Administrative Law - Judicial review - Grounds of review - Error of law - Construction and interpretation of State Coastal Policy 1996 - Meaning of coastal dependence.

Administrative Law - Judicial review - Grounds of review - Error of law - Construction and interpretation of State Coastal Policy 1996 - Meaning of tourism development.

Administrative Law - Judicial review - Grounds of review - Error of law - Construction and interpretation of State Coastal Policy 1996 - Interrelationship of urban development and tourism provisions.

Administrative Law - Judicial review - Grounds of review - Procedural fairness - Existence of obligation - Application of principles of natural justice - Proceedings before Resource Planning and Development Commission.

Judicial Review Act 2000 (Tas), s17.

Land Use Planning and Approvals Act 1993 (Tas), ss32, 33, 34, Sch1, Pt1.

Glamorgan Spring Bay Planning Scheme 1994, Pt6, cls 6.4.1, 6.5.1, 6.5.2, Pt8, cls 8.3, 8.9, Pt9, Sch6, cls 6.1, 6.4

State Coastal Policy 1996, cls 2.1.6, 2.3.1, 2.3.4, 2.4.2.

Richard G Bejah Insurance and Financial Services Pty Ltd v D Manning [2002] TASSC 36; (2002) 123 LGERA 349; W J Manning and The Friends of Four Mile Creek Bushcare Group Inc and Break O'Day Council and Morris Nunn & Associates v Bejah [2006] TASRMPAT 26; BHP Petroleum Pty Ltd v Balfour (1987) 180 CLR 474; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, applied.

Appellant V324 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259; Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, referred to.

Environment and Planning - Environmental planning - Development control - Control of particular matters - Foreshore and coastal development - Glamorgan Spring Bay Planning Scheme 1994 Schedule 6 - Ribbon development.

David v Development Consent Authority NTLMT 54, referred to.

Judgment Number: [2006] TASSC 66

ALAN BANKS CAMERON and WENDY ELIZABETH CAMERON v

THE RESOURCE PLANNING AND DEVELOPMENT COMMISSION

1 The applicants hold an area of 34 hectares about six kilometres north of Bicheno within the Glamorgan Spring Bay municipality. The land is bounded by about 900 metres of ocean frontage on one side, a one kilometre frontage on the Tasman Highway on the other, to the south by Old Mines Lagoon, and to the north by a public access to Denison Beach. The applicants sought to build fifteen visitor accommodation units, one manager's residence and a sixty seat café and wine bar on the site. They also proposed that fourteen hectares of the land be subject to a conservation covenant.

2 The land sought to be developed is zoned coastal rural. In July 2004, the applicants, pursuant to the Land Use Planning and Approvals Act 1993 ("LUPA"), s33, requested the Glamorgan Spring Bay Council ("the Council") to amend the Glamorgan Spring Bay Planning Scheme 1994 ("the Scheme") to permit a change of zoning for their land to "resort residential". They also sought a tourism permit. Both of these were required to allow the development to proceed.

3 In December 2004, pursuant to LUPA, s34, the Council initiated the amendment sought. A draft permit was created, the amendment was certified, the matter was referred to the Resource Planning and Development Commission ("the Commission"), and the proposal was then exhibited and representations were invited and received. The Council made a report to the Commission. A hearing in respect of those representations was then scheduled before Commission delegates Nolan and Nicholson. The hearing commenced on 29 September 2005. By a decision of 7 November 2005, the Commission determined that the draft amendment for resort residential zoning should not be approved and that "likewise the proposal for a modified draft amendment, to make the particular use or development on the site permitted, should not be approved."

4 Some explanation is required for the manner in which the Commission approached this matter. Part 8, cl 8.9 of the Scheme deals with planning objectives for a coastal rural zone, development within it, permitted use or developments, prohibited uses or developments and, under the heading "Specific Use or Development", two specific developments which have been allowed as exceptions to the usual requirements subject to conditions. These are the East Coast Bird Life and Animal Park and Visitor Accommodation Denison River. That last development is for six visitor accommodation units.

5 The applicants did not initially seek to have their development approved as a specific use or development within the existing coastal rural zone. Instead they sought to have the land rezoned to the resort residential zone. Part 8, cl 8.3 of the Scheme deals with such a zone. Visitor accommodation is permitted use or development in such a zone . However, evidence led on behalf of the applicants before the Commission was, in effect, that resort residential zoning was not appropriate and that a specific use provision under the existing zoning was more so. Counsel for the applicants and for the Council did not formally abandon the rezoning amendment but did not press it. In the circumstances, the Commission did not consider it but, in effect, dealt with the matter on the basis it was an application for a scheme amendment to provide for a specific use within the existing zone, a specific use which was normally prohibited. There was no challenge to the Commission's approach in this regard.

