[2019] TASSC 7

Administrative Law - Judicial review - Grounds of review - Error of law - Tasmanian Planning Commission reference to objectives of Land Use Planning and Approvals Act 1993 - No error of law demonstrated.

Land Use Planning and Approvals Act 1993 (Tas), ss 20, 32, 41, 42 and Sch 1.

Tasmanian Planning Commission Act 1997 (Tas), ss 4, 6, 10 and Sch 1.

Administrative Law - Judicial review - Grounds of review - Procedural fairness - Hearing - Nature of hearing - Refusal of adjournment - No breach of duty to afford natural justice established.

Russell v Duke of Norfolk [1949] 1 All ER 109; Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, applied.

Environment and Planning - Environmental planning - Planning schemes and instruments - Tasmania - Amendments to planning schemes - Objectives of the resource management and planning system in Tasmania - Tasmanian Planning Commission did not err by rejecting draft amendment as not sound strategic planning.

Land Use Planning and Approvals Act 1993 (Tas), ss 20, 32, 41, 42 and Sch 1.

Tasmanian Planning Commission Act 1997 (Tas), ss 4, 6, 10 and Sch 1.

Von Witt v Hobart City Council (1995) 86 LGERA 134, distinguished.

Judgment Number: [2020] TASSC 12

FOR THE STATE OF TASMANIA v UNIVERSITY OF TASMANIA

1. The orders of Estcourt J made 28 February 2019 and 15 March 2019 are set aside.

1. The respondent's originating application filed 20 July 2018 is dismissed.

FOR THE STATE OF TASMANIA v UNIVERSITY OF TASMANIA

1. This appeal arises from a decision of the Tasmanian Planning Commission to reject an amendment to the Hobart Interim Planning Scheme 2015. The amendment was requested in May 2017 by the University of Tasmania for land at its Sandy Bay campus. On 23 May 2018, after a series of hearings, the University asked the Commission to defer its consideration of the proposed amendment. The Commission did not respond to the application for deferral before, on 25 June 2018, notifying the University that it had "decided to finalise its decision" on the draft amendment. By letter dated 26 June 2018 the Commission, by its delegates, notified the Hobart City Council of the decision to reject the draft amendment and published its reasons dated 22 June 2018.
2. On 28 February 2019 Estcourt J allowed the University's application under the Judicial Review Act 2000 (the JRA) for review of the refusal. In that application the Commission filed a notice of submission and the Attorney-General intervened. His Honour quashed the Commission's decision on the ground that, by failing to give the University the opportunity to be heard on its application for deferral of the assessment, the Commission breached its obligation to extend procedural fairness: University of Tasmania v Tasmanian Planning Commission [2019] TASSC 7. On 15 March 2019, in a decision published only to the parties, his Honour ordered that the Attorney pay half of the University's costs.
3. The Attorney appeals Estcourt J's decision to allow the JRA application. The University, by notice of contention, asserts that Estcourt J's order should not be discharged because his Honour was wrong to reject other grounds on which the University challenged the Commission's decision. The University cross-appeals his Honour's costs decision.
4. For the reasons which follow, the appeal should be allowed, the order of the primary judge set aside and the Commission's decision to reject the draft amendment restored.

1. The University's Sandy Bay campus comprises about 100 hectares extending from near the shore of the Derwent estuary, west into the hills below Mt Wellington. It is divided into three distinct sections: the upper campus, the middle campus and the lower campus. The upper campus is by far the largest area of the three. It contains a University accommodation precinct, sports grounds and institutional buildings. It is also characterised by large areas of undeveloped sloping bushland. The evidence before the Commission included an affidavit sworn by Frazer Read, a town planner, on behalf of the University. Mr Read prepared the May 2017 application and offered his expert opinion in support of it. The application stated that the University's extensive property portfolio was managed within a Strategic Asset Management Framework by which the University established its "high-level strategic objectives/desired business outcomes of the development and management of the university's physical environment and assets for the period 2014-2019". The application explained that an "important driver" for the University's asset management, particularly for "campus development and property management" was the University of Tasmania Master Plan 2007, which took a "high level view" of the development of the campus.
2. The University had, over some years, undertaken a major reassessment and redevelopment of its infrastructure. As a result of the assessment, part of the University's strategy was to relocate significant parts of the Sandy Bay campus to the city centre and to consolidate the Sandy Bay Campus in the lower and middle campuses. Some of the buildings within the upper campus were in poor condition and were either vacant or soon to be vacant. Functions previously undertaken in the upper campus were to be concentrated in other parts of the Sandy Bay campus or elsewhere. As a result, the University planned to subdivide and sell property from within the upper campus. However, the existing provisions of the Hobart Interim Planning Scheme 2015 made that aim more difficult to achieve because it restricted the purposes for which the land can be used or developed to those closely related to the University.
3. Land subject to the interim planning scheme is divided into zones. The scheme provisions for each zone set out the primary controls for the use or development of land within that zone. By cl 34 of the scheme, the University of Tasmania (Sandy Bay Campus) is a Particular Purpose Zone. The stated purpose of the zone is "to provide for the continued development of the University of Tasmania Sandy Bay campus ... as a major tertiary education centre of the State", and to "provide for a diversity of activities primarily catering for the education, recreation and entertainment of its student population while also encouraging a closer integration with the community." Clause 34 also includes "Desired Future Character Statements" which include that:

"• Academic activities will be consolidated between Churchill Avenue and Sandy Bay Road; and

• The Upper Campus is an area in transition as the University divests itself of redundant assets. It is intended that future use and development of the Upper Campus will be reviewed and subject to further applications for amendments to the Planning Scheme."

1. The Particular Purpose Zone provisions include a use table, use standards, and development standards for buildings, works and subdivision. According to Mr Read:

"The planning controls in clause 34 from a general planning perspective are quite restrictive in respect of what is permissible in respect of property owned by the University. That then creates potential uncertainty in respect of any purchaser of University properties."

1. As Mr Read's evidence to the Commission explained, the existing use table in the scheme restricted use of property in the upper campus to educational or closely related uses. The University's aim in seeking the amendment was to, subject to controls, allow and facilitate a more diverse range of uses, including for non-university purposes. The University determined that an amendment of the planning scheme was necessary so as to enable it to more easily divest itself of the property. The Executive Summary of the application describes the purpose of the application in these terms:

"This proposal seeks planning scheme amendments affecting the University of Tasmania's Sandy Bay Campus and the lifting of qualifications under the Use Table that restrict non-university related use.

The proposed amendments follow recent Urgent Amendment HOB UA27-2016 to the Hobart Interim Planning Scheme approved by the TPC 8 March 2017. These amendments acknowledged that:

• The Upper Campus is an area in transition as the University divests itself of redundant assets; and
• Future use and development of the Upper Campus will be reviewed and subject to further applications for amendments to the Planning Scheme.

This proposal is the first of such amendments and will provide greater flexibility for reuse of surplus buildings without unreasonably impacting on the amenity of surrounding residential areas of the strategic planning objectives for Greater Hobart."

1. In his affidavit, Mr Read restated the overriding purpose of the proposed amendment as follows:

"It was proposed to amend the Purpose and Use table of clause 34 to provide greater flexibility for reuse of surplus buildings whilst avoiding unreasonable impacts on the amenity of surrounding residential areas or the strategic planning objectives for greater Hobart."

1. Planning schemes may only be made or amended with the approval of the Commission. The Commission is established by the Tasmanian Planning Commission Act 1997 (the TPC Act), s 4. It is constituted, as provided by s 5, by a nominee of the Minister as chairperson and executive director, and eight other persons who respectively have experience or hold positions in planning, project implementation, resource conservation, industry and commerce, transport and infrastructure, and water and sewerage. The Commission has the functions and powers conferred on it under any other Act: s 6(1A). In addition, its functions and powers include to provide advice and support the Minister in relation to land use planning, to provide advice to councils in relation to planning schemes and to review and advise the Minister in respect of State and regional strategic land use planning matters: s 6(2). The Commission "is part of the State's resource management and planning system, the objectives of which are set out in Schedule 1": s 4(2). It must perform its functions and exercise its powers in a manner which furthers the objectives set out in Sch 1: s 6(3). Schedule 1 is entitled "Objectives of the resource management and planning system of Tasmania." It provides:

"1 The objectives of the resource management and planning system of Tasmania are -

(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.

2 In clause 1(a), sustainable development means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural well-being and for their health and safety while -

(a) sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and

(b) safeguarding the life-supporting capacity of air, water, soil and ecosystems; and

(c) avoiding, remedying or mitigating any adverse effects of activities on the environment."

