent requirements for exclusion of the duty to accord procedural fairness, established in subsequent decisions of the High Court, particularly Lieschke, Annetts and Ainsworth.
86 The reasoning of Mason CJ, Deane and McHugh JJ in the joint majority judgment in Annetts v McCann supra 598 is in point:
“In Tanos (1958) 98 CLR at 396 Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelt out from ‘indirect references, uncertain inferences or equivocal considerations’. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice (Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 at 344-345, 347, 349).”
87 In Annetts v McCann a statutory provision giving interested persons a right to attend a coronial inquest and to examine and cross-examine witnesses was held not to be exhaustive of such persons’ rights, so that such a person was entitled to be afforded the common law right to make submissions.
88 Baba, a decision of this Court, to which the joint judgment referred with approval, held that express provisions for hearings of the Parole Board in the Prohibition and Parole Act 1983 were not exclusive of the common law duty.
89 In Lieschke supra, the statutory scheme contained a number of specific provisions for participation by parents in proceedings before a magistrate relating to a neglected child. The High Court overturned the decision of this Court that the express provisions in the statute were inconsistent with the application of the common law requirement for procedural fairness (Shales v Lieschke (1985) 3 NSWLR 65, 78 and 88-89).
90 The point also arose in Ainsworth v Criminal Justice Commission supra, where the issue was whether the statutory provisions for the conduct of the affairs of the Criminal Justice Commission of the State of Queensland were exhaustive when they imposed an obligation on the Commission to: “act independently, impartially, fairly and in the public interest”. This express provision was “not effective to exclude duties of fairness imposed by the general law in the situations not specifically dealt with by the Act” (575).
91 Of course, each of these cases turns on its specific legislative scheme. In my view, applying the test of “express words of plain intendment” (Tanos), the legislative scheme for public notice and exhibition under Division 4 Part III of the EPA Act is not intended to be exhaustive of all forms of consultation. The express provision in s66 for public notice and exhibition of the original draft LEP is directed to requiring a public consultation process with respect to proposals in which the public at large is interested. The legislature regarded the process of public consultation of all aspects of an LEP as being of such significance that it should not be left to the discretion of individual councils to respond to whatever democratic pressures may exist in each case.
92 The fact that the content of an Environmental Planning Instruments often raise questions of broad public concern is the basis of this specific statutory regime. Issues of public interest of this character require a public process in a democratic system of government. Citizens may be interested in such quasi legislation, whether or not they have any specific tangible “right, interest or expectation” of a character which the common law doctrine of procedural fairness is designed to protect. The requirement of a community wide consultation is not the equivalent of, nor in my opinion exhaustive of, obligations to consult by reason of an intrusion upon private rights and interests.
93 Subsection 68(3B) creates a discretion in the case of any alterations made after public submissions and any public hearing. Obviously such amendments may not be of such significance as to justify further public consultation. Furthermore, the consideration already given in the course of submissions and public hearing may have satisfied the policy purposes of the Act. The legislature was content to leave further publication at this point to the Council, subject to the Minister directing further public exhibition under s70(3). The purpose of public consultation is again not equivalent to nor, in my opinion, intended to be exhaustive of, all forms of consultation.
94 It will often, perhaps almost always, be the case that the process of public notice and exhibition will be found to satisfy the common law obligation to accord procedural fairness, even in the case of particular persons whose interests are specifically adversely affected by the contents of a draft LEP. That is not however sufficient for the Council in the circumstances of the present case.
95 Private landowners can be expected to look after their own interests by maintaining an interest in the activities of their Council and investigating any proposed local environmental plan, even without notice specifically directed to each affected landowner, and by participating in the public process. The course of public submissions, and of any public hearing, will often provide sufficient opportunity for affected landowners to make submissions.
96 The plan as publicly exhibited - a process which in the circumstances may well have accorded procedural fairness, even to these few specific landholders, with respect to the contents of the plan as so exhibited - indicated that development of this character could be permissible with consent, subject to certain conditions. The change from “permissible with consent” to “prohibited”, adversely affected the “rights, interests and expectations” of this small group of persons.
97 If the Council had chosen to further publicly exhibit the amended plan under s68(3B), then those persons would probably not have been entitled to complain. Without such exhibition, however, in my opinion, the Council was obliged to afford those specific persons an opportunity to make submissions to the Council on the adoption of the amendment to cl 13. It may be that such private notice procedure could have been more readily and expeditiously conducted than any process of public notice and public exhibition. No such opportunity was afforded to the Applicant.
98 The discretion in subsection 68(3B) retains a real content with respect to amendments which do not affect “rights, interests and expectations” in the relevant sense and in cases where the obligation to accord procedural fairness has been discharged in the course of public submissions and hearings or by, perhaps more expeditious, private notice.
99 Here, no notice of any character was given and no opportunity was afforded to make submissions. This occurred in a context where a quite different regime had been promulgated and publicly exhibited. In my view procedural fairness should have been accorded to relevant landowners before the Council changed the applicable rule from “permissible by consent” to “prohibited”.
100 The draft Fairfield LEP which the Council purported to submit to the Director under s68(4)(c) was not a “draft local environmental plan” within the meaning of that section. Accordingly, the Minister could not make a LEP under s70(1)(a)(i) “in accordance with” a “draft local environmental plan as submitted by the council”, because no such plan was submitted.
101 By reason of this conclusion, the operation of s35 of the EPA Act necessarily arises, albeit limited to the issue as to whether or not that section extends to proceedings alleging a contravention of the common law obligation to afford procedural fairness.
