Vanmeld v Fairfield City Council and Anor

[1999] HCATrans 475

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S27 of 1999

B e t w e e n -

VANMELD PTY LIMITED

Applicant

and

FAIRFIELD CITY COUNCIL

First Respondent

THE MINISTER ADMINISTERING ENVIRONMENTAL PLANNING & ASSESSMENT ACT 1979

Second Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 DECEMBER 1999, AT 11.17 AM

Copyright in the High Court of Australia

MR P.M. HALL, QC:   If it please the Court, I appear with my learned friend, MR E.M. STRASSER, for the applicant.   (instructed by Jennifer E. Darin)

MR M.H. TOBIAS, QC:   I appear with my learned friend, MR J.J. WEBSTER, for the first respondent, your Honours.  (instructed by Deacons Graham & James)

GAUDRON J:   I hold a certificate from the Deputy Registrar who certifies that she has been informed by Miss C. Hanson, solicitor for the second respondent in this matter, that the second respondent does not wish to be represented at the hearing and will submit to any order of the Court, save as to costs.  Yes, Mr Hall.

MR HALL:   Thank you, your Honours. Your Honours, the application is concerned with provisions of the New South Wales Environmental Planning and Assessment Act concerning the making of local environmental plans, to which I will take your Honours shortly.

The application has the following aspects of general importance.  Firstly, whether the statutory scheme for the making of local environmental plans which prescribes public exhibition, notice, the making of submissions and in some circumstances, the holding of public hearings which I will refer to as the public process, may be overridden by a later exercise of the statutory power to alter a draft plan following completion of the public process.

HAYNE J:   You say that is of general application.  That is a particular set of provisions of this jurisdiction, is it not?

MR HALL:   Yes, that is so, your Honour.  The circumstances in which that question arises in particular in this case are firstly that the draft plan contained provisions which expressly represented that the filling of development of land would be a permitted development.  Secondly, the Council ‑ ‑ ‑

GAUDRON J:   But a draft plan is just a draft plan, is it not?  A draft plan does not confer rights or anything of that kind, it is just a draft plan.

MR HALL:   It is, your Honour, except for the fact that it is, under the provisions we are dealing with, a plan that must conform to a procedure and a process which the Act prescribes which is concerned with ensuring that those affected properly understand its provisions and the implications of it, so that in the event - it provides the opportunity to participate in the making of the plan.  In this case, the question as to whether the Council – or a council – exercising the power to alter can do so by rendering development later prohibited, contrary to that which was represented in the plan which was publicly exhibited, namely, development would be permitted.

The other general aspect is whether or not, on the other hand, the statutory power to effect an alteration following the completion of the public process which a statute provides for, must be read in context and subject to a limitation or requirement, as to notice, consultation, rather than the Council being the final arbiter, of whether or not of a change of that kind.

HAYNE J:   That turns, does it not, on the construction of this Act?

MR HALL:   It does, your Honour.

HAYNE J:   Why should not the Court of Appeal in this State be the final arbiter of what the statutes unique to this State mean?  What is the general nature of the point that you seek to make?

MR HALL:   The general nature of the point can be stated shortly, your Honour, and it is this.  That where a statutory power has been conferred upon a donee or an authority, such as in this case, to provide for rights, in this case rights in respect of land, to be effected, that that power must be the subject of the rules of procedural fairness.  In other words, that the rule of law operating in this context would prohibit and not permit arbitrary exercise of a statutory power to alter something which has been through a statutory power.  In other words, the general question is the exercise of a statutory power made subject to the limitation of that kind?

GAUDRON J:   I am not following you Mr Hall, I am sorry.  Are you saying at this point that there has to be an implication read into the clear terms of the statute?

MR HALL:   Yes, your Honour.

GAUDRON J:   I see.  This is quite independently of your natural justice or procedural fairness argument?  Is it, or do they flow together as it were, at this point?

MR HALL:   They do flow together, your Honour.  The terms of the provisions in context, that is the provisions of the power that is sought to exercised, without notice, to affected landowners is one which must be read consistent with the authorities of this Court within the legislative context in which it is to be found.

GAUDRON J:   So we are talking about section 68(3), are we?

MR HALL:   We are, your Honour.

GAUDRON J:   Do you say there has to be an implication read into that?

MR HALL:   We do, your Honour.

GAUDRON J:   And what is the implication?

MR HALL:   The implication is this, that the power to alter which is stated in section 68 is not an unstructured power. It is a power which is confined and limited by the provisions which accompany it.

GAUDRON J:   Well that is not a limitation.  They are not the implications.  They may be considerations which give rise to an implication.  What is the implication you say?

MR HALL:   The implication here, your Honour, is that the only power that may be exercised by way of alteration under section 68(3) is a power in relation to matters which have been the subject of the process itself, that is subject to submissions ‑ ‑ ‑

GAUDRON J:   How do you relate that to the express terms of subsection (3A)?

