Brisbane City Council v Leahy & Ors [2023] QCA 133 (2023) 15 QR 101; (2024) QPELR 845

SUPREME COURT OF QUEENSLAND CITATION: Brisbane City Council v Leahy & Ors [2023] QCA 133 PARTIES: BRISBANE CITY COUNCIL (appellant) v RICHARD JOHN LEAHY (first respondent) REINET INVESTMENTS PTY LTD ACN 641 633 267 (second respondent) KEYSER ISLAND PTY LTD ACN 606 498 917 (third respondent) FILE NO/S: Appeal No 12665 of 2022 SC No 13261 of 2021 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2022] QSC 200 (Davis J) DELIVERED ON: 20 June 2023 DELIVERED AT: Brisbane HEARING DATE: 16 May 2023 JUDGES: Flanagan and Boddice JJA and Ryan J ORDERS: 1. The appeal be dismissed. 2. The appellant pay the first respondent’s costs of and incidental to the appeal. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – RIGHTS AND INTERESTS AFFECTED BY THE DECISION – where the appellant Council approved the exhibition of an electronic advertising structure (“the sign”) – where the sign was erected on land adjacent to the boundary of the first respondent’s property – where the Council did not afford the first respondent procedural fairness prior to approving the exhibition of the sign – where the relevant legislative framework expressly recognises different classes of persons being affected in different ways and in respect of different interests – where the first respondent was a member of a distinct class which could be identified, namely the neighbouring properties whose views might be obscured, dominated or overcrowded by the proposed sign – where the Council appeals, relevantly, on the ground -- 1 of 16 -- 2 that the primary judge erred in determining that the principles of natural justice were not excluded – whether the principles of natural justice had been excluded Advertisements Local Law 2013, s 9, s 10 Advertisements Subordinate Local Law 2005, s 2, s 8, item 1 sch 5 City of Brisbane Act 2010 (Qld), s 29 Judicial Review Act 1991 (Qld), s 4, s 7, s 20 Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, followed Castle v Director-General State Emergency Service [2008] NSWCA 231, considered Gardner v Dairy Industry Authority of New South Wales [1977] 1 NSWLR 505, distinguished Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333, considered Leahy v Brisbane City Council & Ors [2022] QSC 200, related Kioa v West (1985) 159 CLR 550; [1985] HCA 81, cited Medway v Minister for Planning (1993) 30 NSWLR 646, distinguished Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288, considered Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, cited Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23, considered The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471; [1981] HCA 33, cited Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78; [1999] NSWCA 6, applied Waqa v Technical & Further Education Commission [2009] NSWCA 213, cited COUNSEL: G D Beacham KC, with D A Quayle, for the appellant M T Brady KC, with D C Fahl, for the first respondent No appearance for the second respondent No appearance for the third respondent SOLICITORS: City Legal for the appellant Cochrane Leahy Legal for the first respondent No appearance for the second respondent No appearance for the third respondent [1] FLANAGAN JA: On 18 December 2018, a delegate of the appellant (“the Council”) approved the exhibition of an electronic advertising structure (“the sign”) on 43 Musgrave Road, Red Hill, Brisbane. The sign is owned by the second respondent and the property upon which it is situated is owned by the third respondent. [2] On 8 November 2022, Mullins P made orders excusing the second and third respondents from any appearance or otherwise participating in the appeal. -- 2 of 16 -- 3 [3] The Council’s decision to approve the application for the proposed exhibition of the sign was made pursuant to the Advertisements Local Law 2013 (“Local Law”) and the Advertisements Subordinate Local Law 2005 (“Subordinate Local Law”).1 [4] By its decision, the Council approved the construction of a sign with a maximum electronic display area of 48 square metres which was to be no higher than 12 metres above ground level. [5] The first respondent, Mr Leahy, is the registered owner of residential premises at 51 Musgrave Road. These premises adjoin, and are immediately to the west of, 43 Musgrave Road. [6] In approximately May and June of 2020, the sign was constructed on the 43 Musgrave Road premises. Prior to the construction, Mr Leahy was unaware that any application had been made for approval of the exhibition of the sign, nor was he aware that the Council had decided to approve any such application. [7] Mr Leahy was given no opportunity to make objection to, or submissions in relation to, the application prior to it being considered and approved by the Council. [8] By an amended application for a statutory order of review, Mr Leahy sought an order to have the decision set aside and remitted to the Council for further consideration. The application identified six grounds of review. These included a failure on the part of the Council to afford Mr Leahy procedural fairness, a failure to take into account relevant considerations, taking into account irrelevant