1. The terms of s 4(2), and reference to those objectives, makes plain that the Commission operates in the context of a legislative scheme which controls resource management and planning in Tasmania. The Land Use Planning and Approvals Act 1993 (the LUPA Act), the Resource Management and Planning Appeal Tribunal Act 1993, the Environmental Management and Pollution Control Act 1994, the State Policies and Projects Act 1993, the Water Management Act 1999 and the Natural Resource Management Act 2002, as some of the principal examples, all contain provisions and a Schedule 1 which require exercise of statutory powers and functions so as to further the identical objectives.
2. The making and amendment of planning schemes is controlled by the LUPA Act. Before setting out the specific provisions concerning amendment to planning schemes, it is necessary to refer to some provisions of the LUPA Act of general application. By s 4(1), the Act "binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities." Section 5 is headed "Objectives to be furthered" and provides:

"It is the obligation of any person on whom a function is imposed or a power is conferred under this Act to perform the function or exercise the power in such a manner as to further the objectives set out in Schedule 1."

1. Schedule 1 of the LUPA Act repeats the objectives common to the resource management and planning system legislative scheme I have already referred to, but also contains a Part 2 entitled "Objectives of the Planning Process Established by this Act" which provides:

"The objectives of the planning process established by this Act are, in support of the objectives set out in Part 1 of this Schedule -

(a) to require sound strategic planning and co-ordinated action by State and local government; and

(b) to establish a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land; and

(c) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land; and

(d) to require land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels; and

(e) to provide for the consolidation of approvals for land use or development and related matters, and to co-ordinate planning approvals with related approvals; and

(f) to secure a pleasant, efficient and safe working, living and recreational environment for all Tasmanians and visitors to Tasmania; and

(g) to conserve those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value; and

(h) to protect public infrastructure and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community; and

(i) to provide a planning framework which fully considers land capability."

1. As will be explained, the LUPA Act provides for the circumstances in which the Commission may hold a hearing in relation to amendments to planning schemes. The TPC Act contains provisions, principally ss 10 and 11, which apply where the Commission holds a hearing. By s 10(1):

"(a) the procedure at the hearing is, subject to section 11, to be determined by the Commission;

(i) may inform itself about any matter in any way it thinks fit; and

(iii) may consult with such persons as it thinks fit; and

1. By s 11, hearings are generally to be held in public, and the Commission may require written evidence and may take evidence on oath or affirmation. It is the Commission's obligation under s 10(1)(b)(v) to observe the rules of natural justice, which is of particular relevance to this appeal.

1. The Commission's functions and powers as to the amendment of planning schemes, which includes interim planning schemes, are conferred on it by the LUPA Act. The LUPA Act was extensively amended by the Land Use Planning and Approvals Act Amendments (Tasmanian Planning Scheme) Act 2015, which commenced on 17 December 2015. However the savings and transitional provisions of that Act operate so that the provisions which control amendments to planning schemes in Pts 2A and 3 of the LUPA Act in force immediately before 17 December 2015 continue to apply. It is those provisions, as they are relevant to this appeal, to which reference is made in these reasons.
2. A person may request an amendment to a planning scheme: s 33(1). Such requests are made to a planning authority. The planning authority must, within a limited time, decide whether to initiate the requested amendment: ss 33(3) and 33A. Before making a decision as to whether or not to initiate the amendment the planning authority must consider whether the requested amendment is consistent with the requirements of s 32 which provides:

"(1) [Section 32 Subsection (1) amended by No. 24 of 2014, s. 26, Applied:01 Jan 2015] A draft amendment of a planning scheme, and an amendment of a planning scheme, in the opinion of the relevant decision-maker within the meaning of section 20(2A) -

(e) must, as far as practicable, avoid the potential for land use conflicts with use and development permissible under the planning scheme applying to the adjacent area; and

(ea) must not conflict with the requirements of section 30O; and

(f) must have regard to the impact that the use and development permissible under the amendment will have on the use and development of the region as an entity in environmental, economic and social terms".

1. Section 32(1)(ea) provides that draft amendments must not conflict with the requirements of s 30O. That section controls amendments which affect local provisions in a planning scheme. A local provision is one which is not a common provision under s 30N, and includes a zoning of a particular area of land: s 30B. Clause 34 of the Hobart Interim Planning Scheme 2015 is such a provision. Section 30O(1) provides:

"(1) An amendment may only be made under Division 2 or 2A to a local provision of a planning scheme, or to insert a local provision into, or remove a local provision from, such a scheme, if the amendment is, as far as is, in the opinion of the relevant decision-maker within the meaning of section 20(2A), practicable, consistent with the regional land use strategy, if any, for the regional area in which is situated the land to which the scheme applies."

1. In the event that the planning authority decides to initiate the amendment, it must prepare a draft amendment and certify that it meets the requirements of s 32: ss 34(1) and 35(1). Within seven days of certifying the draft, the planning authority must give the draft amendment and its certification to the Commission and advertise and publicly exhibit the draft: s 38. If representations are received by the council they must be forwarded to the Commission with a report of the council's opinion and recommendations about the representation. The provisions of s 40(2) to (3) have effect. Where no representations are received a report with a statement to that effect must be given to the Commission: s 39(2)(a). The Commission must then, as soon as practicable, consider the draft amendment: s 40(1). Where no representations are made to the council about the draft amendment, s 40(4) and (5) apply:

"(4) For the purposes of its consideration under subsection (1), the Commission may, where there are no representations, hold a hearing into issues that in the Commission's opinion require consideration.

(5) The Commission must, within 14 days of its decision to hold a hearing, give notice, as prescribed, of its intention to hold a hearing under subsection (4)."

1. Section 41 provides that the Commission may, after its consideration under s 40 of a draft amendment prepared by a planning authority:

"(a) require the planning authority to modify, or alter to a substantial degree, the draft amendment after having regard to the report made under section 39 , and any evidence and submissions made in a hearing under section 40, in relation to it; or

(ab) modify, or alter to a substantial degree, the draft amendment after having regard to the report made under section 39 and any evidence and submissions made in a hearing under section 40; or

(b) by notice in writing given to the authority, reject the draft amendment."

1. The planning authority must undertake any substantial alteration or modification required by the Commission: s 41A. If a draft amendment is required to be altered to a substantial degree, then s 41B requires the Commission, after certifying the altered draft, to direct the planning authority to repeat the process of public exhibition and advertising and all subsequent steps.
2. If, after considering the draft amendment, including any modifications, the Commission is satisfied that the draft amendment is in order, it must approve the draft amendment: s 42. Section 42(2) imposes a time limit on the Commission. It provides that the Commission "must give its approval to a draft amendment not later than "3 months after the submission to it, under s 39(2), of the report of the planning authority in relation to the draft amendment" or such later day as the Minister may approve.

The Commission's consideration of the University request

1. In short summary, the amendment requested by the University sought to add to the zone purpose for the Particular Purpose Zone to allow non-university uses, and to amend the use table to extend permissible uses beyond university related activity in the upper campus and for the properties at 301 Sandy Bay Road and 6 Grace Street. One of the amendments it proposed was an amendment to the use table to add "office, consulting rooms or medical centre in existing buildings in the upper campus, 301 Sandy Bay Road or 6 Grace Street" as permitted business and professional services. The amendment was certified by the Hobart City Council, as the relevant planning authority, on 3 July 2017 and publicly notified. On 7 September 2017 the Council reported to the Commission that there had been no representations and recommended to the Commission that the amendment be approved in the form in which it was exhibited.
2. The Commission did not immediately give its approval. On 18 October 2017 the Commission wrote to the Council advising that it was assessing the draft amendment and requested further information addressing particular questions. The questions were principally directed to whether the proposed amendment to allow business and professional services as a permitted use within the upper campus was consistent with the Southern Tasmania Regional Land Use Strategy. The Commission referred to the regional strategy as providing for a "regionally planned and defined hierarchy to ensure complementarities and efficiencies, rather than creating unnecessary competition, between centres", and sought information from the Council about whether permitting business and professional services in the more than 20,000m2 of existing floor space in the upper campus supported the strategy to have the Hobart CBD as the primary location for the region for offices, including corporate headquarters, professional services and government administration. The Commission also sought a response to a related question concerning, in substance, whether the proposed new zone purpose statement conflicted with the regional strategy.
3. The Council referred the Commission's letter to the University. By letter dated 30 October 2017 the University, through Mr Read, provided a detailed response. Mr Read suggested qualifications to range, size and scale of the uses permitted by the proposed amendment which, he contended, would remove conflict with the regional strategy objective for the Hobart CBD to remain the primary location for offices. The Council notified the Commission of its support for the proposed modifications.
4. By letter dated 24 January 2018 the Commission, constituted by two delegates, the Executive Commissioner and one other member, notified Mr Read on behalf of the University, that it proposed to conduct a formal hearing and invited him to attend a directions hearing. The directions hearing was held on 2 February 2018. The proceedings at the directions hearing were recorded in a letter to the Council from the Commission dated 7 February 2018. A formal hearing was set down for 27 February 2018. The Commission's letter of 7 February set out the matters which were to be considered at the hearing as:

"• clarification of the University's plans which 'strategically inform the draft amendment' as to how the reuse of the buildings in the upper campus may occur in an orderly fashion including:

• confirmation of the status of the 2007 Master Plan and any intention to review the Masterplan;
• the university's approach to disposal, sale or lease of surplus buildings or land; preferred uses and development; subdivision planning; and demolition/ redevelopment, including whether the draft amendment is to allow reuses as a short-term strategy, pending a longer term review of the Masterplan; and
• a site development plan that shows the extent of the campus; the specific buildings and their floor area intended for repurposing, including explanation of how these will function cohesively in terms of servicing, traffic and pedestrian access, car parking etc, including measures to mitigate any potential land use conflict.
• consideration of whether the draft amendment was consistent with the provision of the Southern Regional Land Use Strategy which discouraged 'out-of-centre development';
• consideration of whether the proposed zone provisions addressed potential land use conflict within the site or adjoining sites."

