San Sebastian Pty Ltd v. Minister Administering the Environmental Planning and Assessment Act 1979

162 CLR 340
68 ALR 161

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(Judgment by: GIBBS CJ, MASON J, WILSON J, DAWSON J)

Between: SAN SEBASTIAN PTY LTD
And: MINISTER ADMINISTERING THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

Court:

Judges:
Gibbs C.J.
Mason J.
Wilson J.Brennan J.

Dawson J.

Subject References:
Negligence

Judgment date: 25 November 1986

Canberra

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Judgment by:
GIBBS CJ
MASON J
WILSON J
DAWSON J

The appellant companies, which carried on business as developers, sued the respondents in the Supreme Court of New South Wales for damages for the loss which they sustained as a result of the alleged negligence of the State Planning Authority ("the Authority") and the second respondent, the Council of the City of Sydney ("the Council"), in the preparation and publication of a plan for the redevelopment of the Woolloomooloo area of the City of Sydney and in failing to warn the appellants that the plan was to be abandoned. The plan was embodied in three documents: a Study entitled "Woolloomooloo Redevelopment Study", Development Control Proposals which reproduced sections of the Study, and a brochure which explained the Study proposals in popular terms, but unless otherwise indicated it will be convenient to refer to them compendiously as "the Study documents". The first respondent, the Minister administering the Environmental Planning and Assessment Act 1979, has since succeeded to the liability of the Authority. At first instance Ash J. gave judgment for the appellants in the sums of $745,248, $34,550, $32,628 and $602,497 respectively. The judgment was based on findings in favour of the appellants on the issues of negligent preparation and negligent publication. The Court of Appeal (Hutley, Glass and Mahoney JJ.A.), whose decision is reported at (1983) 2 N.S.W.L.R. 268, upheld the respondents' appeals, holding that the respondents were not under a relevant duty of care to the appellants. The primary issue in these appeals is whether the Court of Appeal was correct in so holding.

At the request of the Minister for Local Government, a meeting was held on 1 February 1968 between the Chief Commissioner of the City of Sydney, the Chairman of the Authority and the Town Clerk at which it was resolved that a detailed plan of development should be prepared for the Woolloomooloo area. A Steering Committee, consisting of representatives of the Council and the Authority, was set up as well as a planning team which commenced work in March 1968. On 29 July the Authority sent its report on the completed plan to the Council. On 11 August 1969 the Council adopted the plan. Initially, as Hutley J.A. noted, it had no statutory force, except as a guide to the public interest which the Council, as the responsible authority, was required to consider (cl.27(f) of the County of Cumberland Planning Scheme Ordinance, made pursuant to the Local Government Act 1919 (NSW)). After the City of Sydney Planning Scheme Ordinance was proclaimed on 16 July 1971, the plan had a more important role because cl.32(e) of that Ordinance required the responsible authority to take it into consider ation in respect of any application for consent to erect or use a building or to carry out or use a work or to use land for a purpose referred to in Column IV of the Table to cl.23 of the Ordinance.

The Council placed the Study documents on exhibition and adhered to them until 1972 when they were abandoned. The plan, which made provision for the high density development of the area, proceeded, not on the footing that land in the area would be resumed for the purpose of redevelopment, but on the footing that developers would be encouraged to purchase land in the area and develop it in an appropriate fashion. The existing pattern of subdivision and land ownership was not congenial to high density development. Much of the land was subdivided into small allotments and ownership was fragmented. The plan sought to create a regime which would encourage developers to acquire properties and consolidate them. To this end the Study documents held out the prospect of a basic floor space ratio of 5:1 with a bonus ratio of 2:1 or 3:1 for progressively larger site amalgamation, subject to a general maximum permissible floor space ratio of 10:1.

Mr Baker, the guiding spirit behind the four appellants, inspected the Study documents when they were on exhibition and obtained copies of them. The appellants then purchased land in the Woolloomooloo area for redevelopment in accordance with the proposals which those documents contained. The essence of the appellants' claim was that they purchased the land for redevelopment, relying on representations made in the Study documents. They claimed that the representations were untrue and that the Authority and the Council knew or ought to have known that they would be relied on. After the plan for redevelopment was abandoned, the properties were eventually sold or compulsorily acquired. The loss claimed by the appellants was the net deficit that resulted from deducting the cost of acquiring, maintaining and developing the land, including interest on moneys borrowed for the purpose of acquisition, from the income derived from the properties and the proceeds of their sale or resumption. That loss is purely financial, being unaccompanied by any damage to their property.