6 The applicants have sought a review of the Commission's decision pursuant to the Judicial Review Act 2000 ("the JR Act"), s17. The Commission and the Council have submitted to the jurisdiction of the Court. The application is opposed by the Honourable Steven Kons, Attorney-General for the State of Tasmania ("the respondent").

7 The JR Act, s17(2), provides for a number of grounds of judicial review of a decision. The particular grounds relied on in this case are that a breach of natural justice occurred relating to the making of the decision (s17(2)(a)) and that the decision involved errors of law (s17(2)(f)).

"A There was an error of law within the meaning of s17(2)(a) of the JRA in that the Commission by its delegates breached the rules of natural justice in respect of making the decision:

(i) In that the chairman Mr Robin Nolan did not seek submissions in respect of the application of the State Coastal Policy but rather only sought submissions in respect of the terms of the permit and whether the draft amendment could be modified as proposed by the applicants.

B There was an error of law within the meaning of s17(e)(f) of the JRA in that the Commission treated clause 2.1.6 of the State Coastal Policy as an absolute requirement.

C There was an error of law within the meaning of s17(e)(f) of the JRA in that the Commission treated clause 2.4.2 of the State Coastal Policy as an absolute requirement.

D There was an error of law within the meaning of s17(2)(f) of the JRA in that in making an assessment under clause 2.1.6 of the State Coastal Policy the Commission posed a wrong question and proceeded upon the basis that it must be shown that all visitor accommodation and restaurant was coastal dependent whereas the proper test was whether the particular proposal was coastal dependent.

E There was an error of law within the meaning of s17(2)(f) of the JRA in that the Commission proceeded upon the basis that the proposal was urban.

F There was an error of law within the meaning of s17(2)(f) of the JRA in that the Commission proceeded upon the basis 'In addition it is likewise not accepted that, in the context of the State Coastal Policy, policies relating to tourism can be isolated from the policies applying to urban and residential development' when on a proper construction of the State Coastal Policy the Policy does in fact isolate, inter alia, tourism and urban and residential development.

G There was an error of law within the meaning of s17(2)(f) of the JRA in that the Commission determined that tourism development could only occur within, or within proximity of a town.

H There was an error of law within the meaning of s17(2)(f) of the JRA in that the Commission determined that the proposal would constitute and/or contribute to 'ribbon development' despite the fact that the proposal was surrounded by visitor units, a wildlife park and a golf course which were all subject to specified departures within the Glamorgan Spring Bay Planning Scheme clause 8.9.4.

I There was an error of law within the meaning of s17(2)(f) of the JRA in that the Commission failed to provide adequate reasons.

(i) to explain what it meant by its finding that 'the proposal is not within the town of Bicheno and not based on that town except by proximity' and to explain what it understood to be the requirement of clause 2.4.2 of the State Coastal Policy;

(ii) to explain what it meant or understood by the expression 'ribbon development'."

9 The Commission considered provisions of both the Scheme and the State Coastal Policy 1996 ("SCP") which, to an extent, overlap. It identified Scheme provisions relevant to the site as those relating to the coastal rural zone, scenic corridor, native habitat, wetlands and waterways and access to the Tasman Highway. The Commission said at 4 of its reasons in relation to the coastal rural zone:

"Turning to the subject land it is located north of Bicheno and despite other land uses in the vicinity that predate the planning scheme, the clear policy of the planning scheme is to restrict change of use in the areas zoned coastal rural. The counter situation is the policy of the planning scheme to provide for tourist infrastructure in Bicheno where extensive areas of resort residential zoning are provided and the infrastructure is in place to support this policy. The coastal rural zoning provides a clear policy position in the planning scheme that the area is to be protected and there is nothing in the evidence or from the inspection of the area that suggests that the existing zoning is inappropriate in the context of the planning scheme. Prima facie the use and development for visitor accommodation, manager's residence and wine bar/café are not consistent with the policy of the zone. This assessment is further supported by Clause 7.3.6.2 District 6 Bicheno, Objectives for Future Development, specifically subclause (II) 'restrict any residential or urban related strip use or development along the Tasman Highway' and subclause (VIII) 'limit outward growth (beyond current town boundaries of both residential and tourist-orientated use and development'."

10 These findings were not the subject of the application to review.

11 As to scenic corridor, the relevant provisions of the Scheme were identified as cl 6.4.1 and Sch6, cls 6.1 and 6.4. These provided:

6.4.1 A scenic corridor is provided to mitigate inappropriately located use or development that would detract from the major tourist and visitor routes on the east coast of Tasmania. The corridor is intended to encourage appropriate and sympathetic use or development. The intent and development requirements of the scenic corridor are contained in Schedule 6.

The Scenic Corridor is provided along the major Roads within the Planning area. These are the Tasman Highway, Lake Leake Road and Coles Bay Road. The width of the corridor is 100 metres either side of the centreline of the roads identified above. The linear extent of the corridor is identified on the plans and does not include areas inside town boundaries.