1. Both the Council and the University were invited to attend the hearing and to provide the Commission with written submissions in advance of the hearing with further information in support of the amendment. Prior to the hearing both the Council and the University made detailed submissions and submitted further information which sought to address the Commission's planning concerns. The submissions included suggested modifications to the draft amendment. The hearing proceeded on 27 February 2018 and both the University and the Council were represented. On the following day the Commission wrote to the Council in the following terms inviting further submissions by 2 March 2018:

"I confirm that at the hearing the planning authority and applicant were directed to provide a joint submission addressing:

1. how the draft amendment can be modified to clarify that the floor area requirements applied to some of the use qualifications in the Use Table relate to new use and not existing uses within the Zone;
2. how clause 34.3.5 Discretionary Uses can be amended to address the compatibility of uses with the university with reference to the Objective and Performance Criteria;
3. how the wider opportunities for use and development introduced by the draft amendment can be limited to only those buildings the university has prioritised for divestment in the short term."
4. In response to the Commission's invitation, both the Council and the University provided detailed submissions and further suggested modifications to the draft amendment. On 16 April 2018 the Commission notified the parties that it had made modifications to the proposed zone provisions, primarily related to the zone purpose, the use table, and development standards, and provided a copy of the modifications. Again, the Commission sought further submissions about the modifications it had prepared. Neither the Council nor the University supported the terms of the amendments proposed by the Commission. According to his letter dated 19 April 2018, the Council's planning manager thought that the development standards proposed by the Commission would remove existing use and development rights under the existing provisions of the interim planning scheme, and would be overly restrictive and unnecessary. In response, the Commission gave notice of a resumption of the hearing and flagged the questions it was concerned about in these terms:

"(a) the extent of new development intended to be allowed by the amendment, in addition to providing greater flexibility for the re-use of existing underutilised buildings, noting that Figure 34.3 Detail A has an area of 3.6 ha;

(b) whether relying on the existing standards in the zone will provide an adequate framework for the assessment of non-university development taking into account the broader scope of the Zone Purpose proposed by the amendment (for example, there is no residential amenity standard for consideration of Residential Use);

(c) whether the interim planning scheme includes another zone that can better provide for the range of use and development intended."

1. The Commission's letter made expressly clear that it considered that the issues it had identified were the "key issues in determining whether the draft amendment can be approved with modification; altered to a substantial degree; or refused". The University, through Mr Read, prepared and submitted a very detailed response dated 7 May 2018. The hearing resumed on 8 May 2018 and, following oral submissions, the Commission reserved its decision.

1. On 23 May 2018, about two weeks after the Commission reserved its decision, Mr Read wrote to the Commission asking that its consideration of the amendment be deferred. In part, the letter read:

"The University continues to undertake a review of its existing infrastructure and is in the process of preparing its strategic master plan.

Given that the TPC's consideration of the amendment would be better informed by this work, the University request that the TPC defer its assessment until the University is in a position to provide further information to support the application. It is expected that the University will be able to provide this further information by the end of September 2018."

1. The Commission did not defer its consideration of the amendment. Instead, on 25 June 2018 it wrote to Mr Read advising that the "Commission decided to finalise its decision on this draft amendment." On the following day, by letter dated 26 June 2018, the Commission notified the Council that it had determined to reject the draft amendment and enclosed a copy of its written reasons. The reasons were dated 22 June 2018. In summary, the reasons disclose that the Commission had been persuaded that subject to modification, the draft amendment was, "as far as is practicable, consistent with the regional strategy". However the Commission decided that:

"... if parts of the campus are to be divested for alternative uses and development, the Particular Purpose Zone may not be the most appropriate zone for those parts of the campus and without further strategic planning, such as review of the 2007 Master Plan, the Commission considers it is difficult to identify alternative zoning."

"... the Commission does not consider that the Particular Purpose Zone is an appropriate planning mechanism for use and development of the sites identified on Figure 34.3 if it is the University's intention to divest them for alternate use and development."

1. Finally, the Commission referred to Objective (a) in Pt 2 of the LUPA Act to "require sound strategic planning and co-ordinated action by State and local government", and continued:

"The Commission considers that strategic planning for the campus (potentially in the form of a review of the current Master Plan) is crucial to determining the appropriate planning scheme policy and mechanism for achieving the University's objectives of divesting its redundant building assets while continuing the ongoing operation of the surrounding University campus.

With respect to Objective (a), the Commission notes that the draft amendment precedes the master planning work foreshadowed by the University and it is concerned that once the sites are divested, the opportunity to undertake the required strategic planning may be lost."

1. The Commission expressed its decision in these final terms:

"The draft amendment is rejected under section 41(b) of the Land Use Planning and Approvals Act 1993 because it does not further Objective (a) of Part 2, Schedule 1 of the Act."

1. By the JRA, s 17, a person who is aggrieved by a decision to which the Act applies may apply to the Court for an order of review of a decision. The JRA applies to decisions of an administrative character. It is not contended by the Attorney that the JRA does not apply to the Commission's decision. The University's application for review was made on six grounds. Each of the grounds refer to the decision subject to review as the Commission's decision made on 26 June 2018 to reject the draft amendment. Four of the grounds centre on the Commission's reasons for the rejection. The remaining two grounds concern the Commission's failure to defer its assessment of the amendment in accordance with the University's request dated 23 May 2018.
2. Section 17(2) of the JRA provides that an application for judicial review may only be made on one or more of nine specified grounds. Four are relevant to this appeal:

"(a) that a breach of the rules of natural justice happened relating to the making of the decision;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;

(f) that the decision involved an error of law (whether or not the error appears on the record of the decision);

(h) that there was no evidence or other material to justify the making of the decision."

1. Section 17(2)(e) uses the phrase "improper exercise of power". By s 20, a reference to an improper exercise of a power is taken to include:

"(a) taking an irrelevant consideration into account in the exercise of a power; and

(b) failing to take a relevant consideration into account in the exercise of a power; and

(c) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(d) an exercise of a discretionary power in bad faith; and

(e) an exercise of a personal discretionary power at the direction of another person; and

(f) an exercise of a discretionary power in accordance with a rule without regard to the merits of the particular case; and

(g) an exercise of a power that is so unreasonable that no reasonable person could so exercise the power; and

(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and

(i) any other exercise of a power in a way that is an abuse of the power."

1. Of the nine matters specified in s 20, only pars (a) and (g) were relied on by the University as relevant to the judicial review application and thus this appeal.

1. The University, in the judicial review application, contended:
   • by ground (d), that by failing to defer the assessment of the draft amendment "to afford the [University] time to provide additional supporting information", it breached the rules of natural justice: s 17(2)(a);
   • by ground (e), that the Commission's decision to reject the draft amendment after having "refused to defer the assessment of the draft amendment to afford the University time to provide additional supporting information" was an improper exercise of power because the refusal was so unreasonable that no reasonable person could so exercise the power: ss 17(2)(e) and 20(g).
2. The learned primary judge found that the natural justice ground was made out and, on that basis, quashed the Commission's decision to reject the amendment. His Honour stated that he was persuaded by the submission of counsel for the University that there was no reason that a deferral should not have occurred, that refusal of an adjournment may vitiate the decision, and that "if the Commission had required further material, it ought to have asked the University for it and provided it with the opportunity to respond." At [22]-[24] of his Honour's reasons he stated:

"[22] I accept the submission of counsel for the respondent that it does not exercise judicial power and it was not, in conducting the hearing into the draft amendment, the arbiter of an interpartes dispute.

[23] Nonetheless, in my view, procedural fairness on receipt of the applicant's letter of 23 May 2018 required at the very least that the respondent give the applicant an opportunity to be heard on its application for a deferral of the assessment. Indeed, I would go further in the circumstances of this case and hold that in view of the delegates greatest concern, namely the consequences of the approval of the amendment in the absence of the 'master planning work foreshadowed by the University', they should have granted the requested deferral rather that bringing the assessment process to an unnecessarily premature and unfair conclusion which would require the applicant in due course to recommence the application process afresh. Little would have been lost in the event that, at the end of that period, the work undertaken by the applicant still did not satisfy the delegates' concern.

[24] It follow that the applicant succeeds on this issue ...".

