Walker v Minister for Planning & Ors [2009] HCATrans 50 (13 March 2009)

Last Updated: 17 March 2009

[2009] HCATrans 050

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S477 of 2008

B e t w e e n -

JILL WALKER

Applicant

and

MINISTER FOR PLANNING

First Respondent

STOCKLAND DEVELOPMENT PTY LTD

Second Respondent

ANGLICAN RETIREMENT VILLAGES – DIOCESE OF SYDNEY

Third Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 2009, AT 11.22 AM

Copyright in the High Court of Australia

MS C.E. ADAMSON, SC: May it please the court, I appear with my learned friends, MR M.H. BAIRD and MR C.L. LENEHAN, for the applicant. (instructed by Environmental Defender’s Office)

MR J.E. GRIFFITHS, SC: If the Court pleases, with my learned friend, MS S.A. DUGGAN, for the first respondent. (instructed by Department of Planning Legal Services Branch)

GUMMOW J: There is a submitting appearance, I think, from the second and third respondents.

MR GRIFFITHS: Correct, your Honour.

GUMMOW J: We might hear first from Mr Griffiths.

MR GRIFFITHS: Thank you, your Honour.

HEYDON J: Mr Griffiths, on pages 158 and 159, you take paragraph 53, in the last sentence Justice Hodgson says it would be strange if an error involved in failing to consider a particular object and to reach the conclusion that it was not materially relevant would make a decision void. Then halfway down paragraph 54 he says that if the Minister erroneously concluded that something was not relevant, to hold that that would make the decision void “would involve a merits review of the Minister’s judgment as to relevance”. Would it? If something relevant has not been taken into account, that ordinarily, does it not, render the decision ultra vires? It does not involve any element of merits review.

MR GRIFFITHS: That is certainly correct, your Honour, if one important caveat, which will be uncontroversial, is read into what your Honour put to me, namely, that the relevant consideration is one which the Minister is bound to take into account.

HEYDON J: So what do you say Justice Hodgson is talking about, for example, in paragraph 54, things that the Minister is not bound to take into account?

MR GRIFFITHS: What we would respectfully submit is that although not expressed in the way that I am about to express it, what his Honour was saying was that in a particular case ESD principles may be a relevant consideration but the legislation is such that it confers upon the Minister the power or the discretion to determine whether or not in any particular case ESD is relevant and, if so, what he will do with it.

In other words, this is a case whether the Minister does not suggest that ESD principles are an irrelevant consideration. It is accepted that they may be a relevant consideration but the central question is whether or not, on its proper construction, the relevant provisions of Part 3A make ESD principles a relevant consideration of which the Minister is bound to take into account.

HEYDON J: So the universe of relevant considerations, some of them you can take into account, but need not, and others you must take into account?

MR GRIFFITHS: Indeed, going back to the classic statement from Sean Investments that then leads through into Peko-Wallsend, that it is at the head of judicial review of mandatory relevant considerations, if I can use that shorthand expression, is one which needs to emphasis the difference between relevant considerations which are bound to be taken into account as opposed to others which are not so bound, even though they may be relevant.

As your Honours no doubt will recall in the Sean Investments Case, Justice Deane said that it is not simply a matter of an applicant for judicial review coming along and stating a list of relevant considerations and saying you failed to take one of them into account, therefore the decision is invalid. There is a preliminary issue, namely, whether on the proper construction of the Act, having regard to its subject matter, scope and purpose, it is a mandatory consideration in the sense of, under Peko-Wallsend, be a consideration which the decision-maker is bound to take into account.

GUMMOW J: There is a slippery question, though, is there not, as to how one distinguishes the two classes of consideration?

MR GRIFFITHS: Unquestionably. It is a question which ultimately and fundamentally is one of statutory construction. His Honour Justice Hodgson has pointed to one consideration in the paragraphs to which Justice Heydon refers, but in his analysis starting at paragraph 52 and onwards where he pays particular emphasis to the diversity of the objects and the indisputable fact that some of those objects will plainly not be relevant in all decisions.