In determining any application for use or development within the scenic corridor the Council shall:

a) respect the role of the roads as a major tourist routes;

b) protect the scenic quality and amenity of the routes and the immediate areas;

c) avoid ribbon or unsightly use or development;

d) minimise or rationalise the access or potential access points onto the major roads within the corridor;

f) avoid conflict with any planned or potential highway alignment;

g) be designed and sited so as to blend with the landscape;

h) provide landscaping to provide a desirable screen, both visual and auditory, between Buildings and Roads without interference to any existing natural vistas; and

i) comply with any advice received from any Government Authority that has from time to time jurisdiction over the roads, particularly in respect to access to and from the highway as well as safety and Amenity of the highway.

The Council may impose conditions on use or development or require amendments to a plan of subdivision in relation to the above matters and where it has discretion refuse a proposed use or development or plan of subdivision which would detract from the safety or visual amenity of these routes and areas or conflict with a future highway alignment."

12 The Commission said in relation to scenic corridor:

"The scenic corridor does not set a prohibition but a policy position on use or development in this case in respect of land adjoining the Tasman Highway. ... An analysis of the proposed building siting particularly having regard to the vegetation cover allows a conclusion that the matters relevant to the scenic corridor can be satisfied except that relating to ribbon development. Ribbon development is addressed later in this decision."

13 Ribbon development is not defined in the Scheme. The Commission dealt with "ribbon development" under the heading "State Coastal Policy" in its decision.

14 The next part of the Scheme the Commission had regard to was the Coastal Protection provisions in cl 6.5. Clauses 6.5.1 and 6.5.2 provide:

6.5.1 The provisions of this clause apply to the Coastal zone of area as defined in the State Coastal Policy 1996 (page 6).

6.5.2 The assessment of an application under this clause shall be based on satisfying the following criteria:

a) demonstration that the use or development is dependent upon a coastal location;

b) adequate provision of public open spaces or reserves as part of a development for subdivision;

c) protection of coastal habitat and vegetation from grazing through fencing;

d) development occurring in a manner which will not interfere with the ecological and recreational functions of reserves and areas of the foreshore;

e) buildings being sited and designed so as to not directly overlook foreshore areas;

f) buildings being located and designed in respect to the size, colour, scale, form, siting style and materials of construction so as to harmonise with the existing or future desired character of the area or existing buildings;

g) use or development promoting the retention of native vegetation;

h) minimal modification to vegetation as required to reduce fire hazard;

i) avoidance of the need for cutting and filling as part of road and building development;

j) avoidance of new private access ways to the sea through the better utilisation of existing or new public jetties and ramps; and

k) priority shall be given to use or development that permits public access to the foreshore."

15 At 6 of its decision, the Commission said in relation to the above criteria that:

"The proposal satisfies the above criteria to a high degree except in respect to it being demonstrated that the use or development is dependent upon a coastal location."

Counsel for the applicants submitted that by that statement the Commission identified the correct test to be applied in relation to coastal location. The later application of a test as to what constituted coastal dependency is the subject of the application to review.

"In consideration of the planning scheme provisions ... two matters remain to be satisfied, coastal dependent and ribbon development. These matters are relevant to the State Coastal Policy 1996."

17 The Commission went on to deal with the impact of the SCP under the heading "State Coastal Policy" and said in its reasons:

"The draft amendment must be prepared in accordance with State Policy. Relevant provisions of the State Coastal Policy are as follows:

2.1.6 In determining decisions on use and development in the coastal zone, priority will be given to those which are dependent on a coastal location for spatial, social, economic, cultural or environmental reasons.

2.3.4 Tourism development will be located where there is environmental capacity and where it does not significantly conflict with the natural and aesthetic qualities of the coastal zone.

2.4.2 Urban and residential development in the coastal zone will be based on existing towns and townships. Compact and contained planned urban and residential development will be encouraged in order to avoid ribbon development and unrelated cluster developments along the coast.

Clause 2.1.6 of the policy requires priority to be given to use or development which is dependent on a coastal location. Mr Shephard submitted that the development was dependent on the site being a coastal location. That is the particular attributes of the site and the response of the development to the site satisfied the principle embodied in clause 2.1.6. Whilst the development is responsive to the site and there are attributes of the site that makes the development dependent on the particular coastal location, this does not make the use or development for visitor accommodation and restaurant dependent on the coast. The assessment is that clause 2.1.6 of the policy is not satisfied.

Based on the submissions received it is assessed that clause 2.3.4 is satisfied.