1. The appellant contends that his Honour's conclusion discloses error. The appellant relies on three grounds which, in substance, assert that there was no procedural unfairness or, if there was procedural unfairness, the University has not demonstrated that the unfairness was material, in the sense that compliance could realistically have resulted in a different decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, 264 CLR 421 at [45]. I do not think it is necessary here to consider the materiality issue because, with the greatest respect to the learned primary judge, the finding that the Commission did not afford natural justice to the University cannot stand.
2. As earlier explained, the TPC Act, s 10(1)(b)(iv), required the Commission, when conducting a hearing, to observe the rules of natural justice. The Commission and its delegates are required to comply with the rules of natural justice at all times before the making of a decision, and not just during a hearing or in relation to a hearing: R v Resource Planning and Development Commission; ex parte Dorney (No 2) [2003] TASSC 69, 12 Tas R 69 at [50]. The content of the duty to afford natural justice is flexible and variable: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Brennan J at 612. What fairness requires depends on the circumstances of the case including the nature of the inquiry, the subject matter and the rules under which the decision maker is acting: Russell v Duke of Norfolk [1949] 1 All ER 109 at 118. In Kioa v West, Mason J, as to the exercise of a power conferred by statute, stated at 585:

"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, that is, in accordance with 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."

1. In this case, the University contends that the Commission breached its duty in two respects:
   • firstly, by failing to grant the deferment as requested; and
   • secondly, by rejecting the amendment without affording the University an opportunity to address the application of Objective (a) of Pt 2, Sch 1 of the LUPA Act.
2. Procedural fairness, one aspect of the rules of natural justice, generally requires that a person who may be affected by a decision has a reasonable understanding of the issues that the decision maker may take into account in making the decision, and a reasonable opportunity to present their case. It can hardly be said that the University did not have every reasonable opportunity to advance its contentions in support of the proposed amendment to the planning scheme. It was the author of the application which prompted the Council to initiate the amendment. It did so through an expert planner who, it may be assumed, was aware of the planning and legislative framework within which the Commission was to consider the proposal. The Commission, having received the proposed amendment, decided to conduct a hearing. By its letter of 18 October 2017 it gave notice of the issues it was considering. The letter prompted a detailed written response from the University. Issues were discussed at the directions hearing conducted by the Commission and attended by the University's representative on 2 February 2018. The Commission's letter of 7 February 2018 gave further notice of the issues being considered. In response, further detailed written submissions were made by the University in advance of the hearing. The hearing was conducted on 27 February 2018 and the University had ample opportunity to make oral submissions. The Commission, by letter dated 28 February 2018, invited further submissions arising from matters addressed at the hearing. Both the University and the Council made further written submissions. When the Commission drafted modifications to the draft amendment it invited still further submissions. The University provided a very detailed written response. The hearing resumed on 8 May 2018. During the hearing oral submissions were made by the Council and the University.
3. The submission made by the respondent's counsel to the learned primary judge, referred to in his Honour's reasons at [17], that, on 23 May 2018, when the University made its request for a "deferral", that "[a]t this juncture the ongoing directions hearings were in a state of limbo" was to be firmly rejected as inconsistent with the facts. During the final hearing before the Commission on 8 May 2018 there were extensive exchanges between the Commission members and the representatives of the parties. Towards the conclusion of the hearing, the Chair invited Mr Read, who was representing the University, to make "any final comments for the panel in terms of summing up". Mr Read made further submissions. Then, the representative of the Hobart City Council was invited to make final comments. After those comments were made the Chair stated that "we'll reserve our decision and issue it as soon as possible". It was made perfectly clear to the parties at that time that the Commission intended to proceed to its decision to either approve or reject the draft amendment.
4. The request for a deferral was made by letter dated 23 May 2018, more than two weeks after the Commission had reserved its decision. I respectfully disagree with Estcourt J's conclusion that "procedural fairness ... required at the very least that the [Commission] give the [University] an opportunity to be heard on its application for a deferral of the assessment". There had been no representations to the Commission about the draft amendment. The Council, as the planning authority, seemed to agree to a deferral. It may be accepted that, in those circumstances, it was open to the Commission to respond favourably to the request for a deferral. However, in the circumstances of this case, it is quite a different matter to contend that it was procedurally unfair to not address the deferral request or, still less, obliged to agree to it. The terms of the request for a deferral was put simply on the basis that the Commission would be "better informed" by the University's continuing review of its existing infrastructure, and because it is "in the process of preparing its strategic master plan". A deferral of more than four months was sought when it was "expected" that the University would be "in a position to provide further information to support the application." In submissions to this Court, counsel for the University did not identify any matter or circumstance, beyond the mere fact of the denial of further time, which created unfairness. It is to the failure to agree to the deferral that the grounds of the JRA application and appeal are primarily directed. However, it was not suggested to this Court that, if the Commission had offered an opportunity to be heard about the request for a deferral, anything more of any use could have been said by the University about the utility of a deferral. It is plainly apparent that, over the course of about seven months between October 2017 and May 2018, the Commission extended every opportunity to the University to present its case in support of the draft amendment. The Commission received oral and written evidence and consulted with the parties. Its duty was to consider the amendment which had been submitted to it. It was to approve the amendment only if satisfied that it was "in order": s 42. It was to either approve it, require a modification or alteration or reject it. Although extensions were possible with Ministerial approval, s 42(2) imposed a time limit on approval of three months. It may have been that the University could have been in a better position to advance an amendment to the planning scheme, in some form, had the deferral been agreed to. However, the decision to refuse the draft amendment did not deprive the University of the possibility of a decision in its favour. The refusal was no impediment to a future request to the planning authority to initiate a new amendment if and when the further information the University proposed to obtain became available.
5. The failure to accede to a reasonable request for an adjournment can be procedurally unfair: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597 at 40. However that would generally be so only when the refusal deprives a party of a reasonable opportunity to present its case: see also Sullivan v Department of Transport [1978] FCA 48; (1978) 20 ALR 323 at 343 per Deane J. The duty does not extend to ensuring that the party takes the best advantage of the opportunity to which it is entitled. The failure to address and accede to the University's request, in the circumstances of this case, was not procedurally unfair and did not breach the Commission's obligation to afford natural justice.
6. The remaining assertion of procedural unfairness arises from the contention that the Commission rejected the amendment without affording the University an opportunity to address the application of Objective (a) of Pt 2, Sch 1 of the LUPA Act. More will be said about the application of the Objective later in these reasons. It is not readily apparent from the material available to this Court that the contention was advanced before the primary judge. However it can be addressed relatively briefly. The contention must be rejected. The Executive Summary of the University's initial application in support of the draft amendment recognised that the purpose was to give "greater flexibility for reuse of surplus buildings without unreasonably impacting on the amenity of surrounding residential areas of the strategic planning objectives for Greater Hobart". The importance of consideration of the proposed draft in the context of broader "strategic planning objectives" was recognised by the University and its advisors from the very start and throughout the Commission process. It is unnecessary to trawl through all of the written and oral material before the Commission to determine whether there was any specific reference to the Objective. I will assume for present purposes that there are none. As will become apparent later in these reasons, it was clear to all that whether the draft amendment represented good strategic planning in the context of the particular issues the Commission identified was a key issue in consideration of the amendment. Whether that was stated in terms of general planning principles or in terms of the application of the Objective, and whether the Objective was expressly raised, was of no material consequence.
7. In my opinion there was no breach of the Commission's duty to afford natural justice. Ground 2 of the appeal, asserting that the primary judge erred in reaching the contrary conclusion, is made out. It therefore becomes necessary to address the respondent's notice of contention. The notice asserts that the learned primary judge erred in the manner in which he addressed the other grounds of the University's application under the JRA.

The respondent's notice of contention - Sch 1, Pt 2, Objective (a)

