TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Environment and Planning - Courts and tribunals with environment jurisdiction - Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors - Powers and duties on appeal - Duty to give reasons - Extent of duty.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s24.

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, applied.

Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177, distinguished.

Judgment Number: [2007] TASSC 99

1 The second respondent ("Jadwan") owns a building and land at 20 Fitzroy Place, Sandy Bay. The property is on the corner of Fitzroy Place and Star Street. The building is a large, heritage listed residence fronting Star Street. It was used for many years as a nursing home. In 1997 that use ceased and since then, the property has remained vacant.

2 The land is subject to the provisions of the City of Hobart Planning Scheme 1982 ("the scheme") and is within the residential zone. On 25 January 2006, Jadwan applied to the appellant to change the use of the site to "multiple dwelling". It was proposed that a welfare organisation, Anglicare, would manage the property, which would be operated as a low cost boarding house for up to 27 residents, as part of Anglicare's policy to provide low cost accommodation for disadvantaged persons. A caretaker would also live on site and the residence would be supported by various support personnel such as a tenancy support worker and a cook.

3 The appellant dealt with the application in the ordinary way and advertised it. Many representations were received, mostly from local residents, and none, except one, supported the proposal. The Council refused the application on or about 2 May 2006. It gave three reasons for doing so: (1) The applicant had not demonstrated that the proposed use would sustain and enhance the character and amenity of the established residential area, as required by a zone objective in the scheme; (2) The proposal did not comply with the car parking requirements of the scheme because there was a deficiency in the number of car spaces to be provided and Jadwan had not demonstrated that the proposed provision would be adequate for the use, or that reliance upon on-street parking would not adversely affect existing residents; and (3) The proportion allocated as usable landscaped space was insufficient to prevent noise intrusion to neighbouring dwellings and to ensure the protection of existing residential amenity.

4 Jadwan appealed to the first respondent ("the Tribunal") pursuant to the Land Use Planning and Approvals Act 1993, s61(4). A number of persons, who were mainly adjoining residents, lodged representations pursuant to s57(3). They successfully applied to be joined as parties to the appeal, under the Resource Management and Planning Appeal Tribunal Act 1993, s14(2), and they participated at the contested hearing.

5 On 2 November 2006 the Tribunal determined to allow the appeal, publishing written reasons for doing so. After receiving written submissions from the parties, it determined conditions for the permit for the proposed use and development.

6 The appellant applied to the Supreme Court to review the Tribunal's decision under the Judicial Review Act 2000, s17, and also appealed to the Court under the Resource Management and Planning Appeal Tribunal Act, s25. The grounds and issues raised by the application and appeal were identical. There were a number of them, which the judge who heard the matter summarised as an alleged failure to give adequate reasons and an alleged taking into account of irrelevant material.

7 The learned judge dismissed the application and the appeal, and the appeal to this Court resulted. It is confined to two grounds, that the learned judge erred in his construction of the Resource Management and Planning Appeal Tribunal Act, s24, which concerns the obligation of the Tribunal to give reasons for its decisions, and that the learned judge erred concerning the extent of the obligation of the Tribunal to give reasons.

8 The learned judge construed s24 in the way the majority of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 construed the Migration Act 1958 (Cth), s430(1). Section 23(2) required the Tribunal to make its decision in writing. Section 24 required the Tribunal to give written reasons for its decision in the following terms:

"(1) Subject to this section and to section 23, the Appeal Tribunal must give written reasons for its determination of an appeal.

(2) The reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."

9 Yusuf's case concerned a decision of the Refugee Review Tribunal. The Migration Act, s430(1) provided:

"Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of facts were based."

10 As was observed by the learned judge, the relevant provisions of the respective Acts are indistinguishable, except as to form, and in Yusuf, the majority of the High Court held:

(1) The expression "material questions of fact" meant questions of fact that the Tribunal considered material and not questions of fact that a party or the parties considered to be material;

(2) The absence of a finding of fact indicated that the Tribunal did not consider that fact to be material;

(3) The statutory provisions only required a recording of what was found and did not impose a duty to make findings of fact; and

(4) However, the absence of a finding of fact might indicate other error, such as taking into account irrelevant material or failing to take into account relevant material.

11 The learned judge regarded Yusuf as binding authority and applied those principles so far as they were relevant to the appeal. It is the appellant's case that such a view amounted to an error of law. Its argument was based on a comparison of the proceedings before the Refugee Review Tribunal and the proceedings before the Tribunal. The proceedings before the former were not adversarial. There was no contradictor who joined issue upon any of the facts alleged by the applicant. The ultimate question for determination was whether the applicant fell within the definition of a refugee, in that he or she had a well-founded fear of persecution, for a reason stated in a Convention, if he or she returned to the country of his or her nationality. Yusuf at par3. In Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518 at par71, Gummow and Hayne JJ explained the process in the following way:

"In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process. Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 at 814; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 282. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision - in this case the grant of a protection visa - and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision."

12 On the other hand, the hearings of appeals before the Tribunal tend to be adversarial in nature. The Resource Management and Planning Appeal Tribunal Act, s14, provides for those who are to be regarded as parties to an appeal and who may be made a party to it on application to the Tribunal. In addition, the practice of the Tribunal, in the interests of ensuring that natural justice is accorded to the parties, is that the parties should give notice to each other of the issues they will raise at the hearing, so that the other parties may meet their case.

13 Nevertheless, the Court should apply Yusuf when construing s24(2). What was held in that case is not binding on this Court in a strict sense, for it was a decision on appeal from another jurisdiction that concerned different legislation. But the material provisions of the legislation there and here are in substance the same and the views of McHugh, Gummow and Hayne JJ at pars68 and 69 concerning s430 of the Migration Act extend logically to s24(2) and are strongly persuasive:

"Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word 'material' in s430(1)(c). It was said (Singh [2000] FCA 845; (2000) 98 FCR 469 at 481) that 'material' in the expression 'material questions of fact' must mean 'objectively material'. Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read 'material' as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.

It is not necessary to read s430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s430 statement was not considered by the Tribunal to be material. Repatriation Commission v O'Brien [1985] HCA 10; (1985) 155 CLR 422 at 446; Sullivan v Department of Transport (1978) 20 ALR 323 AT 348 - 349; cf Fleming v R [1998] HCA 68; (1998) 197 CLR 250 at 262 - 263. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24."

14 Counsel for the appellant sought support from the decision of the New South Wales Court of Appeal in Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177, in which the court declined to apply the conclusion in Yusuf's case, as to the obligations of the Refugee Review Tribunal to give reasons, to the duty of the Land and Environment Court of New South Wales to give reasons. There is a simple response to counsel's argument, which is that Segal's case did not concern an interpretation of a statutory requirement for reasons in the terms of s24(2) or the Migration Act, s430(1).

15 For the reasons I have given, I conclude that the learned judge did not err in his construction of s24(2). In the light of that conclusion, the second ground of appeal is to be considered. It concerns whether the Tribunal conformed with its obligations under s24 to give written reasons for its determination that complied with subs(2). As argued, the ground only concerns the Tribunal's reasons concerning issues arising out of the scheme's requirements for the provision of car parking spaces.

16 In its reasons, the Tribunal referred to the provisions of the Resource Management and Planning Appeal Tribunal Act, s23, which provided (inter alia) by subs(1), that it had power to exercise all the powers conferred by the relevant legislation (the Land Use Planning and Approvals Act) on the person who made the decision that gave rise to the appeal (the appellant). It noted that it was required to hear and determine matters afresh and that its function was the same as the planning authority which first considered the issue. D P & L J Krushka Pty Ltd v Peacock unreported 92/1997. The Tribunal noted that Jadwan had raised three grounds of appeal, which respectively contradicted each of the appellant's reasons for refusing the application. The grounds were:

"1 The proposal is consistent with the zone objective for Residential 1 Zone of the City of Hobart Planning Scheme 1982.

2 The proposal provides adequate off-street parking for the proposed used.

3 The proposal includes useable landscaped space that is adequate to preserve residential amenity."

17 Prior to the hearing before the Tribunal, and in accordance with practices allowed by it, the appellant provided reasons, additional to the three it stated in its reasons originally, why it argued that the appeal to the Tribunal should be refused. They included that the use was likely to have adverse impacts upon the amenity of surrounding residents relating to the intensity of the activity, traffic and access.