GUMMOW J: Where do we find the actual text out of which these considerations are said to flow and as to which you are in dispute?

MR GRIFFITHS: They are set out, your Honour, in a bundle of legislation that we have handed up.

GUMMOW J: Yes, we have that.

MR GRIFFITHS: They are also set out in the Court of Appeal’s judgment, but most conveniently behind tab 1, your Honour, of our materials. There is a section marked Part 3A. Can I just pause to indicate to your Honours that as you may have appreciated, if you have had a chance to look at these materials and in particular to the comparative graph behind tab 6 at the end, there have been some subsequent amendments to Part 3A, although we do not suggest that the amendments are of such material significance that if the Court was minded to grant special leave that it would provide a basis for not doing so.

Your Honours see Part 3A as set out. Your Honours see that Part 3A applies in its terms to major infrastructure and other projects of particular significance to the State, including critical infrastructure projects, as defined in section 75C which are projects which are within Part 3A but have an additional element to them in the sense that the Minister has determined that they are of a category which is “essential for the State for economic, environment or social reasons.” Then your Honours have a series of other provisions, including – I will go through this very quickly – sections 75F, G, H and I, which apply not just to a ministerial approval to carry out a project but also have some relevance to the concept plan approval process which is the subject matter of these proceedings.

Coming then directly to your Honour’s question, section 75M is important and again I ask the Court to bear in mind the distinction between a concept plan being approved and actual approval for the project itself. Section 75M(2) is important. It underlines the fact that the concept plan is, as its name suggests, something which is general and not detailed. The scheme of this legislation, your Honours, is to have phases of decision-making starting - - -

GUMMOW J: Yes, there was some point made by Justice Hodgson, I think, to the effect that at a later phase the considerations that are important for your opponent might enter into the picture.

MR GRIFFITHS: Indeed. In fact, the Minister’s approval of the concept plan itself requires that that occur. If your Honours go to page 120 of the application book your Honours see at line 32 the – in effect, these are the primary judges’ orders, the declarations, but you can divine from them the nature of the approvals that were granted. In particular, could I draw your Honours’ attention to that which is in paragraph 2(i) and (ii) and, in particular, the references in (i) to any part of the project that involves a capital investment value of more than $5 million will “be subject to Part 3A of the EPA Act.” In other words, there will be further requirements of environmental assessment in respect to later stages of the project.

This is not the end of the matter. Subparagraph (ii) indicates that, again, for stages of the project with a capital investment value of less than $5 million the requirements of “Part 4 or Part 5 of the EPA Act” will apply. They are to be contrasted, of course, with Part 3A. As your Honours would, I suspect, appreciate, the matters for consideration set out in Part 4 are different from those which I will come to shortly in section 75M applying to a concept plan. Your Honours see 79C later on in the extracts that we have handed to your Honours. In fact, there is a blue tag, “s 79C”.

GUMMOW J: Yes, we have that, headed, “Evaluation”.

MR GRIFFITHS: That is correct. Your Honours note the different language of the provision:

In determining a development application –

and you could read in here, under Part 4 –

a consent authority –

and that could be, in this case, a local council, it need not be the Minister –

is to take into consideration such of the following matters as are of relevance –

et cetera. Then your Honours see a quite detailed list of matters which are, we would accept, mandatory relevant considerations. They include matters that not only go to process, if I could use that expression, but they also go to substantive matters such as that set out in (b) and (c) and, of course, (e), the catch-all provision. That is to be contrasted, in our respectful submission, with the content of section 75 - - -

GUMMOW J: As I understand it, you are saying that the considerations that agitate the other side in this case would find an avenue for ventilation under (b), (c) and (e) at the 79C stage?