1. Before the learned primary judge the University asserted:
   • by ground (a) of the originating application, that the Commission erred in law by taking into account Sch 1, Pt 2, Objective (a) of the LUPA Act when that objective is not engaged;
   • by ground (b) of the originating application, that the Commission erred in law by refusing the amendment on the basis of Sch 1, Pt 2, Objective (a), when that objective does not provide a basis for refusal.
2. His Honour, although he found that the application for review was established on one ground, very properly considered those other two grounds. He determined that neither ground was made out. By the notice of contention, the University challenges that determination. Grounds 1 to 6 of the notice assert error in the learned primary judge's conclusions.
3. Ground 1 is divided into two parts. The first part asserts error by asserting that the Objective is not engaged because "the University of Tasmania is not a State or local government". The contention raised by ground 1(b) of the notice of contention is that, even if Objective (a) is to be applied, the primary judge erred because the Objective is "not a basis for rejecting the draft amendment". Ground 6 of the Notice of Contention can conveniently be dealt with at the same time. By that ground the University contends that the primary judge ought to have found that the Commission was not obliged to further the Objective, that the Objective did not provide a basis for refusing the draft amendment, and that the Objective was not engaged.
4. Schedule 1, Pt 2, Objective (a) of the LUPA Act states as an "objective of the planning process" established by that Act, in support of the Objective in Pt 2 of the Schedule, to "require sound strategic planning and co-ordinated action by State and local government." His Honour made no express finding about the applicability of the Objective and whether the Commission was obliged to further the Objective. However, at [12] of his reasons, he referred to the phrasing of the final paragraph of the Commission's decision as "unfortunate." At [13] his Honour referred to the articulation of the decision as "infelicitous." In my respectful opinion, his Honour's implied criticism of the Commission's reasons was unjustified. Objective (a) did apply, and the Commission was required to apply it. The University relies on the terms of s 6 of the TPC Act, and the absence of the equivalent of Pt 2 of Sch 1 in the Objectives the Commission is obliged to further under that Act, to contend that the "general" obligations in the LUPA Act are overridden in favour of the specific. The contention should be rejected. Both enactments are to be read as part of the legislative scheme controlling the State's resource management and planning system. As has already been explained, the Commission operates within that scheme. Lest there be any doubt, the LUPA Act contains provisions expressly contrary to the University's contention. It is the LUPA Act, not the TPC Act, which contains the specific provision. By the LUPA Act, s 5, the functions of any person under that Act must be so as to further the objectives. The provisions for amendment of planning schemes are subject to that Act. Until 31 December 2014, s 32(1) expressly required, by par (a), that an amendment to a planning scheme must seek to further the objectives set out in Sch 1. That provision was removed by amendment which took effect on 1 January 2015. The amendment also removed pars (b), (c) and (d) of s 32(1), which respectively provided that amendments must be prepared in accordance with State Policies, may make provision relating to use, development, protection or conservation of any land, and must have regard to the safety requirements of the Gas Pipelines Act 2000. However, at the same time, s 20 was amended such that s 20(1)(a) and (2A), which govern the content of planning schemes, were amended to make clear that a "relevant decision maker" approving a "relevant scheme" must seek to further the objectives, including Objective (a). By operation of s 20(2A), which operates in conjunction with s 32, the Commission is a "relevant decision maker" and a draft amendment of a planning scheme is a "relevant scheme."
5. The assertion made by ground 1(a) and ground 6(a), that the Objective did not apply because the University is not State or local government is without merit. This was not an inter partes proceeding depending on whether the University was an arm of State or local government. Nor does application of the Objective, in my opinion, depend on the Commission being part of State Government. The Objective, interpreted according to its ordinary meaning and in the context of the legislative scheme, requires the Commission to apply sound strategic planning. As the relevant decision maker, the Commission had the obligation to seek to further the Objective. Alternatively, the Objective may also be read as relevantly requiring the Commission, as the decision maker, to "require sound strategic planning ... by State and local government". Although the University was the original applicant for the amendment, it was initiated and submitted by the Hobart City Council to the Commission for approval. The Commission was thus required to further the objective by requiring the Hobart City Council to require sound strategic planning in the making of its planning scheme.
6. The University further contends, in support of ground 1(a) and ground 6(b), that the objectives in Sch 1 are "broad and aspirational" and have "no work to do in respect of an individual process." The respondent contends that the Objectives in Sch 1 "create a framework but do not afford a basis to refuse or approve a development or amendment." It submits that there is a "long line of authority for the proposition that general objectives can not be used as a basis to refuse a proposal."
7. The first case cited by the respondent as part of the long line of authority to which it refers is Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107, 180 LGERA 343. A council refused an application for a seniors' living development. The issue was whether, according to the proper construction of the applicable planning instrument, the development was prohibited or permitted with consent. At first instance the trial judge turned to the aims of the planning instrument and one particular stated objective of the land zoning to reason to his conclusion about the status of the development. Beazley JA, with whom Campbell JA and Handley AJA agreed, found the trial judge to have erred by doing so. At 354, her Honour stated that the objectives for the zone were "not provisions of the [planning instrument] that control development. Rather, they set the framework in which the [planning instrument operates]." Accordingly, there was, in her Honour's opinion, no reason to favour one objective over another which was apparently in conflict with it. It is a case which concerned a particular development and construction of development controls in an existing planning scheme.
8. The first Tasmanian case relied on by the respondent is Von Witt v Hobart City Council (1995) 86 LGERA 134. In that case the Hobart City Council approved an application for use of a premises as a medical consulting rooms. The Resource Management and Planning Appeal Tribunal allowed an appeal, refused the application and directed that a permit not be granted. In doing so it relied on a planning scheme objective for the residential zone which contained a general statement of intent to sustain the residential character of the area. Wright J found the Tribunal to have erred. At 139, his Honour stated:

"The Scheme must be read as a whole and the generalised statements of principles, objectives and desired future character cannot be relied upon to the exclusion of subsequent specific provisions contained in any Schedule except where this is provided for by the scheme itself."

"General principles suggest to me that it would be surprising if the statement of objectives in the Scheme were intended to be given the dominance and inflexibility which the Tribunal's approach appears to have accorded them. To do so would be to rob many of the specific provisions of the Schedule A of any effect at all. As I have said that Schedule quite plainly and unambiguously contemplates the possible development of land for 'consulting rooms' in the East New Town Precinct if, as a matter of discretion the Council should consider that an appropriate course in any individual case. The discretion reposed in the Council to consider and permit such a use cannot be set at nought by statements of general intent and purpose contained in cl5.7.2, nor, as I have already indicated, is this the result which flows from a proper interpretation of that clause or the Scheme as a whole."

1. The substance of Wright J's decision is that statements of objectives in planning instruments are not to be applied so as to undermine the force of the specific provisions of the planning scheme which control a particular development. His Honour's reasoning was applied by Zeeman J in D P and L J Krushka Pty Ltd v Peacock (1997) 95 LGERA 427. It is another case dealing with an application for a development, in this instance demolition of a licensed premises and construction of a building containing flats. Zeeman J agreed that statements of objectives do not give rise to some threshold test which must be met before a development may be approved.
2. In Clarence City Council v Resource Management and Planning Appeal Tribunal [2018] TASSC 41, Brett J determined an appeal concerning an application for subdivision approval. His Honour also applied Von Witt v Hobart City Council. At [56] his Honour stated:

"[56] I do not agree that a performance-based approach is inconsistent with the statutory requirement in s 51(2) to take into account the objectives in Sch 1 of LUPA. The objectives are stated in general terms. Their formulation makes it clear that they are intended to operate by providing context and guidance in respect of the evaluative assessment engaged in in respect of various decisions required within the planning system generally, including in respect of the exercise of a specific discretion. Hence, the objectives are relevant to the exercise of discretion, as part of an integrated process of synthesis: Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14. However, they cannot supplant the specific criteria against which the development is to be tested, nor in themselves constitute a test of a proposed development. Von Witt v Hobart City Council (1995) 86 LGERA 134."

1. In my opinion, none of the authorities cited by the respondent support the contention that it was not open to the Commission to reject the draft amendment on the basis of its opinion that the draft did not advance the statutory objective to "require sound strategic planning and co-ordinated action by State and local government". All of the cases relied on by the respondent concern development applications subject to specific controls in existing planning schemes. It is in that context that the statements of principle in the cases to which I have referred are to be understood. None of those authorities deal with the exercise of the statutory function of the body with primary responsibility for approval of planning schemes, or consideration of an amendment to planning schemes, in this State. In considering the content of planning schemes, the Commission is invested with a very wide discretion. It operated at the top of the hierarchy of authorities responsible for land and resource planning and management within this State, the legislative scheme for which necessitated application of broad and strategic planning principles. The controls to which it is subject are those stated in s 20 and in s 32, which refer to not only the Objective in Sch 1, but to other very high level planning considerations, including State and strategic policies, and very broad considerations concerning the impact of the use and development of land within municipalities, between municipalities and within regions.
2. Moreover, the primary judge found that, "whether or not" the Commission delegates had a duty to apply the planning objective in Objective (a), it was as an expert planning tribunal, entitled to take into account fundamental principles of planning, including a requirement for sound strategic planning, at "that high level of abstraction." My reading of his Honour's reasons is that he concluded that the Commission, having regard to its function, and the statutory context within which it was to be exercised, was entitled to base its determination on whether the draft amendment represented sound strategic planning, whether Objective (a) applied to it or not. That conclusion was, with respect to his Honour, correct. In any event, a fair reading of the Commission's reasons indicate, as I think the primary judge also concluded, that the Commission's reference to the Objective formed only one aspect of the reasons it rejected the draft and, even in that respect, was the statement of a final conclusion, and not the substantive reason which lay behind the conclusion. Quite apart from the reference to the Objective, the Commission concluded, when considering the purpose of the draft amendment and its terms, that the provisions of the Particular Purpose Zone were not "suitable" for dealing with the alternative use and development of the buildings which the University wished to divest itself of, and without further strategic planning the Commission "found it difficult to identify an alternative zone". Before the final reference to the Objective, the Commission stated its conclusion that "strategic planning for the campus (potentially in the form of a review of the current Master Plan) is crucial to determining the appropriate planning scheme policy and mechanism for achieving the University's objectives of divesting its redundant building assets while continuing the ongoing operation of the surrounding University campus. With respect to Objective (a), the Commission notes that the draft amendment precedes the master planning work foreshadowed by the university and it is concerned that once the sites are divested, the opportunity to undertake the required strategic planning may be lost." The Commission was entitled to come to that opinion.
3. As the learned primary judge pointed out at [10] of his reasons:

"If the Commission delegates had related the various considerations set out in its reasons for decision to the decision itself, and expressly held that, having regard to those considerations, the amendment should be refused as it did not represent sound strategic planning, then it would not have been arguable that such was not a proper basis for refusal. As an expert planning tribunal it was entitled to take into account fundamental principles of planning at that high level of abstraction."