18 The Tribunal considered that the issues of traffic, access and parking were in many respects central to the whole appeal and there was a dispute between experts as to the number of parking spaces required by the scheme. Table E.1 of the scheme set out basic car parking requirements. Ms Howarth, a traffic engineer, and Ms Noble, a town planner, interpreted them as requiring 25 parking spaces. At one point in his proof of evidence, Mr Clark, a town planner, expressed the view that 24 spaces were required. Later in his proof he referred to 23. Accordingly, the Tribunal noted in its reasons that estimates ranged from 23 to 25. However, Mr Read, a town planner, thought that 22 spaces were required. It was common ground that only 17 parking were proposed for the site so that, whichever estimate was correct, the basic number required by the scheme would not be met.

19 Next, the Tribunal dealt with a tension between cll E7.2 and E11.1 of the scheme and concluded that cl E11.1 was to be ignored and "that the issue of discretion in relation to the relaxation of parking spaces must be assessed by reference only to E7.2". That was not an issue before this Court. However, for reasons that will become apparent, I will state those clauses.

20 Clause E7.2 was in these terms:

"In a Residential ... Zone, ... the Council may vary, limit, reduce or waive the number of parking spaces required under Section E.4 if:

(i) the provision of the total number of spaces required would be detrimental to residential amenity, the environment, the streetscape or traffic/pedestrian safety;

(ii) the use by its nature and location can be serviced by on-street or other existing off-site car parking capacity, without detriment to traffic/pedestrian safety or the convenience and amenity of nearby residents."

"Having regard to the Planning Scheme overall, particularly principles 14 and 15, Council has a discretion to refuse or permit any proposed use or development which does not comply with the quantitative standards imposed by this schedule."

22 The Tribunal accepted that pars(i) and (ii) of cl E7.2 were conjunctive and that a consequence was that "both are to be read together and the proposal assessed against both", in other words that the required number of parking spaces could be varied, limited, reduced or waived only if both paragraphs were satisfied. That was not an issue before this Court either.

23 The issue for the Tribunal was whether it should allow a reduction in the number of on-site parking spaces, from the 23 to the 25 found to be the basic requirement of the scheme, to the 17 spaces it was proposed would be provided, and the Tribunal could only do so if it was satisfied of the two matters for which pars(i) and (ii) of cl E7.2 provided.

24 The Tribunal noted the submission for the appellant that there was no evidence at all upon which it could be satisfied that there was compliance with the clause. However, the Tribunal disagreed and it referred to the evidence of Mr Read, who was a witness for Jadwan. What he had to say in his proof of evidence, which was received by the Tribunal, included:

"The evidence of Keith Midson, GHD Traffic Engineer, provides specific evidence in relation to parking needs associated with boarding house uses. Based on that evidence, as well as the nature of the proposed use, the heritage status of the site, proximity to CBD and Sandy Bay, and public bus services the shortfall is, in my opinion, acceptable. In addition, the proposed use is targeted at low-income earners. Based on information from Anglicare as to operations of similar boarding house facilities at Burnie such tenants have a low level of car ownership. It is also likely that given the cost of owning and running a car, that level of ownership is lower with tenants that qualify for housing assistance.

It is recommended as a condition of approval that the proposed use is linked to Anglicare Tasmania Incorporated as operator. This condition would create certainty that the site will not in future be used for a different type of tenant that may have greater car ownership and parking requirements. This would also address concerns that on street parking will be utilised along Fitzroy Place and Start Street."

25 In accordance with that recommendation, the Tribunal made it a condition of the planning permit that it was valid only for the use of the premises by Anglicare.

26 Earlier in his proof of evidence, Mr Read referred to the Tribunal having a discretion under cl E11.1 to vary the quantitative standards, but made no reference to cl E7.2. When cross-examined, he agreed that he had not addressed cl E7.2 directly in his proof of evidence, but nevertheless maintained that he had considered quite clearly the implications of the car parking variation. When his attention was drawn to the requirement, of par(i) of cl E7.2, that the provision of the basic requirement of parking spaces "would be detrimental to residential amenity, their environment, the streetscape or traffic/pedestrian safety", he said that to provide the basic requirement on site "would be a detrimental impact in my mind providing more car parking on the site than is necessary, it's ugly, you would need to tamper with the building to achieve this".

27 In evidence were plans of what was proposed. They showed where the 17 car parking spaces would be provided. They would not have occupied all of the areas outside the existing building, but what remained was set aside for trees and shrubs, paved areas, grassed areas, outdoor seating and a possible barbecue area.

28 The Tribunal had the following to say when addressing the issues raised by cl E7.2:

"Ultimately however the Tribunal's role is clear. It is necessary to assess, as has been determined, against the provisions in E7.2, the proposal and determine whether or not it is appropriate to exercise the undoubted discretion that exists in the manner that the proponent requests. Of course the Tribunal may inform itself in any way that it sees fit (see Section 16(I)(c) of the Planning Appeal Act). This however does not in the Tribunal's view authorise it, except in the most extreme cases, to substitute its own view for the views of expert witnesses. The Tribunal's view is that it would be in the circumstances of this particular case appropriate to exercise the discretion and is satisfied that the needs to be assessed are adequately addressed on the evidence. It reaches this conclusion not withstanding the facts, as is acknowledged, Mr Read's analysis is based on an assessment of a clause that, in our view, is not applicable. But from that assessment can be drawn various conclusions. Those conclusions include that to provide any more car parking spaces would be detrimental to residential amenity, the environment and the streetscape, due to the impact on the existing trees in the car park and/or removal of other landscaped areas. The proposed parking plan utilises only the existing pave areas. It is also clear from this evidence that the second limb of E.7.2 is able to be addressed. No on street parking need be utilised in Star Street. It can be more than adequately provided, in the unlikely event it is needed, in Fitzroy Place, without any negative impact upon 'traffic/pedestrian safety or the convenience and amenity of nearby residents'.

The evidence adduced, at the request of the Tribunal, in relation to parking patterns at the Anglicare facility in Burnie was also particularly important in reaching this conclusion. It supports the case advanced by the proponent that the likely levels of car ownership, and hence use, of residents will be low. The Tribunal's conclusion, consistent with that evidence, is that even though it is proposed to have a residency of in the order of 24 - 25 people it is inherently unlikely that all of those persons living will in fact own cars. Even if one adds visitors and service and other vehicles it is unlikely that there will be many, if any, occasions during the year when the 17 car places that can be provided on site will be insufficient and create a need for parking to be undertaken offsite. Put another way the Tribunal is satisfied that provision of either 23 or 25 spaces as required under the Scheme is not necessary in the circumstances of this case. The facility will be more than adequately served by 17 spaces.

...

The Tribunal is satisfied there will be no detrimental impact in relation to amenity, the environment or the streetscape traffic or pedestrian safety as a result of the increased traffic in the area.

The fact is, although not relevant to this determination, it is difficult to escape the conclusion that this proposal, when compared to alternative uses to which the site might be put, such as student accommodation or an office facility, is likely to generate, comparatively low levels of traffic."

29 In the first of those paragraphs, the Tribunal found that to require more than 17 parking spaces on site would, in the terms of par(i) of cl E7.2, "be detrimental to residential amenity, the environment [and] the streetscape" because to make room for the additional car parking spaces it would be necessary for existing trees and/or landscaped areas to be removed. A perusal of the plans in evidence made that clear and the Tribunal relevantly referred to the parking plan. (The only alternative would have been to demolish part of the existing buildings, which it was proposed would be retained.) As the Tribunal said, the 17 parking spaces would only utilise existing paved areas. It gave adequate reasons for finding that par(i) was satisfied and it referred to the evidence upon which that finding was based, as required by s23(2). I note that at the hearing of this appeal, it was conceded by the appellant's counsel that the provisions of par(i) raised both on-site and off-site considerations.