MR HALL:   In this way. The phrase “pursuant to subsection (3)” appearing in that subsection, and in the operative section above it, both make it clear that the provisions in subsection (3) are to be subject to the submissions earlier referred to. Perhaps I could make my point in this way. The power under section 68(3) is to consider submissions and the trigger for using that power under section 68(3) is to be understood by what section 67 is referring to.

HAYNE J:   You just cannot make the words do it, can you, Mr Hall?  The obligation is to consider the submission.  The power is a power to make alterations, (3A) says:

An alteration made by a council pursuant to subsection (3) need not relate to a submission.

It would take a rare piece of heroism to say that the alteration must relate to a submission which is the burden of your submission, is it not?

MR HALL:    If I could attempt to meet the challenge which your Honour has posed by saying this, that one cannot read either subsection (3) or (3A) divorced from that which goes before it.  Because the reference to “a submission” is a reference back to section 67 which refers to submissions in writing but, most importantly, with respect to the provisions of a draft local environmental plan.  Now we know in this case the disputed provision never existed at that time.  Submissions, therefore, could never have related to it.  That is to say, the provisions under clause 13 originally dealt with the permissibility of development.  The disputed clause - I should say, and the conditions upon which such consent should be granted.

The disputed clause had a quite different character and ambit. It prohibited all development with respect of the six properties in question. So that on no basis, in our submission, when one understands that 67 and 68 are linked, as they must be by the word “submission” and the words “provision of a draft local environmental plan” - the disputed provisions did not exist. There could be no submissions in relation to a prohibition on development and therefore no occasion for section 68(3) power to be triggered at all, and it is in that way, to answer your Honour Justice Hayne or to attempt to answer, that is the basis for the implication. That is the way we put it. Of course the Chief Justice proceeded upon the basis that the exercise of this statutory power which directly affected, by way of the power, the rights and interests consequent upon the exercise of that power without notice at all. So that the source for the obligation, quite apart from the implication point, comes from the nature of the power and the effect it had, which was not to modify any previous scheme publicly exhibited, but to introduce for the first time a radical provision which had the effect of extinguishing all forms of development.

It is in that way, in our respectful submission, that, so understood, the provisions here applied to - that is the requirements, whether from the general law or from the invitation, must govern provisions that come in through an alteration, that is provision, not just modifying, but qualifying an existing provision but which introduces a new provision for the first time having that radical effect.  But we put it in this way, if that were not the case, the Code which evidences the importance of informing the public and involving the public would have this consequence:  you would have two categories of provisions.  One which was in the original draft provision which went through the public process; and two, a type of provisions that comes in later through the alteration power, no matter how radical, which does not go through any form of public process.  Do not tell anyone.  And that is this case.

The facts of this case are stark and they are simple.  They are four. Firstly, there was no provision ever in the nature of this disputed clause in the publicly exhibited plan.  Secondly, the alteration brought into existence a radical effect which clause 13 was not designed to address.  Clause 13 was addressing the permissible development, not prohibiting development.  Thirdly, it was done without any notice whatever to the six landowners in question.  The circumstances in which ‑ ‑ ‑

HAYNE J:   So that (3B) is to be read as the “the council must, if landowners are affected, give public notice of and publicly exhibit the altered plan”, though it says “the council may but need not”.  It should be read “as the council must”.

MR HALL:   Yes, your Honour, because of the principle.  The general words will not override fundamental principles and, of course, Lord Reid in his dissenting judgment in the Elloe Case  which has become noted by this Court as representing a position which this Court has taken with fundamental rights such as the right to procedural fairness, that general words will not stand up to and override and render nugatory such fundamental principles and we, in short, say that the point arising here is that simple.  So that we are dealing with, not an alteration, we are dealing with an innovation.  Nobody could have contemplated – and when one goes to clause 13 to see how it was originally framed, it was framed in ‑ ‑ ‑

GAUDRON J:   Have you moved on to your procedural fairness point?

MR HALL:    I am about to.

GAUDRON J:   I see.

MR HALL:   So that what we say is that the provisions of clause 13 as originally drafted had two parts to it.  One permitting development by consent and the second dealing with the conditions on which such a consent should be given.

We say in this case that the principles of procedural fairness must operate in accordance with well known authority in circumstances where a statutory power is used to, in this case, not only prejudice but to eliminate all rights in terms of development of this property.

GAUDRON J:   Now you say your procedural fairness entitlement arises simply out of the fact of the draft plan, do you?

MR HALL:    No.

GAUDRON J:   That seems to be the only basis on which you have contended that you are entitled to procedural fairness.

MR HALL:    Your Honour, we say that the obligation which was owed to us, which conditioned the power to alter, had to be subject to the fundamental principle that that power, if exercised, which will, in effect, sterilise for all time, all development on this property which requires filling and development, was of such a nature that it attracts the powers and the principles as enunciated and explained by this Court in the well-nown cases.

GAUDRON J:   You are entitled to natural justice, you say, or procedural fairness because the draft plan, what, led to the expectation that you would be able to utilise this land?