The findings of fact made by the primary judge are sufficiently set out in the judgment of Glass J.A. in the Court of Appeal. The account which follows is taken from that judgment. The Authority and the Council intended that private enterprise should play a major role in the proposed redevelopment of Woolloomooloo. Exhibition of the Study documents was designed to stimulate the interest of developers in the purchase of properties in the area, the consolidation of sites and the making of development proposals. It was foreseeable by the Authority and the Council that the proposals contained in the Study documents would, when published, cause developers to invest money in land within the area. It was also foreseeable that loss would or might be suffered by persons who invested money in land in Woolloomooloo in the expectation of being allowed to develop in accordance with the proposals if the plan, due to inherent defects, was incapable of implementation and had to be abandoned. The appellants were persons who had invested money in land with knowledge of the Study documents and with the expectation of being allowed to develop in accordance with the proposals.

The primary judge found that the Study documents were not prepared with the degree of professional competence reasonably to be expected of persons in the position of the Authority and the Council. He found that due care in the preparation of the Study documents would have required a detailed analysis of the capacity of the transport system and that this analysis was not undertaken. The method adopted of consulting the two government instrumentalities (Railways and Main Roads) was an insufficient fulfilment of the duty since the information placed before them was inadequate. There was in reality only one act or omission relied on, namely the transportation/workforce deficiency, which the primary judge described as the core allegation. The Authority and the Council were charged upon a negligent failure to conduct a proper investigation of the transport system, which would have informed them that the development of the Woolloomooloo area in accordance with the maximum permissible floor space ratios recommended in the Study documents would necessarily attract a workforce of 50,000 - 90,000 persons, whereas the transport system could barely handle 35,000. As the primary judge had previously accepted the appellants' estimates of workforce in preference to those put forward by the respondents, he found that if the examination of the transport system and the investigation of the kinds and intensity of proposed land use had each attained proper professional standards, the disparity between the workforce that would be generated and transport capacity available would have been discovered.

The findings made by the primary judge in connexion with the claim of negligent publication reflected his acceptance of the appellants' case based upon pars.18 and 21 of their amended statements of claim which are in these terms:

"18.

By the said statements the Authority and the (Council) and each of them represented to members of the public that the said documents embodied the results of expert research carried out by the Authority and by the (Council) in collaboration with each (other) and further represented that the said documents had been prepared in a proper and workmanlike manner and were based on sound town planning principles and principles as to the use and development of land and in relation to transportation, were feasible of implementation, whereas the said plans were not feasible of implementation.

...

21.

The Authority and the (Council) know or ought to have known that the said documents would be relied upon by developers in deciding whether to buy land in the Woolloomooloo area and if so the price at which such land should be bought and in determining prices that ought to be paid for land to be acquired in the Woolloomooloo area."

The appellants pleaded reliance on the representations and supervening damage. The trial was conducted on the footing that an allegation that the representations were negligently made formed an integral part of the appellants' case. The Court of Appeal understood that the appellants were alleging that one material false representation only was made, namely that the plans were feasible of implementation in relation to transportation. The appellants then alleged that the plans were infeasible by reason of the incapacity of the transport system to accommodate the workforce to be attracted by maximum development in accordance with the proposals in the Study documents. The representation conformed to the allegation of negligence in the preparation of the Study documents. The appellants' efforts in this Court were largely directed to making out the existence in the Study documents of a representation that the plan was feasible of implementation. However, having regard to the way in which the matter was pleaded in par.18 of the amended statement of claim, it is necessary for them to demonstrate the existence of the more specific representation that it was feasible for the transport system to handle a workforce of 50,000 - 90,000 persons. The way in which this contention was supported and the way in which it was rejected by Hutley and Glass JJ.A. - matters critical to the outcome of these appeals - may be left conveniently for later consideration.

The claim that the Authority and the Council were negligent in failing to give warning of the abandonment or possible abandonment of the plan is in a sense consequential upon the earlier allegations of negligence in preparation. If there was no duty to take care in relation to the preparation and publication of the Study documents, then a fortiori there could be no duty to take care to give warning of the abandonment or possible abandonment of the proposal previously published.