considerations, there being no evidence or other material to justify the making of the decision, unreasonableness and the decision being otherwise contrary to law. [9] On 20 September 2022, the learned primary judge made an order setting aside the Council’s decision and ordered the Council to further consider the application to approve the exhibition of the sign.2 The primary judge determined that the Council was required to afford Mr Leahy procedural fairness and had failed to do so, and that in making the decision it had failed to take into account a relevant consideration, namely whether the views of neighbouring properties might be obscured, dominated or overcrowded by the sign. His Honour determined that it was unnecessary to consider the other grounds of review.3 [10] By appeal grounds 1 to 3, the Council seeks to challenge the primary judge’s finding that it was required to afford procedural fairness to Mr Leahy. Together, those grounds allege that the primary judge erred:4 (a) in finding that a subclass of those affected by the decision – namely the owners of neighbouring properties whose views might be obscured, dominated or overcrowded – were entitled to procedural fairness when other classes of persons whose views might be affected were not so entitled; and (b) in finding that the identified subclass was limited and identifiable. 1 Section 29 of the City of Brisbane Act 2010 (Qld) empowers the Council to make local laws and subordinate local laws. 2 Leahy v Brisbane City Council & Ors [2022] QSC 200 (Reasons). 3 Reasons, [120]. 4 Amended outline of submissions on behalf of the appellant, paragraph 6. -- 3 of 16 -- 4 [11] By a notice of contention, Mr Leahy seeks to support the orders made by the primary judge on the grounds of review which his Honour determined were unnecessary to consider. [12] For the reasons which follow, the appeal should be dismissed. The primary judge’s orders were properly founded on the failure of the appellant to afford procedural fairness to Mr Leahy. Accordingly, it is unnecessary to consider appeal grounds 4 to 7 which challenge his Honour’s finding that the Council failed to take into account a relevant consideration. It is also unnecessary to consider the notice of contention. The legislative framework [13] An application for approval of a proposed exhibition of an advertisement is made pursuant to s 9 of the Local Law. [14] Section 10 of the Local Law, which identifies the criteria that guide the Council’s discretion, provides: “10 Criteria to guide Council’s discretion (1) In deciding whether to approve the exhibition of an advertisement, the Council must have regard to— (a) any relevant advice it sees fit to obtain from suitably qualified experts; and (b) the public interest; and (c) relevant Commonwealth, State or Council plans, proposals or agreements affecting the part of the area in which the advertisement is to be situated; and (d) criteria and conditions prescribed by a subordinate local law. (2) The Council may only approve the exhibition of an advertisement if— (a) the advertisement is structurally sound; and (b) the advertisement causes no significant obstruction of, or distraction to, vehicular or pedestrian traffic; and (c) the dimensions of the advertisement bear a reasonable relationship to the dimensions of surrounding buildings and allotments so that— (i) its presence is not unduly dominating or oppressive; and (ii) it does not unreasonably obstruct existing views; and (d) the advertisement complements, or at least does not unreasonably detract from desirable characteristics of the natural and built environment in which the advertisement is exhibited; and (e) the approval is consistent with the subordinate local law. -- 4 of 16 -- 5 (3) The Council may, by subordinate local law— (a) prescribe criteria for the grant or refusal of approvals for the exhibition of advertisements; or (b) prohibit specified classes of advertisements, or prohibit the exhibition of advertisements in circumstances of a specified class; or (c) classify advertisements as requiring approval or generally inappropriate in certain city environments and conditions on which such advertisements may be approved.” [15] Relevantly, s 10(1)(d) requires that, in deciding whether to approve the exhibition of an advertisement, the Council “must” have regard to criteria and conditions prescribed by a subordinate local law. Section 10(2)(e) further provides that the Council may “only” approve the exhibition of an advertisement if it is consistent with the Subordinate Local Law. [16] Section 2 of the Subordinate Local Law identifies the object of the Subordinate Local Law as being to assist the implementation of the Local Law. [17] Section 8 of the Subordinate Local Law governs the criteria for approval and provides: “8 Criteria for advertisements permitted with approval In considering an application for approval, Council will have regard to— (1) whether the advertisement is acceptable in the City Environment in which it is to be exhibited; and (2) whether approval would satisfy the objectives of the local law; and (3) the conditions in Schedule 4; and (4) the criteria in Schedule 5; and (5) the