FORBES McLAREN, R JOHNSTON, G JOHNSTON, JANE LAZAROFF, MILLICENT M TIDEY AND

Local Government - Appeals - Tasmania - Resource Management and Planning Appeal Tribunal - Natural justice - Failure to afford party opportunity to deal with issue not raised at hearing.

Local Government - Appeals - Tasmania - Resource Management and Planning Appeal Tribunal - Nature of jurisdiction - Duty to take steps to achieve a meritorious determination.

Local Government - Appeals - Tasmania - Resource Management and Planning Appeal Tribunal - Failure to provide reasons for decision.

Solicitors for the Appellant: Murdoch Clarke Cosgrove

and Drake

Counsel for the 2nd to 14th Respondents: D R Armstrong

Solicitors for the 2nd to 14th Respondents: Ogilvie McKenna

(a) The decision of the Tribunal made and delivered on 11

August 1995, No J177/95, whereby the Tribunal set aside a

decision of the Glamorgan/Spring Bay Council to permit

take-away liquor sales from the premises situate at and

known as Iluka Holiday Centre at Coles Bay, is set aside.

(b) The Tribunal is directed to hear and determine any

applications which the appellant may make to the Tribunal in

writing within seven days hereof to adduce evidence by floor

plan or otherwise showing the existing layout of the

building in respect of which planning approval is sought.

(c) If the Tribunal grants the appellant's application to

adduce evidence, it shall reconsider and determine afresh

the appellant's planning application upon the basis of all

evidence adduced in respect thereof.

(d) If the Tribunal shall refuse the appellant's application

to adduce further evidence, it shall determine whether or

not the application for planning approval should be remitted

for reconsideration by the Council or should be otherwise

disposed of.

(e) The Tribunal shall take all steps necessary to implement

its determination.

WRIGHT J This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal ("the Tribunal") made on 11 August 1995. Pursuant to the Resource Management and Planning Appeal Tribunal Act 1993 ("the Act"), s25 confers a right of appeal "on a question of law".

2. The Tribunal conducted a hearing on 11 and 12 July 1995 at Swansea, to determine two appeals against a decision of the Glamorgan/Spring Bay Council to issue a development permit to Alexander Sneddon Kain enabling him to sell alcohol for consumption off-site from the Iluka Holiday Centre at Coles Bay.

3. The first appeal was lodged by Mr Christopher Holloway (the fourth named respondent in these proceedings) and the second appeal was lodged by Mr Brian and Mrs Margaret Forsyth (the second and third named respondents in these proceedings). The Glamorgan/Spring Bay Council (the first named respondent in these proceedings) was a party to the appeal before the Tribunal by virtue of the Act, s14(1)(b), and each of the other respondents in these proceedings was a party to the appeal before the Tribunal pursuant to orders by the Tribunal, making those persons parties in accordance with the Act, s14(2).

4. The Iluka Holiday Centre, which was the subject of the development application, is an enterprise at Coles Bay consisting of holiday cottages, caravan and camping sites, and a building containing a restaurant and lounge bar. A plan showing the precise layout of the building containing the restaurant and lounge bar, as it currently exists, was not provided to the Tribunal but, during the course of the appeal hearing, the Tribunal had before it plans showing the general layout of the building which was the subject of the original planning approval for the construction of the Iluka Holiday Centre in 1993. The building containing the restaurant and lounge bar and the area of the Iluka Holiday Centre containing the holiday cottages were the subject of a licence issued under the Liquor and Accommodation Act 1990, on 25 November 1994, permitting the sale of alcohol for consumption on the site. The licence so issued permitted liquor to be sold to any persons within the designated areas for consumption on the premises.

5. The Tribunal in its decision and reasons published on 11 August 1995, allowed both appeals and determined that in the absence of "a verified accurate floor plan" upon which could be delineated the area of the premises from which take-away sales of alcohol could occur, it was inappropriate to grant planning approval for the proposed use.

"The Tribunal is of the view in this case, that the existing

restaurant and adjacent bar, are both legally entitled to,

and are likely to, continue to operate. Additionally,

having heard all the evidence, the Tribunal would have

little difficulty in granting a planning approval which

would allow no more than the sale of take-away alcohol over

the existing bar during limited hours. Without verified

plans, however, sufficient to delimit the extent of any

planning permit issued, the Tribunal is unable to be

satisfied that a planning permit for a 'licensed

establishment', either with or without conditions, might not

enable the future expansion of the permitted use in a way or

ways which did not require separate applications for

planning approval."

7. The "future expansion" apparently contemplated by the Tribunal was referred to at page 5 of the Tribunal reasons, where it said:

"Mr Stanley, at page 3 of his written closing submissions,

stated:

'No plans were provided as there were to be no physical

changes to the building or the site'.

