Supreme Court of Tasmania|1999-07-23|Before: Wright J

Coles Bay Marina Pty Ltd v Hawkins, Janet and Mitchell, Cynthia [1999] TASSC 75 (23 July 1999)

CITATION: Coles Bay Marina Association & Anor v Hawkins & Anor [1999] TASSC 75

Local Government - Appeals - Tasmania - Resource Management and Planning Appeal Tribunal - Whether failure to state reasons for conclusions.

Kain v Glamorgan/Spring Bay Council & Ors A19/1996; Barnett v Gulf Industries Pty Ltd [1999] TASSC 4; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; D P & L J Krushka Pty Ltd v Peacock & Ors 92/1997, followed.

Pettitt v Dunkley [1971] 1 NSWLR 376; Pacific Seven v City of Sandringham [1982] VicRp 14; [1982] VR 157, considered.

Roberts Limited v Barker 137/1998, distinguished.

Judgment Number: [1999] TASSC 75

COLES BAY MARINA ASSOCIATION and JOHN GEORGE MIEDECKE v

1 On 31 August 1998, an application by Coles Bay Marina Association, signed by John George Miedecke, was lodged with the Glamorgan/Spring Bay Council ("the Council") seeking permission to develop a marina in waters adjacent to, and forming an extension of, an old stone jetty at the end of Jetty Road at Coles Bay. It was proposed that the marina would accommodate approximately 25 boats. The nature of its dimensions and structure were described by the Resource Management and Planning Appeal Tribunal ("the Tribunal") in its decision dated and published 4 March 1999. There is no need to reproduce that description in detail for present purposes; suffice it to say that it was proposed that the marina would be composed essentially of granite blocks and concrete and would incorporate in its structure, a breakwater to provide protection against heavy weather from the south and west.

2 The Council received and considered objections to the proposed development from (inter alia) the two present respondents. On 10 November 1998, the Council granted a planning permit to the Coles Bay Marina Association and on 30 November 1998, the respondents lodged a notice of appeal against the Council's decision with the Tribunal. The appeal was heard at Hobart on 8 February 1999 and on 4 March, the Tribunal delivered its decision. The Tribunal upheld the appeal and ordered that the Council's permit for the proposed development be set aside and be replaced with a refusal. The developers have now appealed to this Court, pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s25 ("the Act") asking that the Tribunal's decision be set aside and that the matter be remitted to the Tribunal, differently constituted, with appropriate directions.

3 The grounds of the current appeal are as follows:

"1 The Tribunal erred in law in that it failed to state or to adequately state its reasons for reaching the following conclusions:

(a) that the marina would constitute a major and significant detrimental intrusion into the views from the Coles Bay township area;

(b) that the consideration of the effect of the marina on the quality of outlook from the Coles Bay township area was of significantly greater weight than any other relevant considerations in the case; and

(c) that on the basis of the consideration of the effect of the marina on the quality of outlook from the Coles Bay township area it was positively persuaded that the development ought not be allowed to proceed.

2 The Tribunal erred in law in that it asserted its satisfaction on the question of the significance of the detriment of the marina on views across Coles Bay without differentiating between the competing expert opinions adduced by the opposing parties to the appeal and without stating the grounds which led to its apparent acceptance of the evidence adduced on behalf of the first and secondnamed respondents.

3 The Tribunal erred in law in that it failed to state why or how the consideration of quality of outlook from the Coles Bay township was determinative of the appeal on the planning considerations which were relevant to the exercise of the discretion to grant or refuse planning approval.

4 Alternatively the Tribunal in breach of the rules of natural justice acted upon its own opinion as to the effect of the proposed marina on the quality of outlook from the Coles Bay township area notwithstanding expert opinion evidence to the contrary and failed to advise the appellant that it proposed to do so and invite further submissions.

5 Alternatively the Tribunal in breach of the rules of natural justice failed during the course of the proceedings to clearly raise with the appellant the consideration of the effect of the proposed marina on the quality of outlook from the Coles Bay township area before proceeding to decide the case upon the basis of that consideration."

The appeal came before me for hearing on 24 June 1999. Counsel for the appellants then indicated that ground 5 of the appeal was abandoned.