Third Ground of Appeal: Bona Fides
102 The third ground of appeal concerns alleged improper purpose or lack of bona fides on the part of the Council, in its decision to adopt subclause 13(3). This was a matter of fact which was before his Honour and his Honour found against the Appellant.
103 The submission made to this Court was, in essence, that the amendment was tainted by an extraneous or improper purpose, or manifested mala fides, because it was directed to the deprivation of rights of owners of specific property to exploit their land. This purpose was said to arise from the fact that the amendment was instituted by a member of Council, who acted without professional advice, and who wished to ensure that, in the future, neither the Council itself nor the staff of the Council, nor the Court on appeal, could exercise any discretion so as to permit development in the particular floodway.
104 None of the matters relied on constitutes an extraneous or improper purpose, nor a manifestation of mala fides. The expression of opinion and motive on the part of Alderman Lord, who instigated the amendment, does not necessarily reflect the collective opinion of the Council which passed the amendment. Even if it could do so, nothing in the conduct of Alderman Lord indicates an improper motive or purpose, or manifests mala fides.
105 She wished to prohibit development by means of filling on the land in this particular floodway, by reason of the experience that she had had with previous decisions of Council permitting filling in that floodway. She was obviously concerned with the consequences of development of this character. This involved, in my opinion, proper purposes for the Council to seek to achieve in developing a LEP.
106 The fact that a member of Council or even the Council itself, wished to ensure that neither the Council itself, nor its officers, nor the Court on appeal from the Council, could exercise a discretion adverse to the policy that the Council wished to implement with respect to this particular land, is democracy at work. It indicates nothing in the nature of an extraneous purpose. Nor does it in any way indicate a lack of bona fides. Such consequences necessarily arise from any prohibition of development which, as I will show below in the context of the fourth ground of appeal, the Act expressly contemplates.
107 In the Court below Bignold J rejected a submission of this character. His Honour concluded:
“In respect of the all important decision of the Council, I accept, as substantially accurate, the account of the Council meeting of 15 June 1993 given in the testimony of Ms Lord (which is corroborated by the testimony of Mr Pagan). She spoke with some force and emotion to the meeting about the undesirability of filling land situated within the floodway on the Lansvale Peninsula. She, herself, was partly motivated by the effects of personal experience suffering flood damage while living in Lansvale and what she saw as a desirable public objective for residents of Lansvale, not by any malice towards the applicant. As I’ve earlier noted it was Alderman Heggie, of her own volition, and without prior consultation with Ms Lord, who moved for the inclusion of clause 13(3) in the draft LEP.
In the circumstances, I have not been satisfied on the balance of probabilities that the passing of the Council resolution on 15 June 1993 was tainted by bad faith, or by any extraneous or improper purpose, or (to phrase the matter differently) by lack of good faith, on the part of the Council.”
108 This finding was patently open to his Honour and there are no grounds for disturbing it or questioning it in any respect. The ground of appeal alleging lack of good faith or improper purpose on the part of the Council, should be rejected.Fourth Ground of Appeal: Prohibition
109 The fourth ground of appeal was faintly pressed. It was suggested that subclause13(3) was not a proper exercise of the Council’s power to prohibit development. Section 31 of the EPA Act states:
“… an environmental planning instrument may provide that development specified therein is prohibited”.
110 There is no reason to doubt the applicability of the plain words of this section to the circumstances of this case. Contrary to the submissions of the Appellant, the word “development” should be given its broad meaning in s4(1) of the EPA Act. Filling is within that definition, as “the carrying out of work”. The fourth ground of appeal should also be rejected.
Construction of s35 of the EPA Act
111 An ouster or privative clause is precisely and strictly construed by the courts. This approach to such clauses is well known to parliamentary draftsmen. Accordingly, there is no foundation for the suggestion sometimes made that the application of a strict construction in some way constitutes a failure on the parts of the courts to implement the intention of Parliament. Subject to any applicable constitutional restrictions - and none have been suggested in this case - legislation can always be drafted to ensure that an intended restriction on judicial review of administrative decisions will be effective.
112 In 1985, when s35 of the EPA Act was re-enacted in its present form, the general approach to the construction of privative or ouster clauses was well established. The Ministerial statement of the purpose of s35 and s104A which I have quoted above - “greater certainty in the development process” - is of little assistance. At the level of generality of “greater certainty”, this could be said of all the ouster clauses that have hitherto been considered by the courts. The issue is “certainty” with respect to what?
113 There is a long established and well known principle of statutory interpretation that any provision of a statute which restricts the ordinary jurisdiction of the courts must be construed strictly. In McGrath v Goldsborough Mort & Co Ltd (1931-32) 47 CLR 121, Rich J referred to:
“… the rule of law against giving to a statute a construction depriving Courts of law of authority by the use of prerogative writs to prevent the assumption of a non-existent authority unless an intention to do so is expressed with a clearness which admits of no doubt.” (128) (Emphasis added)
114 In the same case Dixon J said:
“The general rule is that statutes are not to be interpreted as depriving Superior Courts of power to prevent an unauthorised assumption of jurisdiction unless an intention to do so appears clearly and unmistakably.” (134) (Emphasis added)
115 The right of individuals to approach the Courts to enforce the law, not least to ensure that the executive arm of government exercises its power in accordance with law, is a fundamental right of constitutional significance. Even in the absence of a written constitution, as in the United Kingdom, the right of access to the Courts has been described as a “constitutional right”. (Bremer Vulkan Schiffban and Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909, 977 per Lord Diplock; R v Secretary of State for The Home Department ex parte Leech [1964] QB 198, 210 per Steyn LJ; R v Lord Chancellor ex parte Witham [1998] 2 WLR 849, 859 per Laws J).