conditions of a related development approval.” [18] Item 1 of Schedule 5 of the Subordinate Local Law provides: “1 Views, vistas and visual amenity (1) Advertisements are not to block or compromise a view or vista of high scenic amenity. (2) Advertisements should respect the amenity of other property owners and not obscure, dominate or overcrowd the views of existing or prospective development on neighbouring properties. (3) high scenic amenity in subsection (1) means views which would be regarded by the majority of people as of high quality which may be characterised by elements of landscape or townscape or both.” -- 5 of 16 -- 6 [19] The legislative framework outlined above does not provide a process by which persons affected by a decision to approve an advertisement are afforded procedural fairness. That is, the legislation is silent as to the “content” of any obligation to afford procedural fairness. The primary judge’s reasoning – procedural fairness [20] There was no dispute before the primary judge that for the purposes of ss 4, 7 and 20 of the Judicial Review Act 1991 (Qld), the decision to approve the exhibition of the sign was a decision of an administrative character made under an enactment. Nor was there any dispute that Mr Leahy was a person who was aggrieved by the decision. [21] The amended application for a statutory order of review particularised how the applicant was aggrieved by the decision, including the assertion that the approval and subsequent erection and use of the sign has had adverse impacts upon the amenity and value of 51 Musgrave Road. In this respect, the primary judge made the following factual findings:5 “The sign is a large one. It is 42.4 square metres in area and stands 11.3 metres high. It is situated immediately adjacent to the eastern boundary of 51 Musgrave Road. There can be no doubt that 51 Musgrave Road is a ‘neighbouring property’ to the sign erected on 43 Musgrave Road. There can also be no doubt that, as a matter of fact, the sign interrupts the line of sight from 51 Musgrave Road. … Given the size of the sign, that line of sight is interrupted significantly.” [22] There was also no dispute before the primary judge that if the Council was required to afford procedural fairness to Mr Leahy, it had failed to do so. The central issue before his Honour was whether the Local Law and the Subordinate Local Law, by plain words of necessary intendment, excluded the obligation to afford procedural fairness. [23] His Honour recognised, generally, that the principles of natural justice may not apply where the rights of great numbers of persons are likely to be affected by a single decision. In such a situation, the principles of natural justice may be impliedly excluded because the decision affects so many people as to make it manifestly impracticable for them all to be given an opportunity to be heard.6 [24] The primary judge considered that both the Local Law and the Subordinate Local Law recognise the interests of individual landowners. His Honour observed:7 “Persons who own ‘neighbouring properties’ who have views which will be affected by the erection of a sign have a clear interest in the decision whether or not to allow it to be erected. Subject to other considerations, the duty would arise in the absence of clear words to the contrary. There are none.” [25] His Honour continued:8 5 Reasons, [112]. 6 Reasons, [66] referring to Gardner v Dairy Industry Authority of New South Wales [1977] 1 NSWLR 505, 519 per Hutley JA. 7 Reasons, [73]. 8 Reasons, [82]–[85]. -- 6 of 16 -- 7 “It is unnecessary to consider here whether, where there is a large unidentifiable class affected by the decision but specific members can be identified, the duty arises in relation to those identifiable members. Here, the local law and the subordinate local law recognise different interests and different classes of persons affected … and the members of at least one of those classes is readily identifiable. Item 1 of Schedule 5 of the subordinate local law deals with two types of “views”. First is the “view … of high scenic amenity”. The term, “high scenic amenity” is defined by reference to concepts of “landscape or townscape” and many citizens may have some general interest in the maintenance of these views. They could though not be described as being directly affected and could not be described as being relevantly identifiable. Secondly, Item 1 of Schedule 5 concerns views from “neighbouring properties” to the proposed sign. Here, the class is very limited. It is restricted to owners of “neighbouring properties” to the site of the proposed sign. That class is further restricted to those whose views might be obscured, dominated or overcrowded by the proposed sign. The local law and the subordinate local law therefore recognise different classes of persons being affected in different ways and in respect of different interests. A duty may not arise in favour of those citizens who may be affected by traffic issues or the effect of the sign upon the general landscape. The owners of ‘neighbouring properties’ are recognised in the subordinate local law as having a particular interest, namely the reasonable