4 The appellants' primary complaint was that the Tribunal had not given adequate reasons for its decision as required, both by the Act, s24, and the common law. It was contended that the Tribunal had failed to give reasons for its actual decision and it had failed to give reasons for its apparent acceptance of the evidence of one expert witness called by the respondents, as opposed to the evidence of three experts called before the Tribunal by the appellant. It was also argued that, if the Tribunal's decision could not be explained simply on the basis of its accepting the respondents' expert, it must be inferred that it had "gone off and formed its own opinion about view fields without canvassing its observations with the parties". Finally, it was submitted that the Tribunal was in error in failing to specify how its findings about view fields and the size and artificiality of the marina structure had resulted in a refusal of the permit, having regard to the relevant provisions of the Glamorgan Planning Scheme 1985 and the State Coastal Policy 1996.

5 The Tribunal's decision does not indicate whether or not the three members of the Tribunal, or any of them, attended the Coles Bay area for the purpose of taking a view. It would be surprising if they did not, having regard to the nature of the application before them and the jurisdiction that the Tribunal is required to exercise, but there was no evidence about this matter. It was conceded by counsel for the appellants that if the Tribunal had visited Coles Bay to assess the likely visual impact of the development upon its undoubted aesthetic qualities, this would have been a permissible course. It was also conceded that if the Tribunal had done this, it would have been quite entitled to substitute its own opinion for opinions expressed by witnesses during the hearing before it. Mr Estcourt QC submitted, however, that if the Tribunal acted in either of those ways, it should have said so in the reasons.

6 The Tribunal's decision is just over four pages in length. It describes the development proposal in detail and describes the ancillary works and facilities which would be necessary for its operation. The Tribunal reviewed the nature of the representations which were made in opposition to the development, including the anticipated interference with the visual environment which the marina would constitute. The Tribunal also referred to the permit which had been granted by the Council, and the conditions of the permit. The Tribunal referred to the provisions of the Glamorgan Planning Scheme 1985 which were applicable to the area in question and referred, in particular, to passages in the Scheme requiring the Council to have regard to protection of the areas important to the natural character of the general municipality and an obligation to retain areas of important visual amenity and visual corridors in dealing with any development application. It also referred to provisions in the Scheme requiring recognition that in the rural zone, rural lands are significant areas where the natural beauty of the landscape may be enjoyed. It referred to other provisions of the Scheme relating to the necessity for developments to take account of landscape features and natural settings. The Tribunal also referred to the State Coastal Policy 1996, including, in particular, par2.1.3 which requires siting, design, construction and maintenance of buildings, engineering works and other infrastructure, including access routes within the coastal zone, to be sensitive to the natural and aesthetic qualities of the coastal environment. It was not disputed by the parties that the State Coastal Policy 1996 was applicable to the development under consideration.

7 The Tribunal, in its reasons, then passed on to a consideration of the function that the marina would fulfil as a safe facility for boats. It referred to evidence which had been given that the waters of Coles Bay, being open to the south and west, were particularly vulnerable in the event of storms or heavy winds from those directions. It noted that the marina was intended to provide a permanent mooring for 25 of approximately 40 boats which are normally moored in Coles Bay at the present time and also that the marina was capable of affording shelter for others which could be taken into the area in the event of a threatening storm. The Tribunal commented:

"The Tribunal accepts that evidence and that the effect of the marina would be to provide a safe and convenient anchorage in those terms."

8 The Tribunal's decision then proceeded as follows:

"13 On the evidence, Coles Bay is also one of the principal Tasmanian beauty spots. There are views from the Coles Bay township area across Coles Bay to the Hazards, and from the Hazards area across back to Coles Bay. There are also views to the general south west from the Coles Bay beach. The views from the Coles Bay township area across Coles Bay to the Hazards, are outstanding. They are a major aspect of the visual quality of the area. Principal vantage points from which those views are enjoyed by the public are the area of the loading ramps to the north of the proposed marina area, and from the existing breakwater. There are also views, which on the evidence are less frequently enjoyed, from the foreshore between those two points. The Tribunal accepts that evidence and finds accordingly. The Tribunal is not persuaded by the applicant's evidence that those points are not significant vantage points.