Relying on the decision of this Court in Caltex Oil (Australia) Pty . Ltd. v. The Dredge "Willemstad" (1976) 136 CLR 529 , esp. at pp 555, 593, in the Court of Appeal, Hutley and Glass JJ.A. concluded that the Authority and the Council owed no duty of care to the appellants in respect of financial loss resulting from the preparation of the Study documents because at the time they were prepared the respondents had no knowledge of the appellants as specific individuals. The Study documents were directed to the general class of developers and not to the appellants otherwise than as undifferentiated members of that general class. The consequence was that the appellants were confined to their case based on negligent publication. Their Honours were confirmed in this conclusion by the fact that in any event it was the publication of the documents, not their preparation, that was causative of damage (see Glass J.A., at p 302).

The members of the Court of Appeal gave separate reasons for denying the existence of a duty of care in relation to negligent publication. A common ground in the judgments was that the appellants had failed to establish that the Study documents contained a representation of the kind necessary to establish the existence of a duty of care. An understanding of the way in which the appellants sought to make out the misstatement on which they relied is essential to an appreciation of the Court of Appeal's conclusion that the alleged misstatement was not made out. Glass J.A. summarized this aspect of the appellants' case in this way (at pp 307-308):

"The defendants did not make any actionable representation specifically directed to the size of workforce which development in accordance with the proposals in the study would have engendered. However they did represent that the development proposals in the study were feasible of implementation in all respects including the capacity of the transport system to accommodate the workforce which would be necessarily attracted by the nature and scale of the developments proposed by the study. A body of evidence was then produced which upon the basis of certain assumptions showed that the full development of the area would bring into the Woolloomooloo basin a workforce of 70,000. The handling of such numbers, as I have said, plainly exceeded the capacity of the transport system."

His Honour then set out six steps by which the appellants sought to establish that the Study documents made the representation on which they relied (at p 308).

"(1)

The foreword to the study contains the words 'the basic approach in the current study has been to design a set of proposals, which while forming an integrated whole are capable of implementation in self-contained stages with the maximum participation of private enterprise'.

(2)

The underlined words mean or imply that the proposals are in all respects - including transport - capable of implementation.

(3)

The density standards in the study recommend a base ratio of 5:1 and further recommend bonuses for block development and for making public space available with a maximum permissible floor space ratio of 10:1 .

(4)

These floor space ratios were so expressed to developers as to represent that approval would be given to develop land in the area up to the maximum recommended ratios.

(5)

Upon the assumption that such approval would be given a workforce in excess of 70,000 would necessarily be attracted upon full development given certain further assumptions respecting available developable area, extent of site amalgamation to generate bonuses and assuming further a low level of residential use as compared to commercial use and assuming a low level of non office commercial use in relation to office commercial use.

(6)

By adding together propositions 2 and 5 it was represented that it would be feasible for the transport system to handle the workforce even though this would necessarily amount to 50,000-90,000 persons."

His Honour considered that no information capable of being proved false was imparted unless the Study documents, when recommending floor space ratios, were also giving an assurance that development to something like the maximum density would be permitted. According to his Honour, the critical information said to be imparted by the Study documents depended in a large degree upon the expectations of developers due to factors not mentioned in the Study documents. The conclusion was that as a matter of construction the documents gave no such assurance and that the Authority and the Council were not responsible for the accuracy of information which "they did not clearly and unmistakeably communicate" to the appellants. Hutley and Mahoney JJ.A. based themselves on what was substantially the same ground, stating that inferences (Hutley J.A.) and implications (Mahoney J.A.) are not statements for the purpose of liability in accordance with Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd. (1964) AC 465.

Separate reasons were also given for rejecting the claim that there had been a negligent failure to warn the appellants of the abandonment or possible abandonment of the redevelopment proposals. Hutley J.A., who regarded the Study documents as formulating policy rules for the guidance of the Council, thought that this circumstance entailed the conclusion that the policy exception to the liability of a public authority in negligence, as suggested in Anns v. Merton London Borough Council (1978) AC 728, was an answer to the existence of a duty of care in relation to warning of abandonment or possible abandonment. Glass J.A. held that, under the principles enunciated in Caltex, there was no duty of care to prevent financial loss to the appellants by warning them of the possible abandonment of the proposals in the Study documents. The Council, although aware that complaints had been made about the feasibility of the plan, expressly decided to adhere to it. Because there could be no loss unless the plan was abandoned, the Council did not have knowledge or the means of knowledge that the appellants would probably suffer financial loss, until the decision to review the plan was actually made in November 1972. Alternatively, even on the assumption that the Council did know that the plan would eventually have to be abandoned, the existence of a duty of care was negated by policy considerations. Mahoney J.A. held that whatever be the position in relation to a duty to warn, the circumstances of the present case did not bring into existence such a duty.