MR GRIFFITHS: Yes, and especially under (e) where there is case law to the effect that the breadth of the concept of public interest is sufficiently wide to accommodate ESD principles. That language, your Honours, of 79C is to be contrasted with the language of 75O which is the equivalent provision indicating the Parliament’s intention as to the matters to which regard is to be had. Your Honours see that subsection (1) lays down some preconditions to the Minister’s discretion whether or not to approve the concept plan and subsection (2) is the equivalent provision to section 79C(1), to which I just took the Court, where (2) provides:

The Minister, when deciding whether or not to give approval for the concept plan, is to consider –

and then you have (a), (b) and (c). Conspicuous by their absence, in our respectful submission, are no reference to public interest nor, indeed, any reference at all, in our respectful submission, to any individual substantive topic or subject matter, rather, an indication by the list of matters described here that the process set out in Part 3A itself involving the Director-General’s report and reports and recommendations contained in that report, together with other matters that are described there, will themselves reveal relevant matters for the Minister to consider in his discretion, including ESD principles.

To put it another way, true it is that ESD principles are set out as being one of the objects of the Act in section 5, which your Honours see earlier on behind our tab 1. The objects of the Act, and these objects, we accept, would apply to Part 3A, although they operate at a high level of generality, but the objects of the Act are, and your Honours see the importance of the introductory word, “encourage” and then various matters, including the relevant matter, (vii), ESD. It is one of the objects of the Act that is not in dispute. The question is whether the object in question itself becomes a mandatory relevant consideration; do you read it into section 75O?

GUMMOW J: What is the first provision you have been referring to, the general provision?

MR GRIFFITHS: I think section 5, your Honour, the “Objects”. The objects of the Act, there are eight of them and they are all under the rubric of encouragement, and (vii) is ESD. Your Honour sees that? Section 4 of the EPA Act, which is the previous page, defines ESD as having the same meaning as a provision in another Act and that definition your Honours will find behind tab 4 of the materials.

A little curiously, perhaps, subsection (2), which is the adopted meaning, actually is a definition of ESD by reference to subsection (1)(a) of this different legislation which is directed to the objectives of the Environmental Protection Authority, but your Honours will see that the definition of ESD in subsection (2) is a definition which is characterised by the generality of the language contained within it. It is not a substantive definition, in our respectful submission, but rather a meaning which emphasises the importance of ESD as part of a process of decision-making. Words in the definition, your Honours, such as:

requires the effective integration of economic and environmental considerations in decision-making processes –

we emphasise, and that ESD –

can be achieved through the implementation of the following principles and programs –

and then there are various matters then set out, including as to the limb relating to precautionary principle – an exhortation is the way we would read it – that it be applied in a way that “public and private decisions should be guided by” various matters, and one can read on. The short point that we make in respect of that, your Honours, is that in addition to the reasoning of the Court of Appeal for the conclusion that they came to that ESD is not a mandatory relevant consideration, one has regard to the very content of the definition of ESD.

It is a definition which, in our respectful submission, indicates that ESD is, as a concept, meant to be a facultative type concept rather than a tangible or certain subject matter, factor or consideration of the type that one ordinarily expects when one is dealing with a Peko-Wallsend type analysis in identifying what is or is not a relevant mandatory consideration. We would say further, your Honours, that the object of encouraging ESD is to be found not in section 75O of the EP and A Act but is rather to be found in the processes and decision-making scheme which has been introduced by Part 3A which provides at various stages in the process requirements, not only on the Director-General but also on the proponent, to address relevant environmental matters including, where relevant, ESD principles. The short point is, none of that, in our respectful submission, rises so high as to bind the Minister to have regard to ESD in every case. If the Court pleases.

GUMMOW J: Thank you.

MS ADAMSON: Your Honours, the question of construction obviously cannot be determined or influenced by the circumstances of the instant case. We invite your Honours to look at section 75P which is behind tab 1, behind the blue tab “Pt 3A”, in our learned friend’s bundle. Your Honours will see from 75P(1)(c) that it is open to the Minister:

When giving an approval for the concept plan . . .

determine that no further environmental assessment is required for the project or any particular stage of the project –

So whilst it may be that in some cases where approvals under Part 4 are left intact by the Minister when making a determination - - -

GUMMOW J: You say in a particular situation one might never get to the 79C situation?