The difficulty about that submission is, that as the

Tribunal has no evidence that the building carried out in

pursuance of the 1993 development approval conformed to the

plans submitted with the application seeking that approval,

it is in no position to assess the accuracy of the

assertion.

Without a plan or plans showing what it is, in respect of

which, planning permission is sought, the Tribunal is unable

to ascertain what, if any, further consequences the grant of

planning approval for a 'licensed establishment' might have

beyond the permitting of the sale of take-away liquor over

the bar. It is conceivable that more bars could follow, or

that notwithstanding Mr Kain's evidence of his present

intentions, a discreet bottle shop could be established

without the necessity for any further planning or building

approval.

These matters were not canvassed in the present appeals,

because without plans lodged in support of the development

application they could not be."

8. The Tribunal's determination appears in the ante-penultimate paragraph at 6 of its reasons, where it said:

"The decision of the Tribunal is that the decision of the

Glamorgan/Spring Bay Council appealed against is set aside and that a

permit in respect of Development Application No 7 of 1995 not be

granted."

9. An appeal against the Tribunal's determination was lodged with the Supreme Court on 16 August 1995 seeking orders that the Tribunal's determination be set aside and that it be ordered to reconsider its decision in accordance with the Court's directions.

"1 That the learned Tribunal having found 'having heard all

the evidence the Tribunal would have had little difficulty

in granting a planning approval which would allow no more

than the sale of take-away alcohol over the existing bar

during limited hours' and having determined 'without proven

accurate plans the Tribunal could not know if its decision

opened up potential extensions of the use or allowed the

ambit of the permit to be wider than it anticipated. In

this regard it is no answer to say that the ambit of the

planning approval could be limited by conditions, because

without the plans it is impossible for the Tribunal to

address its mind to what appropriate conditions may be'.

The learned Tribunal erred in law in that:

Having considered upon the view of the premises which it

undertook on 12th July, 1995 and the hearing not having

concluded at that time and having formed the opinion based

upon the view that there was a need for a plan to be

produced and verified as representing the buildings which

presently exist on the site and their internal layout, it

failed to exercise or consider exercising its powers and

duties under the Resource Management and Planning Appeal

Tribunal Act 1993 pursuant to :

(i) Section 16(1)(b) to conduct the appeal with as little

formality and technicality as a proper consideration of

the matters before the Tribunal permitted;

(ii) Section 16(1)(d) to observe the rules of natural

justice;

(iii) Section 19 to give to the parties a reasonable

opportunity of presenting their case; and

(iv) Section 22(1) to do all things necessary or

convenient to be done in connection with the hearing and

determination of the appeal;

by not affording and not considering whether it would afford

to the appellant an opportunity to provide to the Tribunal a

plan of the internal layout of the premises.

2 That the learned Tribunal erred in law in that it failed

to consider exercising its power pursuant to Section

23(2)(c)(ii) of the Resource Management and Planning Appeal

Tribunal Act 1993 upon setting aside the decision appealed

against to remit the matter for reconsideration to the

planning authority with directions or recommendations.

3 (Abandoned)

4 The learned Tribunal erred in law in making its

determination without providing reasons pursuant to Section

24 of the Resource Management and Planning Appeal Tribunal

Act 1993, in particular reasons for its :

(i) (Abandoned)

(ii) determination (if such a determination was made) that

having decided that a permit was or may be appropriate

subject to a plan of the existing bar area being submitted

the appellant would not be afforded an opportunity of

providing the Tribunal with such a plan; and

(iii) determination (if such a determination was made)

that pursuant to Section 23(2)(c) of the Resource

Management and Planning Appeal Tribunal Act 1993 the

decision of the Glamorgan/Spring Bay Council should be set

aside and in substitution therefor a decision that a

permit not be granted rather than setting aside the

decision appealed against and remitting the matter for

reconsideration by the planning authority in accordance

with any directions or recommendations issued by the

Appeal Tribunal."

11. It appears from the transcript that at the hearing before the Tribunal the parties proceeded on the basis that the development permit sought was not to apply to the whole Iluka site but to the building containing the restaurant and bar only. Mr Douglas, an expert planner called by Mr and Mrs Forsyth and Mr Holloway, said in the last paragraph at 2 of his report:

"Council's approval relates generally to the site and the

precise area subject to the change of use is not determined,

either by the application or the terms of Council's

decision. It is apparent that it is intended to relate to

the restaurant/bar complex in its entirety and this has been

presumed for the basis of this report."