1. I agree. Ground 1(b) of the notice of contention is not made out.
2. Grounds 2, 3, 4 and 5 of the notice of contention are substantially dealt with by what I have already said about grounds 1 and 6. Ground 2 asserts that the primary judge erred in his application of Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. In that case the High Court determined an appeal about statements of reasons by delegates of the Minister for Immigration and Ethnic Affairs for rejecting applications for refugee status. The proposition cited by his Honour appears in that case at 271 in the course of the majority's discussion of the proper role of a reviewing court. It stated:

"They recognise the reality that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."

1. It will be apparent, for the reasons already expressed, that I regard this ground as without merit. Like the primary judge, I do not see that legal error can be discerned in the reasons of the Commission.
2. Grounds 3, 4 and 5 assert, in substance, that the learned primary judge failed to have sufficient regard to the reasons expressly stated by the Commission for refusing the draft amendment. Those grounds add nothing to the earlier grounds and should be rejected for the same reasons.

The respondent's notice of contention - an unreasonable failure to defer?

1. The remaining ground of the notice of contention, ground 7, refers again to the Commission's refusal to defer its assessment of the draft amendment. It asserts that the primary judge erred by not determining ground (e) of the JRA application which was in these terms:

"(e) The Decision was an improper exercise of the power conferred by LUPAA in accordance with s 17(2)(e) and s 20(g) of the JRA in that the [Commission's] refusal to defer the assessment of the draft amendment to afford the [University] time to provide additional supporting information was unreasonable."

1. The learned primary judge found it unnecessary to deal with this ground. His Honour held:

"To the extent that the outcome might be characterised as irrational, I have held that it was in denial of natural justice so that any question of illogicality or irrationality was subsumed into that finding."

1. Having allowed the application on another ground, it was not an error for the learned primary judge to not determine this ground. However, having found error in his Honour's reasoning in allowing that other ground, it is now convenient for this Court to determine ground (e). As I interpret the ground, and the submissions based on it, the University contends it was an improper exercise of power for the Commission to proceed to a decision to reject the draft amendment without having agreed to the University's request for a deferral. The University contends that it was an "improper exercise of power" according to the JRA, s 20(g), that is, "an exercise of power that is so unreasonable that no reasonable person could so exercise the power." The contention must be rejected for reasons closely related to my conclusion that there was no denial of procedural fairness. The Commission's power to defer consideration of the draft amendment was a discretionary one. It had already extended ample opportunity for presentation of the case in support of the draft amendment. It conducted hearings, flagged issues with which it was concerned, and allowed opportunity for written and oral submissions. Before the deferral request was received, it had completed the hearing process and reserved its decision. The University then sought what was obviously going to be a lengthy delay only to complete further work on matters which may or may not have supported the draft amendment it had prepared a year earlier, or a modified or altered amendment in some unspecified form. It was within the power of the Commission to exercise its discretion to allow the deferral, although it may have required a Ministerial extension to do so. However the contention that the refusal to defer its decision was so unreasonable that no reasonable person could have so acted is devoid of merit. In the circumstances I have outlined, the University's submission to this Court that the Commission's failure to address the request before proceeding to decision carried an "element of capriciousness" should be dismissed.

1. For the foregoing reasons, in my opinion, none of the grounds of the respondent's notice of contention are made out. I would allow the appeal. Estcourt J ordered that the Commission's decision of 25 June 2018 be quashed. In fact, the decision to reject the amendment was dated 22 June 2018 and notified by letter dated 26 June 2018. Subject to that correction, I would set aside the orders of Estcourt J made 28 February 2019 and 15 March 2019 and substitute an order that the originating application filed 20 July 2018 be dismissed. It is not therefore necessary to consider the respondent's cross-appeal about costs.
2. If necessary, I would hear the parties as to any further or other consequential orders.

FOR THE STATE OF TASMANIA v UNIVERSITY OF TASMANIA

1. The University of Tasmania (the University or UTAS), lodged an application to the Supreme Court for judicial review of a decision made by the Tasmanian Planning Commission (the Commission). Its application for judicial review followed upon a decision of the Commission to refuse an application for an amendment to the City of Hobart Planning Scheme (the Scheme), sought by the University and certified by the Hobart City Council which prosecuted the application on its behalf.

1. The relevant background facts are reproduced in the submissions of the respondent:

"(a) on 31 May 2017, Mr Read prepared an application to amend the Planning Scheme on behalf of the University, being the Draft Scheme Amendment;

(b) on 19 July 2017, the relevant planning authority, the Hobart City Council (Council) agreed to certify the Draft Scheme Amendment;

(c) the Draft Scheme Amendment as certified was exhibited to the public from 22 July 2017-1 September 2017; no representations were received;

(d) whilst the Commission was not obliged to (as no representations were received by Council in respect of the Draft Scheme Amendment), on 6 February 2018 the Commission held a directions hearing in respect of the Draft Scheme Amendment;

(e) on 7 February 2018, the Commission wrote to the University and Council requesting further submissions in respect of the Draft Scheme Amendment. The University and Council provided a submission in compliance with the Commission's request;

(f) the Commission held a further directions hearing on 27 February 2018;

(g) on 28 February 2018, the Commission made further directions. Council provided a submission in response which was supported by the University;

(h) on 30 April 2018, the Commission sought further submissions. The University provided a response to the request for further submissions on 7 May 2018."

1. On 23 May 2018, the University sought a deferment of the decision "given that the TPC's consideration of the amendment would be better informed" by further work the University proposed undertaking, including the preparation of a strategic master plan. Its request was made through its planner Mr Read in these terms:

"The University's Built Environment and Infrastructure Committee recently discussed disposal of properties and the current issues noted by the TPC (the Commission) in relation to the ... Planning Scheme Amendment.

The University continues to undertake a review of its existing infrastructure and is in the process of preparing its strategic Master Plan.

Given that the TPC's consideration of the amendment would be better informed by this work, the University request that the TPC defer its assessment until the University is in a position to provide further information to support the application. It is expected that the University will be able to provide this further information by the end of September 2018."

1. On 22 June 2018, having ignored the University's letter for a month, the Commission rejected its request, and indicated it would finalise its decision. It did so three days later on 25 June 2018, rejecting the draft amendment pursuant to s 41(b) of the Land Use Planning and Approvals Act 1993 (the LUPA Act). The Commission determined that a Draft Scheme Amendment PSA-17-2 to Particular Purpose Zone 3 - University of Tasmania (Sandy Bay Campus) to the Hobart Interim Planning Scheme 2015 (the Scheme) should be refused.
2. The University's challenge was made on six grounds which asserted that the Commission's decision was vitiated by error of law "in that the Commission constructively failed to exercise its jurisdiction" because:

"(a) the Decision involved an error of law in accordance with s 17(2)(f) of the JRA, in that Objective (a) of Part 2, Schedule 1 of LUPAA was not engaged;

(b) the Decision involved an error of law in accordance with s 17(2)(f) of the JRA, in that Objective (a) of Part 2, Schedule 1 of LUPAA does not provide a basis upon which a draft amendment can be refused pursuant to s 41 of LUPAA;

(c) the Decision was an improper exercise of the power conferred by LUPAA in accordance with ss 17(2)(e) and 20(a) of the JRA, in that the Commission had regard to an irrelevant consideration in refusing the draft amendment;

(d) within the meaning of s 17(2)(a) of the JRA, the rules of natural justice were breached in that the Commission failed to defer the assessment of the Draft Scheme Amendment to afford the University time to provide additional supporting information;

(e) the Decision was an improper exercise of the power conferred on the Commission by LUPAA in accordance with ss 17(2)(e) and 20(g) of the JRA, in that the Commission's refusal to defer the assessment of the Draft Scheme Amendment to afford the University time to provide additional supporting information was unreasonable; and

(f) the Decision was an improper exercise of the power conferred on the Commission by LUPAA in accordance with ss 17(2)(h), 17(2)(e) and 20(g) of the JRA in that it was unreasonable and lacked evident and intelligible justification."

1. Estcourt J upheld ground (d). His Honour held that UTAS was denied natural justice when the Commission refused to accede to its request for time to provide additional supporting information. His Honour quashed the decision: University of Tasmania v Tasmanian Planning Commission [2019] TASSC 7.