maintenance of their views. That interest is directly affected by the erection of the sign and, provided they are a class which can be reasonably and practically identified, the local law and the subordinate local law would not be read so as to exclude the obligations of procedural fairness to them unless the words were clear, which they are not.” No appealable error has been established [26] The Council submits that the primary judge, in determining that the principles of natural justice were not excluded, erred by finding that the Local Law and the Subordinate Local Law recognise different classes of persons with different interests and that the members of at least one of those classes was readily identifiable. The Council submits that his Honour’s conclusion was effectively that some people whose views were affected were entitled to procedural fairness, but others, whose views were also affected, were not.9 [27] The Council further submits that the primary judge erred in considering that the class of persons affected in item 1 of Schedule 5, namely “neighbouring properties”, was “very limited”.10 The primary judge considered that this class could be identified in a reasonable and practical sense.11 [28] The Council submits that a “neighbouring property” is not merely a property with a contiguous boundary with the property on which the advertisement is to be placed. 9 Amended outline of submissions on behalf of the appellant, paragraph 14. 10 Reasons, [84]. 11 Reasons, [86]. -- 7 of 16 -- 8 A “neighbour” is “someone who lives near another”.12 Further, the subclass is comprised of neighbours whose views are potentially “obscured, dominated or overcrowded”. According to the Council, identification of this subclass necessarily involves a subjective determination which would be difficult in advance of the decision-making process. This is further complicated, the Council submits, by the fact that it requires an assessment of the potential impacts on the views enjoyed from existing or prospective development on neighbouring properties. [29] The Council therefore submits that no sufficient basis was identified by the primary judge for concluding that the legislature intended to give the neighbouring property owners a right to natural justice, but not others whose views might be affected.13 [30] These submissions should not be accepted. [31] The Local Law and the Subordinate Local Law confer a power on the Council to approve the exhibition of a sign. It must be accepted that the exercise of this power may prejudice the interests of persons, including the owners of neighbouring properties. In such circumstances, the principles of natural justice regulate the exercise of the power. As observed by the plurality in Saeed v Minister for Immigration and Citizenship:14 “In Annetts v McCann it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power. Brennan J in Kioa v West explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said: ‘[W]hen the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that ‘the justice of the common law will supply the omission of the legislature’. The true intention of the legislation is thus ascertained.’ The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann. Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West. A failure to fulfil that condition means that the exercise of the power is inefficacious. A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid.” (citations omitted) [32] The principles of natural justice may only be excluded by plain words of necessary intendment.15 This was further explained by the plurality in Saeed:16 12 Amended outline of submissions on behalf of the appellant, paragraph 21, citing the Macquarie Dictionary. 13 Amended outline of submissions on behalf of the appellant, paragraph 27. 14 (2010) 241 CLR 252, [11]–[13]. 15 Annetts v McCann (1990) 170 CLR 596, 598. 16 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, [15]. -- 8 of 16 -- 9 “The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australia Workers’ Union, ‘governs the relations between Parliament, the executive and the courts’.” (citations omitted) [33] 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 obligation of procedural fairness depends to a large extent on the construction of the statute.17 Neither the Local Law nor the Subordinate Local Law expressly excludes the principles of natural justice. Those principles therefore may only be excluded by necessary intendment, noting that the intention must be expressed “with irresistible clearness”. On a proper construction of both the Local Law and the Subordinate Local Law, the fact that a decision to approve the exhibition of a sign may affect the interests of various classes of persons in different ways does not, of itself, evince an intention to exclude the principles of natural justice. [34] The authors of Judicial Review of Administrative Action and Government Liability (7th ed, LawBook Co, 2022), by reference to Minister for Local Government v South Sydney City Council (“South Sydney City Council”)18 and Vanmeld Pty Ltd v Fairfield City Council (“Vanmeld”),19 state at [8.110]: “If the affected people cannot be identified, fairness