Appeal and New Trial - In general and right of appeal - When appeal lies - Other cases - Appeal from Resource Management and Planning Appeal Tribunal - Appellant obtained orders it wanted from Tribunal - Appeal not from orders but from determinations of points of law in the course of the proceedings - Tribunal's orders to remain unaffected - Whether determination of appeal would merely amount to the giving of an advisory opinion.

Hole v Insurance Commissioner [1960] VR 394, applied.

Judgment ID Number: [1999] TASSC 72

BURNIE PORT CORPORATION PTY LTD v BURNIE CITY COUNCIL

1 The appellant applied to the respondent for a planning permit under the Burnie Planning Scheme 1989 ("the Scheme") concerning "reclamation of ± 6000m2 to allow a third woodchip stockpile in accordance with development application submitted by North Forest Burnie dated 29th October 1997". The development involved the reclamation of an area of land exposed at low tide but covered at high tide, in the southern part of the Burnie Port area. The site was within the area controlled by the Scheme, and under the Scheme was within the Wharf Area Zone 6 - Industrial. The reclaimed land was intended to be used to allow storage of a pile of woodchips, which were destined for export.

2 At a meeting on 15 September 1998 the Council resolved "that in accordance with Sections 51 and 57 of the Land Use Planning and Approvals Act 1993 and pursuant to the provisions of the Burnie Planning Scheme 1989, proposals described in DA 98/064A for the reclamation of land from Emu Bay to allow development and use as an additional woodchip stockpile be REFUSED for the following reasons ...". The reasons are not material to this appeal. They were largely environmental.

3 The respondent treated the proposed development as being of a kind which, under the Scheme, it had a discretion to refuse or permit. In this case it exercised its discretion to refuse to grant a permit at the meeting of 15 September 1998. However, on 23 September 1998 the Council held another meeting which was specially called to reconsider the matter. At that meeting the resolution of 15 September was rescinded and in its place the respondent resolved to grant a permit for the proposed development. Pursuant to the Land Use Planning and Approvals Act 1993 ("the Act"), s61(5), appeals against the grant to the Resource Management and Planning Appeal Tribunal ("the Tribunal") were lodged by Lynette Munden and an organisation calling itself the Cam River Action Group. The appellant also appealed to the Tribunal, but not against the Council's grant of the permit. Instead it appealed against the respondent's earlier refusal to grant the permit.

4 Preliminary submissions were made by the parties to the Tribunal concerning the appeals. Issues included whether the proposed use was a permitted or discretionary use under the Scheme; the status of the associated development; whether a planning authority could change a decision to refuse to grant a permit once it had been made under the Act, s57; and the status of the Cam River Action Group. On 30 November 1998 the Tribunal published written reasons for deciding a number of matters. Its determinations included the following:

1 The respondent had a discretion whether or not to grant a permit, with or without conditions. The proposed development was not a permitted use under the Scheme to the extent that the respondent had no discretion to refuse to grant a permit.

2 The decision to refuse to grant a permit, which was made by the respondent on 15 September 1998, was a final decision made under the Act, s57, subject only to the respondent's powers to correct mistakes under s55 or to make minor amendments under s56. Thereafter the respondent had no power to rescind its refusal and to grant the permit in the way it did.

3 The purported approval of the proposed development being invalid, the appeal of Lynette Munden against it was without foundation and the Tribunal had no jurisdiction to entertain it.

4 The Cam River Action Group was not an incorporated body. Therefore it did not fall within the definition of a "person" in the Act, s3, and it was not a person who was entitled to appeal to the Tribunal under s61. For that reason its purported appeal was invalid. It was also invalid for the reason given for Lynette Munden's purported appeal being invalid.

5 Consequently, the only competent appeal was that of the appellant against the respondent's refusal of a planning permit for the proposed development and use.

5 Following the making of those determinations by the Tribunal, the appellant and the respondent conferred. I presume that their conference was directed under the Resource Management and Planning Appeal Tribunal Act 1993, s17(1). At their conference they reached agreement as to the terms of a decision by the Tribunal, in the appellant's appeal to it, which would be acceptable to them. There were no other parties to that appeal. The appellant and the respondent agreed that the Tribunal should make a number of orders by consent, which may be summarised as follows:

1 That the appellant's appeal to the Tribunal be allowed and the decision of the respondent made on 15 September 1998, by which it refused the appellant's application for a permit, be set aside.

2 In substitution for that decision, that there be granted to the appellant a permit pursuant to the provisions of the Act and the Scheme for the development and use described in the original application, subject to four conditions which need not be repeated here.