Clause 2.4.2 concerns urban development being based on existing towns and avoidance of ribbon development. Mr Shepherd argued that the proposal was not urban development, but if he was wrong on this, then because of the surrounding development the proposal constituted 'infill'. The argument that the proposal is not urban is not accepted. The development for 15 visitor accommodation units, manager's residence and restaurant are components of urban development. In addition, it is likewise not accepted that, in the context of the State Coastal Policy, policies relating to tourism can be isolated from the policies applying to urban and residential development. The proposal is not within the town of Bicheno and not based on that town except by proximity. The proposal would constitute and contribute to ribbon development. The surrounding development comprises visitor units tucked into the Denison River settlement, the wildlife park, and golf course. These other developments predate the planning scheme coastal rural zoning and the Coastal Policy. The current proposal might be infill in the terms expressed by Mr Shephard, but it is also contributing to ribbon development for the strip of coast between the Denison River and Bicheno. The assessment is that clause 2.4.2 of the policy is not satisfied."

"The assessment of the coastal rural zone and the State Coastal Policy is that the draft amendment for resort residential zoning should not be approved. Likewise the proposal for a modified draft amendment, to make the particular use or development on the site permitted, should not be approved."

"... the State Coastal Policy 1996 together with the policy of the coastal rural zone as stated in the planning scheme has determining weight in the assessment that the draft amendment should be rejected."

20 A number of the grounds of review related to the SCP and to the way it was said the Commission had applied some of its terms to its decision-making process.

21 The SCP was created pursuant to the State Policies Act 1993 ("SP Act"). Planning authorities are required to give effect to it. LUPA, s32(1)(b), provides that any amendment to a planning scheme must be prepared in accordance with the policy.

22 The SCP is divided, effectively, into 4 parts: the preamble, objectives, principles and outcomes. The objectives are the same as those in LUPA, Sch1, Pt1. In the section headed "Principles", three main principles are said to guide Tasmania's State Coastal Policy. These are:

- Natural and cultural values of the coast shall be protected.

- The coast shall be used and developed in a sustainable manner.

- Integrated management and protection of the coastal zone is a shared responsibility.

No one principle should be read in isolation from the others to imply a particular action or consequence. It is recognised that each principle has regard to a number of factors.

23 As to the second of the above principles, at 6 of the SCP, the principle is said to recognise "the economic and social values of tourism and recreation in the coastal zone". Clause 2, under the heading "outcomes", sets out the outcomes relevant to that second principle under the heading "Sustainable Development of Coastal Areas and Resources". That heading is then divided into a number of sub-categories. These are Coastal Uses and Development (cl 2.1), Marine Farming (cl 2.2), Tourism (cl 2.3), Urban and Residential (cl 2.4), Transport (cl 2.5), Public Access and Safety (cl 2.6), Public Land (cl 2.7) and Recreation (cl 2.8).

24 The Commission identified cls 2.1.6, 2.3.4 and 2.4.2 as being relevant to this application and set out the terms of each in that part of its reasons quoted in par17.

25 The validity of the SCP itself was considered in Richard G Bejah Insurance and Financial Services Pty Ltd v D Manning [2002] TASSC 36; (2002) 123 LGERA 349. Crawford J held that the policy was ultra vires on the grounds of uncertainty. The SCP was later validated by legislation. Counsel for the applicants submitted that notwithstanding Crawford J's ultimate decision, he made a number of comments about the SCP generally which are relevant to the present case.

"It is clear that what are stated as objectives and principles, and what the principles recognise, are merely what they purport to be and do not amount to the creation of duties or obligations for contravention or breach of which an offence under s14(1) might be committed.

The State Coastal Policy then moves on to and concludes with 85 statements of 'Outcomes'. Most of them amount to statements of policy and could not be interpreted as creating specific duties or obligations which, if contravened or not complied with, would attract the penal provisions of s14."

"When looked at as a whole the drafting of the Policy makes it apparent that its provisions are intended to directly apply to local councils and government agencies and not to persons or corporations who might wish to use or develop land in a particular way, or who are using or have used or developed land in a particular way. As is stated in the preamble, all government bodies at State and local level are required to give effect to it, to ensure that a consistent and co-ordinated approach is maintained throughout the State. By its name it purports to be a policy document."

28 In W J Manning and The Friends of Four Mile Creek Bushcare Group Inc and Break O'Day Council and Morris Nunn & Associates v Bejah [2006] TASRMPAT 26, the Resource Management and Planning Appeals Tribunal referred to the above decision and, at par22, to what it described as Crawford J's affirmation of its earlier conclusion that the SCP could not be used as a test of individual development but was intended to be a framework of principles for the formulation of planning schemes.

29 The Tribunal went on at par25 to adopt the reasoning of Crawford J at par23 in Bejah's case (supra).

30 Counsel for the applicants submitted that in the circumstances the provisions of the SCP were to be considered in a general way and provide guidance, and should not be considered as absolute terms which must be adhered to.

