Hamilton v White [2000] VSC 28

61. The Whites then applied to the Council as responsible authority for a permit, not for the existing screen, but for a screen ("the proposed screen"), apparently free-standing, which would consist of vertical wooden slats fixed to the ground in front of the window, presumably on the Whites' property, given that it appears that Mrs Hamilton's house is built on or near to the boundary. The slats would be erected at an angle designed, as Mr Finanzio explained, to allow the passage of some light while blocking the view of the Whites' property from the window. That application was rejected by the Council on 26 February 1999 on the grounds that the proposed screen would "detrimentally impact on the heritage values of the dwelling at No 6 Park Street" and would "impact on the established enjoyment of the heritage building at No 6 Park Street". Mr Hamilton deposes that the proposed screen has not been constructed.

64. On 27 January 1999 the Tribunal to hear the matter was reconstituted to include a legally qualified Senior Member. The Council's application for an enforcement order requiring removal of the existing screen came on for hearing on 2 March 1999. The Council, Mr White and Mrs Hamilton were all represented. The Whites had made no application for review of the decision by the Council to reject the application for a permit in respect of the proposed screen. That matter accordingly was not before the Tribunal.

68. The decision of the Tribunal was delivered on 2 August 1999. The relevant portion of the written Reasons for Decision ("the Reasons") is contained in paragraphs 9 to 13 thereof, set out in paragraph 17 below. It appears from the formal material at the commencement of the Reasons that the expression "these applications" in paragraph 9 is intended to refer to the Council's application Number 1998/66709 for an enforcement order in respect of the existing screen and the bay window, and a separate application by Mr Hamilton Number 1999/15893 for an enforcement order requiring removal of the bay window, both of which were before the Tribunal. The issue of "whether a permit is required for the construction of the screen" is, of course, not relevant to the application relating to the bay window. I mention this matter merely to make clear that the use of the expression "these applications" rather than "this application" does not demonstrate that there was an application before the Tribunal relating to the proposed screen as well as the application relating to the existing screen.

71. Mr Hamilton deposed that his application Number 1999/15893 relating to the bay window was withdrawn at the hearing before the Tribunal, although the Tribunal in its Reasons goes on to say at paragraph 14 that in relation to that application "no order will be made as the Responsible Authority has now indicated that it has approved and authorised the construction of the bay window". It is not necessary for me to decide what actually occurred with regard to that application.

74. Paragraphs 9 to 13 of the Reasons, which deal with application Number 1998/66709, read as follows:

9. With regards [sic] the enforcement order requiring removal of the screen on the basis that it has been erected without planning permission the issue to be determined so as to dispose of these applications is whether a permit is required for the construction of the screen under the provisions of Clause 32.01-3 or 4 and 43.01 (Heritage Overlay) of the Port Phillip Planning Scheme [i.e. the new planning scheme].

10. Clause 32.01-3 deals with the construction and extension of single dwellings on a lot of at least 300m2 or more, and clause 32.01-4 deals with the construction and extension of medium density housing and residential buildings.

11. Having considered the definition of "building" in the Act and the definition of "dwelling" in the Planning Scheme the Tribunal concludes that what is proposed could not be considered to be a construction or extension of the dwellings [sic] owned by Mr and Mrs White at 8/8 Part [sic] Street or the building owned by Mrs Hamilton at 6 Park Street nor could a free standing screen as is proposed be regarded as "works normal to a dwelling".

12. The Tribunal also finds that the proposed screen does not fall within any of the classes of development referred to in Clause 43.01-4 as it regards it not as an external alteration of the building at 6 Park Street but as a separate and definable structure.

13. In the circumstances the Tribunal does not consider that planning permission is required for the proposed screen and therefore it cannot be alleged that what has been erected or what is proposed is in breach of any provision of the planning scheme. Because of this finding the Tribunal will not make the enforcement order sought.

82. Paragraph 9 of the Reasons clearly refers to the existing screen; that is, the screen the subject of the application before the Tribunal. Paragraphs 11 and 12, however, deal with the proposed screen; that is, with a matter which was not before the Tribunal. Paragraph 13 again deals with the proposed screen and extrapolates from the opinion of the Tribunal on that matter, which was not before it, to reach a decision regarding the existing screen, that is, on the matter which was before it.

