Ground 1
92 Ground 1 of the notice of appeal claims to raise the question whether the ART fell into error by misconceiving, misconstruing or misapplying its functions and powers under the ART Act. On its face, the question raised by ground 1 is plainly a question of law.
93 In the course of their written submissions, the appellants contended that this ground was founded on five separate errors made by the ART in these proceedings. Additionally, in the course of the hearing, Mr Cook indicated that ground 1 encapsulated a sixth misapprehension on the part of the ART of its powers and functions. I now turn to deal with each in turn.
94 The first alleged error was that the ART had no power to make recommendation 4 contained in its first decision. This recommendation was to the effect that the Executive Member should refer certain matters to the Planning Board "for further consideration and recommendation to him". The question of whether the ART had the capacity to make such a recommendation is one of power, and, so characterised, is a question of law.
95 However, I am of the view that it would be inappropriate for me to determine this question in the context of these proceedings. Section 34(3)(a) of the ART Act provides that an appeal must be instituted in this Court within 28 days of the publication of the decision under challenge. It is of no consequence that each of the three decisions of the ART involved a planning application in respect of the same site, or that the President referred to and considered each of his previous decisions in the course of arriving at each of his subsequent decisions. The subject of the present proceeding is the review finalised by the ART on 14 March 2005 of the Executive Member's decision to grant conditional approval on 4 September 2002. Referral to his previous decisions simply relieved the President of recapitulating the factual background to the application in each of his subsequent decisions. It did not have the effect of "restarting" the time in which to appeal those earlier decisions. This aspect of the challenge has been brought seriously out of time, and has been overtaken by events.
96 The second alleged error was that, even if recommendation 4 was within the ART's power, upon the referral of the application to the Planning Board, that Board was required to convene a second public meeting for the purposes of reconsidering the application before it could make a recommendation on the application. This alleged failure on the part of the Planning Board was said to constitute a denial of procedural fairness to the appellants. As I have determined earlier in these reasons, the current state of authorities is that such a question is properly viewed as a question of law.
97 Once again however, it is not one that I propose to determine in these proceedings. Alleged procedural defects leading up to the earlier decision of the Executive Member to grant conditional approval on 5 May 2000 are irrelevant to the later decisions that are the subject of the present appeal, being those of the Executive Member on 4 September 2002 and the ART on 14 March 2005. And even if such alleged defects were present in relation to the later decision of the Executive Member, I am certainly not convinced that such a failure on the part of Planning Board would be amenable to challenge in an appeal from the ART to this Court on a question of law. Accordingly, I consider this argument to be misconceived.
98 The third alleged error on the part of the ART was that it misunderstood its task by failing to give appropriate consideration to refusing the planning application, and operating under an assumption that the Administration of Norfolk Island required the proposed rock-crushing and screening activities to occur in the Territory.
99 I consider the first limb of this attack to be nothing more than an attempt to engage this Court in merits review of the ART's decision, which, for the reasons I have given above, I consider to be impermissible in an appeal on a question of law. There is no evidence to suggest that the ART did not approach its task fully cognisant of the alternative courses of action open to it under s 31(1) of the ART Act. The mere fact that it elected one course over the others, and a course that the appellants were dissatisfied with, does not constitute an error of law.
100 I consider that, giving it its most generous interpretation, the second limb of this attack could be described as an allegation that the ART took into account an irrelevant consideration, or operated under a mistaken belief as to a policy that it was bound to give effect to. If the ground is made out, then this may disclose that the ART made an error of law by impermissibly fettering the exercise of its jurisdiction. So characterised, this raises a question of law that I am required to determine.
101 The allegation has its genesis in a passage contained in the ART's third decision. That passage, found at 19, reads:
"I am satisfied that the latest RHA Report resulting in the amended environmental conditions set out above, reach [sic] the appropriate balance between the interests of those requiring the activity to occur and the interests of the applicant close by residents [sic] and the intervening company who conduct [sic] the activity."
The appellants contend that the only party that could be encompassed by the expression "those requiring the activity to occur" was the Administration.
102 Whilst this passage may constitute an unfortunate choice of words on the part of the President, I am unable to accept that it provides adequate evidence to ground an assertion that he took into account an irrelevant consideration, or operated under some misapprehension that he was bound to implement the will of the Administration by facilitating the approval of these activities.
103 As is evidenced by each of the three decisions taken in relation to the portion, the ART certainly considered itself capable of adopting a course that was at odds with that proposed by the Administration, as represented by the various Executive Members. On no occasion did the ART unconditionally affirm an Executive Member's decision; rather, it firstly remitted the application for further consideration in accordance with certain directions and recommendations, and on subsequent occasions varied the conditions originally approved by the Executive Member to make them more demanding. These facts demonstrate that the ART was well aware of the fact that it was not required to give consideration to, or consider itself bound by, any Administration policy "requiring" this activity to occur. The appellants must therefore fail in this aspect of their challenge.
104 The fourth alleged error on the part of the ART was that, given the findings of fact that it made, proper regard to the objects of the Planning Act and the conservation values and planning objectives contained in the Plan "required" the refusal of the planning application. However the ART embarked upon a course that "would convey to community that it is carrying out a role as "adviser" or "manager"" to the project, and thus did not act "judicially".