12. Counsel for Mr Kain in his submissions to the Tribunal said:

"Mr Kain is content that there be a condition confining the

application of the permit to the existing building which

houses the restaurant, kitchen and lounge bar."

13. Mr Holt, counsel for the appellant, relied on this and other material as indicating that although the original application for planning approval to the Council may have been deficient in omitting a plan of the proposed development, and in failing to identify the location of the proposed development, it had been assumed, and assumed correctly by all those concerned, that it related to the existing building in which the restaurant, kitchen and lounge bar is located. He pointed out that at no stage of proceedings had it been contended by Mr Kain's opponents that the application was invalid or a nullity. A development application is not invalid because all the information required to evaluate it is not contained within it (Land Use Planning and Approvals Act 1993, s54).

14. Mr Holt also contended that within the statutory framework a proposal is not to be defeated merely because the planning authority believes that the use or development applied for should be restricted or made subject to conditions. The Land Use Planning and Approvals Act 1993, s51(4) empowers the planning authority to place restrictions or conditions on a permit. The Tribunal has a co-extensive power to do the same by virtue of the Resource Management and Planning Appeal Tribunal Act, s23(1). The Tribunal in fact dealt with the question by considering whether or not a permit might be issued subject to a restriction that it be confined to the existing bar and subject to a condition regulating the hours of operation. It was not submitted to the Tribunal and the Tribunal did not determine the matter on the basis that the application was for a permit in respect of the whole restaurant/bar complex and a permit was only appropriate for part of the complex and accordingly that no permit should issue. Mr Holt submitted that the Tribunal was prepared to consider issuing a permit with a restriction and, but for the absent floor plan, it was likely to have issued such a permit.

15. Mr Douglas supplied a location plan to the Tribunal as an annexure to his evidence and, in addition, the Tribunal had a site plan. In his report Mr Douglas said that information required included: "Designation of the extent of the floor area subject to the change of use."

16. Mr Holt also raised the issue that the notice of appeal to the Tribunal did not assert that the application was not capable of planning approval and determination because of the absence of plans. Ground 2 of the Forsyth appeal was the only matter raised in either notice of appeal relating to the provisions of plans. That ground was expressed as follows:

"Upon viewing the file at Glamorgan/Spring Bay Council

Chambers, Triabunna, it appears Mr Kain has failed to submit

to Council numerous items which are on the Council's

checklist for development applications.

Examples - no site plans, no location plan, no plan of

buildings, no plan of existing parking or access or proposed

parking or access, no location of other buildings on the

site or other information regarding easements and creeks."

17. Mr Holt pointed out that no consequence was asserted to result from this failure in the Forsyth notice of appeal. He said that the Forsyth notice of appeal did not include the contentions which the Tribunal relied upon as necessitating the existence of a plan. In particular, the notice of appeal did not assert that without a floor plan any permit issued may enable the creation of more bars or a discreet bottle shop without further planning or building approval. In addition, the notice of appeal did not assert that the area within the complex which was to be the subject of the permit needed to be specifically identified; did not assert that the part of the building to be used for take-away alcohol sales was only capable of identification by reference to plans; and did not assert that alcohol sales should be restricted to parts of the complex only such as the existing bar. For my part I see little significance in the fact that these specific points were not raised.

18. There is no prescribed form for a development application or its contents under the Land Use Planning and Approvals Act 1993 or the Regulations. The Land Use Planning and Approvals Act 1993, s54, confers upon the planning authority a power to require the applicant to provide additional information and suspends the duty of the planning authority to determine the application until that information is provided.

19. The planning scheme regulating development in the area, namely the Municipality of Glamorgan Planning Scheme 1985, specifies, in cl4.8 (at pages 37 and 38), the matters to be contained within a development application. It states that the application shall contain such information as is necessary for the Council to determine compliance with the scheme. The clause goes on to provide a list of other information which should be included where relevant in the application. The only item in that list which specifically relates to building plans is item (d)(iv) which provides:

"A plan or plans showing any new buildings or works to be erected or

constructed and any proposed alterations to existing buildings or

works, including their floor plans, elevations, dimensions, provisions

for drainage, site levels and the purposes of the various enclosed

areas or structures."

That requirement is expressed only to apply where the development proposed entails building works. Mr Holt submitted that the development proposed in this case did not entail such works.