The appellants' case, as presented in this Court, focussed on the claim for negligent publication. It was conceded by Mr Bennett Q.C. for the appellants that the failure of that claim, unless it was on technical grounds , would necessarily entail the failure of the claim for negligent preparation. It was also conceded that the claim in respect of failure to warn had as its foundation the making of the misstatements which are central to the alleged negligent publication and that if those misstatements cannot be established, the claim for failure to warn must fail.

Since Hedley Byrne there has been a tendency, discernible in the judgments of the Court of Appeal in this case, to regard liability for negligent misstatement as standing apart from the general principles expressed in Donoghue v. Stevenson (1932) AC 562 with respect to the duty of care. There is a special problem in defining the circumstances in which a duty of care arises in the context of statements. One facet of this problem is that it is more difficult to apply the standard of reasonable foreseeability to the consequences which flow from the making of a statement, than it is to apply that standard to the consequences which flow from acts. This is because damage flows, not immediately from the defendant's act in making the statement, but from the plaintiff's reliance on the statement and his action or inaction which produces consequential loss. A second facet of the problem arises from the propensity of negligent statements to generate loss which is purely economic. The recovery of economic loss has traditionally excited an apprehension that it will give rise to indeterminate liability. And there is also an apprehension that the application of the standard of reasonable foreseeability may allow recovery of economic loss of such magnitude and in such circumstances as to provoke doubts about the justice of imposing liability for it on the defendant.

It was with a view to diminishing the risk of indeterminate liability for negligent acts, as distinct from negligent statements, that the members of this Court in Caltex sought to limit the persons, or class of persons, to whom a duty of care may be owed in respect of economic loss. It will be recalled that in that case Gibbs J. considered (at p 555) that economic loss is recoverable in negligence where the defendant has knowledge or means of knowledge that the plaintiff individually, and not merely as a member of an unascertained class, will be likely to suffer economic loss as a consequence of his negligence. Mason J. expressed a similar view (p 593), while Stephen J. said that recovery depended upon sufficient proximity between the tortious act and the injury (p 575). And Jacobs J. (at p 599) concluded that if economic loss arises out of the physical effect on the person or property of the plaintiff, it is not irrecoverable simply because it is economic loss. Although these approaches have been criticized (Junior Books Ltd. v. Veitchi Co. Ltd. [1983] 1 AC 520 , at pp 532-533; Candlewood Navigation Corporation Ltd. v. Mitsui O.S.K. Lines Ltd. (1985) 3 WLR 381 , at pp 391-394; Leigh and Sillivan Ltd. v. Aliakmon Shipping Co. Ltd. (1986) 2 WLR 902 ) the critics have themselves been unable to offer a solution to the problem.

Conscious of the factors already mentioned, courts have sometimes dealt with the duty of care in relation to negligent misstatement without relating it to Lord Atkin's exposition in Donoghue v. Stevenson. However, the correct view is that, just as liability for negligent misstatement is but an instance of liability for negligent acts and omissions generally, so the treatment of the duty of care in the context of misstatements is but an instance of the application of the principles governing the duty of care in negligence generally. The special complications which arise in connexion with the imposition of a duty of care on the author of a statement can only be unravelled in a variety of factual situations. Decisions such as Hedley Byrne, Mutual Life & Citizens' Assurance Co. Ltd. v . Evatt (1968) 122 CLR 556 , on appeal (1970) 122 CLR 628 ; (1971) AC 793, and Shaddock & Associates Pty. Ltd. v. Parramatta City Council (No. 1) (1981) 150 CLR 225 are therefore to be seen as illustrations of the general duty of care in its application to particular instances of negligent misstatement.