85. Mr Finanzio, if I understood him correctly, submitted that the same planning controls were relevant to both the existing screen and the proposed screen, and that accordingly it was not a vitiating error of law for the Tribunal to decide the matter which was before it on the basis of an opinion formed on the matter which was not before it. Whether the screen was made of wood or hessian was irrelevant to the real issue, which turned on the application of the relevant provisions of the new planning scheme.

88. However, while the relevant provisions of the new planning scheme may well be the same in respect of each type of screen, the difference between, on the one hand, a proposed free-standing row of vertical slats and, on the other hand, an existing wooden frame with a hessian cover attached and glued to a house could well be significant in the consideration of the application of those provisions. In any case, whatever the relevant provisions of the planning scheme, the fact remains that the Tribunal had no power to make findings (as it purported to do in paragraphs 11 and 12) as to the proposed screen, and its informal opinion as to the legality of the proposed screen is not before me.

The failure of the Tribunal to make findings of fact

92. The lack of objection to the procedure described in paragraph 5 above obviated the necessity for an adjournment of this proceeding for the preparation of additional evidentiary material. All those parties who appeared before me were in agreement in submitting, although not necessarily for the same reasons, that the appropriate decision was that the proceeding should be remitted to the Tribunal under sub-section 148(7)(c) of the VCAT Act to be heard and decided again. That being so, it seemed appropriate to proceed on the basis of material put from the Bar table as to matters which were essentially not in issue, and as to which it was not necessary for the Court (as opposed to the Tribunal) to make any finding. Nevertheless, that is an inappropriate procedure for this Court.

95. One of the circumstances which led to the adoption of that procedure is the failure of the Tribunal to make relevant findings of fact. In its Reasons it set out the procedural history of the matter, and noted that the representative of the Council had informed it that the "permit application" (that is, the matter which was not before it) "was not in respect of the screen as it exists on the site but was for a proposed screen with a series of vertical wooden louvres to be set at an angle of 20 degrees. The louvres would be of a constant thickness of 38 mm and have a width varying from 22mm to 200 mm". It found in paragraph 12 that the proposed screen was "a separate and definable structure". There is no finding at all as to the nature of the existing screen with which the Tribunal was actually concerned. None of the primary facts set out in paragraphs 7 and 8 above appear from the Reasons of the Tribunal.

98. In the introductory part of the Reasons, application Number 1998/66709 is said to relate to "construction of a free standing screen and a bay window on the ground floor of the building (southern wall) without planning approval" "The building" is nowhere defined. From the material put before the Court by counsel it is apparent, as set out above, that the screen which is the subject of the application, that is, the existing screen, is attached to the north wall of Mrs Hamilton's house, and the bay window forms part of the Whites' house. It may be that, in preparing its Reasons, which were delivered five months after the hearing before it on 2 March 1999, the Tribunal was misled as to the position of the existing screen by the inference to be drawn from the Council's original application for an enforcement order that the existing screen had been constructed on the Whites' property (see paragraph 8 above). There is nothing in the Reasons to indicate a clarification of that issue by the Tribunal.

101. The decision of the Tribunal turns on the application of the provisions of the new planning scheme to what I have referred to as "the existing screen". It is not possible to ascertain from the Reasons how that existing screen was constructed, with which building it was associated, or what its relationship was to that building. The following description of some of the relevant provisions of the new planning scheme will demonstrate the necessity for findings of fact in respect of those matters to enable a determination as to whether the Tribunal's application of the provisions of the new planning scheme to the existing screen was correct in law. That is a matter which was the subject of extensive submissions to this Court.

104. The application of clause 32.01-4 of the new planning scheme, relating to the construction and extension of medium-density housing and residential buildings, requires consideration of the meaning of "dwelling", defined in clause 74 by reference to "building" and as including "out-buildings and works normal to a dwelling". "Building" is defined in section 3 of the Planning Act (which definition applies to the new planning scheme by virtue of clause 71 thereof) as including "a structure and part of a building or structure" and "fences, walls, out-buildings, service installations and other appurtenances of a building". The Whites' property, Mr Porter indicated, is less than three hundred square metres in size, and accordingly falls within clause 32.01-4. Mrs Hamilton's property, he indicated, is more than three hundred square metres in size, and falls within clause 32.01-3. The application of clause 43.01-1 of the planning scheme, relating to the heritage overlay, requires in addition consideration of the meaning of the expressions "construct a building", "construct or carry out works" and "externally alter a building by structural work, rendering, sandblasting or in any other way".