116 As Dawson and Gaudron JJ said in Public Service Association (S.A.) v Federated Clerks Union (1991) 173 CLR 132 at 160:
“Privative clauses … are construed by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied (see eg Clancy v Butcher Shop Employees Union (1904) 1 CLR 181, 204 per O’Connor J; Hockey v Yelland (1984) 157 CLR 124, 130 per Gibbs CJ and (1984) 157 CLR at 142 per Wilson J. See also Anisminic [1969] 2 AC at 170 per Lord Reid.) Thus, a clause which is expressed only in general terms may be construed so as to preserve the ordinary jurisdiction of a superior court to grant relief by way of the prerogative writs of mandamus or prohibition in the case of jurisdictional error constituted by failure to exercise jurisdiction or by an act in excess of jurisdiction.” (160)
117 This passage was referred to with approval in Darling Casino Limited v New South Wales Casino Authority (1997) 71 ALJR 540, 555 per Gaudron and Gummow JJ.
118 The Appellant submitted that the words “The validity of an environmental planning instrument shall not be questioned …”, should be construed to apply only to the questioning of the whole of an environmental planning instrument, not to a severable part thereof. The Appellant noted that the immediately preceding sections provides expressly:
“34(4) The amendment or alteration, variation or repeal, whether in whole or in part, of any environmental planning instrument does not affect …”(Emphasis added)
119 It is submitted that the words “in whole or in part” should not be read into s35. However, in s34(4) the word so qualified is “repeal”, which would, in the absence of a qualification, have a clear meaning limited to the repeal of the whole only. Accordingly, the qualification was necessary in s34(4) in a way which cannot be said of s35.
120 Section 35, in its present form, was inserted into the Act at the same time as, and in the same words as, s104A. The latter applies to particular cases. The purpose to be served by certainty with regard to individual consents is not necessarily the same as the purpose to be served by certainty with regard to particular provisions in environmental planning instruments. The former will, in the normal course, involve action in reliance on validity in the short term, whereas the latter will not necessarily involve such reliance. Indeed the Act itself provides for the lapsing of a consent after a specific time (s95).
121 In my opinion, the construction of s35 must focus on what is meant by the words “environmental planning instrument”, the “validity” of which is protected by s35. Those words should be construed so as not to encompass a document which purports to be an “environmental planning instrument” but which is not such an instrument at all. A purported instrument can fail to answer the statutory description by reason of the inclusion within it of a particular provision.
122 In my opinion, s35 does not proscribe questioning of a “purported environmental planning instrument”. As the learned authors of De Smith, Woolf and Jowell Judicial Review of Administrative Action 5th ed, 1995, state (253):
“…two equally important principles can be involved, neither of which is subservient to the other. These principles are, first, that the exercise of any power should be subject to the rule of law (and so subject in the final analysis to the supervision of the courts), and secondly that, Parliament is sovereign. While the courts will give effect to the language used by Parliament, they do so in a manner which presumes that Parliament intended to act consistently with the rule of law. Such is the strength of this presumption that it can prevail over apparently clear language to the effect that the inferior body’s decisions were to be final and conclusive. The courts are loath to relinquish their inherent power to review for jurisdictional error. While it may be possible for Parliament to bar judicial review for ‘any determination or purported determination’, the fact that this has never been done indicates the persuasive force of the rule of law as a principle endorsing the power of the courts to require administrative legality.”
123 In Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, a statutory tribunal had been created to resolve claims for compensation on a fund created pursuant to international arrangements to compensate British companies for damage occasioned by the events leading to the Suez crisis of 1956. The privative clause in that case read:
“The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.”
124 The House of Lords decided that this clause did not prevent review when, as a matter of law, what purported to be a “determination by the Commission” was not a “determination” at all.
125 Lord Reid said:
“Statutory provisions which seek to limit the ordinary jurisdiction of the court have a long history. No case has been cited in which any other form of words limiting the jurisdiction of the court has been held to protect a nullity. If the draftsmen or Parliament had intended to introduce a new kind of ouster clause so as to prevent any inquiry even as to whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law. Undoubtedly such a provision protects every determination which is not a nullity. But I do not think that it is necessary or even reasonable to construe the word ‘determination’ as including everything which purports to be a determination but which is in fact no determination at all. And there are no degrees of nullity. There are a number of reasons why the law will hold a purportive decision to be a nullity. I do not see how it could be said that such a provisions protects some kinds of nullity but not others: if that were intended it would be easy to say so.” (170)
126 A similar issue arose in the Darling Casino case. Justices Gaudron and Gummow expressly disapproved of certain reasoning in this Court in that case, relevant to this matter. In Darling Casino the privative clause (Casino Control Act 1992, s155(1)) was in the following terms:
“Except as otherwise provided in this section a decision of the Authority under this Act is final and is not subject to appeal or review.”
127 The submission was made in the Court of Appeal, and rejected, that by reason of the fact that the relevant decision was made beyond jurisdiction, it was not a decision “under this Act”. However, in the High Court, Gaudron and Gummow JJ said:
“There is one point we should add, because the Court of Appeal appears to have proceeded on the contrary view. It concerns the content of the phrase in section 155(1) ‘a decision of the Authority under this Act’. The phrase is not ‘under or purporting to be under this Act’. Section 11 obliges the Authority to have regard to certain matters. Section 12 forbids the Authority to grant an application unless satisfied of the matters there specified and for that purpose the Authority is to consider the item specified in sections 12(2)(a) to (h). Section 13 contains a definition of ‘close associate’ a term used in section 12. Sections 1, 12 and 13 are central to the legislative scheme. Section 155 cannot fairly be construed as declaring an intention of the legislature that the Authority is empowered and protected in respect of determinations under section 18 reached other than upon satisfaction of the conditions which enliven its power. Those decisions would not have been ‘under this Act’.” (556) (Emphasis added)
128 Darling Casino was concerned with the construction of a specific legislative scheme. Because of my findings with regard to the grounds of appeal, this case is concerned with statutory modification of the common law duty to afford procedural fairness on the application of the Tanos test.