30 The Tribunal found that par(ii) was also satisfied. It did so because of evidence, which it identified and accepted, that the nature of the use of the premises would be more than adequately served by 17 spaces. In that regard it referred to evidence that a facility of the kind proposed was unlikely to generate a demand for parking because the likely level of car ownership by the residents would be low. Once again, the Tribunal satisfied the requirements of s23(2).

31 Neither ground of appeal succeeds and the appeal should be dismissed.

32 The second respondent, Jadwan Pty Ltd ("Jadwan"), is the owner of land at Fitzroy Place, Sandy Bay, which is subject to the provisions of the Hobart Planning Scheme 1983 ("the planning scheme") classified within the Residential 1 Zone. The land had previously been used as a nursing home but as of January 2006, the buildings on the land were vacant and the land not used for any purpose. Jadwan sought approval for the use of the land as a "multiple dwelling" to provide "low cost housing" to be managed by a non-government agency, Anglicare. The proposed use was one permitted as discretionary within the provisions of the planning scheme. There was opposition to the proposal and on 2 May 2006, the appellant ("the Council"), refused the application for:

"The use and development of the land for the purpose of Change of Use to Multiple Dwelling, Alterations and Fencing."

"1 The applicant has not demonstrated to the satisfaction of the Council that the proposed use will sustain and enhance the character and amenity of the established residential area in which the site is located, as required by the Zone Objective for the Residential 1 Zone of the City of Hobart Planning Scheme 1982.

2 The proposal does not comply with the car parking requirements of Schedule E of the City of Hobart Planning Scheme 1982 in that there is a deficiency in the number of car spaces to be provided and the applicant has failed to demonstrate that the proposed provision would be adequate for the use, or that reliance upon on-street parking would not adversely affect existing residents.

3 The proportion of the site allocated as usable landscaped space is insufficient to prevent noise intrusion to neighbouring dwellings and to ensure the protection of existing residential amenity."

34 On 10 May 2006, Jadwan appealed the decision to the Resource Management and Planning Appeal Tribunal ("the Tribunal") in accordance with the provisions of the Land Use Planning and Approvals Act 1993 ("LUPA"), s61(4). The appeal was said to be against "a refusal to grant a permit". The grounds of the appeal were stated as:

"1 The proposal is consistent with the zone objective for the Residential 1 Zone of the City of Hobart Planning Scheme 1982.

2 The proposal provides adequate off-street parking for the proposed use.

3 The proposal includes usable landscaped space that is adequate to preserve residential amenity."

35 A number of persons, many of whom were nearby residents, lodged representations against the application, were joined as parties to the appeal (LUPA, s57(5)), Resource Management and Planning Appeal Tribunal Act 1993 ("RMPAT Act"), s14, and took an active part in the subsequent hearing, (RMPAT Act, s15). The Council successfully applied, presumably as permitted by the RMPAT Act, s22, to add to the grounds of its original refusal (it is uncertain whether they formed those original reasons for refusal) through a letter from its solicitors, which stated:

"4 The proposed use does not satisfy the statement of objective for residential zone 1 in that it will not sustain and enhance the character and amenity of the established residential area;

5 The use is not consistent with the statement of desired future character for precinct 27A;

6 The use is likely to have adverse impacts upon the amenity of surrounding residents relating to:

(c) an inadequate area of useable landscaped open space together with a lack of space for relaxing and socialising; and

36 The Tribunal is given limited powers to dismiss an appeal (s22A), but its general powers (s22) provide little statutory guidance as to how it is to define the issues presented to it through appeal or representations in opposition. In one sense it can be said to "stand in the shoes" of the original decision-maker and hear the matter afresh. However, the RMPAT Act, s16, permits the Tribunal to determine its own procedures and it is entitled to confine the issues to be determined on the appeal. The RMPAT Act, s16(1)(e), provides that:

"(e) the Appeal Tribunal is entitled to hear matters afresh and to take account of new evidence not considered by the person who made the decision which gave rise to the appeal."

37 Unless the issues to be determined by the Tribunal can be either defined or confined, its task would remain open-ended and impossible to properly fulfil. A decision-maker such as a municipal council as a democratic institution is properly susceptible and responsive to its community. Where there is statutory power for a wide exercise of discretion, many factors are taken into consideration. Parliament has provided for a wide range of factors relevant to those exercises of discretion through LUPA, Sch1, Pts1 and 2, which state:

"PART 1 ¾ Objectives of the Resource Management and Planning System of Tasmania

1 ¾ The objectives of the resource management and planning system of Tasmania are ¾

(a) to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and

(b) to provide for the fair, orderly and sustainable use and development of air, land and water; and

(c) to encourage public involvement in resource management and planning; and

(d) to facilitate economic development in accordance with the objectives set out in paragraphs (a), (b) and (c); and

(e) to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State.

2 ¾ In clause 1(a), 'sustainable development' means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural well-being and for their health and safety while ¾

(a) sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and

(b) safeguarding the life-supporting capacity of air, water, soil and ecosystems; and

(c) avoiding, remedying or mitigating any adverse effects of activities on the environment.

PART 2 ¾ Objectives of the Planning Process Established by this Act

The objectives of the planning process established by this Act are, in support of the objectives set out in Part 1 of this Schedule ¾

(a) to require sound strategic planning and co-ordinated action by State and local government; and

(b) to establish a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land; and

(c) to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land; and

(d) to require land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels; and

(e) to provide for the consolidation of approvals for land use or development and related matters, and to co-ordinate planning approvals with related approvals; and

(f) to secure a pleasant, efficient and safe working, living and recreational environment for all Tasmanians and visitors to Tasmania; and

(g) to conserve those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value; and

(h) to protect public infrastructure and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community; and

(i) to provide a planning framework which fully considers land capability."

38 A representative institution such as a municipal council is entitled to take into account "public involvement" in a way which differs from an appellate or review tribunal. It would be impossible for the Tribunal to deal with every significant planning matter afresh. Further, it is required to consider matters which might be "unjust or inequitable" (the RMPAT Act s22(2)(b)), permit the intervention of third parties (s14), proceed with as little formality and technicality as possible (s16(1)(b)), observe the rules of natural justice (s16(1)(d)), and is subject to time constraints in making its determination (s16(1)(f), (6), (7)). Central to this appeal is the RMPAT Act, s24, which provides:

"24 ¾ Reasons to be given by Appeal Tribunal

(1) Subject to this section and to section 23, the Appeal Tribunal must give written reasons for its determination of an appeal.

(2) The reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

(3) The Appeal Tribunal must cause a written copy of its reasons to be given to each party to the appeal."

39 The jurisdiction of the Tribunal extends to most areas of the social, economic and environmental activities of the State. The simple expedient of transferring "open-ended" questions to the Tribunal would quickly render the exercise meaningless and random. The requirement to provide reasons, given the extent of LUPA, Sch1 and the referral of "open-ended" questions or issues would inevitably produce an endless process of appeals, re-hearings and re-agitation. It is necessary for those who either make the decision, challenge it, or seek intervention, to formulate what is the question or issue to be reviewed. Here the addition (especially (4) and (5)) by the appellant Council of further reasons in its notice of 20 June, did not meet that requirement. Its subsequent appeal to the Supreme Court, together with a different application for review under the Judicial Review Act 2000, further obscured the issues or matters put before the Tribunal. The complaint to this Court, on a claimed point of legal principle, adds a further complication to resolution. It is said that the Tribunal failed to provide adequate reasons for its decision and that the learned primary judge had applied the wrong test in determining the extent of its duty.

40 The combination of specific legislation (eg, LUPA, the Environmental Management and Pollution Control Act 1994, Cultural Heritage Act 1995, Aboriginal Relics Act 1975, Inland Fisheries Act 1995, Living Marine Resources Management Act 1995, Water Management Act 1999, Public Health Act 1997, Threatened Species Protection Act 1995, Marine Farming Planning Act 1995, Strata Titles Act 1998, and the planning scheme of each municipal council, to name but a few), together with RMPAT, produce a variety of substantive and procedural requirements. They may range from the most general (amenity, sustainable development, etc) to the most specific (Calvary Health Care Tasmania Inc v Hobart City Council [2006] TASSC 10; (2006) 15 Tas R 271). The Tribunal is a statutory body required to undertake many different roles and its procedures and responsibilities accommodate those differences. It is no answer to a question of whether it sufficiently exposed its reasoning in a particular case to say that it is the outcome which defines, enlarges or confines its duty to give reasons. The type or range of determinations include:

(1) a total review of the original decision akin to a hearing de novo;

(2) the enlargement of the issues which formed the basis of the original decision;

(3) enlargement of issues brought before it by an intervening executive or by other persons or institutions making representations;

(4) consideration of matters of public policy or consistency of outcome throughout the State;

(5) specific issues such as car parking, a heritage building density, species, habitat;

(6) the restraint of an activity in a manner akin to that afforded to a superior court.