20. The complex already contained a bar. The Tribunal referred to "the existing bar" at page 6 of its reasons. It was not a proposed building which was the subject of the application but a building already in existence. Mr Holt submitted that buildings are identifiable by plans, whereas existing buildings are identifiable by their existence. If the permit was to be limited to an existing building or an existing room within a building or an existing feature such as a bar within a building, that building, room or feature could be identified in ways other than by reference to a dimensioned floor plan. The Tribunal's view that the existing bar area should be identified only by reference to a floor plan and not otherwise is likely to have been the product of the special experience and expertise of the Tribunal in the field of planning, the need for such a plan for the purpose of identifying the bar not having been recognised by the parties. I regard this as a specious argument. The very nature of an approval of the kind under consideration is that it must be capable of expression in a written document by reference to a specific concept described in words or, more appropriately in a case such as the present, by a plan or diagram.

21. Mr Holt submitted further that before the Tribunal, counsel for the parties had not submitted that floor plans were necessary. Counsel for Mr and Mrs Forsyth and Mr Holloway said, in his submissions to the Tribunal:

"A condition imposing some limitation with respect to areas of

buildings or floor plans which relate to such use should be provided

for."

That is to say, although it was contended that the area to be the subject of the permit should be limited, it was not contended that the limitation could only be imposed by reference to a floor plan. It was not contended that the Tribunal could not grant a permit in respect of the application. What was contended by the opponents to the development was that the permit issued should, if the approval was to be sustained, be restricted to part only of the restaurant/bar complex.

22. Mr Holt also contended that the Tribunal acknowledged in its reasons in the passages already quoted, that the need for a floor plan designating the area to be subject to the proposed approval had not been raised as an issue at the hearing, but this was contested by Mr Armstrong, counsel for the respondents other than the Council. Mr Armstrong pointed out that the very issue upon which the Tribunal had rested its determination had been raised in Mr Douglas' proof of evidence at pages 6 and 7 and that this report had been provided to Mr Kain's counsel prior to the hearing. In the report the following passage appears:

"If established, the proposed tavern use has the potential

to expand and intensify within the constraints of the

subject site. Due to the lack of information accompanying

the proposal and the absence of any conditions imposed by

Council, it may be argued that the proposed use does not

apply to any one area or room within the subject site but to

the site in general. For example, the building containing

the existing restaurant and bar also contains an office,

staff room, etc. If this proposal is successful, there

would be no restriction upon the use of these areas, or the

conversion of the restaurant area, for use as a bottle shop

or bar."

23. Mr Armstrong also pointed out that Mr Douglas was cross-examined thereon (see the transcript at 234 - 235) when the issue was plainly canvassed again. Indeed, Mr Douglas at that point appears to have put the very argument which was adopted by the Tribunal as the foundation for its ultimate decision. At 234 - 235, Mr Douglas' evidence was:

"So you say the scheme provision for parking may need to be

changed? ... No I am saying that without an approved plan

for the proposed development, there is no certainty of a

control within the area dedicated to this particular use.

And that additional area could be used and that they could

generate further additional parking (inaudible), without

further reference to Council.

So you think if there's an approval there needs to be a

condition that a parking plan be submitted to the Council's

engineer for approval? ... I think if there is to be an

approval there needs to be an approved plan which relates

designated area of floor for that particular use."

"It says 'Where Council is satisfied that the circumstances

of the case are warranted, the provisions of the schedule

may be varied', what are the circumstances of this case

which you say warrant altering the requirements of the

schedule? ... Well I can only repeat my answer, the

conditions of this case are that there is no proposal plan

or approved plan to document the extent of Council's

approval. And so it's impossible to accurately determine

what the ultimate parking generation might be."

24. Mr Armstrong conceded that although this aspect of the matter was not at the forefront of the respondents' objections to the proposed change of use because his clients opposed the application in its entirety, it was nonetheless an integral part of the overall attack upon the appellant's proposal.

25. It seems to me that the Tribunal's assessment of the significance of the lack of a plan proceeded in the context of its assessment of the evidence which had been presented before it and its consideration of the question whether or not it had been given sufficient material to uphold the granting of the development application by the council, bearing in mind the limitations and conditions which would have been appropriate had it decided to do so. It is true that it had before it two versions of the floor plan of the restaurant/bar building (exhibits K1 and A3), but those floor plans differed in small but material respects and without some appropriate basis for choosing between them, or indeed accepting that either represented the building in its existing form, the Tribunal was at a considerable disadvantage in attempting to determine the application on its merits.

26. In relation to ground 1 of the appeal, the appellant put forward two alternative contentions:

1 Firstly, the Tribunal having:

(i) found that the provision of plans was necessary, and

(ii) it not having been canvassed in the notice of appeal

or at the hearing that plans were required to enable an

approval to be conditioned so as to prevent unapproved

future expansion by way of the creation of more bars or a

bottle shop,

natural justice in the circumstances required the Tribunal,

before disposing of the appeal, to raise the matter of the

floor plan with the parties before making its final

determination.

