South Australia v Tanner [1989] HCA 3

High Court of Australia Wilson, Brennan, Dawson, Toohey and Gaudron JJ. South Australia v Tanner [1989] HCA 3

ORDER Appeal allowed with costs. Set aside the judgment of the Full Court of the Supreme Court of South Australia made on 3 June 1988 and in lieu thereof order that the plaintiffs' summons dated 2 November 1987 be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1989, Feb. 7 Wilson, Dawson, Toohey and Gaudron JJ.

The first and second respondents, Mr. and Mrs. Tanner ("the respondents"), are the owners of land in the town of Hahndorf in the Mount Lofty Ranges in South Australia. They wish to develop the land in accordance with the provisions of the Planning Act 1982 SA. The proposed development comprises a number of shops and offices, an aviary and carparks. A development application was approved by the District Council of Mount Barker subject to the concurrence of the South Australian Planning Commission. That concurrence was required because on the respondents' land stands "Thiele Cottage", an "item of the State heritage" within s. 48 of the Planning Act. In due course the Commission resolved not to concur in the granting of approval and consent to the development was therefore refused. The respondents appealed from that decision to the Planning Appeal Tribunal. In the course of the hearing of the appeal a question arose as to the relevance to the issues in the appeal of reg. 37.2 of the Waterworks Regulations 1974 SA made pursuant to the Waterworks Act 1932 SA. As will be seen, the purported effect of reg. 37.2.1 is that it prohibits absolutely the erection of an aviary on the respondents' land. The hearing of the appeal was stood over to allow the respondents to consider their position.

The respondents then instituted these proceedings in the Supreme Court of South Australia, seeking a declaration that reg. 37.2 is beyond the power to make regulations contained in s. 10 of the Waterworks Act. Alternatively, they sought a declaration that the Planning Act, in conjunction with the Development Plan made in accordance with its provisions, operates to supersede and impliedly repeal the regulation. The matter was heard by the Full Court of the Supreme Court. By majority (Jacobs and Millhouse JJ., Cox J. expressing no opinion), the Court declared that reg. 37.2.1 is ultra vires the Waterworks Act and invalid. In addition, the Court was unanimously of the opinion that reg. 37.2.1, in its application to the respondents' land, is inconsistent with s. 47 of the Planning Act and therefore can have no effect on the proceedings before the Tribunal.