41 The characterisations stated above are intended as examples and are not exhaustive.

42 A person, institution or agency seeking to have an outcome varied because of claimed inadequacy of reasons must first identify what were the issues traversed or which were required to be determined by the specific tribunal fulfilling an identified statutory responsibility.

43 Here the grounds, enlarged by the Council, required it to either argue them fully, define their application and identify the bases on which the "application" ought be refused. The "Planning Proof of Evidence" supplied by Ms Noble dated 10 July 2006 and that of Johnstone McGee Gandy Pty Ltd, on behalf of the Fitzroy Residents' Association, appear to raise the widest possible bases for review. Not all of the evidence put to the Tribunal was placed before this Court, but the material included:

(1) a 23 page proof of evidence of Frazer Read and over 20 pages of annexures;

(2) a traffic report submitted by GHD Pty Ltd (13 pages), together with Fitzroy Place/Star Street Parking Surveys data between October 2004 and February 2006;

(3) proof of evidence (17 pages) entitled "Derwent Court - Fitzroy Place - Traffic", dated July 2006;

(4) proof of evidence of June Noble (17 pages) with two attachments;

(5) proof of evidence prepared by Johnstone McGee Gandy Pty Ltd with annexures.

44 A multitude of issues was raised in each proof, report and annexure. Cross-examination during the course of hearing extended the issues further. They ranged from the United Kingdom Planning Policy Guidance, Note 3, to racial, social and ethnic mix (T66, 362), from noise to the habits of 40 year old males and the occupancy of beds by university students (T45), privacy, to trees and locker space (T61.2). Reference was made to other suburbs, use of a hearing centre, the Brooker Highway, and a range of other, doubtless, relevant matters. Questions were asked of the use of "car ownership by persons who use the Burnie facility" operated, presumably, by Anglicare, and the dimensions of a "Mario's Wholesale Truck" (T122).

45 There was nothing wrong with the course or extent of the evidence or the breadth of the evidence canvassed. That is the nature of planning principles and requirements. There was nothing wrong with the canvassing of examples from other places or institutions. The provision by a club and use of alcohol by young people (T152), antisocial behaviour (T141, 150), might be proper matters of concern for nearby residents (T141-2), but it would be impossible for any tribunal, in written reasons for decision, to canvass and analyse every facet of evidence or issue raised, either in the proofs or annexures or the course of the evidence. The concerns of the residents as to amenity or on-street parking is illustrated in the following exchange between the witness Matthew Clark, a town planner, and counsel for the respondent:

"Under 6.8 you've indicated that the residents note that on street parking is already taken up during the day by workers and visitors to the Sudan facility nearby. That simple [sic] isn't borne out by the surveys that have been provided? ... No, that comment comes from the residents' letters to council.

It was during the day there's an abundance of parking it would seem, or at least spare capacity? ... I really haven't done a survey on that side, that's the traffic engineers.

You don't have any dispute with the figures that have been provided previously? ... My source of information is what the local residents have said and they tell me that there's a current car parking problem in the area in terms of the on-street availability. A number of the houses on the site don't have their own off street parking and therefore there is a requirement for on-street parking for those properties.

For off-street parking because they don't have on? ... On-street parking because they don't have their own off-street parking.

Right. In your response proof at paragraph 1.2 you say:

There's no need demonstrated by the applicant for boarding house accommodation in this area.

I want to suggest to you that Reverend Jones' evidence clearly contradicts that. It says there is clearly a need and that the housing strategy itself identifies the need? ... I'm going to have to accept that."

46 On 2 November 2006, the Tribunal upheld the appeal and provided reasons for its decision. Relevant to this appeal and the reasons provided by the Tribunal in its decision of 2 November 2006 are the details of that decision and the conditions which grounded its exercise of discretion. That decision relevantly provides:

"1 By decision dated the 2nd November 2006 the Tribunal ordered, inter alia, that the appeal in this matter should be upheld and, in the absence of agreement between the parties as to the appropriate conditions to attach to the permit to be issued, the Tribunal would determine the conditions of that permit.

3 The Tribunal has received submissions from the parties, in writing, as to the appropriate conditions to attach to the permit. Having regard to those submissions the Tribunal orders that the Council be directed to issue a planning permit to the applicant, Jadwan Pty Ltd, in relation to application No. PLN-06-00063-01 with respect to 20 Fitzroy Place Sandy Bay in the following terms:

'1 Use and development shall be substantially in accordance with the documents and drawings that comprise the Planning Application No. PLN-06-00063-01 as outlined in attachment A to this permit except where modified below and specifically modified to accord with the parking plan prepared by Mr Frazer Read at the request of the Tribunal and tendered in evidence as part of Exhibit A10.

2 The Council's Services and Development Inspector shall be contacted at least 24 hours prior to the commencement of any works.

Reason: To locate and inspect public infrastructure within and adjacent to the development site.

3 External lighting in the car park and driveway on the facility is to be limited to low shielded lights.

Reason: to minimise the impact of light spillage on neighbouring properties.

4 A landscaping plan and management plan must be prepared by a qualified contractor and submitted to the Council for approval.

Reason: To ensure residents have a high quality of private open space, adjoining residents have a reasonable level of privacy and to ensure garden maintenance does not impact on adjoining residents.

5 The permit is valid only for the use of the premises by the Anglicare Tasmania Incorporated. Use of the site by any another person and/or organisation shall not be permitted without further approval of the Council.

Reason: To ensure the use of the premises is limited in scope to that applied for in this application.

6 No more than 27 persons and 2 caretakers are to reside on the site at any one time

Reason: To maintain control over resident numbers on the site and the related impact on the amenity of local residents.

7 The operator of the premises is to maintain a register of the number of residents and visitors, and number of staff residing at the premises at any date. This register is to be made available on request for inspection by authorised Hobart City Council officers.

Reason: To maintain control over resident numbers on the site and the related impact on the amenity of local residents.

8 Automatically opening boom gates are to be installed on both the Fitzroy Place entrance to and the Star Street egress from the property.

Reason: To prevent access to the facility via Star Street, to control car park operating hours.

9 Location and directional signage must be provided to direct traffic from Fitzroy Place to the satisfaction of Council

Reason: to avoid unnecessary vehicle movements along Star Street.

10 Design drawings of the driveway access, car parking and turning areas shall be submitted to the Council for approval prior to the issue of a building permit.

Reason: To ensure that the works will comply with the Council's standard requirements.

11 The design and construction of the parking, access and turning areas shall generally comply with the Australian/NZ Standard, Parking facilities Part I : Off-street car parking -- AS/NZS 2890.1: 2004

Reason: To ensure that the parking layout for the development is to accepted standards.

12 All driveway access, car parking and turning areas shall be constructed, sealed and drained to the Council's standard requirements prior to the first occupation/new use of the building and used for no other purposes whatsoever. (Please refer to the advice clause below).

Reason: To ensure that the works will comply with the Council's standard requirements.

13 Barriers compliant with the Australian Standard AS 1170.1 shall be installed to prevent vehicles running off the edge of a carriageway, raised platform or deck where the drop from the edge of the trafficable area to a lower level is 600mm or greater, and wheel stops shall be installed for drops between 150mm and 600mm. Where barriers are required as above, prior to the issue of a Building Permit submit a structural detail and certificate issued by a suitably qualified Engineer demonstrating compliance with the above requirements.

Reason: To ensure that the works will comply with the Council's standard requirements.

The existing bird aviary removed to provide sufficient vehicle manoeuvring width to access proposed car parking spaces 13 and 14'."