2 Alternatively, if the court were to find that the

appellant had notice of, or ought to have appreciated the

need to provide "a verified accurate plan" as opposed to the

general layout plan which had already been provided, so that

it could not be said that procedural fairness was denied to

the appellant, then it was obligatory for the Tribunal to

consider calling for the plan, that duty being implied from

the subject matter, scope and purpose of the statute one

facet of which was a duty to endeavour to facilitate a

decision based upon merit.

27. As to the first contention, it may be noted that in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Mason J (as he then was) said at 584 - 585:

"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 the duty to act fairly

depends to a large extent on the construction of the

statute. In Mobil Oil Australia Pty Ltd v Federal

Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 503 - 504,

Kitto J pointed out that the obligation to give a fair

opportunity to parties in controversy to correct or

contradict statements prejudicial to their view depends on

'the particular statutory framework'. What is appropriate

in terms of natural justice depends on the circumstances of

the case and they will include, inter alia, the nature of

the inquiry, the subject-matter, and the rules under which

the decision-maker is acting: Reg v Commonwealth

Conciliation and Arbitration Commission; Ex parte Angliss

Group (1969) 122 CLR 546 at 552 - 553; National Companies

and Securities Commission v News Corporation Ltd (1984) 156

CLR 296 at 311, 319 - 321.

In this respect the expression 'procedural fairness' more

aptly conveys the notion of a flexible obligation to adopt

fair procedures which are appropriate and adapted to the

circumstances of the particular case. The statutory power

must be exercised fairly, ie, in accordance with the

procedures that are fair to the individual considered in the

light of the statutory requirements, the interests of the

individual and the interests and purposes, whether public or

private, which the statute seeks to advance or protect or

permits to be taken into account as legitimate

considerations:"

28. There is clear authority for the proposition that an adjudicating body such as the Tribunal is obliged to raise an issue upon which it proposes to decide an appeal with all relevant parties before deciding the case upon such a basis if that issue has not been raised during the course of proceedings before it. To do otherwise is to breach the rules of natural justice see City of Brighton v Selpam Pty Ltd [1987] VicRp 5; (1986) 61 LGRA 167 and Rosebud Village Pty Ltd v Amos and City of Doncaster and Templestowe (1989) 68 LGRA 403.

29. There can be little doubt that if the Tribunal had decided the present appeal upon an issue not raised or canvassed before it, an opportunity should have been afforded to the appellant and respondents to consider the matter, to make submissions in relation thereto and, if appropriate, to seek to re-open the proceedings generally, calling evidence and seeking to further cross-examine opposing witnesses if so advised. However, as I have already mentioned, Mr Armstrong raised a compelling argument, which I accept, that the issue now in question was plainly before the Tribunal from the outset and, accordingly, I am quite unpersuaded that the Tribunal breached the rules of natural justice in the present case.

30. Mr Holt's alternative argument proceeded as follows.

31. The rules which provide the framework within which the Tribunal operates are contained in several provisions of the Act.

1 The procedure at hearings before the Tribunal whilst in

form adversarial, is essentially inquisitorial. Section

16(1)(a) - (c) provides:

"In an appeal before the Appeal Tribunal

(a) the procedure of the Appeal Tribunal is within the

discretion of the Appeal Tribunal; and

(b) the appeal is to be conducted with a little formality

and technicality, and with as much expedition, as a proper

consideration of the matters before the Appeal Tribunal

permits; and

(c) the Appeal Tribunal is not bound by the rules of

evidence and may inform itself on any matters in any way

that it considers appropriate;"

2 There is no onus of proof in planning appeals, (see Claude

Neon v City of Marion (1983) 32 SASR 481) although that

proposition should not be allowed to obscure the fact that a

failure by a party to adduce evidence as to facts peculiarly

within his or her knowledge may lead to adverse inferences

and that the Tribunal may, at the end of the day, find

itself in a state of uncertainty after taking account of all

available material and thus be unable to reach an

affirmative conclusion on a relevant question of fact which

may, in turn, preclude it from being persuaded to a

particular conclusion as to a given issue (see McDonald v

Director General of Social Security (1984) 1 FCR 356 at 358,

per Woodward J).

3 The Tribunal is an expert tribunal charged with the

implementation of often very broad and flexible concepts,

rather than precise rules, such concepts being susceptible

to differing interpretations and weightings. Thus precise

identification of issues and their significance is

frequently difficult for the parties. Furthermore the

Tribunal is concerned more with the future than the present.

The Act, s5(3) provides:

"The Appeal Tribunal is part of the State's resource

management and planning system, the objectives of which are

set out in Schedule 1."

