[2011] TASSC 72

APPEALED FROM: L W and G M Gibson, B W and K W Smith, K M Ford and R M Connock v Glamorgan Spring Bay Council and R J and S J Krulow [2010] TASRMPAT 199

Environment and Planning - Consents, Approvals and Permits - Modification - Generally - Provisions for a combined process of amending a planning scheme and granting a permit - Power in planning authority to amend a permit granted as a result of combined process - Amendments permitted where no change to the effect of the decision, no increase in detriment to any person, and no change to the use or development - Meaning and application of each criterion - Whether errors of law in approach of Resource Management and Planning Appeal Tribunal on appeal from planning authority.

Land Use Planning and Approvals Act 1993 (Tas), ss43H(1), 43K(2).

Glamorgan Spring Bay Council: (Notice of submission)

Respondents R J and S J Krulow: S B McElwaine & Associates

Judgment Number: [2011] TASSC 72

L W GIBSON and G M GIBSON, B W SMITH and K W SMITH,

AND PLANNING APPEAL TRIBUNAL, R J KRULOW, S J KRULOW, GLAMORGAN SPRING BAY COUNCIL

1 This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal dismissing an appeal to it from a decision of the Glamorgan Spring Bay Council. The decision of the Council was to allow amendments to be made to a conditional permit granted in 2008 by the then Resource Planning and Development Commission ("the Commission"). The permit related to a stone processing business operated by R J and S J Krulow at Cruttenden Street in Buckland. I will call them "the respondents" as they are the true contradictors in this appeal, the Council having submitted to the Court's jurisdiction. The appellants are L W Gibson, G M Gibson, B W Smith, K W Smith, K M Ford and R A Connock who live in, or adjacent to, Cruttenden Street. Essentially, the dispute centres on conditions which deal with environmental issues concerning the business; principally noise, dust and visual impact.

2 The starting point is a consideration of some provisions of the Land Use Planning and Approvals Act 1993 ("the Act"). The former Commission is now the Tasmanian Planning Commission, but for all intents and purposes the provisions are the same as they were at relevant times, and I will simply use the word "Commission". Section 33 enables a person to request a planning authority to amend a planning scheme administered by it. Upon such a request, the planning authority is to make a decision as to whether or not to initiate an amendment. Where it decides to do so, it must go through a procedure of certifying the draft amendment to ensure compliance with s31, and it then refers the question of the draft amendment to s35. There follows a process of public exhibition, the receipt of representations, and the consideration by the Commission of the draft amendment and the representations; ss38, 39 and 40. The Commission may require the planning authority to modify, or alter to a substantial degree the draft amendment, or it may reject it; ss41 and 41A. Under s42, the Commission may approve the draft amendment. Sections 57 and 58 enable applications to be made for discretionary permits in respect of the use or development where respectively, the permit is a discretionary one, or is bound to be granted either unconditionally or subject to conditions or restrictions.

3 Division 2A of Part 1A of the Act provides for a combined permit and amendment process. That is what occurred in this case on the application of the respondents. Section 43A(1) enables a person who requests a planning authority to amend a planning scheme, to also request the planning authority to consider an application for a permit which would not be allowed if the planning scheme were not amended as requested. Under s43A(2), where a planning authority has decided to initiate an amendment under s33, it may consider any application for a permit under s43A(1) concurrently with the preparation of the requested amendment to the planning scheme. When that happens, the same public exhibition and representation process is provided for. Under s43F, the planning authority is to determine the application for the permit, and may grant it unconditionally or subject to conditions or restrictions, or may refuse to grant it.

4 When the question of the draft amendment to the planning scheme comes before the Commission, s43H applies. That section is as follows:

"43H Review of planning authority's decision referred to in section 43F

(1) At the same time as the Commission makes its decision to reject or approve the draft amendment, it must -

(a) confirm the decision of the planning authority under section 43F(1) in relation to the permit; or

(b) if the planning authority's decision was to grant a permit -

(ii) modify or delete conditions or restrictions attached to the permit or add new conditions or restrictions to the permit; or

(c) if the planning authority's decision was to reject the permit, grant a permit subject to such conditions or restrictions as the Commission thinks necessary; or

(d) if the Commission's decision is to reject the draft amendment in accordance with section 41(b), refuse the permit.

5 Under s43H, the Commission effectively reviews the grant of the permit. The Commission is in essentially the same position as the Tribunal under s61 when dealing with appeals from the decision of planning authorities under ss57 and 58: see s61(4)[1]. That is so because the Tribunal on an appeal to it, stands in the shoes of the pleading authority as the original decision-maker.

6 In this case, the respondents' land was in the Rural Zone of the Glamorgan Spring Bay Planning Scheme in which the use classification of "General industry" (the use or development of any land for an industry not elsewhere defined) was prohibited. The respondents were carrying on their business, but this was by way of certain existing use rights. The purpose of the amendment and permit was to clarify the status of the activity and to apply contemporary conditions to that activity. The draft amendment which went to the Commission was to amend the scheme so as to provide for a specified departure in the Rural Zone for the respondents' property "to allow the otherwise prohibited use general industry for processing, selling and distributing sandstone in accordance with [the] permit ...". The permit which had been granted by the Council was one "for the use and development of a general industry being for the processing, selling and distributing of sandstone." [sic]

7 In November 2008, under s43H, the Commission made a decision on the draft amendment and the permit. What the Commission did was to avoid "spot zoning", and amended the planning scheme so as to make "General industry (processing, selling and distributing sandstone)" a discretionary use and development in accordance with the scheme, and deleted the reference to the permit. The Commission seemed to both modify conditions or restrictions which were attached to the permit granted by the Council, and added new ones. Whatever the precise detail, it is plain that the Commission proceeded under s43H(1)(b)(ii).