47 It would seem from the combination of the decision and the fixing of conditions that central to the reasoning process were the questions of amenity, access and parking. But different questions appear in discussions between the Chairman of the Tribunal and counsel for the residents' association in the following exchange:

"CHAIRMAN: Okay, two discrete issues, I think, Mr Morris. The first was that Ms Howarth, as I understand the situation, has gone off to look for a particular reference to a particular book, Ogden and something or other -

MR MORRIS: Yeah, got that.

CHAIRMAN: And also to ascertain whether or not the reference that she'd used was the most recent.

MR MORRIS: Yeah.

CHAIRMAN: So that's - that's the first issue about the additional information, I don't think there's anything else. The second issue that Mr McNeil raises is whether or not this - well assuming that the development that's taking place is a welfare institution within the meaning of the planning scheme, what impact, if any, does that have upon traffic issues from her perspective. And a similar question will be posed to Mr Midson. I think I've summarised that fairly.

MR MCNEIL: Yeah, I mean that arose, Mr Morris, when -

MR MORRIS: Yeah, no -

MR MCNEIL: - (indistinct word) said it really isn't really a boarding house in the normal sense of the word, it's something else.

MR MORRIS: I understand that. I just wouldn't mind flagging with the Tribunal that if Ms Howarth does form a view about that between now and tomorrow before she faces that question, she might like to pass the information onto me.

MR MCNEIL: Yes, the only question for her is that if it was a welfare institution -

MR MORRIS: Yeah.

MR MCNEIL: - what would the implications be with the parking program.

MR MORRIS: Sure - she'd provide a short answer."

48 Following the decision, the Council sought review pursuant to the Judicial Review Act, s17, and appealed as provided for by the RMPAT Act, s25, in identical terms, which stated:

"(a) The Respondent erred in law in that it failed to comply with its obligation pursuant to Section 24(2) of the Resource Management & Planning Appeal Tribunal Act 1993 in that it:

(i) failed to set out its finding on material questions of fact relating to the exercise of the discretion conferred by Clause E.7.2 of the City of Hobart Planning Scheme 1982 (the planning scheme);

(ii) failed to make findings on material questions of fact necessary as part of the exercise of the discretion conferred by Clause E.7.2 of the planning scheme; and

(iii) failed to refer to the evidence or other material on which those findings were based

in concluding that it would be in the circumstances of the case before it appropriate to exercise the discretion so conferred.

(b) The Respondent erred in law in that to the extent to which it did make findings on material questions of fact relating to the exercise of the discretion conferred by Clause E.7.2 of the planning scheme it failed to refer to the evidence or other material on which those findings were based, contrary to the obligation imposed by Section 24(2) of the Resource Management & Planning Appeal Tribunal Act 1993.

(c) The Respondent erred in law in that in concluding that it was appropriate to exercise the discretion conferred by Clause E.7.2 of the planning scheme it failed in stating its findings on material questions of fact relevant to this issue why it rejected the evidence of Ms Noble, Mr Clarke and / or Ms Howarth and / or failed to state why that evidence was rejected or not preferred by it.

(d) The Respondent erred in law in that in exercising the discretion conferred by Clause E.7.2 of the planning scheme, it purported to draw conclusions from the evidence of Mr Read without identifying what that evidence was and where Mr Read failed to express any opinion by reference to the discretions conferred by Clause E.7.2.

(e) The Respondent erred in law in that it failed to make any finding on a material question of fact relevant to the exercise of the discretion conferred by Clause E.7.2 of the planning scheme, that is to say why provision of the total number of car parking spaces required by the planning scheme would be detrimental to traffic or pedestrian safety on the land the subject of the development application.

(f) The Respondent erred in law in that it failed to include in its reasons its findings on a material question of fact namely why the use applied for by its nature and location could be serviced by on street or other existing off site car parking capacity as required by Clause E.7.2(ii) of the planning scheme and also failed to include a reference to the evidence or other material on which the exercise of the discretion pursuant to that Clause was conferred, contrary to its obligation pursuant to Section 24(2) of the Resource Management & Planning Appeal Tribunal Act 1993.

(g) The Respondent erred in law in that in exercising the discretion conferred by Clause E.7.2(i) of the planning scheme it took into account evidence as to the likely levels of car ownership and use at the proposed facility when such evidence was irrelevant to a proper consideration of the discretions conferred by Clause E.7.2(i) of the planning scheme.

(h) The Respondent erred in law in that it failed in its duty pursuant to Section 24(2) of the Resource Management & Planning Appeal Tribunal Act 1993 to give any or any adequate reasons together with a reference to the facts on which those reasons are based, for its conclusion that it was satisfied that the proposal was consistent with the zone objective of the Residential 1 Zone and the statement of desired future character pursuant to the planning scheme."

"E.7.2 In a Residential ... Zone, ... the Council may vary, limit, reduce or waive the number of parking spaces required under Section E.4 if :

(i) the provision of the total number of spaces required would be detrimental to residential amenity, the environment, the streetscape or traffic/pedestrian safety;

(ii) the use by its nature and location can be serviced by on street or other existing off site car parking capacity, without detriment to traffic/pedestrian safety or the convenience and amenity of nearby residents."

"E.11.1 Having regard to the Planning Scheme overall, particularly Principles 14 and 15, Council has a discretion to refuse or permit any proposed use or development which does not comply with the quantitative standards imposed by this Schedule."

51 According to the report prepared for the Council by Howarth Fisher and Associates, the proposed development site had accommodated 51 residents before the closure of the nursing home in 1997. In Ms Howarth's opinion, the off-street parking provisions, as of the date of the application, was approximately 10 parking spaces. The proposed development included the provision of 17 car parking spaces. The calculation of Ms Howarth was based upon the assumption that the proposal was to be defined as a multiple dwelling which, according to the planning scheme, was:

"A dwelling intended, adapted or designed solely for use as the permanent residence of two or more households sharing in common the use of parts of the accommodation and includes a boarding house, a hostel, a lodging house, a residential college, but excludes bed and breakfast accommodation, a house, a flat, a hotel, a motel or self contained visitor accommodation.

In residential development falling within use group III, and involving more than one dwelling unit or household, the minimum number of spaces to be provided shall be calculated on the basis of the total floor space of the development plus a requirement of one additional space for every 160 square metres of floor area or part thereof which may be required wholly or in part to be set aside for visitor parking in accordance with Scheme."

52 On her calculation, the parking requirements were:

53 Ms June Noble, a planning consultant called as a witness by the appellant, stated that in her opinion, seven discretions were "triggered" by the application, namely, use, heritage, traffic access, number of parking spaces, parking in the front set-back, usable landscaped space, and private open space. She assessed the proposal as having two uses, a multiple dwelling and a flat, since on her approach the planning scheme's definition of "multiple dwelling" specifically excludes a flat. On her understanding, the proposal involved accommodation for 29 people (27 occupants of the multiple dwelling and 1 - 2 people in the "manager's flat"). Ms Noble addressed the question of amenity and characteristics of the neighbourhood in the following terms:

"Firstly, the likely transient nature of the occupants does not contribute to the same kind of neighbourly character which could be expected in a neighbourhood of private dwellings with long-term owners and tenants. An important aspect of existing residential amenity is the community relationship which can be built up between long-term residents, and this is not a likely characteristic of institutionalised accommodation with transient residents.

Secondly, the application provides little detail of the tenants who will be using the facility other than that they will be low-income earners. However as Anglicare provides services for people with drug and alcohol problems and mental illness, it is logical to assume that there will be inter-agency referrals between the services, and that some of the occupants of this facility will have those characteristics.

I understand it has been indicated by a senior official of Anglicare to one of the residents that this facility will cater for people with drug and alcohol problems.

There is undoubtedly a need in any city, and in any planning process to cater for people with such problems. However from the viewpoint of practically managing and minimising conflicts, there is a question on whether this type of facility can sustainably be located in high quality suburban family residential neighbourhood.

The Scheme identifies specific areas where boarding houses or hostels are a permitted use[1], presumably because they have been identified as being the areas in which the least conflict would occur with existing uses.