may not apply. But where it is difficult rather than impossible to identify those people, fairness may apply with diminished content.” (citations omitted) [35] In circumstances where the legislative framework recognises that different classes of persons may be affected in different ways, and at least one of those classes is identifiable, the primary judge correctly held that the proper consideration is not whether the Local Law and Subordinate Local Law, by necessary implication, excludes the principles of natural justice, but rather, what the content of the duty to afford procedural fairness ought to be. As was explained by Mason J in Kioa v West:20 “The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the particular circumstances of the particular case? … A resolution of that question calls for an examination of the statutory provisions and the interests [which may be affected].” [36] In this regard, the primary judge observed that in Vanmeld, Spigelman CJ, who was in dissent on other issues, “explained that a primary consideration is the content of the duty in the specific context being considered”.21 The primary judge analysed Vanmeld as follows:22 “In Vanmeld, the Fairfield Local Government Plan 1994 was amended by the Fairfield City Council pursuant to the Environmental Planning 17 Kioa v West (1985) 159 CLR 550, 584. 18 (2002) 55 NSWLR 381. 19 (1999) 46 NSWLR 78. 20 Kioa v West (1985) 159 CLR 550, 585. 21 Reasons, [80]. 22 Reasons, [81]. -- 9 of 16 -- 10 and Assessment Act 1979. That plan, as amended, forbade the filling of floodways. That affected the way in which land could be developed. While the plan had broad application, there were a limited number of identifiable land owners who could be affected. His Honour thought that class was owed duties of procedural fairness. The majority in Vanmeld did not disagree with this logic. They held that specific statutory obligations of the Council to undertake public consultation excluded the requirement to accord procedural fairness to any identifiable class.” [37] In Vanmeld, Spigelman CJ made the following observation:23 “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 a significant number of landowners. However, there is nothing in the nature of the power which requires it to be exercised in this way. An amendment under s 68(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.” [38] The Chief Justice continued:24 “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.” (emphasis added) [39] The appellant submits that Vanmeld does not support the approach taken by the primary judge. This is because, although the power in question in Vanmeld was one of general application, the way in which it was exercised in the particular case affected only several identifiable persons. The appellant submits:25 “The present case is significantly different. There is a broad class of people whose views might be affected, and even the asserted subclass – owners of neighbouring properties – does not comprise specific identified people.” [40] The present case, however, is not one which involves a decision that affects a large, single, unidentifiable class where some specific members can be identified. Rather, it is a case where the legislative framework expressly recognises that the interests of distinct classes of persons will be affected differently. The members of at least one of those distinct classes can be identified. To conflate the interests of those distinct classes, so as to treat them as forming a single class, would be to misconstrue the express language of the Local Law and the Subordinate Local Law. This Court is therefore not required to determine whether an obligation to afford procedural fairness can arise only in respect of some identifiable members of a predominantly unidentifiable class. Instead, the relevant inquiry is what the content of that obligation 23 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, [62]. 24 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, [74]. 25 Amended outline of submissions on behalf of the appellant, paragraph 17. -- 10 of 16 -- 11 ought to be as it applies to the particular identifiable class of which Mr Leahy is a member, namely the neighbouring properties whose views might be obscured, dominated or overcrowded. It should be noted that, like the nature of the decision to be taken, a matter which informs the content of any obligation to accord procedural fairness is the possible range of affected interests.26 In this case, that was not a constant factor, with the possible result being that the content of the obligation as it may apply to distinct classes of affected persons may itself not be constant.27 Once the present case is understood in this way, the observations made by Spigelman CJ in Vanmeld become particularly apposite. [41] In seeking to distinguish Vanmeld, the appellant refers to Meagher and Powell JJA having concluded in that case “that the public notice regime in the statute impliedly excluded the common law right to natural justice”.28 This submission misunderstands the judgments of Meagher and Powell JJA. The relevant statute in Vanmeld, the Environmental Planning and Assessment