MS ADAMSON: Exactly, because the Minister has the power to say that there will be no further environmental assessment of that project. So the Minister can under Part 3A under 75C(1) declare a project “to be a project to which this Part applies” if “in the opinion of the Minister” a project “is essential for the State for economic, environmental or social reasons.” So, in other words, the power vested in the Minister by section 75C to put a project within Part 3A is very substantial. Furthermore, the power given to the Minister essentially to decide which of the procedures or approvals under the Act will apply to that project is practically unlimited under 75P, having regard to the wording of subparagraph (c). Furthermore, in subsection (2):

If the Minister determines that approval to carry out the project or any particular stage of the project is to be subject to the other provisions of the Act, the following provisions apply –

et cetera. The use of the word “if” there makes it clear if it were not so, in any event, under subsection (1) that the Minister has very considerable power. We say when one has regard to the object of encouraging ecologically sustainable development and one sees, as our learned friend has emphasised, from the definition of “ecologically sustainable development” which relates to decision-making processes, we say that far from making that object irrelevant or not necessarily relevant to decisions the Minister makes under Part 3A, the emphasis placed in the definition on the decision-making processes makes clear the parliamentary intention that the Minister’s discretion is to be read in light of that object in section 5 of the Act. What the Court below did was to adopt what we have described, we hope respectfully, as a mathematical approach and to put our argument - - -

GUMMOW J: If you are correct and if in a given case there is no section 75P operation that that is not invoked, does it mean that these ecological matters are investigated twice?

MS ADAMSON: Potentially, yes, your Honour, in that, as our learned friend has said, if the provisions of Part 4 of the Act come into play by reason of the actions of the Minister on a Part 3A, then the determination of the development application is governed by section 79C and the way in which the court below and the Land and Environment Court have construed section 79C(1)(e) “the public interest” is to import the principles of ecologically sustainable development within the rubric of the public interest.

We have described that in our submissions, in our summary of argument, as being a somewhat circuitous path because we prefer the approach to statutory construction which reads the power conferred on the Minister under Part 3A to grant approval to a concept plan as being subject to the overarching principle that the Minister take into account the principles of ecologically sustainable development. We ask, as we have put in our summary of argument rhetorically, as Chief Justice Black did in Tickner v Bropho, how could the principles of ecologically sustainable development be encouraged if the Minister were not even obliged to consider them when making a decision under Part 3A and, in particular, 75O and P?

Essentially, a construction placed on this provision by the court below has the effect of disregarding the objects under section 5 insofar as it relates to ecologically sustainable development and leaves the Minister’s power relevantly unconstrained under Part 3A. Part 3A, as one sees from 75O and P and also 75C, which gives the Minister very significant discretion to declare a project to be under this Part, is a very important matter for the State of New South Wales and it had, in light of the decision of the court below, the Minister now is free to disregard the principles of ecologically sustainable development in any project which he or she declares to be a critical infrastructure project under section - - -

GUMMOW J: What was the legislation in Tickner again?

MS ADAMSON: That was the protection of Aboriginal - - -

GUMMOW J: They were concerned a brewery in Perth - - -

MS ADAMSON: The legislation was Commonwealth legislation Aboriginal and Torres Strait Islander Heritage Protection Act 1984. That Act conferred a power on the Minister under section 10 of the Act to make a declaration in relation to the area where a Minister receives an application and is satisfied of certain things. The provision in question in Tickner v Bropho in section 10 - - -

GUMMOW J: Where do we find section 10?

MS ADAMSON: Section 10 is set out at 186 of the report at 40 FCR and provides where a Minister receives an application and is satisfied of certain things and then relevantly in 10(1)(c):

has received a report under subsection (4) in relation to the area from a person nominated by him and has considered the report –

and the report in subsection (4), which is set out on page 187 is to “deal with the following matters . . . particular significance” and, relevantly, for the purposes of that case:

the nature and extent of the threat of injury to, or desecration of, the area - - -

GUMMOW J: What was the actual debate in Tickner?