The relationship of proximity is an integral constituent of the duty of care concept. We refer to that relationship in its broader sense, namely, as embracing a general limitation upon the test of reasonable foreseeability, this being the sense in which it has been discussed and applied in recent judgments in this Court (Caltex, at pp.574-576; Jaensch v. Coffey (1984) 58 ALJR 426, at pp 427-428, 440-442; 54 ALR 417 , at pp 419-421, 442-446; Sutherland Shire Council v. Heyman (1985) 59 ALJR 564, at pp 579, 599; 60 ALR 1 , at pp 29, 62-63; Stevens v. Brodribb Sawmilling Co. Pty. Ltd. (1986) 60 ALJR 194; 63 ALR 513 ). The notion of proximity, because it limits the loss that would otherwise be recoverable if foreseeability were used as an exclusive criterion of the duty of care, is of vital importance when the plaintiff's claim is for pure economic loss. When the economic loss results from negligent misstatement, the element of reliance plays a prominent part in the ascertainment of a relationship of proximity between the plaintiff and the defendant, and therefore in the ascertainment of a duty of care. But when the economic loss results from a negligent act or omission outside the realm of negligent misstatement, the element of reliance may not be present. It is in this sphere that the absence of reliance as a factor creates an additional difficulty in deciding whether a sufficient relationship of proximity exists to enable a plaintiff to recover economic loss.

In cases of negligent misstatement, reliance plays an important role, particularly so when the defendant directs his statement to a class of persons with the intention of inducing members of the class to act or refrain from acting, in reliance on the statement, in circumstances where he should realize that they may thereby suffer economic loss if the statement is not true. In these situations Caltex, which related to economic loss caused by a negligent act or omission, should not be regarded as excluding the existence of a duty of care.

Various attempts have been made to give precise expression to the conditions according to which the author of a statement will be liable in negligence for the loss sustained by a person who relies on it. In Evatt the plaintiff alleged that the defendants provided information and advice in response to a request and that they accepted the responsibility of giving that information and advice, knowing that the plaintiff intended to rely on it. Barwick C.J. (at pp.572-573) considered that whenever a person gives information or advice to another upon a serious matter in circumstances where the speaker realizes, or ought to realize, that he is being trusted to give the best of his information or advice as a basis for action on the part of the other party and it is reasonable in the circumstances for that other party to act on that information or advice, the speaker comes under a duty to take reasonable care in the provision of the information or advice which he chooses to give. On appeal the majority in the Privy Council placed liability on a narrower basis, confining it to those who carry on a profession, business or occupation involving the possession of skill and competence or who let it be known that they claim to possess skill and competence in the subject matter of the advice which they give. The minority in the Privy Council, after pointing out (at p 644; p 810 of A.C.) that "it is not possible to lay down hard and fast rules as to when a duty of care arises in this or in any other class of case where negligence is alleged", concluded (at p 646; p 812 of A.C.) that a duty of care arises "when an inquirer consults a business man in the course of his business and makes it plain to him that he is seeking considered advice and intends to act on it in a particular way" and the business man gives advice without warning or qualification.

In Shaddock Mason and Aickin JJ. applied Barwick C.J.'s statement of the principle of liability and Murphy J. seems to have adopted a similar approach (at pp.255-256). Gibbs C.J. found it unnecessary to decide whether the view of the majority or minority in the Privy Council in Evatt was correct and Stephen J. seems to have been prepared to accept the majority view for the purpose of deciding the case.

In Evatt and Shaddock the misstatement on which the plaintiff relied was made in response to a request - in the case of Evatt for information and advice, and in the case of Shaddock for information alone, although the distinction between information and advice is an unnecessary and often difficult one to draw (Evatt, at p 572; Shaddock, at pp.242-243). But there is no convincing reason for confining the liability to instances of negligent misstatement made by way of response to a request by the plaintiff for information or advice. The existence of an antecedent request for information or advice certainly assists in demonstrating reliance, which is a cornerstone of liability for negligent misstatement. However, such a request is by no means essential, though it has been suggested that instances of liability for misstatement volunteered negligently will be "rare" (Evatt, at pp 571-572; Lambert v. Lewis (1982) AC 225, at p 264). The maker of a statement may come under a duty to take care through a combination of circumstances or in various ways, in the absence of a request by the recipient. The author, though volunteering information or advice, may be known to possess, or profess to possess, skill and competence in the area which is the subject of the communication. He may warrant the correctness of what he says or assume responsibility for its correctness. He may invite the recipient to act on the basis of the information or advice, or intend to induce the recipient to act in a particular way. He may actually have an interest in the recipient so acting.