31 The grounds of review can be summarised as follows:

- the Commission had erred in that it regarded the applicant's proposal as urban development and hence that cl 2.4.2 of the SCP applied (grounds E and F);

- if, however, the court determined there was no such error and cl 2.4.2 did apply, then it erred in treating the clause as an absolute requirement (ground C);

- the Commission erred in construing the SCP to mean that tourism development could only occur within proximity of a town (ground F);

- the Commission erred in treating cl 2.1.6 as an absolute requirement (ground B);

- in the event that the court determined cl 2.1.6 was an absolute requirement, the Commission erred in determining it needed to be satisfied the "use class of visitor accommodation" must be coastal dependent as opposed to the overall proposal (ground D);

- the Commission made a finding the proposal would constitute ribbon development despite the fact it was surrounded by other developments (ground H);

- the Commission posed the wrong question relating to ribbon development as is shown by its reasons (ground I); and

- the Commission failed to afford natural justice in that it did not raise its views on cls 2.1.6 and 2.4.2 with counsel and permit counsel to be heard about them (ground A).

32 Counsel for the respondent submitted that the findings sought to be impugned by the application in grounds B, C, D, E and H were findings of fact and as such not reviewable.

33 Counsel for the applicants submitted that generally the matters complained of were not factual errors which, it was conceded, would not be reviewable under the JR Act. He submitted that posing the wrong question and the misapplication or misconstruction of policies were errors of law and, as such, reviewable.

34 As to that principle, counsel referred to BHP Petroleum Pty Ltd v Balfour (1987) 180 CLR 474 where at 480, Mason CJ, Brennan, Deane, Toohey and Gaudron JJ said:

The approach to be adopted can be expressed by using the words of Lord Diplock in In re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374, at pp 382-383 where after referring to Anisminic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147, his Lordship said:

'It proceeds on the presumption that where Parliament confers on an administrative tribunal or authority, as distinct from a court of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined ... So if the administrative tribunal or authority have asked themselves the wrong question and answered that, they have done something that the Act does not empower them to do ....".

35 In Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179, Brennan, Deane, Toohey, Gaudron and McHugh JJ said after canvassing the same type of issue:

"If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

36 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, McHugh, Gummow and Hayne JJ said, at 351:

"It is necessary, however, to understand what is meant by 'jurisdictional error' under the general law and the consequences that follow from a decision-maker making such an error."

37 Their Honours then went on to quote the passage from Craig's case (supra) just quoted and said:

"'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive (cf Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52; 176 ALR 219). Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law Craig [1995] HCA 58; (1995) 184 CLR 163 at 179."

38 In his written submissions at par7.5, counsel for the applicants set out a passage appearing at par8 in the majority judgment in Appellant V324 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259 as further support for his contention. However it is useful to look at the judgment of Stone J in the same case. While he agreed with the judgment of Hill and Allsop JJ, he added some extra comments. He said at pars54 and 57:

"The appellant submits, however, that the Tribunal failed (or 'constructively failed') to make 'real' findings of fact in relation to those issues. Mr Ginnane explained his use of 'real' and his allegation of 'constructive' failure as pointing to the Tribunal's failure to describe, quantitatively or otherwise, the degree or extent of risk involved in either of the two key issues. He submitted that this failure amounted to a constructive failure to exercise jurisdiction and referred to the observations of Gaudron J in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 339-40:

'[T]here is said to be a "constructive failure to exercise jurisdiction" when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.''

Mr Ginnane submitted that although the Tribunal addressed the issues of risk, the way in which it did so constituted a 'constructive failure to perform the task' required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). With respect, I see this argument as a thinly disguised attempt to take issue with the factual findings made by the Tribunal and with the relative weight that the Tribunal attributed to the risks to the appellant and his family and to the Australian community.

The use of the adjective 'constructive' to qualify 'failure to exercise jurisdiction' must be approached with caution. As used by Gaudron J in the passage quoted at [54] above, it indicates that a failure to exercise jurisdiction may extend to a purported exercise of jurisdiction if that exercise is fundamentally flawed in the manner mentioned by her Honour. In such cases the decision-maker can accurately be said to have failed to carry out the task required of it. However, to say that there has been a constructive failure to make findings of fact when actual findings have been made is to take issue with the adequacy of those findings."

39 The cautionary note appearing in Stone J's judgment is useful to keep in mind in the present case.

40 Counsel for the applicant then referred to cases where these principles had been applied in what might loosely be described as planning matters. None of the cases referred to were Tasmanian.