8 Adopting the words of the Tribunal, the Commission decided to:

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amend the Glamorgan Spring Bay Planning Scheme such that the use and development of the respondents' land (Volume 100768, Folio 1) "for the purpose of a general industry (processing, selling and distributing sandstone) shall be discretionary in accordance with Clause 4.4 of the Scheme"; and

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grant a permit allowing the land to be used as "general industry for processing, selling and distribution of sandstone and developed by the construction of sheds, signage and associated works".

9 The permit granted by the Commission included a number of conditions relating to use. Conditions which are relevant to these proceedings are set out below. At the risk of creating further confusion, throughout these reasons I will use the numbering as originally adopted by the Commission. (The Council, when amending the permit, adopted a numbering scheme which contained two paragraphs numbered "1", with the result that all conditions after number 1 were one number less than in the original. This numbering was used by the Tribunal.)

"2 The use or development must be carried out substantially in accordance with the application for planning approval and the amended site plan and shed plans attached. Amendments noted on the site plan specify the demolition of shed 2 and the setback of the proposed shed, enclosing [sic] the building a minimum of 4.0 metres from the rear boundary.

5 Noise emissions from the use or development must not exceed a time average acoustic environmental quality objective weighted sound pressure level (Leq) of 45dB(A) when measured at the boundary with another property. All methods of measurement must be in accordance with relevant Australian Standards and DPIWE (2003): Draft Noise Measurement Procedures Manual, Department of Primary Industry, Water and Environment, Hobart.

8 The setback to the wall of the proposed new shed from the rear boundary must be a minimum distance of 4.0 metres.

11 The proposed shed shall be constructed and issued with a Certificate of Completion from [the] Council's Permit Authority within six (6) months of the date of this permit coming into effect and shall incorporate appropriately insulated/lined walls to the satisfaction of [the] Council's Environmental Health officer.

18 A revised landscape plan (to that included at Appendix C of the JMG application) prepared by a landscape architect or other person approved by [the] Council's General Manager must be submitted to and approved by [the] Council's General Manager within three (3) months of the issue of a permit.

- Additional areas to be landscape along the eastern half of the southern boundary;

- Screen fencing of the southern property boundary to a minimum height of 1.8 metres; and

- As part of the works the trimming of the top of the fence on the eastern boundary to a uniform height of 2.0 metres.

19 The landscaping works must be completed in accordance with the endorsed landscape plan and to the satisfaction of [the] Council's General Manager within six (6) months of the date of this permit coming into effect. All landscaping must continue to be maintained to the satisfaction of [the] Council.

24(c) The area set aside for parking and associated access must have ... (c) an all weather pavement constructed and surfaced with a dust free surface to the satisfaction of the Council's Municipal Engineer."

10 In April 2010 the respondents applied to the Council to amend the permit. That application was made under the Act, s43K. That section is central to this appeal and it is convenient to now set out the relevant part:

"43K Minor amendment of permits referred to in section 43H

(1) The owner of land, or a person with the consent of the owner, may request the planning authority in writing to amend a permit referred to in section 43H which applies to that land.

(2) The planning authority may amend the permit if it is satisfied that the amendment -

(a) does not change the effect of any decision of the Commission under section 43H; and

(b) will not cause an increase in detriment to any person; and

(c) does not change the use or development for which the permit was issued other than a minor change to the description of the use or development.

11 The Council decided that amendments could be properly made in accordance with s43K(2). Those conditions of the permit which I have set out were altered. They were altered in the following ways, the descriptions of which I have taken from the Tribunal's reasons, but substituting the Commission's original numbering:

"Condition [2] ... - New approved plans to give effect to the other amendments were substituted [which included "amended site plan and shed plans"];

Condition [5] - a revised method of noise emission assessment was inserted;

Condition [8] - was deleted altogether;

Condition [11] - was deleted and a new condition in the following terms inserted:

'The proposed shed and modifications to the existing shed shall be constructed and issued with a Certificate of Completion from [the] Council's permit authority within six (months) [sic] of the date of this permit coming into effect';

Condition [18] - was deleted altogether;

Condition [19] - was amended to read:

'The landscaping works must be completed in accordance with the endorsed landscape plan and to the satisfaction of [the] Council's General Manager within six (6) months of the date of this permit coming into effect. All landscaping must continue to be maintained to the satisfaction of [the] Council'.

'An all weather surface [is to be] constructed to the satisfaction of the Council's Municipal Engineer'."

12 The appellants appealed from the decision of the Council to the Tribunal. The grounds of appeal were, (in the order of the paragraphs in s43K(2)), that the amendments individually or cumulatively; changed the effect of the Commission's decision made in November 2008, caused an increase in detriment to the appellants, and were not minor.