The appellants submit that where A engages in conduct which is intended to cause B or a class of persons to act in a particular manner, A comes under a duty of care to B or any member of the class who is induced to act in that manner. Alternatively the appellants submit that A comes under a duty of care where he has an interest in inducing such action. The American authorities invoked by the appellants are not expressly based on a proposition as wide-ranging as that first stated. By way of illustration, cases such as Rusch Factors, Inc. v. Levin (1968) 284 F.Supp. 85 and Rhode Island Hospital Trust National Bank v. Swartz, Bresenoff, Yavner & Jacobs (1972) 455 F 2d 847 dealt, and were expressed to deal, with the liability of accountants for careless financial misrepresentations in certified financial statements supplied by the accountants to their clients in the knowledge that they were to be used by the clients in support of their application to the plaintiffs for funds. In Rhode Island Hospital Trust the accountants not only knew but acknowledged that the plaintiff bank sought the financial statements in connexion with loans which it was proposing to make to the corporation to which the financial statements related. The two decisions provide support for the proposition that, where a statement is made for the purpose of inducing the plaintiff, or the members of a limited class including the plaintiff, to commit themselves financially upon the basis that the statement is true, and the plaintiff acts in reliance on the statement, the law will impose a duty of care on the maker of the statement. This proposition is rather different from the appellants' first submission. The deficiency in that submission may be expressed by saying that it is necessary not only that A intends that B or members of a class of persons should act or refrain from acting in a particular way, but also that A makes the statement with the intention of inducing B or members of that class, in reliance on the statement, to act or refrain from acting in the particular way, in circumstances where A should realize that economic loss may be suffered if the statement is not true. In cases where the defendant intends the statement to operate as a direct inducement to action, the reasonableness of the reliance will not be a critical factor, although in other cases the defendant's appreciation of the reasonableness of reliance will be relevant.

The appellants' alternative proposition derives from the American Restatement of the Law of Torts (2d), at 552, which speaks of the liability of a person who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, for pecuniary loss caused to them by their justifiable reliance on the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Whether this principle of liability extends to liability on the part of statutory and local authorities in respect of negligent misstatements made in development plans was not made clear by the argument. In Australia the general interest which a local authority has in promoting or encouraging the development of its area would not ordinarily be classified as a "pecuniary interest". We do not consider that a general interest of this kind is enough to support the existence of a duty of care on the part of an authority in relation to statements made in development plans so as to make the authority liable for negligent misstatement in accordance with the appellants' alternative proposition.

It follows then that if the appellants' case is to succeed they must establish at least, amongst other things, (1) that the alleged representation was made, and (2) that the Authority and the Council made the representation with the intention of inducing members of the class of developers to act in reliance on the representation. The conclusion which we have reached is that the appellants have failed to establish the first matter and therefore the second matter cannot arise.

Paragraph 18 of the amended statement of claim alleges a number of representations: that the documents embodied the results of expert research, that they had been prepared in a proper and workmanlike manner and were based on sound town planning principles and principles as to the use and development of land and, finally, that the plans in relation to transportation were feasible of implementation. It is the last representation which constitutes the critical misstatement on which the appellants claim to have relied to their detriment. The earlier representations pleaded are no more than a step along the way, giving some colour or character to the critical representation which follows. True it is that a person reading the documents would infer in all probability that the Authority and the Council would have engaged in expert research and embodied that research, or part of it, in the Study documents. Whether a reader would also infer that the Study documents had been prepared in a proper and workmanlike manner in accordance with the principles already mentioned is perhaps more questionable. But these matters are by the way, because the documents contain no statement, express or implied, in terms of the earlier representations which are pleaded.

The absence of any assurance or representation of this kind is significant. It detracts from the force of the appellants' suggestion that the Study documents amounted to an invitation to developers to rely on the contents as a solid and unalterable basis for action by way of acquiring and developing properties in the area in accordance with its proposals. In the absence of some such assurance or representation it is not easy to see why the publication of plans or proposals intended to serve as a guide for future development should be held to impose an obligation on a planning or local authority to take care in making statements in those plans or proposals.

In the nature of things, being creatures of an administrative and political process, proposals of this kind are subject to alteration, variation and revocation. The implementation of a development plan inevitably generates planning and political pressure for changes at the instance of administrators, commercial interests, property owners, residents and other interest groups. Moreover, unless a development plan is given some entrenched or statutory status by relevant planning legislation it does not fetter the exercise by the responsible authority of its statutory discretions to approve or refuse development applications. A responsible authority, in exercising its statutory powers, has regard not merely to the contents of such a plan, but to the way in which the plan is working and to other matters which may be relevant to the exercise of its discretion. In particular, if, in the course of time, experience had indicated that the granting of development approvals by the Council in the Woolloomooloo area, in accordance with the maximum floor space ratios proposed in the Study documents, was creating a work force too large to be handled by the transport system, then the responsible authority may have refused to grant approvals in accordance with those maximum ratios .

