Essential infrastructure & judicial review

Case summary

The recent Supreme Court decision of Cook v Minister for Health and Wellbeing & Anor [2024] SASC 40 provides insight into the meaning of ‘essential infrastructure’ under the Planning, Development, and Infrastructure Act 2016 (PDI Act).

The Court held that health facilities relating to drug and alcohol rehabilitation are ‘essential infrastructure’ for the purposes of PDI Act.

More broadly, the case provides another example of the issues which administrative decision-makers need to be cautious about when making a decision that may adversely impact on the interests of third parties, including not basing the decision on irrelevant considerations and freedom from bias (whether actual or apprehended).

Background

Uniting Communities Incorporated seeks to change the use of an administration wing associated with an existing residential aged care facility at Glenelg, to include a 12 bed drug and alcohol rehabilitation service for patients who will reside at the centre whilst receiving care.

Uniting Communities will deliver the relevant services under an agreement with a Government Agency, the Department for Health and Wellbeing.

The State Director, Drug and Alcohol Services South Australia (Director) submitted a minute to the Minister for Health and Wellbeing (Minister) recommending endorsement of the proposal as a form of ‘essential infrastructure’. The minute explained that the endorsement would mean the development could be assessed as a form a Crown Development, which would ‘assist …with the development approval process’ by avoiding the alternative process involving assessment by a council assessment panel.

The Minister endorsed the development on 13 July 2023.

On 19 July 2023, the Minister and Uniting Communities lodged a Crown Development application with the State Planning Commission, pursuant to s131(2) of the PDI Act. The application was referred to the City of Holdfast Bay for comment. The State Planning Commission, on 27 September 2023, advised the Minister for Planning (the second respondent) that the application was in accordance with the Planning and Design Code, and warranted approval.

The applicant, Mr Cook, who lives very close to the proposed facility, challenged the Minister’s decision to endorse the proposal on two grounds.

Mr Cook contended that the development is not ‘essential infrastructure’, and therefore, was not amenable to endorsement by the Minister for the purposes of section 131 of the PDI Act. He further argued that if the development is open for endorsement, the exercise of discretion by the Minister to endorse the proposal was erroneous on several bases, including reliance on irrelevant considerations, denial of procedural fairness and apprehended bias.

Essential infrastructure & health facilities

Section 3 of the PDI Act defines essential infrastructure by reference to various items listed in subsections (a) to (k). Relevantly, subsection (i) refers to ‘health, education, or community facilities’.

The Court found that the use of term ‘essential infrastructure' in section 131 adopted its defined meaning in section 3. In its context, there was no reason why the term would take on a different meaning in section 131. The Court rejected the applicant’s argument that the term should be read down to refer to the sort of infrastructure typically provided by government for the use of the whole of the community, as distinct from a specific cohort within the community.

Mr Cook further contended that the proposal does not concern either a ‘health facility’ or ‘community facility’. In rejecting this submission, the Court said it is important to consider the nature of the development, rather than the identity of the developer. In doing so, the Court relied on the affidavit of the Director who detailed the importance of the ‘therapeutic model of care’ for substance abusers, which was sufficient to qualify it as a ‘health facility’.

Errors of law

In the minute from the Director to the Minister, the Director said that sponsorship as a Crown development ‘will lead to a quicker assessment time, reduce involvement from Council and the community and a more overall streamlined process.’

Mr Cook argued that the minute unjustifiably implied that if the approval process was undertaken by the Council, the assessment would be delayed. He also argued that the minute wrongly asserted that the decision maker would be the Council, rather than the Council Assessment Panel, and that it misrepresented the situation regarding public notification of the application. Ultimately, in so far as these matters informed the Minister’s decision, it was argued they were irrelevant considerations which were sufficient to invalidate the decision.

The Court disagreed. The Court was satisfied the Minister understood the legal consequence of the endorsement would be to corral the application onto the Crown Development pathway; the fact the Minister may have had an imperfect understanding of each particular step that followed was not sufficient to invalidate the decision.

Procedural fairness

Mr Cook also submitted that he should have been given the opportunity to be heard on whether the Minister should endorse the application. Again, the Court disagreed, holding that whilst the development may impact the neighbourhood amenity, there is no statutory obligation under s131 to consult with anyone but the Council.

Bias

Mr Cook argued that the Minister was not impartial in consideration of endorsement because the Minister’s department was contractually bound to fund the program, in circumstances where declining to endorse the program may negatively impact the department.

On the evidence, the Court was not satisfied that the Minister was motivated by concerns related to any contractual relationship with Uniting Communities. It held that a fair-minded, reasonable observer would appreciate that the Minister would approach the decision with background knowledge, and even a purpose, in mind. However, the Minister’s role did not require a ‘judicial approach’ to decision-making, and election commitments do not necessarily give cause to a reasonable apprehension of bias.

The Court ultimately held that Mr Cook failed to establish his arguments, and the application for judicial review was refused.

Implications

The Crown Development assessment pathway under section 131 of the Act depends on certain statutory pre-requisites being satisfied.

Where the proposed development is to be undertaken by, or in conjunction with, a non-State Agency, the proposed development must involve ‘essential infrastructure’ as defined. Doubt about that fundamental issue may expose the process to legal uncertainty and challenge.

Further, administrative decision-makers need to remain careful not to base decisions on irrelevant considerations, or to allow bias (whether actual or apprehended) to adversely impact on important decision-making processes.

For further information regarding this case, please contact the Norman Waterhouse Environment and Planning Team.