MS ADAMSON: In that case the Minister wrote to Mr Tickner, at the foot of 188, referring to his application and then saying:

I have considered the significance of the area to Aboriginal people and the threat of injury or desecration which may occur as a result of the development proposal. However I do not believe that Commonwealth intervention in the form of a declaration under S 10 would be the best way to resolve the situation –

In that case the Minister had not obtained a report under section 10(4) of the Act and Chief Justice Black, at the foot of 192 of the report - - -

GUMMOW J: But the point is, is it not, that 10(1) pre-conditioned the power to make a declaration upon, amongst other things, the receipt of a report and there had been no report?

MS ADAMSON: There had been no report and the Minister had not sought a report. So we accept that there are significant distinctions between the legislation here and in our case. But we rely, in particular, on the passage from the judgment of Chief Justice Black at the foot of 192:

It would be surprising if an Act that has as its stated purpose the preservation from injury of areas that are of particular significance to Aboriginals did not require the Minister to consider, on receipt of a valid application for a declaration, whether the subject of the application was in fact a significant Aboriginal area. In my view, to interpret the Act in such a way as to impose no such requirement would frustrate its purpose and an interpretation that has such an effect should be rejected. The purpose of preservation could hardly be advanced if there were no requirement even to consider whether an area had the characteristics that it is an express purpose of the Act to preserve and protect.

We call in aid that line of reasoning in the instant case. How can it be that the principles of ecologically sustainable development can be encouraged if the Minister is not even obliged to consider them as part of his or her decision under section 75O?

GUMMOW J: The trouble is that legislators speak with forked tongues sometimes by having general objects at the front of the Act which does not always quite find its full force in particular provisions later in the Act. One sees in modern legislation this tendency to put object up the front.

MS ADAMSON: Our learned friends have referred to that practice as being aspirational. But we would rather call in aid what we regard as a fundamental orthodoxy of statutory interpretation that one reads the powers conferred on the Act in light of the parliamentary intention which may, as we say in the instant case has occurred, be divined from the objects and, in particular, an object which relates itself specifically to decision-making processes. That is part of our argument that not all objects are equal, that this is a particular object which ought to be regarded as an overarching principle having regard to its content and context. Those are our submissions, thank you.

MR GRIFFITHS: Can I just say something very briefly insofar as Tickner v Bropho is concerned. If your Honours go to page 215 of the judgment of Justice French, as he then was, your Honours see a purpose clause is set out in section 4. This is at about point 8 of the page at 215 of 40 FCR. If your Honours then turn the page, your Honours see section 10 to which my learned friend has taken you and to paragraph (b), in particular. A pre-condition to the making of a declaration is the Minister’s satisfaction “that the area is”, and there are two things identified and then there is the matter to which the presiding judge referred, namely, the report.

The fundamental point about Tickner v Bropho is that the Minister in a letter declining to make a declaration did not conclude or make any determination as to whether the area was an area of significant Aboriginal area or whether there was any threat of injury or desecration. He simply went to the ultimate discretion which he had. Really, the burden of the decision is accurately reflected in the judgment of the Chief Justice at page 193 at about point 6 of the page starting with, “Although it is clear”.

The short point is the Full Court accepted the residual discretion that said that before an informed decision could be made as to whether or not to exercise that discretion, one had to address and determine the pre-conditions, including that the area is a significant Aboriginal area and it is under threat with injury or desecration. Not to do so would fly in the face of the object in section 4, to which I have taken your Honours. In other words, the framework for decision-making there on its face reflected the purpose or object clause. That is not the case here, whereas your Honour has quite correctly pointed out, Justice Gummow, that the purpose and object clause does not find its way expressly or explicitly at least into the matters that are set out in section 75O. That is all we wish to say.

GUMMOW J: The position as to costs is still as it appears at page 183?

MR GRIFFITHS: Yes, it is, your Honour. If the Court pleases.

GUMMOW J: The arguments of construction of this legislation have been well developed and canvassed in oral submissions this morning. In the end, we are not satisfied that there are sufficient prospects of success to warrant a grant of special leave in this matter. Special leave is refused and we make no order as to costs of the special leave application.

AT 11.57 AM THE MATTER WAS CONCLUDED