Section 35 and Procedural Fairness
129 The matter which requires determination in this case is the identification of the conduct which is such as to deprive an “environmental planning instrument” of its quality as such an instrument, for the purposes of s35 of the EPA Act. Specifically, does a failure to discharge the common law duty of procedural fairness constitute such conduct.
130 With respect to this issue three distinct approaches are discernible in decisions of the Land and Environment Court:
(i) Bignold J in the present case, as in Breitkopf supra, has construed s35 as a time limitation provision which is effective to prevent challenges on any basis, whether based on procedural fairness or the Hickman principle.
(ii) Pearlman J in Coles Supermarkets has construed s35 as not effective to prevent challenges, but only on a basis falling within the three-fold Hickman principle (349-351). Procedural fairness is not within the principle and a challenge is accordingly prevented by s35.
(iii) Cripps J has suggested that s35 and s104A may not prevent a challenge on the basis of breach of a duty to accord procedural fairness. (Woolworths Ltd v BathurstCity Council (1987) 63 LGRA 55, 63) and Stein J has held that it does not do so (Calcovics supra 273). In this Court, Stein JA expressly left the matter open in Londish v Knox Grammar supra.
131 The fact that the legislative scheme permits unrestricted challenge for a period of three months from the date of promulgation of the environmental planning instrument, is, of course, an exceptionally significant aspect for its construction. The force of the principle of statutory construction to which I have referred above, that a statute which restricts access to the Courts is construed strictly, must be attenuated by this fact.
132 Nevertheless the issue, as I have identified it above, is whether or not the particular conduct that is alleged to vitiate the exercise of the statutory power is such as to deprive a purported “environmental planning instrument” of the quality of such an instrument for the purposes of s35. This question is not to be answered in the same way with respect to every basis on which such conduct can be challenged after the expiration of the three month period. The principle of statutory construction that such a provision must be strictly construed remains operative.
133 Furthermore, in the case of an alleged breach of the common law duty of procedural fairness an additional principle of statutory construction is invoked: legislation which encroaches on common law rights should be strictly construed. (Brickmasters and Pipe Manufacturers’ Union (1904) 4 SR (NSW) 226; Potter v Minahan (1908) 7 CLR 277, 304; Sargood Bros v Commonwealth (1910) 11 CLR 258, 279; Minister of Lands and Forests v McPherson (1990) 22 NSWLR 687, 698-700; Pearce and Geddes (ed) Statutory Interpretation in Australia 4th ed 1996, pars 5.16, 5.17, 5.22).
134 The often stated proposition that privative clauses do not protect against jurisdictional error - sometimes confined to “manifest jurisdictional error” (Church of Scientology v Woodward (1980-82) 154 CLR 25, 56) or to “refusing to exercise” or “exceeding” jurisdiction (Public Service Association (SA) supra 160, Darling Casino supra 555) -may need to be reviewed in view of the extension of the concept of jurisdictional error in recent years. (Anisminic supra 171 per Lord Reid, 194 per Lord Pearce; Craig v South Australia (1994-95) 184 CLR 163, 177-179; Darling Casino supra 555 fn 36).
135 For present purposes, it is sufficient to note that there is, within the class of jurisdictional error, specific cases to which a particularly high level of strictness in the construction of a privative clause is appropriate. In Australia, this approach includes the application of the Hickman principle. (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598). This principle applies to State enactments. (R v Murray ex parte Proctor (1949) 77 CLR 387, 398-399; Coal Miners Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437, 442-443).
136 As Gaudron and Gummow JJ said in Darling Casino:
“However, and provided the intention is clear, a privative clause in a valid State enactment may preclude review for errors of any kind and if it does, the decision in question is entirely beyond review so long as it satisfied the Hickman principles.” (555)
137 The final qualification with reference to the “Hickman principles” is not, as I understand it, a suggestion that in some manner that “principles” are immune from legislative overruling. Rather, once the intention appears from the legislative scheme that the privative clause does in fact extend to jurisdictional error, then a final principle of statutory construction reflected in the Hickman principle must be applied. This is because the strict construction, appropriate for all such clauses, is applied with particular stringency to these core matters. Indeed, it may be so difficult to conceive of a form of words capable of satisfying a “necessary intention” test, that express words are, as a practical matter, required. (Cf R v Lord Chancellor; Ex parte Witham supra, 858 per Laws J).