14 The proposed marina structure would extend parallel to the shoreline running between the launching ramps and the existing breakwater, to approximately three quarters of the distance from the existing jetty to the launching ramps (if the maximum projected length of the marina is reached). The bulk of it would be at least 2 metres and possibly 3 metres high. Along it would be moored up to 25 vessels at a time. There could as proposed be motor vehicles parked along the marina. It was conceded on behalf of the applicant that the presence of the motor vehicles would be visually inappropriate. The applicant however contended that the effect of the marina upon the view from the above vantage points, across Coles Bay to the Hazards, would not be a significant detriment. Evidence was called from a planner, and was given by the applicant's environmental engineer. Evidence to the contrary was given on behalf of the appellants. The Tribunal has no doubt, and finds, that the marina, even without motor vehicles parked on it, would constitute a major and significant detrimental intrusion into the views from the Coles Bay township area, particularly the above vantage points, across Coles Bay to the Hazards area. The structure would be obviously artificial, and massive in extent, and the Tribunal finds would be incompatible with the existing visual quality of the area.

15 Views of Coles Bay township from the east and south east are at a distance, and already show a landscape with significant man made structures. The Tribunal does not consider that views of Coles Bay township from the east and south east would be appreciably adversely affected.

16 Evidence was given on behalf of the applicants that water quality would be unlikely to be adversely affected within the area of the marina. There was no appreciable evidence to counter this from the appellants, although the evidence was challenged. Evidence was also given on behalf of the applicants that it would be unlikely that, save and except for the sea floor immediately under the marina, the nature and quality of the sea floor or the flora and fauna on it, would be adversely affected. Again there was no appreciable evidence to the contrary and again the evidence was challenged. The appellants invoked the 'precautionary principle' as identified in Section 2.1.3 and Section 2.1.5 of the State Coastal Policy 1996. The Tribunal does not on the evidence make any finding that the construction of the marina would be likely to lead to appreciable interference with the flora and fauna, or water quality, or the nature of the sea floor, within the area.

17 Other matters were raised against the proposed development, by the appellants. The Tribunal however considers that the matters considered above, are the matters of principal significance with respect to the proposal.

18 The matters raised with respect to boating safety are significant. At the same time, it does not follow that every area where persons wish to moor their vessels, and which is unsafe, is therefore automatically one which it is appropriate to make safe. It may be necessary to consider whether the vessels should be permanently moored in an exposed place. There are other considerations. In the present case the major other consideration is the effect upon the quality of the outlook from the Coles Bay township area. The Tribunal finds that consideration to be of significantly greater weight than any of the other relevant considerations, in this case. On that basis the Tribunal is positively persuaded that the proposed development ought not be allowed to proceed."

9 It will be noted that the Tribunal was of the view that even without motor vehicles being parked on the marina, the structure would constitute a major and significant detrimental intrusion into the views from the Coles Bay township area. Therefore, it cannot be suggested in this case and, indeed, was not suggested, that the Tribunal refused the application in its entirety, rather than modifying the conditions upon which the permit had been granted, simply to exclude motor vehicles from the marina area (cf Kain v Glamorgan/Spring Bay Council & Ors A19/1996). It will be seen that the Tribunal's decision was based entirely upon its perception that the proposed development would constitute a major and significant detrimental intrusion upon relevant views because of its artificial and massive characteristics. It will also be seen that the Tribunal regards these detrimental factors as outweighing other relevant considerations, such as the provision of a safe haven from southerly and westerly storms. It was not suggested by the appellants that the Tribunal was not entitled to base its decision upon aesthetic issues of the kind referred to in its decision, nor was it suggested that the Tribunal was not entitled to balance those considerations against competing considerations in the way that it did.

10 Counsel for the appellants complains that the Tribunal did not discuss the evidence, including photographic evidence, which was tendered during the hearing, and which indicated the nature of the intrusion of the proposed structure from the vantage points described. It was submitted that these vantage points offered a very select and limited view field which had been adverted to in the evidence of Mr Miedecke, himself, Mr Shield, a town planner called by the developer, and evidence given by Mr Ian Stanley, a town planner, employed by the Glamorgan/Spring Bay Council. It will be noted that the Tribunal's reasons refer to "evidence called from a planner and the applicant's environmental engineer" without naming those witnesses. This is an obvious reference to Mr Shields and Mr Miedecke. However, the evidence of Mr Stanley is not referred to at all. The following passage from the proof of evidence of Mr Stanley contained at pages 133 - 134 of the appeal book, encapsulates the view which the appellants were urging upon the Tribunal throughout the appeal, and is similar to the opinions expressed by both Mr Miedecke and Mr Shield, as to likely visual impact.