Act 1979 (NSW), provided specific steps for the preparation of a local environment plan, which included a requirement for the contents of the plan to undergo a consultation process involving public notice, public exhibition and receipt of submissions. It was only after this process had been concluded that the contents of the local environment plan were amended to prohibit the placement of fill in a floodway in a particular zone. It was this amendment which affected a limited number of identifiable landowners. Meagher JA did not agree with Spigelman CJ that the Fairfield City Council “was guilty of any breach of the common law rules of procedural fairness”.29 This was not because the rules of procedural fairness had been excluded by necessary implication but rather because the consultation process requiring public notification had been followed and, thus, affected persons had been afforded the measure of fairness which the statute mandated. As observed by Meagher JA:30 “In these circumstances, I think the Act specifies exactly to what extent procedural fairness must be accorded to a ratepayer.” [42] As was observed at [19] above, unlike the Environmental Planning and Assessment Act considered in Vanmeld which provided the content of procedural fairness where the local environment plan applied to a significant number of landowners, the Local Law and the Subordinate Local Law make no such provision. In circumstances where the legislative framework does not specify the extent to which procedural fairness must be afforded to affected persons, the content of that obligation falls to be determined by having regard to, inter alia, the size and nature of the distinct classes to which the duty is owed, as well as the possible range of interests which may be affected. [43] Like Vanmeld, South Sydney City Council concerned a decision made in accordance with a legislative framework that specified, at least to some extent, the content of the obligation to afford procedural fairness. In that case, the relevant Minister had 26 Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333, [71]. 27 Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333, [71] citing The Queen v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471, 500-501 and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, [62]. 28 Amended outline of submissions on behalf of the appellant, paragraph 17. 29 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, [179]. 30 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, [182]. -- 11 of 16 -- 12 received a proposal for the alteration of boundaries of local government areas. The Minister was required to refer the issue to the Boundaries Commission for examination and report. The South Sydney City Council alleged that it had not been afforded the opportunity to make any submissions to the Boundaries Commission with respect to any proposal affecting part of its area lying between a particular boundary. Mason P observed:31 “The present case involves examination of a proposal which (even in its unamended form) was capable of affecting a very broad number of persons and institutions in what may broadly be termed a matter of town planning overlaid with political issues. Such tasks do not usually attract the principles of procedural fairness at all, although they may do so as regards particular interests of particularly affected and identifiable persons.” (emphasis added) [44] Mason P referred with approval to the statement of Spigelman CJ in Vanmeld outlined at [38] above and continued:32 “The subject-matter of the statutory duty was the examination of the Minister’s proposal. The range of potentially affected persons and interests is illustrated by the factors to which particular attention is drawn by s 263(3). Obviously they include consideration of the impact of the proposal on affected councils, but additional interest groups are also specifically identified. Why is the interest of a council relevantly different from that of landowners or employees? If it is not, presumably the content of any duty of procedural fairness must accommodate all three potentially affected groups.” (emphasis added) [45] Mason P, like Spigelman CJ in Vanmeld, viewed the issue as one of determining the content of the obligation to afford procedural fairness rather than its exclusion. As Mason P observed:33 “What is clear, however, is that [the] factors [to which particular attention is drawn by s 263(3)] severely qualify or attenuate the content of any pre-reporting notification duty falling upon the Commission.” [46] In Greyhound Racing NSW v Cessnock & District Agricultural Association,34 Basten JA (with whom Beazley and Hodgson JJA agreed) considered both Vanmeld and South Sydney City Council:35 “Vanmeld Pty Ltd involved the promulgation of a local environment plan under the Environmental Planning and Assessment Act 1979 (NSW). The majority (Meagher and Powell JJA) held that compliance with the statutory scheme was sufficient to satisfy the requirements of procedural fairness. In South Sydney City Council, the Court was concerned with consultation with parties who might be affected by recommendation of the Boundaries Commission, operating under the Local Government Act 1993 (NSW). Again, the statutory context was 31 Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381, [263]. 