107. Section 117 of the VCAT Act reads, so far as presently relevant:

(1) The Tribunal must give reasons for any order it makes in a proceeding, other than an interim order, . . .

(5) If the Tribunal gives written reasons, it must include in those reasons its findings on material questions of fact.

In its written Reasons the Tribunal has made no findings on questions of fact which would enable this Court to determine what were the relevant facts before it. I have proceeded on the basis of the material provided from the Bar table, as set out in paragraphs 5 and 21 above_._

114. Hill J said in Copperart Pty Ltd v Commissioner of Taxation (1993) 26 ATR 327 at 328-329 with respect to the Administrative Appeals Tribunal ("AAT") established by the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"):

An appeal to this court from the [AAT] is an appeal "on" and therefore limited to a question of law: s 44(1) of the [AAT Act]. It follows from this that this court is not at liberty to find for itself the relevant facts from which the question of law might emerge. That task is entrusted to the tribunal and the tribunal alone. . . .

The failure of the tribunal to make findings of material facts constitutes a breach of section 43(2B) of the [AAT Act] and an error of law, justifying the setting aside of the tribunal's decision and the remission of the matter to the tribunal for reconsideration.

. . .the failure to make those findings makes it difficult for me to set out what the relevant facts are upon which the appeal itself turns.

Section 43(2B) of the AAT Act is in similar terms to section 117(5) of the VCAT Act, with the addition of a requirement that the AAT include "a reference to the evidence or other material on which those findings were based".

121. Burchett J, also dealing with an appeal from the AAT, said in Australian Postal Corporation v Lucas [1991] FCA 612; (1991) 14 AAR 487 at 495:

. . . the [AAT] has failed to make those findings on material questions of fact which would have enabled its reasoning process to be understood. It has also, of course, as a consequence, failed to expose the reasons themselves.

125. I would, with respect, adopt both those passages as relevant to the decision of the Tribunal with which I am concerned. The question as to whether the findings of fact made by the Tribunal are sufficient will always turn on all the circumstances of the particular case, and it is not every failure to make a finding which will constitute a vitiating error of law in terms of the passage from Portland Properties cited in paragraph 4 above.

129. However, there is another difficulty with the Reasons. The matter which was actually before the Tribunal was, as I have said, the Council's application for an enforcement order requiring removal of the existing screen. The Tribunal stated in paragraph 9 that the issue to be determined so as to dispose of that application was whether a permit was required under the planning scheme for the construction of the existing screen. The only reason given for its conclusion that a permit was not required for the existing screen appears in paragraph 13 of the Reasons in the following terms:

. . . the Tribunal does not consider that planning permission is required for the proposed screen and therefore it cannot be alleged that what has been erected or what is proposed is in breach of any provision of the planning scheme.

Given the unchallenged indications before me as to the differences between the two screens, the absence of any finding by the Tribunal as to the nature of the existing screen, and the absence of any consideration by the Tribunal of the terms of the several relevant provisions of the planning scheme (a matter which occupied the greater part of one day before this Court), that statement is a bare conclusion without reasons.

134. In a well-known passage from Spurling v Development Underwriting (Vic.) Pty. Ltd. [1973] VicRp 1; (1973) VR 1 at 11, Stephen J said:

In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the [Town Planning Appeals] Tribunal's decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.

The Planning List of VCAT is the equivalent of an expert tribunal. Nevertheless, the above passage does not justify an expert tribunal in making no relevant findings of fact and giving no reasons for its decision, but making simply a bare assertion. The passages cited above from Copperart and Australian Postal Corporation are as relevant to a failure to give reasons as they are to a failure to make findings of fact.

139. In Wajnberg v Raynor [1971] VicRp 82; [1971] VR 665, McInerney J, after referring to the failure of the Town Planning Appeals Tribunal to decide a particular issue, said at 677:

If . . . it is to be inferred that [the Tribunal] has implicitly [made a particular finding] the question arises whether that finding is sustainable in the circumstances or whether it involves an error of law or error in the process by which it was arrived at so as to make the decision reviewable before me.

The silence of the Appeals Tribunal on this point is most unsatisfactory. In Lock v Gordon, [1966] VicRp 23; [1966] VR 185 at p 187, O'Bryan J pointed out that

it has been said over and over again that it is the duty of a magistrate or a judge who is adjudicating on facts to state his reasons for arriving at the conclusions to which he comes.

In the present case the mandate is statutory - by section 22(2) [of the Town and Country Planning Act 1961] the Appeals Tribunal is required to deliver to each party a statement in writing of the reasons for its determination - and this must mean all the reasons.