"(a) in law, in determining that the Commission failed to afford to the University procedural fairness by not deferring making its decision as sought by the University, in not considering whether or not that failure was material in the sense that the University had been deprived of a possibility of a decision in its favour (Ground 1);

(b) in fact, in determining that the Commission failed to afford natural justice to the University by failing to defer making its decision as sought by the University in circumstances where the Commission had afforded the University a reasonable opportunity to present its case in support of the Draft Scheme Amendment (Ground 2); and

(c) in law, or alternatively, in fact, in ordering that the Decision be quashed, in failing to consider whether, upon the Commission having denied the University procedural fairness by failing to defer making its decision as sought by the University, the University was thereby deprived of the possibility of a decision in its favour (Grounds 3 and 4)."

1. The appellant acknowledges that s 10(1)(b)(v) of the Tasmanian Planning Commission Act 1997 (the TPC Act) requires the Commission to observe the rules of natural justice.
2. The content of the duty to afford procedural fairness is flexible: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 585. His Honour said of the concept that it "... conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case".
3. The nature of the proceedings is relevant to the content of the duty.
4. As to that the University submits:

"(a) the Commission 'proceedings' were inquisitorial in nature, there being no opposition to the Draft Scheme Amendment from Council or any other person;

(b) the Commission proceedings were also segmented, directions hearings being held intermittently and at the apparent will of the Commission's delegates;

(c) the Decision was preceded by a process whereby the Commission regularly sought additional information from Council and the University, and Council and the University in turn provided the information sought in response;

(d) the University sought the deferment for the purposes of providing the Commission with material (including a strategic master plan) that would have been relevant to the Commission's assessment of the Draft Scheme Amendment, on the basis that, ultimately the Commission rejected the Draft Scheme Amendment as it did not further Objective (a) of Part 2 of Schedule 1 of LUPAA, which required 'sound strategic planning'; and

(e) prior to the publication of the Decision, the Commission did not specifically raise Objective (a) of Part 2 of Schedule 1 of LUPAA with the University as being in issue."

1. An important characteristic of the procedure to my mind, is their non-adversarial nature, indicating a process in which the decision-maker seeks information, initiates points of inquiry, and engages with the participants to inform itself in order to make its decision. This is reflected in the history of engagement directed towards the provision of additional information to refine the issues, or better inform them.
2. This process had exhibited some considerable flexibility, the emphasis plainly on ensuring the required information was obtained, rather than a particular timeline met. The Council supported the Scheme amendment and no other interested party had joined in the proceedings.
3. Also relevant in a general way, is the fact that it is the University whose interests are the most sensitive to the consequences of insufficient, or inadequate information. It was the only participant in the proceedings capable of being affected by the decision. A relevant consideration is whether finalising the matter, was more important than resolving the application with sufficient information, having regard to the importance of the application to the University; the potential impact on it if the amendment was not granted; the size and value of the property portfolio likely to be affected, and the potential for impact on the University's Master Plan.
4. Its request fell to be considered in that context. The Planning Authority would be bound by the decision, but not affected in the same way, having no special interest in the outcome.
5. I observe there is no statutory obligation to reach a decision within a particular timeframe obviating the need to have regard to that type of consideration. (Compare that for example with s 16(1)(f) of the Resource Management and Planning Appeal Tribunal Act 1993 which requires the Resource Management and Planning Appeal Tribunal to hear and determine an appeal within 90 days of its institution).
6. In summary, the procedure was not subject to statutory time constraints, and was directed to information gathering for the purposes of reaching a considered decision about a planning scheme amendment which would affect the interests of the University for some time. It is into that context the University's request was introduced, and fell to be considered.

1. There are two aspects associated with the notion of procedural fairness. They are the fair hearing rule and the rule against bias: Plaintiff S157/2002 v Commonwealth [2003] HCA 2, 211 CLR 476 at [25] per Gleeson CJ. The second is not engaged here.
2. The fair hearing rule requires that a person is afforded an opportunity to be heard before a decision which affects his or her interests is made. In Kioa v West (above) at 563 Gibbs CJ said that the "fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power". The objective is to avoid practical injustice: In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6, 214 CLR 1 at [37] per Gleeson CJ.
3. These considerations were summarised in HT v The Queen [2019] HCA 40, 374 ALR 216 at [18], per Kiefel CJ, Bell and Keane JJ:

"[18] Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept; rather, it is essentially practical. The concern of the law is the avoidance of practical injustice." (Referring to Lam above.)

1. A failure to afford procedural fairness to a party constitutes jurisdictional error which will vitiate the decision: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3, 264 CLR 421. The appellant submits that before a breach of procedural fairness will constitute a jurisdictional error the breach must be material. It submits that before a breach will be material it must be shown that compliance with the obligation could have realistically resulted in a different decision: SZMTA (above) at [45]. This is a question of fact.
2. The appellant submits that "despite swearing a comprehensive affidavit in support of the originating application, no evidence was adduced from Mr Reid [the University's planner] to establish that the adjournment could realistically have resulted in a different decision". It submits that the suggestion contained in the May 2018 letter to the Commission raised "nothing more than a bare possibility" that the Commission might find the additional information useful.
3. Because Estcourt J made no finding about materiality it contends that his Honour's findings do not address the correct question, namely, "whether giving the University more time would realistically result in a different decision". As such it is submitted that the application for judicial review ought to have been dismissed. (The appellant acknowledges that his Honour could not do so in the absence of evidence informing that issue.)
4. I do not understand SZMTA (above) to stand for more than that an inconsequential breach of the obligation to afford procedural fairness will not vitiate the challenged decision. An inconsequential breach is one which has no bearing on the outcome. In that case the failure to give a notification was not a matter upon which any inference of such effect could be drawn. The reasons for decision of the tribunal which were challenged were relevant to that conclusion. The court was entitled to infer from those reasons that a matter not mentioned in the reasons was not considered by the tribunal to be material: SZMTA at [13]-[14].
5. There are circumstances too, where a court will refuse relief, despite a breach, including where there is a discrete basis upon which the decision stands and which cannot be affected by the denial of procedural fairness, or where despite the breach, the result would be the same: Ucar v Nylex Industries Industrial Products Pty Ltd [2007] VSCA 181, 17 VR 492 at 519. These are examples of an absence of material affect.
6. The principle articulated in SZMTA is more nuanced than the appellant's submission suggests. At [2] Bell, Gageler and Keane JJ said that a breach of procedural fairness is material where it "operates to deny the applicant an opportunity to give evidence or make arguments to the tribunal and thereby to deprive the applicant of the possibility of a successful outcome". [My emphasis.]
7. To submit that the respondent needs to demonstrate that "more time would realistically result in a different decision" overstates the requirement.
8. I accept the respondent's submission that a successful outcome is not limited to the approval of the Draft Scheme Amendment. Sections 41, 41A and 42 of the LUPA Act provide that the Commission can either approve, refuse or modify a draft amendment. Any course taken by the Commission which had the effect of keeping the Draft Scheme Amendment "alive" would be a successful outcome for the University.
9. Materiality is demonstrated by the loss of the opportunity to prosecute a successful outcome, not demonstration of the proposition that more time would realistically have resulted in a successful outcome. In my view the loss of that opportunity was a material loss, and was sufficient to establish the requirement for materiality.
10. The objective fact here is that the respondent had determined through its expert planner that the provision of further information would enhance the prospects of a successful application, or if not a successful application something else which kept the application "alive". So much may be implied without the need for further evidence of the particular way in which that might happen. The loss of the opportunity to present further information considered necessary by its expert, was a material loss in the required sense. There is nothing in the Commission's reasons which forecloses that conclusion.
11. I make some additional observations. There had been a history of engagement between the Commission and the University and the Council. The May 2018 request was no more than a continuation of that process. That the request came some weeks after the adjournment of the hearing is not material in this case. That is so notwithstanding that the University, and the Council had summed-up their cases by way of final submissions. It matters not that the request might have been considered to be an application by the respondent to reopen its case. And if that was considered relevant, then at the very least the Commission ought to have afforded the University an opportunity to explain why such opportunity should be afforded to it. I do not think it can be an answer to say that sufficient opportunity had already been afforded to the University to present a case in support of the draft amendment. The question is not whether sufficient opportunity has already been afforded to a party, but whether, in the circumstances identified by that party, there is a sufficient basis disclosed for granting a further opportunity. "Sufficient" means that enough is shown to establish that the opportunity sought bears upon the outcome application such that a denial of the request would deprive the applicant of the possibility of a successful outcome. The question falls to be determined upon the content of the request considered in the particular circumstances of the case.
12. I consider that there was enough in the May 2018 letter, albeit general in nature, to constitute a circumstance for granting the request. As his Honour said the consequences of the approval of the amendment in the absence of the Master Planning work foreshadowed by the University provided a basis for a grant of the request. If not, it at least required that on receipt of the University's letter of 23 May 2018, the University be afforded an opportunity to be heard on its request for a deferral of the assessment.
13. I am satisfied that the University was denied procedural fairness when the Commission refused its request of 23 May 2018. Materiality in the sense referred to in SZMTA (above) is established in consequence of the opportunity which was lost as a result of that breach. The only inference open from the reasons of Estcourt J, is that his Honour formed the same view. I consider his Honour's conclusion to be incontestable.
14. For these reason I would dismiss each of the grounds of appeal.