Outside those precincts, as in this case where the use is discretionary, extra caution and control is required to ensure the existing character and amenity of established areas are not adversely affected.

In summary, the likely transient nature of the occupants, the potential for anti-social behaviour from some of those occupants, and the large number of occupants coming and going from the facility creates a situation where this is clearly not a normal household.

Such institutionalised accommodation is not typical of the area, and is demonstrably[2] perceived by local residents as being inconsistent with the existing character and amenity of an existing residential neighbourhood, and likely to give rise to conflict.

In such circumstances, in my opinion the facility will not 'sustain and enhance the character and amenity' of the established residential area, as is required for any discretionary use by the Zone Objective for the Precinct."

54 Ms Noble assessed the parking need at 25 spaces. She "contended" that the applicant had not demonstrated "why a significant variation" should be permitted "as the GHD report does not acknowledge there is a variation [and] ... Further the application does not address the issue that a change in owner/operator could result in an entirely different operation which would not have the reduced requirement for parking which is denied for the initial tenants." In relation to the issue of parking, the witness summarised her opinion that:

"There is a significant shortfall of 8 spaces between the proposed and required on-site parking spaces. Irrespective of the claimed low car ownership of the currently proposed tenants, the tenancy can change at any time and there is no demonstrated basis on which a multiple dwelling with 23 bedrooms (which may be used by a variety of tenants) should be approved without appropriate parking capacity as required by the Scheme."

55 The primary witness for the residents' group, Matthew Clark, provided his opinion in the following terms:

"6.3 Car Parking - E.4 of the Scheme clearly requires 16 spaces for its occupants and 7 visitor spaces, totalling 23 spaces. The applicant has provided only 17 spaces. Whilst a discretion is available to Council under E.7 of the scheme, it must be satisfied that the required level of parking will be detrimental [to] the local area and that adequate parking is available off-site, or there is a negative impact on the heritage status of the property. The proposal requires a variation to the car parking requirement, simply because [of] the type of use and the number of rooms proposed in the development. It is submitted that the variation is intended to allow proposals can meet [sic] the standard, but at cost to the local amenity or environment, not proposals that are simple over developments of the site. The parking in the local area is constrained by the narrow dead-end Star Street which already supports a number of residents reliant on on-street parking.

6.4 Although, low income residents may not have a high rate of car ownership, the rate required under E.4 already assumes that 1/3rd of occupants will not have cars. To improve the impact on the neighbouring residences through buffers and additional landscaping, Council would need to significantly reduce the level of parking below that currently shown in the development which is unlikely to be a workable solution for this type of facility."

56 Those matters were summarised by the learned Chief Justice as claims of error in law by the Tribunal as:

"(1) failing to give adequate reasons for its decision with respect to The Schedule parE7.2(i) and (ii) and cl 5.7 of the Hobart Planning Scheme; and

(2) taking into account irrelevant material when making its decision with respect to parE7.2(i) of the Hobart Planning Scheme."

57 The issues were limited to the grant of a permit notwithstanding that the number of off-street vehicle parking spaces were fewer than designated in the planning scheme. The learned primary judge dealt with the reasoning process employed by the Tribunal and the claim that the Tribunal took into account irrelevant material, in a thorough and appropriate manner. No effective critique was advanced in argument presented in this Court that the reasoning process as explained by his Honour was flawed. Instead, a separate critique was formulated, claiming that the learned primary judge had applied an incorrect test in determining that sufficiency of reasons. Put a different way, the claim is that his Honour failed to properly explain or give proper reasons as to why he concluded that the decision-maker had not failed to give "adequate reasons" for its decision.

58 The grounds of appeal to this Court claim errors in law by the learned primary judge:

"(a) In his construction of Section 24 of the Resource Management and Planning Appeal Tribunal Act 1993;

(b) In his determination of the extent of the obligations of the First Respondent to publish reasons for its decision in appeal number 148 of 2006 which decision is in writing and is dated 2 November 2006."

59 In the course of his reasons for judgment ([2007] TASSC 29), the learned Chief Justice stated at pars11 and 12:

"In Transend Networks Pty Ltd v Launceston City Council [2001] TASSC 134, Slicer J revisited the meaning of the Act, s24, and referred to Yusuf's case. His Honour said this at par18:

'Accepting that the test in Minister for Immigration and Multicultural Affairs v Yusuf (supra) impacts on the decisions of all tribunals and is not simply a decision dependent upon the particular terms of a statute, the methodology employed by the Tribunal in this case nevertheless remains inadequate.'

As I understand his Honour in that paragraph and in the following three paragraphs, he is expressing a view that the Act, s24, imposes a general duty to give reasons and that that duty is akin to the one imposed on judicial officers by the common law. If that understanding is correct, I respectfully disagree with those views, as they appear to me to be contrary to the decision of the majority of the High Court in Yusuf."

60 In Transend, I neither held nor expressed the view that the duty imposed by the Act, s24, "is akin to the one imposed on judicial officers by the common law". Transend was argued in October 2001 and the judgment in Yusuf published in May of that year. From memory, the judgment of the High Court was first raised by the court with counsel. In Yusuf, the High Court was dealing with the Migration Act 1958 (Cth)¸ relief claimed under the Constitution, s75(u), and reviewable error and the interrelationship of the restrictive requirements of the Migration Act, ss430 and 476. Whether Yusuf had altered the law, been confined to the particular questions raised by the Migration Act, or required further detailed consideration or explanation by the High Court, were not matters relevant to the resolution of the matters in Transend. The reasons in Transend included:

"The requirement of, and the standards applicable to, the giving of reasons have been discussed in Seablest Pty Ltd v Smith (1996) 91 LGERA 1. As was said at 12:

'A party is entitled to know the terms of the case he or she is expected to meet. A party is entitled to be given notice of issues which are germane to the resolution of the dispute. The rules of procedural fairness require that a Tribunal not reach a conclusion on a basis which had been precluded from consideration. The principle prevents a Tribunal from receiving ex parte information (Errington v Minister for Health [1935] 1 KB 249) and requires it to give the parties to the controversy a fair opportunity for correcting or contradicting any relevant statement prejudicial to their view (Board of Education v Rice [1911] AC 179 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 59). It is consistent with the approach taken by the courts in applying the principles expounded in Browne v Dunn (1893) 6 R 67 HL and Dolan v Australian and Overseas Telecommunications Corporation [1993] FCA 202; (1993) 42 FCR 206. Tribunals not strictly bound by the rules of evidence are subject to an obligation to afford procedural fairness because, as Brennan J said in Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482:

"The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that 'this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force', as Hughes CJ said in Consolidated Edison Co v National Labour Relations Board [1938] USSC 176; (1983) 305 US 197 at 229. To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J pointed out, though in a dissenting judgment, in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 256: ...

'No Tribunal can, without grave danger of injustice, set [the rules of evidence] on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice".'

The degree of analysis and exposure of reasoning will depend on the nature of the particular tribunal (Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 75 ALJR 1105). As was said in Seablest Pty Ltd v Smith (supra) at 4:

'A specialist Tribunal consisting of persons inexperienced in the formulation and use of legal language ought not be expected to craft reasons for judgment in the style of "a Brennan" or display the verve and reasoning power of "a Denning". It is inappropriate to examine the published reasons in order to expose an unskilled formulation or to undertake an over zealous exercise in reviewing the language used (Branson v Repatriation Commission [1991] FCA 459; (1991) 23 ALD 600). The question is whether the Tribunal discloses its reasoning process which led it to its conclusion (Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500) and in the words of Underwood J in Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246 at 262, the test requires that the reasons: "... must be sufficient to enable the parties to ascertain what facts were found, which of the arguments ... were accepted and which were rejected and what law was applied to arrive at the ultimate determination".'

In this case, the specialist tribunal possessed great experience in the important and complex area of economic planning and environmental principles.