13 In its reasons, the Tribunal reviewed the site location and the planning controls to which it was subject. After accepting the proposition that the tests imposed by the three paragraphs in s43K(2) must each be satisfied for the amendments to stand (as was common ground), the Tribunal dealt first with the issues raised under pars(a) and (c) of s43K(2). Having resolved those questions adversely to the appellants, the Tribunal identified the "real issue" as whether there was an increase in detriment to any person under s43K(2)(b). The Tribunal accepted that if that was the case, the amendments could not stand. In short summary, the Tribunal said that the amendments:

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affected some of the conditions of the permit, but did not change the effect of the decision, that being one "to issue the permit for the stoneworks";

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did not cause an increase in detriment to any person because:

◊ the issue about noise was where it might be measured from, with the amendment being more likely to effectively regulate noise as it would be measured at the site of potential impact;

◊ the proposed sprinkler system would be an effective dust suppressant;

◊ the changes to landscaping would by any objective standard improve the visual amenity and impact of the site;

•

did not change the use or development for which the permit was issued other than a minor change to the description of the use or development, because there was "no change to the description of the use or development in this case whatsoever".

14 There are four grounds of appeal which raise essentially the same issues which were raised in the appeal to the Tribunal. The four grounds are directed to the Tribunal's decision as it relates to the three paragraphs of s43K(2), with grounds three and four concerning s43K(2)(c). I will set out the grounds in full as I come to deal with them.

The operation of s43K of the Act

15 There was quite a deal of discussion in argument about the scope of s43K and what it was intended to achieve. For the appellants, Mr Maher submits that the power to amend under s43K is quite limited[2]. He submits that neither the section, nor the Act as a whole, gives a broad unconfined power to a planning authority to amend a permit. Section 55 enables a planning authority to correct a permit granted by it to correct clerical mistakes and the like. Section 56, which is of some significance in this appeal because of the Tribunal's reference to it, provides as follows:

"56 Minor amendments of permits

(1) The owner of land, or a person with the consent of the owner, may request the planning authority in writing to amend a permit which applies to that land.

(2) The planning authority may amend the permit if it is satisfied that the amendment -

(a) does not change the effect of any condition required by the Appeal Tribunal; and

(b) will not cause an increase in detriment to any person; and

(c) does not change the use or development for which the permit was issued other than a minor change to the description of the use or development.

16 Of course, s43K is the same as s56, except that s56(2)(a) is confined to "the effect of any condition required by the Appeal Tribunal", as distinct from "the effect of any decision of the Commission under section 43H". At the same time as suggesting a general limited scope for amendment, the appellants point to the essential difference between the two sections, and argue that the object of focus when dealing with the change of effect, is the decision as a whole, and as such, goes beyond the conditions.

17 In support of these propositions, Mr Maher points to the pre-decision notification requirements which generally apply to applications for permits under the Land Use Planning and Approvals Regulations 2004 made under the Act. He contrasts this with the absence of any such requirements for applications under ss43K and 56, and the fact that only post-decision notification requirements exist: see ss43K(3) and 56(3).

18 The heading of the section is "Minor amendments of permits referred to in s43H". Mr Maher acknowledged that the heading of the section is not part of the Act: Acts Interpretation Act 1931, s6(4)(a). He does however submit that it accurately conveys what the section permits. As to this, there is authority for the proposition that whilst they may be a poor guide, headings and side notes may in a rare case provide some assistance where the provision is ambiguous. See the discussion in Pearce and Geddes, Statutory Interpretation in Australia, 7th ed, at 161 - 163 [4.54] and the cases cited.

19 For the respondents, Mr McElwaine says that the power is clearly one to amend a permit, and is not limited to the amendment of conditions. If it was so limited then the section would have no real work to do. However, I did not understand Mr Maher to suggest that the section was limited in that way. Mr McElwaine put that the section must contemplate amendments of some significance because planning law recognises in any event that uses and developments may be valid, notwithstanding trivial or inconsequential departures from the terms of a permit: Lever Finance Ltd v Westminster (City) London Borough Council [1970] EWCA Civ 3; [1971] 1 QB 222 at 230. Materiality is to be assessed according to the town planning consequences of the departure: Grace Bros Pty Ltd v Willoughby Municipal Council (1980) 44 LGRA 400 at 406.

20 I am not sure though that this type of analysis really assists in resolving the issues raised by the grounds of appeal. To attempt to descriptively define the type of amendment which might be permitted is not really determinative of what each paragraph requires as part of the overall exercise. That is not to deny that the construction of each paragraph, and of the section as a whole, is to be approached on the basis of context. It is plain enough that in broad terms the section is directed towards amendments which do not create something significantly or materially different in terms of the permitted use or development. It might be correct to describe the permitted amendments as "minor". But it seems to me that the extent of amendment permitted by s43K is really to be assessed by what each paragraph of subs(2) requires. That is to be discerned from the meaning of the words. The operation of subs(2) is represented by the sum of its parts, being the three paragraphs. I do not see that the sum of the end result can be either greater or less than the sum of the parts. What can be achieved is what the section permits on a proper construction of each paragraph.

21 Turning to the two different sections, it might be rather curious if it was Parliament's intention to reflect the provisions of s56 in s43K, that quite different wording was used. Section 56(2)(a), as has been seen, refers to the effect of any condition required by the Tribunal, rather than the effect of a decision. Under s43H, a decision of the Commission relevant to s43K can only be:

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a confirmation of the planning authority's decision to grant the permit - subs(1)(a);

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a modification or deletion of conditions or restrictions (implicit in which is an approval of the decision to grant the permit) - subs(1)(b)(ii); or

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the grant of a permit subject to conditions or restrictions as the Commissioner thinks necessary in the face of the planning authority's decision to reject - subs(1)(c).