138 The threefold Hickman principle was described by Gaudron and Gummow JJ in the following way:
“In that case, Dixon J said that the effect of privative clauses, which purport to exclude judicial review entirely, is that decisions are not ‘considered invalid if they do not upon their face exceed the … authority (conferred by the legislation in question) and if they do amount to a bona fide attempt to exercise the powers (conferred) and relate to the subject matter of the (legislation).” (553)
139 Their Honours emphasised that the issue is “one of the meaning and effect of the statutory provisions in question” (554). This arises by reason of inconsistency between provisions of the statute. The full passage is:
“It is to be remembered that the Hickman principle is a rule of construction. This does not appear fully to have been appreciated in the Court of Appeal in the present case. Accordingly, the question in this case is not one of the meaning and effect of the Hickman principle which seeks to reconcile ‘prima facie inconsistency between one statutory provision which seems to limit the powers of the (decision maker) and another provision, the privative clause, which seems to contemplate that the (decision) shall operate free from any restriction’. (R v Coldham; Exparte Australian Workers Union (1983) 153 CLR 415-418 referring to R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 398-399. See also Deputy Commissioner ofTaxation v Richard Walter Pty Limited (1995) 103 CLR 168 at 193-194) Rather it is one of the meaning and effect of the statutory provisions in question. If there is an inconsistency, the Hickman principle requires that it be ‘resolved by reading the … provisions together and giving effect to each’ (R v Coldham; Ex parte Australian WorkersUnion (1983) 153 CLR 415 at 418). However there are anterior questions: the extent to which the relevant statutory provisions, when properly construed give rise to an inconsistency to be resolved in that way and whether the decision in question is one that falls within the area of that inconsistency.” (554)
140 The passages in explanation of the Hickman principle which their Honours quote from R v Coldham; Ex parte Australian Workers Union, have their origin in the judgment of Dixon J in Hickman itself, where his Honour said:
“… If in one provision it is said that certain conditions shall be observed, and in a later provision of the same instrument that, notwithstanding they are not observed, what is done is not to be challenged, there then arises a contradiction, and effect must be given to the whole legislative instrument by a process of reconciliation.” (617)
(See also R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415, 418; O’Toole v Charles David Pty Limited (1991) 171 CLR 232, 304; Deputy Commissioner of Taxation v Richard Walter Pty Limited (1995) 183 CLR 168, 194; Darling Casino supra 553-554).
141 However, nothing in these authorities suggests that the Hickman principle is intended to be an exhaustive statement of the categories of legal error in which a privative clause will be subject to particular stringency in the course of strict construction. The stringent standards applicable to the core categories of jurisdictional error, referred to in Hickman, may also be applicable to other categories of error.
142 The fact that the three matters specifically identified in Hickman are not to be regarded as an exhaustive statement of the circumstances in which a particularly stringent application of the principles of strict construction of privative clauses is appropriate, is confirmed in some of the reasoning in the subsequent authorities which apply Hickman. In Aronson and Dyer Judicial Review of Administrative Action (1996) pp968-969, two additional categories are identified in subsequent decisions by Sir Owen Dixon himself and the subsequent authorities. (See Coldham supra 419 per Mason ACJ and Brennan J, 427-428 per Deane and Dawson JJ; O’Toole supra 274-275 per Brennan J, 305 per Dawson J; Richard Walter supra 195 per Brennan J).
143 Bignold J’s conclusion that the Hickman principle would not apply to a time limit clause is supported by a line of authority in England including Smith v East Elloe Rural District Council [1956] AC 736; R v Secretary of State for the Environment; Ex parte Ostler [1997] 1 QB 122; R v Cornwell County Council; Ex parte Huntington [1992] 3 AllER 566 and on appeal [1994] 1 AllER 694.
144 Each of these cases involved a privative clause with a “shall not be questioned” formula, coming into effect after the lapse of a certain period of time. These authorities do establish that a clause of this character at least in the particular statutory contexts dealt with in those cases, which relevantly were planning contexts, is effective to preclude challenges after the expiry of the relevant time limit, even on the grounds of alleged bad faith or denial of natural justice.
145 The most directly applicable case in the circumstances of the present case is that of Ostler, where the Court distinguished Anisminic on the basis of the reasoning in Smith v East Elloe RDC, including the express reference to the exclusion of a challenge on the ground of bad faith in the judgment of Lord Radcliffe at 769-770. (See Ostler supra at 133G, 135B, 135G-136B).
146 The reasoning of Lord Radcliffe has been qualified in some respects in subsequent House of Lord’s decisions. (See eg Boddington v British Transport Police [1998] 2 WLR 639 at 649D-E per Lord Irvine of Lairg; R v Wicks [1997] 2 WLR 876 at 889H-890C. See also Alder “Time Limit Clauses and Judicial Review - Smith v East Elloe Revisited” (1975) 38 MLR 274; Gravells “Time Limit Clauses and Judicial Review - The Relevance of Context” (1978) 41 MLR 383; Gravells “Time Limit Clauses and Judicial Review - Some Second Thoughts” (1980) 43 MLR 173; Alder “Time Limit Clauses and Conceptualism - A Reply” (1980) 43 MLR 670; Belloff “Time, Time, Time, Its On My Side, Yes It is” in Forsyth & Hare The Golden Metwand and the Crooked Cord Oxford, 1998, esp 285-286.
147 The matter to be decided is whether the reasoning of the majority of the House of Lords in Smith v East Elloe, as subsequently applied in Ostler and Huntington, can stand with the High Court’s development of the Hickman principle for purposes of Australian law. In my view it cannot. Rather, the law in Australia is as stated in Lord Reid’s dissenting judgment in Smith v East Elloe His Lordship said:
“In my judgment, paragraph 16 is clearly intended to exclude, and does exclude entirely, all cases of misuse of power in bona fide.” (764)
148 This part of his Lordship’s reasoning would need to be expanded in the light of Hickman and other authorities. His Lordship continued:
“But does it also exclude the small minority of cases where deliberate dishonesty, corruption or malice is involved? In every class of case that I can think of the Courts have always held the general words not to be read as enabling a deliberate wrongdoer to take advantage of his own dishonesty. Are the principles of statutory construction so rigid that these general words must be so read here? Of course, if there were any other indications in the statute of such an intention beyond the mere generality of the words that would be conclusive: but I can find none.