MR HALL:   Certainly, your Honour, we can go this far.  There is no question but that.  The draft plan represented to one and all this ‑ ‑ ‑

GAUDRON J:   That if passed in this form, or if promulgated in this form ‑ ‑ ‑

MR HALL:   Indeed.  Then development will be permitted subject to conditions of consent.  Now for the first time, this power, which was exercised on the night, after the whole process had been completed, by the Mayor proposing this clause 13, none of the engineers of Council had considered it.  It was her idea, as the transcript in the application book reveals, to put in Clause 13(3), and she explains that she lived in the area.

HAYNE J:   But all these good faith arguments have been heard, determined, dealt with, and you are not agitating them here?

MR HALL:    No, your Honour, we are not.  Indeed, that is background ‑ ‑ ‑

HAYNE J:   We can turn the light off over the jury box for a moment.

MR HALL:    And I am distracting myself by going back into that.  But, your Honour, the point has to be this:  having represented to the relevant members of the public this would be a permissible area for development, it later becomes a situation, not of alteration, but innovation.  The innovation is, these properties in this area will not be permitted to have any form of development at all, which is a foreign and different provision to the draft.  That is why we come back to the provisions of section 67, which contemplate that the power to alter is triggered by the receipt of submissions.  And you go back and the submissions, of course, are dependent upon them being referable to a provision.  We say this provision was non‑existent.  This concept of a prohibition was non‑existent until the night the lady Mayor raised it.

GAUDRON J:   The Mayor.

MR HALL:    The Mayor, thank you, your Honour.  She happened to be a lady, but it was in that context.

GAUDRON J:   She was the Mayor.

MR HALL:    As your Honour pleases.  In short form, in those circumstances where no forewarning and no notice is provided at all to affected landowners, and the Council resolves to adopt the whole plan which has gone through the public process, but with this add-on put in - it could have been found anywhere in the Code, it did not have to be a subclause of 13 - to sterilise the land.   In our respectful submission, the well-known principles of procedural fairness would operate in a situation like this, as elaborated by the learned Chief Justice.  So that the significance is, as we have put, if this were not so, you would have two types of process arising.  One which has to go through the public process, being the draft, publicly exhibited all the requirements, and another form of provision that comes in later that does not go through any form of process, no matter how radical its effect and, in our respectful submission, those principles are such that their breach creates jurisdictional error.  It is the exercise of one power out of context with complete disregard with what all has gone before in terms of what the exhibited plan represented would be of the situation.

In terms of jurisdictional error, in so far as this Court’s decision in Craig v State of South Australia is concerned, the power had to be conditioned, in our respectful submission, either by the implication or by the general application of the procedural fairness rules by the giving of notice and the opportunity to consult, as everyone else did.    In our respectful submission, that type of jurisdictional error is not shielded by the provisions of section 35 which takes us into, of course, another area of discourse and which I understand our friends would not contend does not raise a matter of importance.

The Land Environment Court has been split and his Honour has catalogued in the judgment the different approaches that the members of that court take to that question, that is to say, whether a breach of the rules of procedural fairnessm when they apply, do provide a basis for establishing that the Hickman principles have not been satisfied or, alternatively, that the development of the Hickman principles by this Court in Coldham would extend to a condition that is breached, which is a condition imposing an inviolable limitation on the exercise of statutory power.  The inviolable limitation in this case, of course, being the right of a landowner to know, to be told before his land is sterilised, “we are going to do it”.  So, in our

respectful submission, the authorities, O’Toole’s Case in particular, and the others, do extend and make manifest that a breach of the rules of procedural fairness would come within, as this Court has acknowledged, obiter, the second and third Hickman rules and, in any event, the development of them by the Coldham decision to inviolable limitations also would apply in this case. 

For those reasons, in our respectful submission, this is a case in which, on the short facts, of which there is no contest as to the effect of this altered plan on the applicant’s rights, no contest of no notice.  In our respectful submission, the matter does raise the question of public importance as to whether a statutory body will be permitted the final arbiter itself as to what it considers fair or not.  May it please the Court.

GAUDRON J:   Thank you, Mr Hall.  We need not trouble you, Mr Tobias.

This application raises three questions. The first concerns the meaning and effect of section 68 of the Environmental Planning and Assessment Act 1979 (NSW). On that matter we are of the view that the decision of the New South Wales Court of Appeal is not attended with sufficient doubt to attract the grant of special leave.

The other questions concern (1), the obligation of a Council to observe the rules of procedural fairness and (2), the meaning and effect of section 35 of the Act.  Having regard to the way in which the case with respect to procedural fairness was presented, and having regard also to the terms of section 35 of the Act, we are of the view that the prospects of success are not such as to warrant the grant of special leave.  Accordingly, the application is refused.  The matter having been the subject of submissions in writing, the application is refused with costs.

AT 11.38 AM THE MATTER WAS CONCLUDED