105 I am of the view that the first limb of this alleged error does not raise a question of law. So long as this Court is satisfied that the ART had regard to the relevant principles that it was bound to have regard to in considering the application, the findings of fact, and the reconciliation of the facts to those principles in order to ascertain what outcomes were "required", goes to the merits of the ART's decision, and not its lawfulness. As such, so long as there was some evidentiary basis for the actual conclusions reached by the ART, it is not open to this Court, on an appeal on a question of law, to review whether those conclusions were against the weight of other findings of fact made by the ART.
106 The second limb of this alleged error appears to impute apprehended bias to the ART. If this claim were made out, it would constitute a lack of procedural fairness, and accordingly it raises a question of law. However, absent proper particulars sufficient to found an allegation of apprehended bias, I cannot accept this submission. In reality, this allegation appears to represent an objection to the ART's engagement in a process of identifying appropriate conditions to attach to the planning application. Varying the Executive Member's conditional approval by attaching additional conditions was a course clearly open to the ART by virtue of s 31(1)(a) of the ART Act. If this conduct appeared to members of the community as if the ART were acting as an "adviser" or "manager" to the project, then this is due to a misapprehension on their part of the ART's powers on an application for review. It is not evidence of an error of law on the part of the ART.
107 The fifth alleged error was that ART failed to consider adequately the possibility of alternative sites for the activities proposed in the application. I view this question as being one of the ART's jurisdiction on a review application. Accordingly, it raises questions of law.
108 I have already reproduced at [13] the President's comments to the effect that the information relating to alternative sites was "at its highest … background information only". In my view, the President was correct in refusing to give substantive consideration to other possible sites for the proposed activities. The ART's jurisdiction was confined to review of the Executive Member's decision before it. The relevant decision related solely to the portion, and therefore the ART was authorised to affirm, vary or set aside the conditional planning approval only in respect of the portion. It was not authorised to conduct a broad-ranging inquiry as to the relative merits of other portions in the Territory that may or may not be more suitable for the activities. Had it done so, the ART would have exceeded its jurisdiction. It was no error of law to fail to evaluate alternative sites.
109 The sixth and final error alleged under ground 1 was that the ART misunderstood its task when, in light of its findings that the activities proposed in the planning application were likely to cause considerable environmental impact, it failed to consider whether it was desirable to cause an EIS to be conducted pursuant to s 28 of the Planning Act. The proper construction of s 28 of the Planning Act, and the functions of the ART under that section, raise questions of law.
110 As has been noted earlier in these reasons at [12], the ART made findings that the proposed activities were likely to cause considerable environmental impact. The President of the ART, in his first decision, made the following comments, at 159:
"The preparation of an Environmental Impact Statement (EIS), in respect of applications such as these, would be a normally accepted practice. Nevertheless, as submitted by Ms Cowles to me, the Executive Member has a discretion to direct that EIScan be obtained by an independent party, one was not so obtained in the present case. [sic] The Executive Member had regard to reports … as well as the Minutes of the Planning Board and its detailed recommendations. The question of the preparation of an EIS or otherwise, remains in the discretion of the Planning Board and in particular, the Executive Member.
The absence of an EIS however, does not relieve the Executive Member of a full consideration of environmental and other impacts of the application and the ultimate responsibility of granting approval subject to appropriate conditions and particular, environmental conditions as he sought to do in this case. A note in Part 4, section 28b(ii) of the Plan, indicates as follows:
"An Environmental Impact Statement assists in determining planning approval, it does not in itself determine planning approval".
The preparation of an EIS for the consideration of the Executive Member, is not a mandatory requirement of the process. Nevertheless, the impacts across the board of the application need appropriate consideration and coverage in any such decision concerning this application."
111 Even though these comments were made in the context of the President's first decision, I am of the view that the question of whether the ART was obliged to order an EIS was a live issue throughout each of the subsequent decisions. It can be inferred that the President's views on this question, as exposed above, continued to operate upon him on each subsequent occasion that he gave consideration to a planning application in respect of the portion. Therefore even though the above comments were made in the context of the first decision, I consider that they formed part of the sub-stratum of findings of fact and law upon which the President made his third decision. Accordingly, a challenge to them has been instituted within time.
112 Section 28(1) of the Planning Act, with its use of the expressions "may … direct" and "if the executive member otherwise considers it desirable", clearly vests in the Executive Member (and accordingly in the ART on review) a discretion to direct that an EIS be carried out. The statutory language of the Planning Act does not mandate that the Executive Member (or someone standing in their shoes) direct that an EIS be conducted, no matter how serious the potential environmental impacts are perceived to be.
113 It is possible to draw an inference from the passage of the President's reasons set out above that he failed to give proper consideration as to whether he, standing in the Executive Member's shoes and re-exercising all of his powers and discretions, ought to order an EIS of his own initiative. Taken at its highest, this may demonstrate that the President misunderstood an aspect of his task. However, given that there was no obligation upon the Executive Member to direct that an EIS be conducted, such an inference does not advance the appellants' case. Indeed, s 28 of the Planning Act does not impose an obligation upon the Executive Member to even consider directing that an EIS be undertaken. I regard it as axiomatic that a failure to consider an option that neither the Executive Member nor the ART was required to consider cannot constitute an error of law. Accordingly, this aspect of the appellant's attack on the ART's decision is unsuccessful.