His Honour found at page 680 that, taking the reasons of the tribunal at their face value, the tribunal had not considered the issue in question; this was wrong and (at 682) was among the grounds for the making of the order absolute.

147. In the present case, the statutory mandate to provide reasons is found in section 117 of the VCAT Act. In Dornan v Riordan (1990) 24 FCR 564 the Full Court of the Federal Court (Sweeney, Davies and Burchett JJ) was concerned with a requirement in section 98BD(2) of the National Health Act 1953 (Cth) that the Pharmaceutical Benefits Remuneration Tribunal should, when making certain specified determinations or decisions, "issue . . . a statement, in writing, setting out the terms of that determination or decision and the reasons for making it". The Court concluded at 573:

Notwithstanding an observation to the contrary by Brennan J in his dissenting opinion in Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422 at 445-6, the law appears to us to be that a substantial failure to state reasons for a decision, in the circumstance that a statement of reasons is a requirement of the exercise under the statute of the decision-making power, constitutes an error of law.

There are a number of reasons why this should be so. Their Honours went on to refer to the decision of the Court of Appeal of New South Wales in Pettitt v Dunkley [1971] 1 NSWLR 376, "in which it was held that the failure of the trial Judge to give reasons for his decision constituted an error of law because such failure made it impossible for the appellate court to determine whether or not the verdict was based on an error of law".

152. In Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500 at 507 Woodward J, in a passage cited by the Full Court in Dornan v Riordan, was considering a decision of the Independent Air Fares Committee, established under the Independent Air Fares Committee Act 1981 (Cth). His Honour expressed his view

that s. 13(1) of the [Administrative Decisions (Judicial Review) Act 1977 (Cth)] requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say, in effect:

Even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact, or an error of law, which is worth challenging.

This requires that the decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions. He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation.

158. A more extensive justification for the requirement of publication of reasons, also cited by the Full Court in Dornan v Riordan, is that of Sheppard J in Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88, also relating to the Pharmaceutical Benefits Remuneration Tribunal:

. . . I think it is a fair criticism of the Tribunal to say that the report consists of a reference to the relevant provisions of the Act, a comprehensive statement of the submissions of the Guild and the Commonwealth and the Tribunal's conclusions. The Tribunal's reasoning process is not disclosed. I would add my voice to his Honour's in saying that I think that this is unfortunate. The provision of reasons is an important aspect of the Tribunal's overall task. Reasons are required to inform the public and parties with an immediate interest in the outcome of the proceedings of the manner in which the Tribunal's conclusions were arrived at. A purpose of requiring reasons is to enable the question whether legal error has been made by the Tribunal to be more readily perceived than otherwise might be the case. But that is not the only important purpose which the furnishing of reasons has. A prime purpose is the disclosure of the Tribunal's reasoning process to the public and the parties. The provision of reasons engenders confidence in the community that the Tribunal has gone about its task appropriately and fairly. The statement of bare conclusions without the statement of reasons will always expose the Tribunal to the suggestion that it has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration. There is yet a further purpose to be served in the giving of reasons. An obligation to give reasons imposes upon the decision-maker an intellectual discipline. The Tribunal is required to state publicly what its reasoning process is. This is a sound administrative safeguard tending to ensure that a Tribunal such as this properly discharges the important statutory function which it has.

162. The passages cited above from Wajnberg v Raynor, Ansett Transport Industries (Operations) Pty Ltd v Wraith and Commonwealth v Pharmacy Guild of Australia are as relevant to the Tribunal as to the several bodies with which they were concerned.

166. In this matter I find, for the reasons set out above, that the failure by the Tribunal to make relevant findings of fact and its failure to give reasons for its decision together are of sufficient significance to constitute a vitiating error of law. In the absence of relevant findings of fact, the material before the Court does not enable me to reach any conclusion as to the correctness or otherwise of the decision the subject of the appeal; that is, the decision made by the Tribunal by which it dismissed the application by the Council for an enforcement order under section 114 of the Planning Act requiring removal of the existing screen.

169. Accordingly, there will be an order setting aside that decision, and remitting the matter to be heard and decided again. There will be directions that the Tribunal to rehear the matter not be constituted by either of the members who made the original order, and that the question as to whether further evidence be heard be a matter in the discretion of the reconstituted Tribunal. Counsel may wish to make submissions as to costs.