22 Mr Maher handed up explanatory notes for the amending legislation by which Division 2A of Part 3 of the Act was included. The note makes it clear that s43K was intended to "mirror, as appropriate, the provisions of s56 of the Act", and included provisions for making mirror amendments to permits issued under this Division. Plainly, s43K does not mirror s56. At least insofar as subs(2)(a) is concerned, it calls for a consideration of the effect of the "decision" rather than a "condition". All I can say is that the provision must be construed by reference to what Parliament has said, as distinct from what it may be thought or wished that Parliament intended: Re Boulton; ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 518; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at 499 [55]. It is the duty of the courts to give effect to parliamentary intention, but only as it is expressed in legislation. Sometimes courts can be satisfied that the intention is not reflected in the text. "Sometimes even Parliament can miss its intended target in a manner where that target is nevertheless plain, in which event a court should endeavour, if possible, to do more than record that the target has been missed." Harrison v Melhem [2008] NSWCA 67; (2008) 72 NSWLR 380 per Mason P at [161].

23 If Parliament intended that ss43K and 56 operate in the same way, I am not able to do any more than say that such an intention cannot be found in the words. If that was the intention, it might have been expected that s43K(2)(a) would specifically refer to conditions imposed by the Commission. That can only occur under s43H(1)(b)(ii) and (1)(c). It is simply not possible to read the reference to s43 as a specific reference to those paragraphs. I cannot see any proper way in which the words "the effect of the decision" can be given the meaning of "any condition modified or thought necessary by the Commission". No doubt there is an overlap between pars(a) and (c) of s43K(2). A change to the permitted use or development might be expected to change the effect of the decision. However, that of itself would not justify reading par(a) as though it related only to conditions.

24 Before turning to the grounds, I would note that in the case of each paragraph of s43K(2), the exercise must be one of judgment involving questions of fact and degree. In each case it is a matter of looking at the changes made relevant to that paragraph, and assessing the cumulative impact.

Ground 1 - A change in the effect of the Commission's decision?

25 The relevant passages of the Tribunal's reasons are as follows:

"20 The precise power to be exercised by the Tribunal in this case is that set out in Section 43K above. The amendment made by the Council to the permit issued by the Commission issued under Section 43H of the Land Use Act are only able to be made if they do not:-

a) Change the effect of any decision of the Commission under Section 43H (ie to issue the permit); and

b) Do not cause any increasing detriment to any person; and

c) Do not change the use or development for which the permit was issued other than a minor change to the description of the use or development.

...

22 Sections 43K(2)(a) and (c) are easily disposed of. The effect of the decision under Section 43H is the decision of the Commission to issue the permit for the stoneworks. Section 43K(2)(a) contrasts with Section 56 of the Land Use Act. Section 56(2)(a) provides:-

(2) The planning authority may amend the permit if it is satisfied that the amendment -

(a) does not change the effect of any condition required by the Appeal Tribunal; ...'

23 It is a canon of orthodox statutory interpretation that where different words are used then different things are meant (see Craig Williamson Pty Ltd v Barrowcliffe [1915] VicLawRp 66; [1915] VLR 450). The decision of the Commission involves a decision to issue a permit subject to conditions. If the legislature had intended for Section 43K to operate in such a way as to preclude such amendment to the permit as to alter the effect of those conditions as opposed to the effect of the decision itself, then it would have said so as it did in Section 56(2)(a). In short, whilst some of the conditions are affected by the amendment of the permit by the Council, the decision of the Commission is not."

"1 The Tribunal erred in its construction of s 43K(2)(a) of the Land Use Planning and Approvals Act 1993 (the Act) in determining:

1.1 what constitutes the relevant decision of the Commission;

1.2 what constitutes a change to the effect of that decision; and

1.3 that the amendments the subject of the proceeding before it did not change the effect of a decision of the Commission under s 43H of the Act

27 The appellants' core argument is that the Tribunal failed to correctly interpret what was required by s43K(1)(a). The argument is that the Tribunal took the view that the "decision" of the Commission was the granting of the permit itself, and did not extend to the conditions attached to that permit. That is, the "decision" was constituted by the words enabling the use and development, but not also by the conditions governing the way in which those things could be done. The appellants say it follows that the Tribunal did not undertake the task allocated to it.

28 In my view, the "decision" as referred to in par(a) of s43K(2), can only be the overall decision made by the Commission. There is no warrant at all to segment it. So in this case, the decision would be the grant of the permit, or more correctly the implied confirmation of the grant, together with the modifications and additions to the conditions which were made. I did not understand the respondents to argue to the contrary. There is nothing to suggest that the word "effect" has anything other than its ordinary meaning of "something accomplished, caused or produced; a result, a consequence.": New Shorter Oxford English Dictionary 1993. Also, "that which is produced by some agency or cause; a result; a consequence": The Macquarie Dictionary Online. The task under subs(1)(a) must, I think, be one of establishing what the effect of the decision was, examining the nature of the amendment, and then determining whether those amendments brought about a change in effect.

29 It seems to me that the effect of the decision of the Commission in the sense which I have described it, was to enable the respondents to carry out the processing, selling and distribution of sandstone, and to develop the site in the specified way, with all of that being subject to particular constraints and limitations imposed by the conditions. Those constraints and limitations form part of the effect.