The law does not require the production of a detailed and complex tome, the exclusion of every contrary contention or factor, or state findings on all matters of fact that are objectively material (Minister for Immigration and Multicultural Affairs v Yusuf (supra)). Accepting that Minister for Immigration and Multicultural Affairs v Yusuf (supra) alters the law in general terms, it nevertheless remains the law that reasons must be adequately provided so that the parties can decide whether the decision is suspect to challenge. It must provide a basis for analysis and appellate review. A closed statement does not permit an aggrieved party to examine the bases in order to test whether any of them can be shown to be wrong in principle or unsupportable by reference to the evidence. Accepting that the test in Minister for Immigration and Multicultural Affairs v Yusuf (supra) impacts on the decisions of all tribunals and is not simply a decision dependant upon the particular terms of a statute, the methodology employed by the Tribunal in this case nevertheless remains inadequate.

The issues involved the activity of a large public utility, economics of development, health and safety, amenity, environmental impact on differing areas, the interests of residents and the community as a whole. They were not adequately dealt with by the Tribunal."

61 In that case the Tribunal had neither addressed criteria of "public interest", "negative impact" or "risks to health", but simply stated a précis of the competing evidentiary material.

62 In Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, Gummow and Hayne JJ referred to the distinction between a review conducted by a tribunal and adversarial proceedings where opposing parties define, join and contest issues. There are obvious differences between a tribunal acting as a delegate for an office bearer or conducting a simple administrative review, and a tribunal conducting a contested hearing of a nature here considered. But any distinction based solely on whether the proceedings are adversarial would be both simplistic and meaningless. The degree of analysis and exposure of reasoning will depend on the nature of the particular tribunal and the complexity of the issues, and the nature of the proceedings themselves will determine the requirements of statement exposure of reasoning. Yusuf was primarily concerned with a duty to state findings and consideration of the structure of the Migration Act taken as a whole and the role of the tribunal in its role in reviewing decisions of the Minister. Matters such as exposition of "subjective thought processes" might be no more than a "taking into account of all relevant considerations". They might be relevant in consideration of whether irrelevant matters or ones precluded by statute led to the conclusion or finding.

63 The extent of any distinction based on whether proceedings were or were not adversarial in nature and/or depended on an exercise of judicial power, was considered by the Court of Appeal in Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177. In delivering the judgment of the court, Tobias JA stated at 188 - 190 [pars38 - 44]:

"However, some care needs to be taken in applying the observations of the High Court in Yusuf to which I have referred to the content of the duty to give reasons of a Commissioner or, for that matter, a judge of the Land and Environment Court. Thus in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518, McHugh J (at 530-531 [36]) observed that the Tribunal was not a court and did not exercise judicial power. His Honour continued:

'Care must be taken not to confuse the role of the Tribunal with that of the court which must necessarily find or rely on facts that are relevant to define issues between the parties, issues that concern facts that have occurred in the past.'

Citing Yusuf, his Honour then remarked (at 531 [37]) that proceedings before the Tribunal were not adversarial in nature. There was no contradictor and no issues between parties. Whatever findings the Tribunal made were no more than those that the Tribunal considered necessary to explain its decision.

In their joint judgment in Wang, Gummow and Hayne JJ were of a similar view. They said (at 540-541 [71]):

'In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process. It is not adversarial; there are no opposing parties; there are no issues joined. ... The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision.'

Their Honours then observed (at 541 [72]) that the Tribunal's written statement of its reasons must be understood in that way. And that so much followed from the decision in Yusuf:

'where six members of the Court held that the Act's requirement for the Tribunal to set out findings of fact was a requirement that focused upon the subjective thought process of the Tribunal, not some objectively determined set of 'material' facts. That is, it was held that the Act required the Tribunal to set out the findings it did make rather than findings it ought to have made.' (emphasis in original)

In the Land and Environment Court the litigation is adversarial in nature. The parties are opposed to each other and issues are joined between them. The position of the Tribunal under the Migration Act is essentially different.

Accordingly, in my opinion, it does not necessarily follow that a Commissioner or judge of the Land and Environment Court is required to give reasons only with respect to his or her subjective thought processes in coming to their particular decision. Notwithstanding those thought processes, their duty to give reasons would be contravened if they failed to address an issue joined between the parties which, if decided in a particular way, would result in a different decision to that to which the Commissioner or judge has arrived. Thus, if issues A, B and C be joined between the parties and the Commissioner or judge only addresses issues A and B, he or she will have erred in law by failing to address issue C if the resolution of that issue in favour of one or other of the parties would have resulted in a different outcome to that arrived at upon a determination of issues A and B. On the other hand, if issue C would have had no bearing upon the outcome arrived at in accordance with the determination of issues A and B, then it need not be addressed.

It is in the foregoing respect that, in my opinion, Commissioner Watts was bound to address the principal contested issues that were joined between the parties. The real question, which in my opinion is determinative of this appeal, is whether the primary judge was correct in finding that one such issue was the principle of consistency in administrative decision-making."

64 Failure to make findings on issues whether or not they were critical to the Tribunal's reasoning or essential conclusion does not constitute error. I would accept Segal to correctly state the law relevant to this appeal. I accept that it correctly deals with the approach to be taken in any consideration of statements by the High Court in Yusuf and Wang. The test applied by the learned Chief Justice was the one appropriate to the decision of the Tribunal. I would dismiss ground 1 of the notice of appeal.

65 Here the issue was the adequacy of the provision for vehicular parking that was proposed on the site. The site had previously been used for a nursing home for a large number of residents. The 17 spaces proposed required the exercise of discretion to reduce the number of spaces from that which would otherwise be required by the application of the formula set out in the planning scheme. The Tribunal neither applied the wrong formula nor made findings of fact which are subject to challenge. The contested issue was that in the opinion of others, a higher number of spaces was "in fact" necessary. The Tribunal accepted the evidence which favoured the proponent and correctly identified both that evidence and the issues raised by the competing propositions. It was entitled to conclude, as it did, that 17 spaces were sufficient to serve the use of the property and, as such, would not offend or be overridden by the other competing and compelling planning principles or requirements. It concluded at par26 that:

"No on street parking need be utilised in Star Street. It can be more than adequately provided, in the unlikely event it is needed, in Fitzroy Place, without any negative impact upon 'traffic/pedestrian safety or the convenience and amenity of nearby residents'."

66 The Tribunal specifically referred to evidence which it regarded as important in reaching its conclusion. Having done so it was not required to further explain why it did not accept the opposing evidence which, according to the opponents, would create traffic and parking problems external to the site.

67 Ground 2 is not made out.

68 I would dismiss the appeal.

69 The respondent is the owner of a property at 20 Star Street, Sandy Bay ("the property"). Until 1997 the property was used as a nursing home, but it has been vacant since then. The respondent applied to the Hobart City Council ("the appellant") for a permit to use the property as a multiple use dwelling. The proposal was that the property be used as accommodation for people with low incomes consequent upon the government's affordable housing policy. The site was to be operated by Anglicare. It was intended it cater for approximately 25 residents and have a caretaker and cook on site.

70 The appellant refused the permit, giving three reasons for so doing. The respondent appealed that decision to the Resource Management and Planning Appeal Tribunal ("the tribunal"). In those proceedings, the appellant enlarged upon its reasons for refusal and a number of people, mainly local residents, applied to be joined in the proceedings because they opposed the use. The hearing before the tribunal heard evidence from a number of witnesses called by both the respondent and the persons joined, which evidence was, in a number of respects, in conflict. It then handed down a decision on 25 November 2006 allowing the appeal. It directed the appellant to issue the permit sought, subject to a number of conditions. The appellant made two applications in respect of that decision to a single judge of this Court. One was by way of an appeal pursuant to the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), s25, and the other was by way of a review pursuant to the Judicial Review Act 2000, s17. Both were dismissed by a decision handed down on 24 May 2007, leaving the tribunal decision in place. By a notice of appeal filed 14 June 2007, the appellant appeals that decision.

71 The grounds of appeal to this Court are as follows:

"The grounds of appeal are that the learned trial judge erred in law:

(a) In his construction of Section 24 of the Resource Management and Planning Appeal Tribunal Act 1993;

(b) In his determination of the extent of the obligations of the First Respondent to publish reasons for its decision in appeal number 148 of 2006 which decision is in writing and is dated 2 November 2006."