32 Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381, [264]. 33 Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381, [268]. 34 [2006] NSWCA 333. 35 Greyhound Racing NSW v Cessnock and District Agricultural Association [2006] NSWCA 333, [73]. -- 12 of 16 -- 13 of importance. In any event, the broadly stated principles derived from the passages [in Vanmeld and South Sydney City Council] relied upon by the Appellant are not directly applicable in the present case. It became apparent early in the Appellant’s deliberations that, although various other cost saving devices were contemplated, to make savings in the order of $3.5 million in a financial year required reductions in prize money payable at TAB club meetings, a reduction in the number of race meetings conducted, or a combination of those two approaches. Once a reduction in the allocation of dates was identified as a real possibility, the parties who would be most directly affected were readily identified as the twelve TAB clubs. Consultations with those clubs was required prior to any operative decision being taken…”. (emphasis added) [47] In my view, these decisions illustrate that the preferable approach in cases such as the present is to have regard to the nature of the interests which may be affected, viewed in light of the relevant legislative framework, in order to determine the content – that is, the nature and extent – of the obligation to afford procedural fairness.36 [48] The appellant referred to three decisions of the New South Wales Court of Appeal, Gardner v Dairy Industry Authority of New South Wales (“Gardner”),37 Medway v Minister for Planning (“Medway”)38 and Castle v Director-General State Emergency Service (“Castle”).39 None of these authorities affect the correctness of the principle identified by Spigelman CJ outlined at [38] above. [49] In Gardner, a scheme was introduced under the Dairy Industry Authority (Amendment) Act 1977 (NSW) whereby the relevant authority exercised powers in allocating new quotas and fixing interim production levels for dairy producers. This scheme affected thousands of persons involved in the dairy industry. In such circumstances, Hutley and Samuels JJA found that the rules of natural justice did not apply. As was observed by Hutley JA:40 “The rules of natural justice, on their strict form, cannot be applied where the rights of great numbers of persons are likely to be affected by a single decision. The legislature, when it granted those powers, must have appreciated that they would have become unworkable, if the rules of natural justice had to be applied in exercising them. The rules of natural justice are really only applicable to alterations of rights of single individuals or small groups, that is numbers which be adequately handled by an adversary system of litigation.” [50] By reference to de Smith’s Judicial Review of Administrative Action (1st ed, Stevens & Sons, 1959), Hutley JA noted that the principles of natural justice “will be held to be impliedly excluded in so far as the number of persons affected by a particular 36 Kioa v West (1985) 159 CLR 550, 584–585; Waqa v Technical & Further Education Commission [2009] NSWCA 213, [49]. 37 [1977] 1 NSWLR 505. 38 [1993] 30 NSWLR 646. 39 [2008] NSWCA 231. 40 Gardner v Dairy Industry Authority of New South Wales [1977] 1 NSWLR 505, 519. -- 13 of 16 -- 14 order, act or decision is so great as to make it manifestly impracticable for them all to be given an opportunity of being heard by the competent authority beforehand”.41 [51] These observations are relevant to circumstances where a decision affects the rights of “great numbers of persons”. For the reasons outlined at [40] above, together with those at [57]-[59] below, that is not this case. [52] Similarly in Medway, the relevant direction made by the Minister under the Environmental Planning and Assessment Act 1979 (NSW) was in respect of development applications of a “class” that included future applications and would extend to applications of or by different people. Two adjoining landowners complained that they had been deprived of procedural fairness. Mahoney JA (with whom Sheller and Cripps JJA agreed) found that the principles of natural justice had been excluded:42 “Where the persons relevantly affected by the exercise of the 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 the power, the case sought to be made be formulated and notified.” [53] Medway was considered by Spigelman CJ in Vanmeld where it was noted that Mahoney JA gave weight to the fact that the persons who had lost the specific rights were a “much wider class” than simply adjacent landowners and that “[i]t would be difficult to identify all of them in advance”.43 Medway was a case of the kind which is distinguished at [40] above; the Court was being asked to determine whether procedural fairness ought to be afforded to some identifiable members of a single affected class that was large and predominantly unidentifiable. Unlike the present case, the legislative framework in Medway did not recognise that the interests of distinct groups may be differently affected. [54] In this regard, Spigelman CJ continued:44 “[Mahoney JA in Medway] 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’. 