30 In support of the argument that the Tribunal misconstrued the provision, the appellants highlight the following passages in the reasons:

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the reference in par[20] to the decision being one "to issue the permit";

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the similar reference in par[22] to the "effect of the decision ... is that the decision ... not to issue the permit for the stoneworks";

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the reference in par[22] to s56(2)(a) of the Act;

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the statement made in par[23] that if the legislature had intended s43K to operate in such a way as to preclude amendments to the permit so as to alter the effect of those conditions, as opposed to the effect of the decision itself, then it would have said so as it did in s56(2)(a);

•

the concluding statement that "whilst some of the conditions are affected by the amendment of the permit by the Council, the decision of the Commission is not".

31 The appellants say it is clear from the statements that the Tribunal took the view that the decision was the grant of the permit and did not include the attached conditions. Mr Maher criticised the Tribunal's reference to "a canon of orthodox statutory interpretation" and the reference to Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450. That case, it was pointed out, concerned use of the same words, not different words, and in any event the so-called canon of statutory interpretation was a rebuttable presumption. It was pointed out that the proper approach is that where there are different words, it serves to show that Parliament had in mind different things. All of this is true. Its significance really is that it highlights the distinction drawn by the Tribunal between "the decision" and "conditions", and that it only focused on what was encompassed by the grant of the permit, and not by the conditions and restrictions.

32 Mr McElwaine urged me to bear in mind the clear and authoritative admonitions to read the reasons of administrative tribunals in a fair and balanced manner, and not to subject them to overly close legalistic scrutiny with a view to discerning error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, 291; Roncevich v Repatriation Commissioner [2005] HCA 40; (2005) 222 CLR 115 per Kirby J at 136 [64]; Attorney-General (Tas) v Cameron [2007] TASSC 22 at [9].

33 I think that the Court should be slow to ascribe to the Tribunal, the meaning of its reasons as contended for by the appellants. The error asserted is of such a nature that I would be reluctant to conclude that an experienced tribunal interpreted the provision in such a way. Mr McElwaine suggested that the reference in the last sentence of par[23] to the "decision" should be read as "the overall decision", or the compendious one, being the implied confirmation of the grant of the permit, together with conditions and restrictions. However, that construction is clearly negated in my view by the immediately preceding sentence: "If the legislature had intended for Section 43K to operate in such a way as to preclude such amendment to the permit as to alter the effect of those conditions as opposed to the effect of the decision itself, then it would have said so as it did in Section 56(2)(a)." There, the contrast is clearly drawn between the effect of conditions, as opposed to the effect of the decision itself.

34 Mr McElwaine accepted that the Tribunal's reference to s56 was an "unfortunate excursion", and a "distraction which should be put to one side". He also argued that I should have regard to the discussion and findings which occur following the point in the reasons, at which the Tribunal defines the definition of the "real issue" as being the increase in detriment under subs(2)(c). He says I should ignore the headings and formatting of the reasons, and infer from that discussion that the Tribunal has properly looked at the effect of the conditions in carrying out its task under subs(2)(a). I do not see that approach as reasonably open. It is quite clear to me that the Tribunal has dealt with subs(2)(a) in pars[22] and [23] of its reasons. It speaks of subs(2)(a) and (c) being "easily disposed of", and after dealing with subs(2)(a) in par[23], immediately leaves the issue. The changes to and deletions of conditions 2, 8, 11 and 24(c) were not expressly dealt with in relation to the detriment issue.

35 To me, it seems impossible to read the words of the Tribunal in any way other than as argued for by the appellants. Taking the "decision" as that relating to the permit itself, confines a consideration of the effect to generally what was permitted by way of use and development, and excludes the manner in which those things were to be conducted and carried out. Even then the Tribunal did not deal with changes which might fairly be regarded as connected with the permitted use and development, as distinct from conditions which govern those things. It follows that the appellants have shown an error of law which has led to the Tribunal failing to undertake the task allotted to it.

36 Mr McElwaine's alternative submission is that if I took that view, then I should hold that the error of law was not a material or vitiating error, applying statements in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. In that case, Mason CJ said at 353 that a decision did not involve an error of law "unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different". In the same case Toohey and Gaudron JJ said at 384 that for an error of law to be involved in a decision something more than the mere occurrence of error is necessary. "The error must have contributed to the decision in some way or, at the very least, it must be impossible to say that it did not so contribute." Their Honours said that an error is not involved in a decision if it did not contribute to the decision, or if the decision must have been the same regardless of the error, and that to show an error of law "it is necessary, at the very least, to show that the decision may have been different if the error had not occurred".

37 As to what was involved in a material error of law, in Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298, Allsop P carried out an extensive review of the authorities. His Honour considered that there was no inflexible approach requiring an appellant to establish positively that the decision would have been different had the error not occurred. At [26] he said:

"26 ... To establish 'vitiation' one does not need to establish that the decision would have been different. What must be established is that the error is sufficiently material or operative to warrant the large step of setting aside in whole or in part the decision below. ... Depending on the nature and quality of the error, its relationship to the issues and the extent and quality of the reasoning of the tribunal an assessment must be made of the importance of the error and the degree of affectation of the decision. The burden or degree of persuasion will depend upon the circumstances of each case."

38 At [27] his Honour said "If, however, the error goes to the heart of the cognitive and evaluative process and one cannot be satisfied that it did not play a relevant or material part in the decision then the appellant has established that the decision is vitiated". There was no agreement from the other members of the court as to where the onus of proof lay and precisely what was constituted a material error. Tobias JA at [132] - [138] said that material error was one on which the decision depended, and that the formulation of Allsop P involved proof of a negative and put the onus on a respondent. Sackville JA at [193] - [199] discussed the various issues but in the end, found it unnecessary to decide between the various approaches. However, in Halley v Minister Administering the Environmental Planning and Assessment Act 1979 [2010] NSWCA 361, Tobias JA (Giles and Hodgson JJA agreeing) seemed content to adopt the approach of Allsop P in Caruso, and looked at whether the error went to the heart of the cognitive and evaluative processes, and whether one could be satisfied or not that the error did not play a relevant or material part in the decision: see [77] - [78], [84].