41 In Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306, the Court of Appeal in Queensland dealt with an appeal from a determination of the Planning and Environment Court. The right of appeal was confined to an error or mistake in law. The court there dealt with an argument that the planning court had made errors of law in the construction of a draft strategic plan. The court agreed. At 342 Pincus J, having found that there were errors in construction of the draft plan, said:

"The appeal cannot be allowed, however, unless what I have held to be errors in the application of the plan are, properly speaking, errors of law. In my respectful opinion, the effect of some of the principal authorities dealing with the distinction between errors of law and those of fact, as bearing upon jurisdiction to hear an appeal on a question of law, is helpfully summarised in the reasons of the full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 at 9. I set out those of the five propositions to be found at that page which have most present relevance:

2 The ordinary meaning of a word or its non-legal technical meaning is a question of fact.

4 The effect or construction of a term whose meaning or interpretation is established is a question of law.

5 The question where the facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law."

42 Counsel for the respondent submitted that the question of jurisdictional error is irrelevant because this Court is constrained by statute to deal with errors of law not jurisdictional error.

43 I have not repeated every passage from every case to which counsel for the applicants referred in his outline. However I accept that an error of law may have occurred if it can be established that the Commission asked itself the wrong question, identified a wrong issue or misconstrued the provisions of the SCP.

44 The matters complained of in these grounds all flow from the Commission's refusal to accept that policies relating to tourism could be isolated from policies relating to urban and residential development and its consequent application of policies in cls 2.3 and 2.4 to its decision-making process. Had it accepted those outcomes could be isolated, the consideration of urban development matters would not have arisen because the Commission would have been considering a tourism development only. If therefore ground F succeeds, it must follow that in going on to apply cl 2.4.2 to the process as it did, namely by asking the question whether the development was urban, answering it and going on to assess the proposal as if it must comply with cl 2.4.2, the Commission made errors.

45 Counsel for the applicants submitted that the Commission misconstrued the SCP by determining cls 2.3.4 and 2.4.2 applied to the proposal. He submitted that the structure of cl 2 overall made it clear that cl 2.1 dealt with general statements about development and then the following clauses each dealt with a specific matter. He submitted cl 2 should be interpreted such that if the Commission were dealing with an application relating to tourist development, it would have regard to cls 2.1 and 2.3. On the other hand, were it dealing with a residential housing development, it would have regard to cls 2.1 and 2.4, were it dealing with a marine farm it would have regard to cls 2.1 and 2.5, and so on.

46 Counsel for the respondent submitted that the "outcomes" in cl 2 of the SCP were clearly meant to overlap. He referred to cl 2.3.1 of the SCP which provides that:

"Tourism use and development in the coastal zone, including visitor accommodation and other facilities, will be directed to suitable locations based on the objectives, principles and outcomes of this Policy and subject to planning controls."

He submitted the very words of that clause made it clear that each outcome could not be isolated from the others and hence ground F must fail.

47 I was not referred to any specific authority in support of either counsels' contention in respect of this ground.

48 The phrase "urban development" is not defined in the SCP. Counsel for both parties referred to dictionary definitions of the term "urban" appearing in the Shorter Oxford English Dictionary and the Macquarie Dictionary. In the former, the definition of "urban" is "pertaining to or characteristic of, situated or occurring in, a city or town. Residing, dwelling or having a property in city or town." In the latter, the definition of "urban" is "1 pertaining to, or comprising a city or town, 2 living in a city or cities, 3 occurring or situated in a city or town, 4 characteristic of or accustomed to cities; citified". The common feature of both definitions is the connection with cities and towns.

49 The SCP, cl 2.3.1, contemplates tourism development in the coastal zone to include visitor accommodation and other facilities. Nowhere in the SCP does it provide that such tourism development in the form of "visitor accommodation and other facilities" is to be restricted to existing towns or cities. The Commission said at 7:

"The development for 15 visitor accommodation units, manager's residence and restaurant are components of urban development."

Many tourism developments are likely to have those features as components of their proposal. If such features are determined to be "urban" as was done in this case and then cl 2.4.2 applied, the inference is that any tourism development with those features can only be built in connection with a town or city. There is nothing in the SCP which supports that contention.

50 The logical interpretation of cl 2 is that in considering an application for a tourism development, the provisions of the SCP to which the Commission should have had regard were cls 2.1 and 2.3, and not 2.4. In construing the policy in a way that had both cl 2.3 and cl 2.4 applying to the same development in the way it did, I am of the view the Commission made an error.

51 The consequence of that finding is that the applicants should succeed on ground F. It must follow that the Commission made an error in proceeding on the basis the proposal was urban (because it should not have even considered the application of that term) and erred in treating cl 2.4.2 as imposing any relevant requirement, let alone an absolute one. As a consequence, grounds C and E must also succeed.

52 As to ground G, the Commission made a correct finding of fact at 7 of its reasons:

"The proposal is not within the town of Bicheno and not based on that town except by proximity."

It can only be inferred it made that finding because it was proceeding on the basis this particular tourism development had to be either in, or somehow connected to, that town for it to be considered. As a consequence of the findings relating to ground F, this basis must have been wrong and therefore ground G must also succeed.