There are many cases where general words in a statute are given a limited meaning. That is, not only when there is something in the statute itself which requires it, but also where to give general words their apparent meaning would lead to conflict with some fundamental principles. Where there is ample scope for the words to operate without any such conflict it may very well be that the draftsman did not have in mind and Parliament did not realise that the words were so wide that in some few cases they could operate to subvert a fundamental principle. In general, of course, the intention of Parliament can only be inferred from the words of the statute, but it appears to me to be well established in certain cases that, without some specific indication of an intention to do so, the mere generality of words used will not be regarded as sufficient to show an intention to depart from fundamental principles.” (764-765)
149 Amongst the fundamental principles which are secreted within the law of statutory interpretation are the right of access to the courts and the duty to accord procedural fairness to persons affected by administrative decisions.
150 Lord Reid’s reasoning is consistent with Hickman and the Australian cases that have applied it. The reasoning of the majority in Smith v East Elloe, as applied in Ostler and Huntington, is not consistent with Australian authority.
151 To say that a particular statutory provision must be “strictly construed” is not to invoke any specific body of rules. There are degrees of strictness. One formulation of what “strict construction” requires was stated in Anisminic supra by Lord Reid:
“It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly - meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.” (170)
152 However, as Lord Reid’s reasoning in Smith v East Elloe shows, the principle that a privative clause must be construed strictly does not apply only to a clause containing words which have more than one meaning and are in that sense “ambiguous”. The principle is also to be applied to identify the particular circumstances to which the general words chosen by Parliament were intended by Parliament to apply. As Jordan CJ put it when identifying the categories of error of law which vitiated a decision making process: “… there are mistakes and mistakes”. (Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR 416, 420).
153 The High Court has quoted with approval the following passage from Maxwell on Statutes, 4th ed:
“It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.”
(See Potter v Minahan (1908) 7 CLR 277, 304; Bropho vWestern Australia (1990) 171 CLR 7, 18).
154 To similar effect are two observations of Isaacs J in Ex parte Walsh and Johnson; R e Yates (1925) 37 CLR 36:
“But once concede the tractability of a phrase, then the extent of tractability depends entirely on its surroundings, including extraneous circumstances.” (91)
“… the full literal intention will not ordinarily be ascribed to general words where that would conflict with recognised principles that Parliament would be prima facie expected to respect. Something unequivocal must be found; either in the context or the circumstances to overcome the presumption.” (93)
155 As the six member joint judgment put it in Bropho supra:
“The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear.” (18)
156 With respect to abrogation of fundamental rights and immunities express words are generally required. See Coco v R (1994) 179 CLR 427 at 436-438 where the formulation adopted in the joint judgment of the High Court was “unmistakable and unambiguous”. See also Kartinyeri v Commonwealth (1998) 72 ALJR 722, 743.
157 The right of access to the courts and, of equal significance in the present case, the common law right to procedural fairness, is a “deep rooted principle of the law”. (Commissioner of Police v Tanos supra, 395-396). See also Lisafa Holdings v Commissioner of Police (1988) 5 NSWLR 1, 12-14 per Kirby P; 22 per McHugh JA. As I have said above, these principles are secreted in the law of statutory interpretation.
158 In England a denial of natural justice has been held to be equivalent to jurisdictional error, which prevents the operation of a privative clause. (See Attorney General v Ryan [1980] AC 718, 730). English decisions must be treated cautiously, because of the effective abolition of the distinction between jurisdictional and non-jurisdictional errors of law, a distinction which still exists in Australian law. However, in Attorney General v Ryan, at 730, the Privy Council applied the following reasoning of Lord Selborne in Spackman v PlumsteadDistrict Board of Works (1885) 10 App Cas 229, 240:
“No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.”
159 This passage assimilates a breach of the obligation to afford procedural fairness with the kind of error to which the Hickman principle applies. It does, in my opinion, represent the law in Australia.
160 Breach of the requirement of procedural fairness has generally been assimilated with jurisdictional error in its original narrow sense. (See eg Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242, 277; Calvin v Carr [1980] AC 574, 590; Macksville & District Hospital v Mayze (1987) 10 NSWLR 708, 716-719; Kopuz v District Court of New South Wales (1992) 26 NSWLR 232, 245; Totalisator Agency Board of NSW v Casey (1994) 54 IR 354, 359-360; Stock v Grubb (1984) SASR 1, 19 and 22).
161 Indeed, breach of the common law obligation of procedural fairness may fall within the Hickman principle, as it has been interpreted and extended beyond the original threefold formulation of Sir Owen Dixon. In O’Toole Deane, Gaudron and McHugh JJ contemplate that rules of procedural fairness could be encompassed within the third Hickman principle, i.e. “reasonably capable of being referred to the power” (287.5). Dawson J suggested that some aspects of procedural fairness fell within the concept of bona fides (305.5).
162 Furthermore, the requirements of procedural fairness which the common law attaches to the exercise of all public power, fall within the scope of the general description of the Hickman principle found in some recent judgments. Subject to “express words of plain intendment” (the Tanos formulation), procedural fairness can be described as an “inviolable limitation or restraint” (Coldham 419, O’Toole 274-275), or as a defect which does “deny the power” (O’Toole 305, Richard Walter 180).
163 Hickman may not be directly applicable, because the task is not one of reconciling two, apparently contradictory, statutory provisions. However the approach to statutory construction reflected in the Hickman line of cases is, in my opinion, determinative of the issue that must be decided in this case.