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.’” (citations omitted) [55] Notably, Spigelman CJ concluded that Mahoney JA in Medway “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.”45 41 Gardner v Dairy Industry Authority of New South Wales [1977] 1 NSWLR 505, 519. 42 Medway v Minister for Planning [1993] 30 NSWLR 646, 652–653. 43 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, [64]. 44 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, [65]. 45 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, [67]. -- 14 of 16 -- 15 [56] Basten JA in Castle also analysed the matter in terms of content rather than the exclusion of the obligation to afford procedural fairness:46 “Thus, one limitation on the operation of the duty to accord procedural fairness arises from the need to identify the obligation by reference to an individual or class of persons. The obligation must be capable of identification and fulfillment, in a reasonable and practical sense, prior to the making of the decision. Some guidance may be obtained by asking whether it was reasonable to expect the officer exercising a particular power to identify, in advance, the applicant as a person whose rights or interest may be affected and the way in which the proposed affectation would occur. The larger the class of persons reasonably expected to be affected, the less the likelihood that procedural fairness will be attracted and, if it is, the lower the likely content of the duty. Similarly, even though the class of those effected may be small, the duty is less likely to be attracted if membership of the class is variable and not readily ascertained.” [57] In the present case, s 10(1) mandates what the Council must have regard to in deciding whether to approve the exhibition of an advertisement. These considerations include the public interest pursuant to s 10(1)(b) and criteria and conditions prescribed by the Subordinate Local Law pursuant to s 10(1)(d). Section 10(2) identifies various classes of persons who may be affected by the approval. These classes include, under s 10(2)(b), vehicular or pedestrian traffic. For this class of persons, the Council may only approve the exhibition of an advertisement if it causes “no significant obstruction … or distraction”. Another class identified is found in s 10(2)(c), namely “surrounding buildings and allotments”. The Council may only approve the exhibition of an advertisement if the dimensions of the advertisement bear a reasonable relationship to the dimensions of surrounding buildings and allotments in such a way that the advertisement’s presence is not unduly dominating or oppressive and does not unreasonably obstruct existing views. [58] The requirement under s 10(2)(e) that the approval be consistent with the Subordinate Local Law identifies, in item 1(2) of Schedule 5, two further classes namely “other property owners” and “neighbouring properties”. Advertisements should respect the amenity of other property owners and not obscure, dominate or overcrowd the views of existing or prospective development on neighbouring properties. [59] This is not a case where the class is constituted by such a great number of persons that affording procedural fairness would render the approval process unworkable. In deciding to approve the exhibition of an advertisement, the Local Law and Subordinate Local Law mandates that the Council must have regard to whether the relevant advertisement obscures, dominates or overcrowds the views of existing or prospective development on neighbouring properties. The Council is uniquely placed by reference to relevant planning instruments to identify the existing or prospective development on neighbouring properties. Further, in deciding to approve the exhibition of an advertisement, the Council “must have regard to any relevant advice it sees fit to obtain from suitably qualified experts”. Here, a report had been provided to the Council as part of the application for approval. This report specifically identified 51 Musgrave Road as a “neighbouring property” and the fact that the 46 Castle v Director-General State Emergency Service [2008] NSWCA 231, [6]. -- 15 of 16 -- 16 proposed sign may obstruct views from the premises. In carrying out the necessary assessment under item 1(2) of Schedule 5, the Council would be aware of the actual dimensions of the proposed advertisement. In these circumstances, any difficulty associated with identifying the class of “neighbouring properties” informs only the content of the obligation to afford procedural fairness. It does not, as a matter of legislative interpretation, evince any clear intendment that the principles of natural justice are excluded. Disposition [60] I would propose the following orders: 1. The appeal be dismissed. 2. The appellant pay the first respondent’s costs of and incidental to the appeal. [61] BODDICE JA: I agree with Flanagan JA. [62] RYAN J: I agree with Flanagan JA. -- 16 of 16 --