The Schedule sets out the relevant considerations in such

general terms as follows:

"(a) To promote the sustainable development of natural and

physical resources and the maintenance of ecological

processes and genetic diversity; and

(b) To provide for the fair, orderly and sustainable use and

development of air, land and water; and

(c) To encourage public involvement in resource management

and planning; and

(d) To facilitate economic development in accordance with

the objectives set out in paragraphs (a), (b) and (c); and

(e) To promote the sharing of responsibility for resource

management and planning between the different spheres of

government, the community and industry in the State."

The primary duty of a planning authority in dealing with a

development application is set out in the Land Use Planning

and Approvals Act 1993, s51(2). It provides that such

planning authority must seek to further the objectives set

out in Sch1 of that Act. Schedule 1 of the Land Use

Planning and Approvals Act 1993 is in identical terms to

Sch1 of the Resource Management and Planning Appeal

Tribunal Act 1993. The Tribunal has the same duty as the

planning authority because it exercises original

jurisdiction when dealing with an appeal. (See R v

Commissioner for Town and Country Planning (1978) 40 LGRA

108 at 127). The question for determination by the Tribunal

is whether a particular decision is the correct or

preferable decision on the material before it, rather than

on the material which was given before the planning

authority (Bowen CJ and Deane J in Drake v Minister for

Immigration (1979) 24 ALR 577 at 589).

4 In this matter, the Tribunal was applying generalised

concepts under the Glamorgan Planning Scheme. Clause 5.1.1

at pages 41 and 42 of the scheme, sets out the matters the

planning authority, and hence the Tribunal, was required to

consider. Those matters included, for example, "the orderly

and proper planning of the zone" and "the objectives of the

scheme."

The objectives of the scheme for the zone in which this

development was proposed, namely the Village zone, are set

out in cl2.3.1 at page 18. Such objectives included:

"To consolidate new residential development and other

suitable uses within existing settlements so as to maximise

and promote the use of existing and future facilities and

services."

The general objectives are set out in cl1.10.1 of the scheme

at page 5 and include matters such as:

"- Providing for residential industrial and commercial

growth in an orderly manner.

- Respecting the views of residents.

- Ensuring that all development types are catered for."

32. Thus, the appellant's alternative contention was that if the Court were to find that the appellant had notice of or should have appreciated the need to provide an up-to-date plan to the Tribunal (in which case it could not be said the procedural fairness was denied) nonetheless, the Tribunal was under a duty to endeavour to facilitate a "merits" outcome in this case by considering affording to the appellant an opportunity to provide the plan.

33. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1985) 162 CLR 24 at 56, Brennan J (as he then was) said:

"Apart from express provision, a statute may impliedy

require the repository of a power in deciding on its

exercise to have regard to certain considerations. The

subject-matter, scope and purpose of the statute must be

considered to determine whether the repository is bound to

have regard to any and what matters: Water Conservation and

Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at

505; Kioa v Minister for Immigration and Ethnic Affairs

[1985] HCA 81; (1985) 159 CLR 550 at 584, 594 - 595, 619."

34. Mr Holt submitted that the Tribunal has an implied duty to consider the various statutory options available to it for achieving a "merits" outcome and in this case, the duty extended to considering affording to the appellant an opportunity of providing the floor plan.

35. Specifically the aspects of the legislation to be noted which it was submitted give rise to the implied duty to endeavour to achieve a "merits" outcome are:

(i) The Act, s16 which empowers the Tribunal to regulate its

own procedure and compels the Tribunal to conduct appeals

with as little technicality and formality as a proper

consideration of the matters before it permit.

(ii) Section 22(1) which empowers the Tribunal to "do all

things necessary or convenient to be done for or in

connection with the hearing and determination of the

appeal."

(iii) Section 22(3) which empowers the Tribunal to modify

development applications.

(iv) Section 23(1), which confers upon the Tribunal the

power to "exercise all the powers that are conferred by the

relevant legislation on the person who made the decision

that gave rise to the appeal". In a case where further

information is needed to consider the development

application, s23(1) enables the Tribunal to exercise the

power of the planning authority contained in the Land Use

Planning and Approvals Act 1993, s54 to require further

information. The Land Use Planning and Approvals Act 1993,

s51(4) enables the planning authority to restrict a permit.

(v) Section 5(3) which provides that the objectives of the

Tribunal are the sustainable development objectives set out

in the schedule to the Act.

(vi) Section 23(2) which imposes upon the Tribunal a duty to

either affirm the decision appealed against, vary the

decision, substitute a new decision, or remit the matter to

the planning authority.