"The matter of the natural beauty and landscape is one that needs some consideration. There is no doubt that the things that attract visitors to the Coles Bay area are the natural beauty and landscape. Whilst the most significant of these would be The Hazards and the other peaks in the Freycinet National Park, the beaches, headlands and bay form a part of the whole natural beauty of the area.

Whilst there are areas of unspoilt natural beauty the area has been modified by modern man. The foreshore of the bay has been changed over the years with boat ramps, breakwaters and jetties being built. This has resulted in a landscape of Coles Bay being a mixture of natural and man made features. This does not mean, however, that given that the landscape is a mixture of natural and man made features that further changes should occur without assessing the impact on the area as a whole.

There is no doubt that there will be an impact. The degree will depend on from where the marina is viewed and the context in which it is viewed. The view from the Lodge will be of the structure and the boats and the town in the background. As such, the context is one in which the marina appears part of a man made environment and not an isolated or foreign element in the landscape. Similar views would be encountered from The Fisheries and possibly the Wine Glass Bay Track however, the distance is greater and smaller elements will not be as visible.

From the deck of the existing jetty (the concrete deck) itself there will be an obvious visual impact. Views towards the Hazards, Richardsons Beach or the Lodge will be partly obscured because of the height of the breakwater. However, this is not the only view of these areas and from on top of the breakwater the view would be improved, providing a vantage point for vistas of Coles Bay and Freycinet National Park.

Other views around the immediate area such as those from the nearby dwellings, which are elevated and partly obscured by vegetation, will not be impacted on in any significant way. The breakwater structure and the boats moored at it will be visible but will not obscure views or be a dominant element in the vista."

11 A contrary view as to the extent of visual impact was expressed by Mr R J Graham, a town planner, who was employed by the respondents and appeared for them, both as advocate and witness, during the proceedings. It is legitimate to observe, I think, that fair minded individuals could well disagree with the Tribunal's assessment that the limited visual impact suggested by the evidence outweighed the undoubted benefits as a community facility and as a safe haven for boating enthusiasts cruising the magnificent waters of the East Coast, but it must be borne steadfastly in mind that the Tribunal is the body entrusted by the Parliament with the duty of controlling development applications of this kind and an appeal against the Tribunal's decision to this Court can only succeed if the error attributed to the Tribunal amounts to an error of law. It is to this question that I therefore turn.

12 Since Pettitt v Dunkley [1971] 1 NSWLR 376, there have been many judicial expositions of the nature of the obligation upon statutory tribunals and other bodies acting judicially to give reasons for decisions made by them. Any failure to give adequate reasons will constitute an error of law. In Kain v Glamorgan/Spring Bay Council & Ors (supra) at 13, I said:

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

13 In a more recent decision, Cox CJ, in Barnett v Gulf Industries Pty Ltd [1999] TASSC 4 at par12, observed that the extent to which the reasoning process is required to be exposed in such reasons, will vary from case to case. As I have already mentioned, an appeal to this Court from the Tribunal is available only in respect of errors of law. One of the most useful discussions of the obligations imposed upon a tribunal from which appeals to a court are limited to questions of law, is to be found in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In that case, Mahoney JA, quoting from an earlier decision of his, Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, said this:

"In determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should, in my opinion, be had to the function to be served by the giving of reasons. Thus, the statement of reasons may be necessary to enable a party to exercise his right of appeal or such other rights, as he may have to contest the decision: this is one of the conventional functions of the requirement: see Pettitt v Dunkley (at 387, 388). But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process. However, the fact that the function of the requirement is, at least in part, to allow a party to exercise appeal rights is of significance in determining the extent of the duty and what will be a discharge of it. Thus, in some cases where ordinarily an appeal is not contemplated, there may not be a need for reasons. Thus, in England, it has been said that reasons need not be given in certain procedural applications: see Capital and Suburban Properties Ltd v Swycher [1976] Ch 319 at 325, 326. In such cases, and in cases of, eg, applications for leave, where the considerations of fact and law are clear, reasons need not ordinarily be given.

Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard: see O'Hara v Evans (Court of Appeal, 23 September 1976, unreported); Colacicco v Colacicco (Court of Appeal, 15 March 1977, unreported). The Privy Council has said that, in criminal matters, it is not necessary for a judge to refer in his judgment to every possible defence: he may, for example, consider a defence 'too plain for argument' and put it aside: see Mohamed Kunjo s/o Ramalan v Public Prosecutor [1979] AC 135 at 142. Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies 1 [1983] WLR 585 at 587, 588; [1983] 1 All ER 824 at 826.

But, subject to matters such as these, the basis of the decision of a trial judge or of an intermediate court of appeal should be made apparent. This does not mean that the reasons given need be elaborate: an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it."

Mahoney JA then went on to make the following observation at 271:

"In my opinion, the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion."

"If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given: Wright v Australian Broadcasting Commission (at 701, 713). In Iveagh (Earl) v Minister of Housing and Local Government [1964] 1 QB 395, Lord Denning MR, speaking of a Minister's duty under the Tribunals and Inquiries Act 1958 (UK) to furnish 'the reasons for the decision', declared (at 410) that:

'... The whole purpose of the enactment is to enable the parties and the courts to see what matters he has taken into consideration and what view he has reached on the points of fact and law which arise.'

The content of the duty of a judge to give reasons is not dissimilar from the duty of a party to give particulars of a claim or defence. In R v Associated Northern Collieries Ltd [1910] HCA 61; (1910) 11 CLR 738, Isaacs J said (at 740) that the fundamental principle concerning particulars was:

'... that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability.'

Moreover, I agree with the statement by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (at 386) that the extent of the duty to give reasons is related 'to the function to be served by the giving of reasons'. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal. In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done."

Somewhat contrary opinions to these were expressed by Kirby P at 258 - 259, but he was in the minority.

14 In the present case, it is perfectly clear that the Tribunal's decision to disallow the proposed development was based upon its strongly expressed opinion that the marina would have a significant negative impact upon an extremely picturesque part of the State. As Marks J observed in Pacific Seven v City of Sandringham [1982] VicRp 14; [1982] VR 157, "Planning is a difficult exercise with flexibility an essential ingredient" and as Zeeman J observed in D P & L J Krushka Pty Ltd v Peacock & Ors 92/1997 at 14, "Many decisions made by a tribunal of this kind involve it making a valued judgment." His Honour also said:

"The discretion is conferred upon the Tribunal. It is not a matter for expert opinion how that discretion is to be exercised. Any such evidence usurps the role of the Tribunal. Relevant planning principles are properly the subject of expert evidence. The ultimate conclusion which should be arrived at by reference to the Scheme and the evidence is a matter entirely within the province of the Tribunal."

His Honour also had occasion to comment upon the role of expert witnesses in planning matters, saying (at 15):

"Merely because a witness is qualified to give expert opinion evidence in a particular discipline, it does not follow that all evidence given by the witness is expert opinion evidence. There appears to be an unfortunate tendency in planning matters for expert witnesses to give extensive evidence as to the contents and construction of a planning scheme. Such a scheme speaks for itself and it is for the Tribunal to construe it."

This is a timely reminder that expert planners or engineers are not necessarily experts on matters of aesthetic beauty. "Beauty is in the eye of the beholder", according to the well known cliché, and it is undoubtedly within the province of the Tribunal to form its own opinion as to the impact which a development may have upon the aesthetic qualities of a particular area. To what extent the Tribunal considered and gave weight to the opinions as to visual impact which were presented before it, is not clear, and it seems highly likely that it acted upon its own collective assessment that the marina would constitute a massive intrusion into the picturesque qualities of Coles Bay. There is no reason for concluding that the Tribunal ignored the views of the various witnesses, but those views were not necessarily of any particular weight. No ground of appeal would have been afforded to the appellant if the Tribunal had said it accorded no weight to such opinions. On issues such as this involving a subjective evaluation of that somewhat intangible, but important, quality, it is difficult to see what more could have been said by the Tribunal to explain its decision. It could perhaps have said, "Our opinion as to the extent of visual impact and destruction of aesthetic qualities of the area coincides with those expressed by Mr Graham", but, in my opinion, it was unnecessary to do so. Its stated reasons made it quite clear that it shared Mr Graham's general conclusions on this issue. The observations of Mahoney JA in Soulemezis at 273 - 274 serves to illustrate the point I am making. He said:

"There is, I think, no formula the application of which to the instant case will indicate what, in that case, the judge must do. Where, in the decision of an ordinary dispute, reasons are necessary, they are necessary because of the expectation that, being a judicial decision, a sufficient explanation will be given of why the order was made. And, in my opinion, it will ordinarily be sufficient if - to adapt the formula used in a different part of the law: see R v Associated Northern Collieries [1910] HCA 61; (1910) 11 CLR 738 at 740 - by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.