39 In this case, I have held that the Tribunal was wrong in law to the extent that it failed to apply the proper test and to deal with the task which it was required to carry out. This is an appeal confined to errors of law; it is not an appeal by way of rehearing. I am not able to make findings of fact for myself, and in any event I do not have all of the evidence. In those circumstances I think it would be a rare case in which a court could say that such an error of law was not a material error. The error goes to the heart of the process. Without more it would be very difficult to be satisfied that the error was such that the result would have been the same. Without more, one could readily be satisfied that the result might have been different.

40 For a court to come to the view that an error as has occurred in this case is not a material error, it would have to be able to identify in the tribunal's reasons findings of fact and the resolution of other purely factual questions, in order to satisfy itself that the outcome would have been the same or at least, that there was no real possibility of it being different. Mr McElwaine urged me to look at the findings of fact made by the Tribunal in relation to the issue of detriment in what was basically a repetition of the argument, but in a different context to the one which I have already dealt with in par[34] above. As earlier noted, not all the changes to, and deletions of, conditions were dealt with, at least expressly. Whilst I might think that if the matter is remitted to the Tribunal, the same result would be achieved, that is not, of course, the proper approach. The appellants are entitled to have their appeal to the Tribunal dealt with in accordance with the law. On the material, I am not able to say, having regard to the findings of fact and other resolution of factual questions, that if the Tribunal had correctly identified the test and applied itself to the task, the result would not have been different. The error is sufficiently material or operative to warrant setting the decision aside.

Ground 2 - An increase in detriment to any person?

42 It is necessary to set out in full, the Tribunal's reasons in relation to s43K(2)(b):

"26 This issue can be broken down into three areas: noise, visual impact and dust. In addition it must be concerned with detriment in the sense of a negative impact upon amenity. The type of amenity that can reasonably be expected to be enjoyed has already been discussed earlier in these reasons. It is not the equivalent of say that which might be enjoyed in a rural residential zone or in a suburban area. Also when performing this normative exercise it is necessary, in our view, to be satisfied that any 'increase' is measurable or appreciable; real or tangible. Any other approach would emasculate Section 43K(2)(b) for it would mean that any increase in detriment, no matter how miniscule, would mean that a permit could never be amended by a Council, whatever the circumstances, once issued by the Commission under Section 43H. The assessment of whether there is an increase in detriment must also be, in the Tribunal's view, objective in its nature. This is particularly so in relation to complaints with respect to noise, an area which is notoriously subjective and about which there are vast differences with respect to tolerance and impact. ...

Noise

27 The issue of noise was really only an issue about where noise might be measured from. The original condition was, in our view, somewhat problematic since it provided for measurement of noise to be carried out at the boundary of the subject site. Such a requirement is pointless; the problem with noise is its impact upon amenity and, at the boundary of the subject site there is not impact, at all, upon any person's amenity. To be effectively regulated noise needs to be measured at points or places where it will, or is likely to have, such an impact. Mr Terts, the only expert called to give evidence about this issue gave evidence that in terms of residential amenity this should, consistent with World Health Guidelines, be measured at outside bedrooms with a window open and not exceed Leq = 45 dB(A). This is precisely what the new condition 4 achieves.

28 In addition the new condition [5] actually brings the issue of noise emission into conformity with the Tasmanian Environmental Protection Policy (Noise) 2009. It would be quite inappropriate for those residing near to the plant to enjoy a greater level of protection than everyone else in the community. But fundamental is the point that condition [5] does not, in any way lead to any increase in detriment to any person whatsoever. It merely alters, in an appropriate way and consistent with both the new noise regulation regime and the evidence of the only expert called at the hearing. Condition [5] as amended by the Council that deal with noise does not increase any person's detriment.

Dust and Visual Impact

29 The situation is much the same in respect of dust. The issue of dust is dealt with in the permit by both a sprinkler system and landscaping. The evidence persuades the Tribunal that the sprinkler system now proposed to be installed will be effective. In fact, we did not understand any of the Appellants to contend otherwise having, as was noted earlier, abandoned the specific allegation about that condition. More than that the evidence of Mr Coffey (which was not the subject of any meaningful challenge, and was the only expert evidence about the subject) persuades the Tribunal that there is virtually nothing of concern in any event that cannot and will not be dealt with by, inter alia, the use of water sprays and sprinkler systems to suppress dust.

30 Landscaping plays a role in both dust suppression and visual impact. It is convenient to deal with the latter subject first. It is simply impossible to see how any or all of the impugned conditions can have any negative impact upon anyone's amenity in visual impact terms. In fact the opposite is the case; in the Tribunal's view the amendments to the permit and in particular the change to condition [19] will, by any objective standard, actually improve the visual amenity and impact of the site, at least so far as those residences in Cruttenden Street are concerned. It may well be there needs to be something in the form of a bond to ensure that the landscaping is properly maintained and 'takes' but, that point aside, the new plan appears to be an improvement on the old. Mr Payne, an experienced nurseryman called by the Appellants actually provided evidence which rather tended to support this view.