36. In Pacific Seven v City of Sandringham [1982] VicRp 14; (1982) VR 157 Marks J was considering an appeal from a decision of the Victorian Town Planning Appeals Tribunal. The developer had applied for permission to establish a shop to sell various commodities. The question arose as to whether the inclusion of the sale of some of the commodities took the shop outside the use class that had been applied for. The court held that the Tribunal had wrongly determined that the proposal to sell hot take-away food caused the development to fall outside the relevant use class. Marks J went on to say at 163:

"But even if the answer is unfavourable to the applicant, I

regard it as the duty of the Tribunal or the responsible

authority, whichever body happens to be considering the

problem, to consider informing the applicant of the effect

of the proposed disqualifying use, so that the applicant is

afforded the opportunity to abandon its pursuit or indicate

willingness to comply with a condition restraining that use.

The words of ss 21 and 21A of the Town and Country Planning

Act should be borne in mind as expressing the intention of

the legislature that the substance of an application should

be determined. Planning is a difficult exercise with

flexibility an essential ingredient. Those entrusted with

its implementation should bear in mind that neither

individual or community interest is served by recourse to

exotic legalism. Whetting the saliva of lawyers with one

hand on the guillotine can only frustrate rather than meet

the ends of justice, and the expressed intention of the

legislature in the field of planning. Whatever be the

consequence of legal points which fall to be decided, every

endeavour should be made to deal with the substance of an

application for permission to use or develop land in a

certain way with maximum expedition and fairness."

37. Mr Holt submitted that it was incumbent upon the Tribunal to consider hearing the parties with a view to possibly affording to the appellant an opportunity to produce the required plan. Such a consideration not having been undertaken, he submitted that the Tribunal's decision was vitiated by error of law.

38. Mr Holt also submitted that the Tribunal was under an express statutory duty to consider remitting the matter to the Council having determined, under s23(2)(c), that the decision of the Council should be set aside. He submitted that the failure of the Tribunal to give any reason for not remitting the matter to the Council with appropriate directions, is evidence that no consideration was given to taking such a course. In Kentucky Fried Chicken Pty Ltd v Gantides [1979] HCA 20; (1970) 140 CLR 675, Stephen J said at 682:

"For the omission of reasons from a Tribunal's written

determination to be significant that determination must, no

doubt, be, at the very least, such a document as may be

expected to contain some statement of the reasons for the

decision arrived at. Only then will its silence on specific

issues go any distance, as a matter of logical inference,

towards suggesting that the Tribunal has failed to consider

those issues.

Where appellate administrative tribunals are required by

statute to include in their decisions a statement of the

reasons for arriving at them there will be little difficulty

in assigning some significance to silence; it will at the

least reveal a failure to comply with the requirement of the

statute and may go so far as to impugn the decision itself,

particularly where some statement of reasons does appear but

omitted from it are considerations relevant to the

determination of the matter in issue."

39. Section 23(2)(c) requires the Tribunal, having determined that a decision of a planning authority should be set aside, to decide whether to make a decision in substitution for that of the planning authority or whether instead to remit the matter to the planning authority.

40. In this case, the Tribunal had determined that "it would have had little difficulty" in granting a permit in respect of the existing bar area subject to a condition limiting the hours of operation but that it had insufficient materials to enable it to undertake that course of action. In that context, it was submitted that remission to the Council was an option worthy of consideration and so the Tribunal had a duty to consider remission.

41. Mr Armstrong submitted that in the first excerpt from the Tribunal's reasons quoted above in this judgment where it said, "... the Tribunal would have little difficulty in granting a planning approval which would allow no more than the sale of take-away alcohol over the existing bar during limited hours", the Tribunal should not be taken to be saying that if it had the appropriate plan before it, it would have granted the application to the extent of permitting the sale of take-away liquor over the existing bar during limited hours. It is saying, rather, that if it had properly authenticated plans by reference to which it could sufficiently limit the extent of the proposed planning permit, it would have had sufficient material to make such a determination. Acceptance of Mr Armstrong's argument would go a long way to undermining Mr Holt's submission but the Tribunal's utterance is by no means free from ambiguity and, accordingly, my determination of this appeal does not and should not depend upon a possibly incorrect interpretation of what the Tribunal was attempting to say in this discrete area when I am by no means satisfied of what the passage quoted was intended to convey.