To require that a judge detail the way in which he has reasoned step by step to his conclusion is, in my opinion, to mistake the nature of the reasoning process. In the present case, as I have said, the objection made to what the judge did is that he did not explain, or explain with sufficient clarity, how the CAT scan could and did lead him to the conclusion that after 17 January 1984 the worker's condition changed. Conclusions of that kind are not arrived at by syllogisms. Syllogisms may lead to a conclusion of that kind: more often, their role (if they have one) is as the auditor of the reasoning processes and of the conclusions already arrived at by other processes.

This is not the occasion to examine in depth the nature of the reasoning which a judge will follow in arriving at a conclusion of fact. In Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at 222, I referred to this and to the consideration which has been given to it in cases and writings.

The weight which a judge will give to the evidence of a witness will often be not capable of rationalisation beyond the statement: having heard him, I am not satisfied that I should accept what he says. The weight which a judge gives to a particular fact may be affected by, as it has frequently been put, his experience and, in particular, his experience of the significance of that fact in the order of things. It was this to which reference was made in Morgan v Babcock and Wilcox Ltd [1929] HCA 25; (1929) 43 CLR 163 at 173 and Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375, in referring to 'general human experience' and the like. In explaining the weight which he has given to a fact in a particular decision of fact, the judge is not, I think, required to detail why he sees, for example, the significance of a CAT scan, as being greater than, for example, the opinion of a particular treating doctor. His reasons, in the particular case, may partake as much of intuition based on experience as on formal and deductive reasoning.

That leads to, as I have described, the subjective element in the fact finding process. A fact is found in a particular case if the judge is satisfied that it is so. In many matters - and the weight to be given to a fact in the process of assessing facts is one of these - whether a judge is so satisfied in the sense required by Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, may depend upon matters subjective to him as well as upon matters common to judges. I do not mean by this that decisions are, or are to be, made upon the basis of matters essentially idiosyncratic to the particular judge. The determination of facts is assumed to be objective. But it would be to misunderstand the basis of a decision, and in particular decisions in matters of assessment, weight and the like, to assume that decisions can always, or perhaps ordinarily, be justified by objective rather than subjective considerations. And, if such be true of the reasoning process, it is, in my opinion, a mistake to conclude that a judge should or can set forth the reasoning process he has followed from one fact to another."

15 The existence or non-existence of beauty is a factual issue, it is not a question of law, and when one considers the observations of Mahoney JA to which I have just referred, there is little difficulty in concluding that the Tribunal has adequately expressed its reasons for the conclusion to which it came. Its failure to quote from, or refer to, the evidence of Mr Stanley in the passage which I have set forth above, does not, in my opinion, vitiate its decision. Mr Stanley's views about the visual impact of the development are no more valid or compelling than those of any other witness. The views which he expressed raised the very issue which the Tribunal in fact considered. This was not a case involving resolution of disputed issues of credit (cf Roberts Limited v Barker 137/1998) and, in my opinion, no legitimate criticisms can be made of the fact that the Tribunal saw the preservation of the picturesque qualities of Coles Bay as outweighing the more material values and benefits which the developers claimed the marina would provide.

16 In my opinion, the Tribunal adequately identified the issues and briefly, but adequately, reviewed the substance of the evidence relating thereto. The decision involved its making a choice between established advantages and disadvantages of allowing the development. It provided an explanation of the values which led it to make the decision which it did. In my opinion, all four grounds of the appeal fail and the appeal must be dismissed.

Coles Bay Marina Pty Ltd v Hawkins, Janet and Mitchell, Cynthia [1999] TASSC 75

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Coles Bay Marina Pty Ltd v Hawkins, Janet and Mitchell, Cynthia [1999] TASSC 75 (23 July 1999)

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Cases Cited (9)