31 In terms of dust suppression the Tribunal is also satisfied that the new plan is likely to be a more effective method. The bund wall will also have a positive impact in noise terms.

Conclusion

32 The Tribunal is satisfied that objectively viewed; the amendments to the conditions of Permit DA 08078 made by the Glamorgan Spring Bay Council will not cause an increase in detriment to any person, whether those persons be the Appellants or anyone else. ..."

"2 The Tribunal erred in its construction of s 43K(2)(b) of the Act in determining:

2.1 what does or does not constitute an increase in detriment to any person;

2.2 whether there would be caused an increase in detriment to any person;

2.3 that the amendments the subject of the proceedings before it will not cause an increase in detriment to any person

44 As argued, this ground is confined to an allegation that the Tribunal misconstrued the words of the paragraph by reading into it words of limitation where no such limitation is warranted. The attack focuses on the Tribunal's statement in par[26] that it needed to be satisfied that any increase was "measurable or appreciable; real or tangible". The Tribunal's reasoning was that any other approach would emasculate the provision "for it would mean that any increase in detriment, no matter how miniscule would mean that a permit could never be amended ...,whatever the circumstances, once issued by the Commission under Section 43H". The appellants argue that this is putting gloss on the provision where the plain words do not permit it, and suggest something greater than the mere expression of the de minimis principle. The consequence is a test higher than that which was intended.

45 It is not necessary to be definitive about what the word "detriment" in the provision means. For present purposes, without intending this to be exhaustive, I would think that as used in the provision, the word means loss sustained (including loss of amenity), damage or disadvantage. In the relevant passage, the Tribunal seems to contemplate a situation in which some increase in detriment has occurred, but that it is miniscule, and hence to be ignored. If the Tribunal meant that the section was directed to increases greater than immaterial or trivial ones to which the law should pay no regard, the de minimis principle, it is a little difficult to see why it was necessary to make the statement at all. It is a self-evident proposition. As a matter of common sense and logic, there can be no debate about something which is imperceptible. If a degree of detriment was unappreciable or immeasurable, then it would have no consequences.

46 After making the comments which are the subject of the appellants' criticism, the Tribunal went on to deal with the issues of noise and of dust and visual impact. In the treatment of both, in assessing the effects of the changes, the Tribunal has considered "impact on amenity" or "a negative impact upon ... amenity". Having carefully considered the appellants' submissions and looking at the reasons overall, I am not persuaded that the Tribunal's approach to the interpretation of the provision shows an error of law. Whilst the language adopted is a little odd and might be capable of suggesting that a higher test was formulated other than the one to be taken from the plain words, I am not persuaded that the Tribunal really meant anything other than an expression of the principle that the law is not concerned with insignificant matters. This ground is not made out.

Grounds 3 and 4 - A change to the use or development?

"24 The test in Section 43K(c) can be dealt with equally shortly. A planning authority may only amend the permit issued by the Commission if it is satisfied that the amendment 'does not change the use or development for which the permit was issued other than a minor change to the description of the use or development'. There is no change to the description of the use or development in this case whatsoever. It follows that in the absence of any change at all, there can be no minor change either. The use or development for which the permit was issued remains exactly the same; it is not effected in the least by the decision of the subject of this appeal by the Council to amend permit DA 08078."

"3 The Tribunal erred in its construction of s 43K(2)(c) of the Act in determining whether or not there had been a change to the relevant use or development other than a minor change to the description of the use or development for the purposes of the subsection in that it:

3.1 did not distinguish between use and development; and

3.2 did not separately determine what constituted the relevant development

4 The Tribunal further erred in its construction of s 43K(2)(c) of the Act in determining that the amendments the subject of the proceedings before it did not change the relevant use or development other than a minor change to the description of the use or development for the purposes of the subsection."

49 Subsection (2)(c) would permit minor changes to the description of the use or development, but beyond that, any change to the use or development for which the permit was issued means that the amendment should not be allowed. The use of the words "to the description" when speaking of a minor change, was not the subject of any real argument in this case, but its use is rather curious. There is ample authority for the proposition that all words must prima facie be given some meaningful effect, and courts are not at liberty to consider words as superfluous. It may be that there can be a minor change to the description set out in a permit which does not have a corresponding change to the reality of things. At the same time, it might be tempting to think that what is really meant is a minor change to the use or development itself giving rise to a change in the way that it is properly described. In any event, I do not think that the issue needs to be decided for the purposes of resolving these grounds.

50 The main thrust of the appellants' submissions is that in the passage set out above, the Tribunal failed to adopt the correct approach, and misdirected itself by reasoning that in the absence of any change of description, "there can be no minor change either", and that this satisfied the test of whether there had been change to the use or development as such, other than a minor change to the description. The appellants say that the correct approach is to consider the use or development for which the permit was issued, assess whether there were any changes to the use or development, and to assess the nature of those changes in order to determine whether they are minor changes to description. Subsumed within that argument is the point specifically raised in ground 3; that the Tribunal drew no distinction between use and development, and made no separate determination about those things.

51 Mr McElwaine argues that as to use and development, the permit was a combined one. He says the concept is expressed in the words of the permit: "general industry for the processing, selling and distribution of sandstone, and that is all the Tribunal was required to consider. I am unable to Accept that proposition. For a start it ignores the remaining words:"...and developed by construction of shed, signage and associated works." Further, s43K(2)(c) refers to "use or development" for which the permit was issued. It might be either one or both. In this case it was both. In s3 of the Act "development" is defined as including the construction or exterior alteration of a building, the demolition or removal of a building or works, the construction or carrying out of works, and the placing or relocation of a building or works on land. By the definition in the Act, "'use' in relation to land, includes the manner of utilising land but does not include the undertaking of development".