164 The significance which Australian common law has come to attach to the requirements of procedural fairness is such that the conclusion that a statute has excluded the requirements will only be drawn after a process of strict construction of a similar degree of strictness as that which lies behind the Hickman principle. In my opinion, Bignold J was wrong to hold that a time limited ouster clause, such as s35, should be construed to overrule the Hickman principle. Further, Pearlman J was wrong to hold that, subject only to the three matters referred to in Hickman, s35 would be effective to prevent other forms of judicial review, specifically on the procedural fairness ground.
165 I reach this conclusion on the basis of the test applied in order to determine when a particular statute has excluded the requirements of procedural fairness: “express words of plain intendment” (Tanos supra 396 and the authorities which applied this test as hereinbefore set out). See also the formulation “inescapable conclusion” Lisafa supra 22 per McHugh JA).
166 Section 35 has a significant area of operation. It will apply to non jurisdictional error of law. Subject to the apparent widening of the sphere of jurisdictional error, it may extend to some errors of that character. It is not necessary to consider such matters on this occasion. In all cases, the particular statutory scheme will be determinative.
167 The words of s35 do not reflect a “plain intendment” to impinge on the fundamental principle reflected in the requirements of procedural fairness. In reaching this conclusion I have given particular weight to the following aspects of the legislative scheme.
168 First, the draft LEP must be publicly exhibited in a process which will often satisfy the common law requirements (s66).
169 Secondly, the Council must clearly distinguish between advertising a draft which may have a direct effect on rights and interests, and a draft which does not. This arises from subsection 66(3) which states:
“Where, for the purposes of informing the public generally, a council decides to publicly exhibit a draft local environmental plan otherwise than in accordance with subsection (1), or to publicly exhibit any other matter which could be construed or represented as having a similar purpose to a draft local environmental plan, it shall at the same time publicly exhibit a statement to the effect that the exhibition is not to be regarded as an exhibition for the purposes of this Act.”
170 Thirdly, the restriction of the power of the Council to amend the matters which “it considers necessary … arising from its consideration of submissions or matters raised at any public hearing” is such that procedural fairness will often have been afforded to affected landowners in the course of the process of considering submissions or the conduct of a public hearing.
171 Fourthly, the Council must, when submitting its draft plan, also submit a statement containing compliance with the provisions for public involvement (s68(4)(d)) and the Director must report to the Minister whether there has been such compliance (s69(c)).
172 Fifthly, the legislature is aware that the Court will, in its discretion, refuse relief for breach of the requirements of procedural fairness for delay or because of the effect of any order on the third parties, especially those who have had no involvement in the breach of duty on the part of the Council.
173 All of these factors mitigate the degree of inconvenience which may be caused to the implementation of an environmental planning instrument by permitting challenges to such instruments after three months.
174 However, it is the importance that Australian case law on procedural fairness has given to the presumption that Parliament does not intend to abrogate the common law duty to accord procedural fairness in the exercise of public power, which determines the outcome of this case. The law of statutory construction requires that a privative clause should be subject to a particularly strict construction when the issue is whether Parliament intended an ouster or privative clause to impinge on the applicability of fundamental principles. The EPA Act does not contain a sufficient indication that such was intended.
Relief
175 The defect in the Fairfield LEP affects only subclause 13(3). The Appellant seeks an order declaring that this subclause is invalid. Both parties submitted that the subclause is severable from the balance of the Fairfield LEP. This is plainly so.
176 Section 32(2) of the Interpretation Act 1987 relevantly provides:
“32(2) If any provision of an instrument … would, but for this direction, be construed as being in excess of the power conferred by the Act under which it is made:
…
(b) the remainder of the instrument … shall not be affected.”
177 The excision of subclause 13(3) will not affect the operation of the balance of the LEP. See Harrington v Long (1996) 190 CLR 311, esp 329; There is a useful summary of the principles in point form in Department of Premier and Cabinet v Birrell (No 2) [1990] VR 51, 65-66.
178 A declaration should be made as sought.IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEALCA 40420/96
CORAM SPIGELMAN CJ
MEAGHER JA
POWELL JAFriday 5 February 1999
VANMELD PTY LIMITED v FAIRFIELD CITY COUNCIL & ANOR
JUDGMENT
179 MEAGHER JA: In this matter I regret that I am unable to agree with the Chief Justice, whose judgment I have had the honour to read. I do agree with him that the local environment plan did satisfy the requirements of the Environmental Planning and Assessment Act regulating the promulgation of a local environmental plan (“LEP”) notwithstanding the inclusion of subclause 13(3). I do agree with him that the power to promulgate the LEP was not exercised for an improper purpose or is in bad faith. I also agree that the prohibition in subclause 13(3) is authorized by the Environmental Planning and Assessment Act. But I emphatically do not agree that the Council was guilty of any breach of the common law rules of procedural fairness.
180 In my view, the ancillary matters discussed by the Chief Justice, viz. the effect of s.35 of the Act and the extent of the Hickman principle, do not arise.
181 In this case, the Council publicly exhibited its draft LEP between March and June 1992, and again from 17 August to 9 October 1992, and for five months from December 1992 until May 1993 held a public hearing into submissions received concerning the draft LEP. It may thus be seen that the Council consulted with its ratepayers as far as possible, and did nothing clandestine. But, more than that, during the public hearing there was extensive discussion about flood mitigation and flood management, which led directly to the prohibition of fill in flooding areas contained in cl.13(3). The appellant must have known from this discussion in what direction policies were moving and could have said all it wanted to say on the matter either at or after the public meeting; and, indeed, despite the litany of alleged wrongs on behalf of the Council, it was never suggested that the provisions of cl.13(3) were surprising or unexpected, much less that there was a reasonable expectation that no amendment of the sort would be made.