1. The same reasons would sustain ground 7 of the respondent's notice of contention, if it were a live issue in this appeal. This contention also relates to the failure to afford the University natural justice. I agree with Estcourt J that, upon his Honour having determined that the Commission had failed to afford the University procedural fairness, it was not necessary to further consider this ground. There was no legal error in that approach. Accordingly there is no proper basis upon which this Court can be asked to review the matter. That conclusion is not affected by the fact that this hearing is in the nature of a re-hearing pursuant to r 657 of the Supreme Court Rules 2000.
2. I turn to the notice of contention, grounds 1-6.
3. The respondent's notice of contention asserts that:

(a) On a proper construction of the LUPA Act and the TPC Act_,_ the Commission was not obliged to further the objectives contained in Pt 2, Sch 1 of the LUPA Act.

(b) In the alternative Objective (a) of Pt 2, Sch 1 of the LUPA Act did not provide a basis upon which the Draft Scheme Amendment can be refused pursuant to s 41 of the LUPA Act.

(c) In the alternative Objective (a) of Pt 2, Sch 1 of the LUPA Act was not engaged or applicable to the Draft Scheme Amendment.

1. At first instance, the University submitted that the Commission fell into error in the way it had applied Objective (a) in Sch 1 of the LUPA Act. It is submitted that the Commission "could not have been clearer that it regarded Objective (a) as being applicable and the sole basis for refusing the Draft Scheme Amendment." Estcourt J rejected the submission. He determined that the Commission's decision should not be over scrutinised holding:

"That the articulation of their decision was infelicitous does not vitiate it when the very expression of it carries with it such a clear implication of a valid basis for rejecting the proposal. It is trite that such decisions are not to be zealously over scrutinised with an eye attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272."

1. I do not consider that there was a misapplication by Estcourt J of the principles pertinent to judicial review of administrative decisions, articulated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. As a statement of approach to judicial review it was relevant, and in its application no error is revealed.
2. As noted elsewhere the statutory powers vested in the Commission in respect of a Draft Scheme Amendment are contained in ss 41, 41(a), 41(ab), 41(b) and 42 of the LUPA Act. In substance it may approve an amendment to a planning scheme, make changes to the amendment or reject it.
3. In submitting that furtherance of the objectives does not provide a basis for refusing a draft amendment, the respondent cites two decisions of the Court, Von Witt v Hobart City Council (1995) 86 LGERA 134 and Krushka v Peacock and Hobart City Council (1997) 95 LGERA at 427. In Novak International Pty Ltd v Resource Planning and Development Commission [2008] TASSC 20, 161 LGERA 277, Slicer J held that neither the objectives nor framework of objectives provided any additional power to that afforded by the LUPA Act, save in the most general terms. Regard was required to be paid to those objectives, selective reliance upon them was not permitted, but no powers were grounded in them.
4. In Clarence City Council v Resource Management and Planning Appeal Tribunal [2018] TASSC 41, the proposition that the objectives are stated in general terms, and that their formulation provides context and guidance in respect of evaluative assessments engaged in with respect to decision-making. That they cannot supplant the specific criteria against which a development is to be tested was reinforced by Brett J, as was the principle that they not provide a test against which a proposed development is to be assessed.
5. The University submits the same principles apply to a consideration of Scheme amendments.

1. The objectives in the LUPA Act are qualitative in nature; they do not give of a right or wrong answer. They objectives operate at an abstract level. Their character and function becomes obvious when it is recognised that they do not identify any matter upon which an application for an approval or an amendment could be made. Applications proceed by reference to specific standards, regulations and obligations. Applications are granted or refused or amended, by reference to specific standards, regulations and obligations. An application for an amendment will fail for specific reasons, the engagement of which will have the effect, inter alia, of placing the application in conflict with objectives.
2. Whilst the Commission is obliged to further the Objectives, as a constituent part of the State planning regime, and for the reasons given by Pearce J, the nature of them militates against a conclusion that they work to regulate planning, including applications such as the one with which the Commission was engaged here. The objectives are properly construed as broad and aspirational and not more. They were engaged on this application, in that general way.
3. I accept the respondent's submission that the objectives do not of themselves afford a basis upon which an amendment application may be refused. They do not confer any power. Accordingly I would uphold the respondent's contention in respect of this point if the circumstances required it.
4. In my view they do not. I do not discern in the Commission's reasons, a conclusion to the effect that the application was refused on the basis that this Objective was not met. His Honour's finding was that the Commission reached this conclusion, but that there were specific bases for that conclusion, that constituted the specific reasons for that result. These included the need for strategic planning of the campus, the difficulty identifying an appropriate zonal classification, and the unsuitability of the "particular purpose zone". His Honour was correct in that conclusion.
5. I do not need to say anything about the appellant's submission that the Commission is part of the State Government, and I choose not to.
6. I turn to the respondent's cross-appeal.
7. It contends that the general discretion to award costs contained in s 12 of the Supreme Court Civil Procedure Act 1932 ought to have been applied in the usual way such that the respondent was awarded its costs without reduction. The respondent submits that the presumption is that costs will follow the event. It submits that since the relevant event for the purposes of an award of costs was the upholding of the University's application, it ought to have its costs. It submits that it is not appropriate to undertake a dissection of the matter to determine which issues were successful and upon which issues it was not.
8. Here the court said that there were issues that were clearly "dominant and separable", and proceeded to apportion costs based on the outcome of the issues, with the result that the University was awarded 50% of its costs.
9. Apart from noting that issues were "dominant and separable" I cannot, with respect, discern any reason for embarking upon an approach described by the learned judge as "generally not appropriate" nor for the conclusion as to costs.
10. In Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304, Beazley, Ipp and Basten JJA at [38] said:

"• Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which a party was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed.

• If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue.
• Whether an order contrary to the general rule that costs follow the event should be made depends on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed.
• A separable issue can relate to 'any disputed question of fact or law' before a court on which a party fails, notwithstanding that they are otherwise successful in terms of the ultimate outcome of the matter.
• Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion and mathematical precision is illusory. The exercise of the discretion depends upon matters of impression and evaluation." [Citations omitted.]

1. The respondent refers to the decision in Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 at [6]- [8]:

"[6] The court may, in the exercise of its discretion, order that a successful party recover only a portion of its costs where that party has been unsuccessful in respect of certain discrete issues. But that should not be done as a matter of course. To embark as a general practice upon an analysis of which party was successful on each issue, or necessarily to deprive a successful party of some portion of its costs if it has lost on a particular issue, would be likely to add further uncertainty and complexity to the outcome of litigation, derogate from the prospect of settlement, and oblige the court to hear lengthy and frequent arguments in relation to costs as an additional burden on its resources and the costs of the parties: see MacKinnon v Petersen (Unreported, NSWSC, 19 April 1989) (Cole J); Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67]-[68] (McHugh J). Litigation is time-consuming, expensive and burdensome enough already.

[7] In addition, while parties should be encouraged to consider carefully what matters they put in issue, justice may not be served if by too ready a resort to deciding questions of costs according to success on particular issues, parties are dissuaded by the risks of costs from canvassing all issues which might be material to the decision in the case: Doric Products Pty Ltd v Lockwood Security Products Pty Ltd [2002] FCA 282; NRMA Ltd v Morgan (No 3) [1999] NSWSC 768 [24].

[8] In Amaca Pty Ltd (formerly James Hardie & Co Pty Ltd) v Hannell [2007] WASCA 158 (S), the position was put as follows:

'[T]he power to adjust an order for costs by reference to particular issues upon which the generally successful party has failed, is properly exercised only where there are discrete and severable issues upon which the generally successful party has failed, and which have added to the cost of the proceedings in a significant and readily discernible way'."

1. The general principles are discernible from these authorities. Applying them there is nothing in the conduct of the respondent which in my view disentitles it from the usual cost order. I base this conclusion upon my assessment of the conduct of the respondent throughout the judicial review procedure, noting the detailed and comprehensive nature of its written submissions, and recognising that the hearing was completed within a shorter period as a result of the thoroughness of those submissions. The respondent's approach to the conduct of the judicial review procedure was as it should have been, and whilst not successful in respect of all of the matters it sought to prosecute, the outcome of the appeal was in its favour. Its agitation of certain issues upon which it was unsuccessful do not appear to have "added to the costs of the proceedings in a significant and readily discernible way".
2. Costs should follow the event in the usual way.
3. I would uphold the cross-appeal.

FOR THE STATE OF TASMANIA v UNIVERSITY OF TASMANIA

1. I agree with the reasons for judgment of Pearce J and the orders he proposes.