There are, accordingly, two relevant characteristics of a development plan of the kind in question. First, there is the element of impermanence and capacity for modification and revocation. Secondly, the plan does not diminish the overriding discretion of the responsible authority to depart from the proposals incorporated in the plan when determining individual applications for development approval.

These characteristics point to the conclusion that, in the absence of indications to the contrary, it will not readily be inferred that a plan intended to serve as a guide to future development contains an assurance that it will be continuously and inflexibly applied in the future. Rather it is an expression of present intention and future expectation which would in ordinary circumstances deter developers and businessmen from relying on it as a solid and unchangeable foundation for development approvals . Instead, they make their own assessment and rely on their advisers and consultants, recognizing that the function of the public documents is to provide a general and flexible planning framework within which developers and businessmen are expected to make their own judgments.

The Study documents in the present case contain statements which confirm that the redevelopment plan was of the kind already discussed and that its proposals were by no means permanent and unalterable. The foreword to the Study, which was one of the three documents comprising the plan, stated that "Its purpose is to stimulate ideas on the part of landowners and others and to serve as a guide in the control of development". The Study then outlined five basic objectives, one of which was:

"That the redevelopment proposals for Woolloomooloo as a whole be flexible enough to permit redevelopment to occur in stages by a variety of private developers, but at the same time be so designed as to ensure that ultimately the complete pattern of development will form a total, integrated environment, incorporating the highest standards of civic design with safety and efficiency of movement for both pedestrians and vehicles."

After referring to a number of discrete geographic sectors "for which general planning policies (were) envisaged", the Study stated that "A final three-dimensional concept for the whole area cannot be determined at this stage as much depends on the eventual extent and pattern of site consolidation".

This comment draws attention to the difficulty of estimating the ultimate level and pattern of development. The difficulty of estimating the extent of site consolidation depended, not only on the willingness of private developers to participate in that activity, but also on the support of the Commonwealth, which was an extensive land owner in the area, and on the extent to which roads could be closed. And there was a problem of assessing the extent to which the Council, in the determination of development applications, would adopt and apply the maximum floor space ratios. True it is that all these contingencies were not mentioned. However, the statements which we have just quoted would have alerted anyone reading the Study documents to the fact that its authors specifically disclaimed any prediction as to the ultimate level of development.

The contents of the Study documents therefore reinforce the impression, conveyed by the general character of the proposals, that, subject to one possible exception, the Study documents were offering no assurance about the ultimate level of development or the continuing application by the Council of the maximum floor space ratios. The possible exception was the specific statement in the brochure that "A work-force of 35,000 and a resident population of 9-10,000 is envisaged when the area is fully redeveloped".

Another statement, made in the foreword to the Study was as follows:

"... the basic approach in the current study has been to design a set of proposals which, whilst forming an integrated whole, are capable of implementation in self-contained stages, with the maximum participation of private enterprise."

This statement is the first of the six steps outlined above by Glass J.A. in the Court of Appeal, by which the appellants seek to establish the existence of the representation that it was feasible for the transport system to handle a workforce of between 50,000 and 90,000 persons. This argument depends upon a number of assumptions - the area available for development, which hinged on factors such as the extent of Commonwealth participation and the extent of road closures; the degree of site consolidation; a low level of residential use compared with commercial use; and a low level of non-office commercial use in relation to office commercial use. The Study documents gave no assurance in respect of these matters and, as we have seen, they were not matters capable of precise evaluation. Moreover, the alleged implied representation is inconsistent with the express statement that a workforce of 35,000 was envisaged. There is, accordingly, no basis for finding that the Study documents contained a representation in the terms suggested.

The general nature of these documents and the appellants' failure to establish that they contained any representation or assurance about either the ultimate level of development, beyond the estimate of a workforce of 35,000, or the continuing application by the Council of the maximum floor space ratios, is fatal to these appeals. The absence of any such representations or assurances makes it impossible to say that the Authority or the Council came under a duty of care to the appellants in the manner alleged.

For these reasons the appeals should be dismissed.