42. The Land Use and Planning Approvals Act, s62(2) provides that where the appeal Tribunal has determined an appeal, an application for a permit in respect of use or development which is substantially the same as the use or development to which the appeal related may not, without the leave of the Tribunal, be made within a period of two years from the date on which the Tribunal made its decision. This is not an absolute bar to the taking of such proceedings for a period of two years of course because a residuary discretion is vested in the Tribunal. Indeed, the present situation appears to me to be such that the Tribunal could very well grant leave to the appellants to make a fresh application particularly as the development application with which it was dealing failed on the basis of inadequately specific evidence rather than for some other reason such as the credit of the appellant or the general unsuitability of the use to which it was proposed to put the land. Nonetheless the prima facie embargo upon similar applications without special leave seems to be a fairly clear indication that the legislative assumption is that the Tribunal will normally dispose of an appeal upon its merits, rather than on the basis of a technicality.

43. Mr Armstrong vigorously attacked the suggestion that the reception into evidence of an authenticated plan was a mere formality which would have enabled the Tribunal to dispose of the appeal on its merits without further ado.

(a) that there may have been more persons who would have

objected initially had the correct ambit of the application

been defined;

(b) that provision of proper material could have affected

the decision of persons to appeal or not to appeal against

the council's decision;

(c) that more importantly however, the absence of the plan

could affect issues raised on the appeal;

(d) that the reception of such material could have affected

evidence adduced on the appeal; and

(e) that it could also have affected the manner in which

each party to the appeal presented its case.

45. These submissions are not without substance. Nonetheless I find the comments of Marks J in Pacific Seven highly persuasive. The Tribunal, in the circumstances of the present case, could have sought clarification of the relevant liquor sale area from the appellant before dismissing his application out of hand. The Tribunal's failure to do so was not a mere matter of it exercising a discretionary judgment with which this Court should not interfere. It failed to advert to alternative methods of disposition which it may have exercised. On the face of it, the Tribunal was not purporting to exercise a discretion at all. It assessed the evidence as inadequate and brought the matter to a conclusion on that basis.

46. Within the context of its statutory framework and responsibility, I think that the course it took was erroneous; not because of any breach of the rules of natural justice, but because it failed to consider relevant options which were open to it, which, on the basis of merit, may have produced a different outcome. I think that as a consequence the appellant must succeed.

47. Ground 2 of the appeal is really indistinguishable from the alternative argument advanced for the appellant in relation to ground 1 which I have just upheld. The course contended for in this ground was open to the Tribunal but was not considered.

48. Ground 4 alleges that the Tribunal failed to provide reasons for its decision. Pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s24, the Tribunal was obliged to give reasons. Reasons are required so that the parties have the opportunity of considering whether or not errors of law were made, eg, the taking into account of irrelevant matters. See Osmund v Public Service Board of New South Wales (1984) 3 NSWLR 447 at 467 and 480, Dennis Wilcox Pty Ltd v FCT (1988) 79 ALR 267 at 276 - 277, Samad v Public Service Board (NSW) (1983) 5 IR 464 and Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246 at 262 - 263. On the other hand, a duty to give reasons does not impose an obligation to deal with every argument or to discuss all possible permutations of fact or law which could have been adverted to (Dornan v Riordan (1990) 95 ALR 451 at 455 per Sweeney, Davies and Burchett JJ and Claude Neon v Marion (supra) at 489 per Wells J).

49. In the present case, the Tribunal has reviewed the facts and has explained its reasons. The fact that it has not discussed the pros and cons of dismissing the appeal and the planning application, rather than taking some alternative course, cannot be characterised as a breach of the Act, s24. The route by which it reached its conclusion is plain enough. The reasons given disclose the error complained of in ground 1, but the error does not lie in the failure by the Tribunal to disclose reasons. Accordingly, ground 4 cannot succeed.

50. It was submitted that if the appeal is successful, I should make an order under the Act, s25(6)(b)(ii), setting aside the decision of the Tribunal and remitting the matter for its reconsideration in accordance with appropriate directions.

51. I think that this is the appropriate course to take. Accordingly, I make the following orders:

(a) The decision of the Tribunal made and delivered on 11

August 1995, No J177/95, whereby the Tribunal set aside a

decision of the Glamorgan/Spring Bay Council to permit

take-away liquor sales from the premises situate at and

known as Iluka Holiday Centre at Coles Bay, is set aside.

(b) The Tribunal is directed to hear and determine any

applications which the appellant may make to the Tribunal in

writing within seven days hereof to adduce evidence by floor

plan or otherwise showing the existing layout of the

building in respect of which planning approval is sought.

(c) If the Tribunal grants the appellant's application to

adduce evidence, it shall reconsider and determine afresh

the appellant's planning application upon the basis of all

evidence adduced in respect thereof.

(d) If the Tribunal shall refuse the appellant's application

to adduce further evidence, it shall determine whether or

not the application for planning approval should be remitted

for reconsideration by the Council or should be otherwise

disposed of.

(e) The Tribunal shall take all steps necessary to implement

its determination.