3 That if any party wished to make an application for costs then it should do so by written submissions lodged within 14 days of the date of the Tribunal's decision.

6 By the Resource Management and Planning Appeal Tribunal Act 1993, s17(2), it is provided that if a conference is held under subs(1) and at or after the conference, agreement is reached between the parties as to the terms of a decision of the Tribunal in the appeal that would be acceptable to the parties, and the terms of the agreement are reduced to writing, signed by the parties and given to the Tribunal, and the Tribunal is satisfied that a decision in those terms would be within its powers and that it would be appropriate to make a decision in those terms, the Tribunal may, without holding a hearing, make a decision in accordance with those terms. All of those events occurred in this case and on 15 December 1998 the Tribunal published its decision which recited the conference pursuant to s17 and that the parties had reached agreement. The Tribunal declared that it was satisfied that a decision in the terms as agreed by the parties would be within the powers of the Tribunal and would be an appropriate decision to make without holding a hearing. Accordingly the Tribunal made a decision in accordance with the agreement between the parties. As a result the decision of the respondent, from which the appellant had appealed was set aside and in lieu thereof it was decided that a permit should be granted to the appellant, pursuant to the Act and the Scheme, for the development and use of the land in accordance with the application of the appellant, subject to the four agreed conditions.

7 In view of the circumstance that by the time it appealed to this Court the appellant had the permit it had sought, subject to conditions to which it had agreed, it was difficult to understand why the appellant had appealed to this Court at all. It was no surprise that counsel for the respondent submitted that the appeal should be dismissed as an abuse of process. The respondent's counsel submitted that no matter how I determine the grounds of the appeal, no order I might make will affect the rights of the appellant which are in issue. Instead merely an advisory opinion of the Court is now being sought by the appellant.

8 Consistent with the grounds stated in the notice of appeal, the appellant's counsel said that he would argue that under the Scheme the proposed development was a permitted development and that, subject to the imposition of conditions, the respondent was bound by the Act, s58(1), to grant the permit for which the applicant applied. Instead the Tribunal had determined, in the course of the appeal to it, that the respondent had a discretion whether or not to grant the permit under s57. Therefore, as I understood the effect of counsel's submission, the permit is liable to be challenged in a court at any time in the future. There is no merit in that submission. Whether at the time the appellant obtained its permit the Tribunal had determined that the proposed development or use was a discretionary one is of no consequence. If the Tribunal was wrong, the appellant was entitled to the permit as of right. A court would not consider taking the permit away from it in such circumstances.

9 Counsel for the appellant also raised an argument concerning costs pursuant to the Act, s59(5), but I hold that the subsection is of no relevance. It applies to applications to the Tribunal under subs(3) in circumstances where a planning authority has failed to determine an application for a permit within a time limit. The matter came before the Tribunal as an appeal from a determination (by way of refusal) of the appellant's application for a permit and not as an application under s59(3).

10 Subsequent to the hearing of the appeal by me and with the concurrence of the respondent's solicitors, counsel for the appellant made a further submission in writing. He submitted that the question of "how the land is zoned and whether activities require a permitted or discretionary permit" under the Scheme, are "of continuing relevance to" the appellant "because of other use/development which it may wish to undertake on the site (or indeed an adjoining site)". In other words, the appellant wishes to have determined the issues raised by the grounds of the appeal so that it might assist the resolution of applications which may (or may not) be made in the future for permits.

11 It is stated in Halsbury's Laws of Australia, vol 20, par[325 - 11570]:

"The courts will not advise parties to proceedings upon their rights under a hypothetical state of facts, or give to them advisory opinions, or give hypothetical decisions the effectiveness of which depends on varied states of facts which remain to be determined in the future. Thus, an appellate court will not decide an appeal if the parties have settled their differences and seek from the court what in effect is an advisory opinion."

Thus in Hole v Insurance Commissioner [1962] VicRp 55; [1962] VR 394 the Full Court of Victoria refused to entertain an appeal where there was no longer any real contest between the parties. See also Swift Australian Co (Pty) Ltd v South British Ins Co Ltd [1970] VicRp 47; [1970] VR 368, Glasgow Navigation Coy v Iron Ore Coy [1910] AC 293 and Sumner v William Henderson & Sons Ltd [1963] 2 All ER 712.

12 I propose to apply those principles. If I decide the issues in the way the appellant seeks, no order will follow. The appellant has the permit it wants and does not seek to have it set aside. The only conceivable advantage in having the grounds of the appeal determined is that the parties will be provided with advice which may or may not be useful in the determination of future applications for permits which may or may not be made in the future. In the circumstances I decline to decide the appeal on its merits. There will be an order that it is dismissed.