182 In these circumstances, I think the Act specifies exactly to what extent procedural fairness must be accorded to a ratepayer.
183 The council was meticulous in according all ratepayers that measure of fairness which the Statute mandated. It did everything it was expected to do by the statutory code. I might add that there was no submission of Wednesbury unreasonableness in the Council’s decision.
184 I say nothing of what the position would have been if the Council’s alterations made the plan wholly different from the exhibited plan. That was the situation dealt with by this Court in Leichhardt Municipal Council v Minister for Planning (No. 2) (1995) 87 LGERA 78. It is not relevant here.
185 I would dismiss the appeal with costs.IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEALCA 40420/96
LEC 40032/95SPIGELMAN CJ
MEAGHER JA
POWELL JA5 February 1998
VANMELD PTY. LIMITED v. FAIRFIELD CITY COUNCIL & ANOR.
JUDGMENT
186 POWELL JA: I have read in draft the Judgment which has been prepared by Spigelman CJ, in which Judgment his Honour has set out the facts which have given rise to, and the submissions which have been advanced on behalf of the Appellant on the hearing of, this appeal.
187 I agree with the Chief Justice’s conclusions that the Appellant has failed to establish that the inclusion of cl.13(3) in the Local Environmental Plan (“the LEP”) was invalid upon the ground of a failure to comply with a condition precedent to the exercise of the power to amend the draft LEP, or upon the ground that the inclusion of provisions of cl.13(3) in the LEP was not authorised by the provisions of the Environmental Planning and Assessment Act 1979 (“the EPA Act”), or upon the ground that, in resolving to include the provisions of cl.13(3) in the LEP, the Respondent acted mala fide.
188 That being so, there remain for consideration the questions, first, whether, notwithstanding the first of the Chief Justice’s conclusions to which I have referred, the inclusion of the provisions of cl.13(3) in the LEP was, prima facie, invalid by reason of the Respondent’s failure to accord to the Appellant procedural fairness in the sense that it failed either to re-advertise the draft LEP or to notify the Appellant - and others who might be affected - directly; second, whether the provisions of s.35 of the EPA Act constitute a time limitation, or a privative provision; third, whether, the provisions of s.35 of the EPA Act - by reason of the application of the principles in R v. Hickman; Ex parte Fox and Clinton ((1945) 70 CLR 598) (“Hickman”) or otherwise - operate so as to bar judicial review of the Respondent’s resolution to include the provisions of cl.13(3) in the LEP.
189 In the light of the conclusion to which I have come as to the first of these questions I prefer to refrain from expressing a concluded view upon the second and third of these questions until such time as the circumstances of a particular case are such as to require that a decision as to them is called for. My tentative views as to them are, however as follows:
(i) since the terms of s.55 of the EPA Act clearly indicate that, if a challenge to, or application for review of the validity of the making of any environmental planning instrument, is commenced within three months of the making of the instrument, it will be open to the Land and Environment Court to grant whatever relief may be called for - that is, the section does not preclude, or purport to preclude, judicial review entirely - it seems to me - contrary to the view expressed by the Chief Justice - that, upon its proper construction, s.35 is to be regarded as extinguishing the right to such judicial review - and thus is to be regarded as a time limitation provision - rather than as barring the giving of the remedy of judicial review;
(ii) if, as seems now to be the accepted approach, the duty of an administrative body, in an appropriate case, to accord procedural fairness to a person, or body, who, or which, may be affected by the exercise by it of a power vested in it, is one imposed by the common law, and not one arising out of the interpretation of the relevant enabling statute, it seems to me that, in a case in which judicial review is sought on the grounds of a denial of procedural fairness, one’s task is, first, to determine whether the terms of the relevant statute are such as to exclude, or to restrict - and, if so, to what extent - the obligation to accord procedural fairness; and, second, to determine whether the terms of the relevant privative clause are such as to preclude judicial review even if there has been a failure to accord procedural fairness to the extent to which it ought to have been accorded. If one concludes, first, that, in the particular case, the obligation to accord procedural fairness has not been excluded, or restricted; and, second, that the terms of the relevant privative clause, do not have the effect suggested, then, as it seems to me, the principle in Hickman (supra) is irrelevant. That this should be so is due to the fact that the received doctrine (see, for example, Deputy Commissioner of Taxation v. Richard Walker Pty. Limited ((1994-1995) 183 CLR 168) is that the principle in Hickman is a rule of construction directed towards reconciling apparently inconsistent provisions in a statute, a fact which would appear to make the application of the principle in a case in which the relevant inconsistency is one between a rule of the common law and a statutory provision inappropriate.
190 In the event, however, it seems to me, as I have earlier recorded, that neither of the second and third questions to which I have referred calls for a concluded answer. I say this, first, since it seems to me that the provisions of Part III of Division 4 of the EPA Act are such as to indicate a legislative intention that, except to the extent of the requirements to notify, and to consult, there provided for, a council seeking the making of an environmental planning instrument was not to be subject to any duty to accord procedural fairness to any person, or body, who, or which, might be affected by the provisions of the proposed instrument; and, second, that, as I have earlier recorded, the Appellant has failed to establish that there was any failure to comply with a condition precedent to the exercise of the power to amend the draft LEP by the inclusion of the provisions of cl.13(3).
191 I conclude that the appeal should be dismissed with costs.
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