Grounds B and D - Dependency on coastal location

53 The Commission said at 6 of its reasons that "The assessment is that clause 2.1.6 of the policy is not satisfied." That finding was preceded by certain factual findings. There were two grounds of review relating to this issue. The first, (B), was that by the above finding the Commission had treated cl 2.1.6 as an absolute requirement. It made certain factual findings and determined that as a consequence of those factual findings the clause was not satisfied.

54 The second, (D), was that, if it were accepted that cl 2.1.6 was an absolute requirement to be satisfied, the Commission had posed the wrong question in any event in dealing with this question in that it had proceeded on the basis that it had to be shown that the use and development for visitor accommodation and restaurant depended on the coast. The applicants say the correct question should have been, was the particular proposal overall coastal dependent?

55 As to ground B, nowhere in cl 2.1.6 or, indeed, anywhere in the SCP does it say that a use and development proposal will only be approved if it is "dependent on a coastal location for spatial, social, economic cultural or environmental reasons." The clause simply provides as an outcome that use and development proposals that do, will be given priority. For the Commission to have found the clause "is not satisfied" makes it clear it approached the clause as laying down a threshold test that a use and development application had to pass. Leaving aside any question of what the impact of the SCP should be generally, that is, whether it provides for absolute tests or is simply a guide, the clause could not be interpreted in the manner the Commission has done.

57 As to Ground D, counsel for the applicants identified what he said was the correct test the Commission should have applied on this issue if indeed it were able to treat cl 2.1.6 as providing for an absolute test that a development had to be coastal dependent. I have set that out, in par15. However, what the Commission said at 6 was:

"Whilst the development is responsive to the site and there are attributes of the site that makes the development dependent on the particular coastal location, this does not make the use or development for visitor accommodation and restaurant dependent on the coast."

It focused by that finding on the visitor accommodation and restaurant and not the totality of the proposal inclusive of all the facilities it was to offer. In doing so it posed the wrong question to be considered. Counsel for the applicants submits that in doing so the Commission erred.

58 Counsel for the respondent submitted that the findings of the Commission about the issue of coastal dependence were findings of fact and as such simply not reviewable by this application. With respect, that does not answer this particular ground. The submission is that the findings were in response to the wrong question. It is submitted the Commission did not approach its task correctly when considering the issue. I accept that, even if cl 2.1.6 posed a threshold test to be met by the developer, the test as used by the Commission was the wrong one.

59 Ground D would, in the circumstances, succeed if ground B failed.

60 Both of these grounds relate to the issue of "ribbon development". That term is not defined in either the Scheme or the SCP. The Commission determined that the provisions of the Scheme relating to Scenic Corridor applied to this development and that determination has not been challenged. Schedule 6 requires that a council in determining any application within the scenic corridor shall avoid ribbon or unsightly use or development.

61 At 6 of its reasons, when dealing with cl 2.4.2 of the SCP relating to urban development, the Commission made some findings as follows, namely that:

- that "the development for 15 visitor accommodation units, manager's residence and restaurants are components of urban development";

- that the proposal was not within the town of Bicheno and not based on the town except by proximity; and

- the proposal would constitute and contribute to ribbon development, and then said, at 7:

"The surrounding development comprises visitor units tucked into the Denison River settlement, the wildlife park, and golf course. These other developments predate the planning scheme coastal rural zoning and the Coastal Policy. The current proposal might be infill in the terms expressed by Mr Shephard, but it is also contributing to ribbon development for the strip of coast between the Denison River and Bicheno."

62 Counsel for the applicants submitted that it was necessary to establish what was meant by "ribbon development" to assess whether the Commission had "applied the correct analysis". In his written outline he referred, at pars13.3 to 13.5, to a decision of David v Development Consent Authority NTLMT 54, an unreported decision of the Northern Territory Land and Mining Tribunal. He submitted that the matter provided a good overview of different definitions applied to "ribbon development". Under the heading "Ribbon Development" in par49 at 53, the tribunal chairperson said, relating to the appellant's submissions about ribbon development:

"The Tribunal embraces as valid the submissions set out at paragraph 3.2.6 in the appellants section 128(1) submissions concluding at 3.2.9. The Tribunal endorses those submissions."

"5.2.6 'Ribbon development' and its effects have been described variously as :

5.2.6.1 'Ribbon development consists of a line of buildings extending along a roadway when there is little or no building development on the land behind the lots which abut upon that roadway. The term also refers to a row of shops, factories or other commercial or industrial development that is only one lot deep along a highway with residential or other development on lots behind.' DJ Gifford & KH Gifford Town Planning Law and Practice Law Book Co paragraph G136-1.