52 In this case, the permit enabled the use of land as general industry for the processing, selling and distribution of the sandstone. It also permitted development by the construction of sheds, signage and associated works. The Tribunal was required to look at both the use and development which the permit allowed, and to assess whether any changes had been made to that use and to that development, other than a minor change to their description. At least as it is expressed in the reasons, the Tribunal seems to have considered a change to description first, and then whether there was any change to the use or development for which the permit was issued. The Tribunal said that the "use or development" remained exactly the same.

53 The assessment of change seems to have been made in relation to a compendious notion of "use or development". No attempt was made to distinguish between the two. They are, of course, completely different things. Where the permit relates to both, consideration under s43K(2)(c) needs to be given to both. It is not clear, but it may well have been the case that the Tribunal focused only on the use aspect of the permit; the sandstone operation. It certainly appears that the Tribunal looked only at the words relating to the grant of the permit and did not consider the conditions. I say that because it is seems plain to me from the material, that the development did not remain "exactly the same". The amendment to condition number 2 changed the way in which the demolition of a shed and the construction of a new shed were to be carried out, including a setback from the boundary. The construction of a shed is specifically referred to in the permit as development. The deletion of condition 8 removed the setback requirement, and the changes to condition 11 also related to the construction of the new shed. The changes to condition 24(c) would also seem to relate to the development. These may well amount to a change under s43K(2)(c).

54 A failure to consider the permitted development, and any changes to that development effected by amendments to the conditions, is an error of law. Further, it might be said that the Tribunal in fact considered whether the permitted development had changed. To that extent, I do not think it was reasonably open to the Tribunal to take the view, if that is what occurred, that there were no changes which called for consideration. Taking the view that the changes to the conditions would not amount to changes which might fit the statutory description of a change to "the use or development", would amount to an error of law: R v Resource Planning and Development Commission; ex parte Dorney (No 2) [2003] TASSC 69; (2003) 12 Tas R 69 at 90 - 91 [30] - [31].

55 I am satisfied that on a fair reading of the reasons as a whole, the Tribunal did not take the correct approach. For the reasons which I have given, the Tribunal failed to properly identify its task and to adopt the proper approach required by law. As to whether it is a material error, because of the failure to carry out the correct task, and the changes to the conditions which I have identified, it cannot be said that the outcome would not have been different but for the error.

57 For the reasons which I have given, the appeal will be allowed. The decision of the Tribunal of 7 October 2010 should be set aside. As to the consequential order, I would propose making an order remitting the matter to the Tribunal for reconsideration in accordance with these reasons. In Kidd v Resource Management and Planning Appeal Tribunal (No 2) [2011] TASSC 46 at [9] - [18], I reviewed the power to remit under the Resource Management and Planning Appeal Tribunal Act 1993, s25(6). The authorities establish the governing principle to be that the power to remit to a different judicial officer or differently constituted tribunal is to be used sparingly and only when it appear that it is appropriate in the interests of justice. Otherwise, it is left to the proper administrative processes of the lower court or tribunal - and subject to any views held by the officers or members - to determine whether the same person or the same members of a tribunal deal with the rehearing or reconsideration. See Seltsam Pty Ltd v Gahleb [2005] NSWCA 208, per Mason P, at [12]; Castle Constructions Pty Ltd v North Sydney Council [2007] NSWCA 164; (2007) 155 LGERA 52 at 73 - 78 [71] - [84]; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; (2009) 168 LGERA 1 per Young JA at 28 [121]; Comcare v Broadhurst [2011] FCAFC 39; (2011) 192 FCR 497 per Downes J at [30] - [34], per Tracey and Flick JJ at [89] - [94].

58 The appellants have said that, were the matter to be remitted, they see no need for a differently constituted Tribunal. I agree that, subject to the views of the members concerned, there does not seem to be any difficulty in the same members constituting the tribunal which reconsiders the matter. This is a case in which there have been errors of law in the form of failing to properly construe provisions to be applied and consequently failing to approach the issue in the correct way. The errors do not involve findings of fact which will need to be revisited. Further, in this case I think it is inappropriate to define the matter which is to be reconsidered. That may create difficulties depending on the make up of the Tribunal and how the matter is to be approached. It follows that there should be a rehearing and determination of the appeal: Seablest Pty Ltd v Smith [1997] TASSC 36; (1997) 6 Tas R 350 at 359 - 360. .

59 It is probably best if I hear from the parties as to these things before making final orders. The proposed orders are:

2 The order of the Tribunal of 7 October 2010 is set aside.

3 The matter of the appeal to the Resource Management and Planning Appeal Tribunal be remitted to that Tribunal for reconsideration in accordance with the law.

[1] "61 Appeals against planning decisions

(4) If a planning authority refuses to grant a permit or grants a permit subject to conditions or restrictions, the applicant for the permit may appeal to the Appeal Tribunal against the decision of the planning authority within 14 days after, as the case may be ..."

[2] The limited opportunities to vary a permit under the Act were noted and discussed by Crawford J (as he then was) in Dorset Council v D P & L J Krushka Pty Ltd [1999] TASSC 69; (1999) 104 LGERA 29 at 36 - 37 [22], although s43K is not mentioned because it had not been enacted at the time of the decision.