5.2.6.2 'The practice of building along both sides of a highway; development may be only one building wide, with open country behind. The visual impression from the highway is of each town being connected directly with its neighbour. At best, the edges of town and country are blurred; at worst, they are eliminated. Frequently, large areas of the backland cannot be developed due to lack of road access.' Alan Gilpin An Australian Dictionary of Environment and Planning Oxford University Press 1990

5.2.6.3 'The concept [commercial ribbon development], as it is generally understood, involves the unco-ordinated spread of commercial development (with points of access occurring in an unrestricted fashion) along an arterial road.' Local Government Court of Queensland in George Pippos Hotels v Logan City Council 26 APA 281 at 284

5.2.6.4 'Commercial ribbon development is a convenient tag for a particular form of development. In short, the name attaches to that form of commercial development whereby unrelated commercial uses are established along the length of a major road. However, its real importance in town planning terms lies in the identification of the highly undesirable consequences which arise form this form of development. First, the establishment of commercial development in this form is a source of considerable inconvenience for those who may wish to shop in the area, whether for convenience goods or for comparison goods. Secondly, such a form of development is particularly disruptive to the free flow of traffic along the road because each commercial development creates its own site, requires its own parking facilities and this leads to a multiplicity of access points along the major road. The impact which this has on the free flow of through traffic is a particularly disruptive one. Thirdly, if a customer is comparing goods at different points along the strip, he may travel by car from one shop to the other and so undertake a local trip on a major road. This again offends the prospect of efficient traffic flow along such a road. Therefore, to argue against commercial ribbon development is to seek to argue against the removal of those vices which are the inevitable consequence of this form of urban development. To say that the placement of one commercial activity alongside another on an arterial road is commercial ribbon development is, in my view, too simplistic an approach. To determine whether such a placement is objectionable, one must examine whether to so locate the activities will bring with it the objectionable consequences referred to or, alternatively, will promote or encourage the placement of further commercial activities along the strip and so create the circumstances which again inevitably will cause inconvenience not only to those who wish to travel on the arterial road but also to those who wish to make use of the commercial development.' Local Government Court of Queensland in Bell and ors v Brisbane City Council 10 APA 352 at 357-358.

5.2.7 The problems attributed to ribbon development in these descriptions are identified as -

5.2.7.1 blurring or eliminating the edges between town and country;

5.2.7.2 impeding the development potential of the backland due to lack of access; and

5.2.7.3 creation of unrestricted points of access along the arterial road, and consequent disruption to free flow of traffic.

5.2.8 The proposed development exhibits none of these characteristics. It does not blur or eliminate the edges between town and country. It does not affect the development potential of the backland of any adjoining lands, or impede access to any other land. The proposed access to the development is from Farrar Road, which is off the arterial road. Consequently, the development does not create an access point on the arterial road, or disrupt the free flow of traffic.

5.2.9 The Appellants say that it does not matter whether the proposed development is regarded as ribbon development or not because, as articulated in Bell, it is not the location of development along a major road that is at issue, but whether that location leads to objectionable consequences. The Appellants say that there are no objectionable consequences arising from the location of the proposed development on McMillans Road/Knuckey Arterial."

64 Counsel for the applicant also referred to the definition of "ribbon development" as it appears in the Kingborough Council Planning Scheme 2000_._ That scheme defines such development in the following terms:

"ribbon development means a dwelling(s) in a continuous or, in the opinion of Council, an almost continuous row on one or both sides of a road extending outwards from the edge of a town, township, village or settlement. For the purposes of this definition towns, townships, villages and settlements contain both a local shop(s) and public buildings such as but not limited to a church(s), police station(s), council chambers or the like. Ribbon development is not an isolated settlement."

65 Counsel for the applicants did not seriously argue that the Commission generally failed to give reasons. Its challenge was confined to the argument that in relation to ribbon development the Commission did not give sufficient reasons to make it possible to determine just what the Commission meant when it made the finding that this development would constitute and contribute to ribbon development.

66 Counsel for the applicants made a number of submissions about this issue, pointing out by reference to evidence placed before the Commission the factors arising in relation to this development which he argued did not bring it within the definitions of ribbon development to which he had referred.

67 The difficulty with his submissions is that they all appeared to deal with challenges to findings of fact. The Commission did not define the term "ribbon development" in its reasons. It is a specialist tribunal with experience in considering this type of issue. It is open on the Commission's findings to conclude that it took the view that, whatever the status of the other developments, what this one achieved was to put another development in the middle of two existing developments, creating a line of developments, as opposed to buildings in the particular area.

68 I am not satisfied it has been shown that the Commission erred in relation to this matter.

69 This was argued as an alternative ground. Counsel's written submissions were put on the basis that if the other grounds succeeded, the Court did not need to deal with this one.

70 The applicants have in fact been successful as far as grounds B, C, D, E, F and G are concerned. In those circumstances ground A will not be addressed.

71 I am satisfied in all the circumstances that the errors found are such that the decision of the Commission should be quashed. I will hear Counsel as to consequential orders.