72 The grounds upon which the appellant had sought to overturn the decision of the tribunal before the learned trial judge were lengthy. Before this Court, however, counsel confined the issues to the questions:

- Did the learned trial judge apply the correct test when dealing with the issue of the obligation of the tribunal to give reasons in respect of its decision? and

- Did the tribunal give adequate reasons once it was determined what the appropriate test was?

Counsel also agreed that the issue about which the adequacy of reasons was challenged was that of car parking on and off the property.

73 The obligation of the tribunal to give reasons in respect of any appeal is contained in the RMPAT Act, s24, which provides as follows:

"24 (1) Subject to this section and to section 23, the Appeal Tribunal must give written reasons for its determination of an appeal.

(2) The reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

(3) The Appeal Tribunal must cause a written copy of its reasons to be given to each party to the appeal."

"23 (1) For the purpose of determining an appeal, the Appeal Tribunal may exercise all the powers that are conferred by the relevant legislation on the person who made the decision that gave rise to the appeal."

75 Counsel for the appellant summarised in his submissions the jurisdiction of the tribunal to deal with an appeal and concluded that the tribunal exercises what is broadly described as de novo jurisdiction. Counsel for the respondent did not dispute this conclusion and, with respect, it appears correct.

76 The learned trial judge, at pars6 - 19 inclusive of his decision, dealt with a number of authorities in respect of the obligation of the tribunal to give reasons for its decision and counsel for the appellant's submissions in relation to it. He concluded that the correct test to be applied in determining how s24 should be given effect to was that outlined in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 75 ALJR 1105. Counsel for the appellant contends that his Honour erred in confining the obligation to give reasons to the test set out in Yusuf's case.

77 Counsel for the appellant submitted that the obligation of the tribunal to give reasons required it to:

• set out findings on material questions of fact relating to the exercise of its discretion relating to car parking pursuant to cl E7.2;

• refer to evidence or other material on which those findings were based;

• state why it rejected evidence which was contrary to the way in which it exercised its discretion; and

• provide an analysis of what evidence it accepted and why, and what evidence it rejected and why in respect of the exercise of its discretion.

Did the learned trial judge apply the correct test when dealing with the issue of the obligation of the tribunal to give reasons

78 In Yusuf's case, the High Court, in dealing with what was initially a decision by the Refugee Review Tribunal pursuant to the Migration Act 1958 (Cth), considered s430 of that Act. Section 430(1) relevantly provides:

"430 (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a) sets out the decision of the Tribunal on the review; and

(b) sets out the reasons for the decision; and

(c) sets out the findings on any material questions of fact; and

(d) refers to the evidence or any other material on which the findings of fact were based."

The wording is almost identical to the RMPAT Act, s24. At pars68 and 69, McHugh, Gummow and Hayne JJ said in relation to s430:

"68 Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made. In Singh, significance was attached to the use of the word 'material' in s 430(1)(c). It was said[29] that 'material' in the expression 'material questions of fact' must mean 'objectively material'. Even if that were right, it would by no means follow that the Tribunal was bound to set out findings that it did not make. But it is not right to read 'material' as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.

69 It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material."

79 Counsel for the appellant submitted that the obligation of the tribunal to give reasons should not be similarly limited in the context of its exercising jurisdiction under the Land Use Planning Approvals Act 1993 ("the LUPA Act") because of the nature of the work being done by the tribunal. He submitted that there were "obvious and significant differences between the statutory context and content of the duties and obligations of the Tribunal in contrast to the jurisdiction which is exercised by the Refugee Review Tribunal". Hence the test in Yusuf was not appropriate. Counsel submitted that the position of the New South Wales Court of Appeal in Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177, a case in which a review of a decision of the Land and Environment Court was considered, was the more appropriate position. The court in that case declined to follow Yusuf's case. He submitted that, in broad terms, the decision in Segal's case was consistent with the view expressed by Slicer J at pars18 - 21 in Transend Networks Pty Ltd v Launceston City Council [2001] TASSC 134. Counsel submitted that the reasons of the New South Wales court for distinguishing Yusuf's case insofar as its application to the Land and Environment Court was concerned, were highly persuasive.

80 Counsel for the appellant submitted that the differences between the Land and Environment Court in New South Wales and the tribunal did not support the learned trial judge in the present case distinguishing the decision in Segal. Segal's case involved an appeal from a decision of a single judge of the Land and Environment Court in New South Wales. Two neighbours had sought permission to breach a heritage retaining wall which ran along the front of their properties for the purpose of accessing off-street parking on their properties. Their applications were dismissed by the relevant local council. They each appealed to the Land and Environment Court and their applications were heard by different commissioners of the court with different outcomes. The commissioner in the second decision, although aware of that in the first and having had raised as an issue before him the need to have consistency in decisions, made no reference to the earlier decision or the so-called principle of consistency. His failure to do so resulted in an appeal to a judge of the court by the local council, who overturned the decision of the second commissioner. That resulted in the appeal to the Court of Appeal.

81 In the Court of Appeal, Tobias JA, with whom Beazley and Basten JA agreed, discussed the duty of commissioners of the Land and Environment Court to make findings and, in that context, considered Yusuf's case and its applicability to decisions of that court. The appellant landowner in that case relied heavily on Yusuf. His Honour set out the passage to which I have already referred in par10 and noted at par35 that:

"However, a broader argument than that based solely upon s430 was advanced in Minister for Immigration and Multicultural Affairs v Yusuf (at 347 [70]) which contended that the Tribunal's duty to make findings of fact arose not just from s 430 but from a consideration of the structure of the Migration Act (Cth) taken as a whole including the role of the Tribunal in the task it performed in reviewing decisions of the Minister."

Tobias J went on to refer to other passages in Yusuf and counsel's submissions in relation to them. He then said at par38:

"However, some care needs to be taken in applying the observations of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf to which I have referred to the content of the duty to give reasons of a Commissioner or, for that matter, a judge of the Land and Environment Court."

Reference was then made to comments in the decision of the High Court in Minister for Immigration and Multicultural Affairs v Wang (2003) 77 ALJR 786. His Honour then concluded by saying that:

"In the Land and Environment Court the litigation is adversarial in nature. The parties are opposed to each other and issues are joined between them. The position of the Tribunal under the Migration Act is essentially different."

"Accordingly, in my opinion, it does not necessarily follow that a Commissioner or judge of the Land and Environment Court is required to give reasons only with respect to his or her subjective thought processes in coming to their particular decision. Notwithstanding those thought processes, their duty to give reasons would be contravened if they failed to address an issue joined between the parties which, if decided in a particular way, would result in a different decision to that to which the Commissioner or judge has arrived. Thus, if issues A, B and C be joined between the parties and the Commissioner or judge only addresses issues A and B, he or she will have erred in law by failing to address issue C if the resolution of that issue in favour of one or other of the parties would have resulted in a different outcome to that arrived at upon a determination of issues A and B. On the other hand, if issue C would have had no bearing upon the outcome arrived at in accordance with the determination of issues A and B, then it need not be addressed."

82 Tobias JA then noted the submission by the landowner, with which he agreed, that, even if the second commissioner failed to record any findings with respect to the decision of the first commissioner, and/or with respect to the issue of consistency in decision making, nonetheless it could not be said that it was impossible to ascertain his reasoning processes given the extensive consideration he gave to the heritage issue which was the principal issue joined between the parties.

83 As to the interpretation of the comments of Slicer J in Transend (supra), Slicer J appears to have accepted that Yusuf's case altered the law and that the test there expounded applied. Having said that, he appears to have applied the test expounded in Seablest Pty Ltd v Smith (1996) 91 LGERA 1 but concluded that, in effect, no matter what test was applied, the tribunal had failed to meet its obligations. It is difficult to conclude that the approach he adopted was consistent with Segal's case as has been suggested by counsel for the appellant here.

84 The argument of counsel for the appellant is that the test in Yusuf should not apply to the tribunal because the nature of the two tribunals was very different. The tribunal was in the nature of a judicial or quasi-judicial body, while the Refugee Review Tribunal was purely administrative. He identified certain features of the two which defined the differences. These were that, in the latter, the proceedings were not adversarial, there were no opposing parties and no issues joined. In the former, the proceedings were most definitely adversarial, there were opposing parties and issues were joined and argued. He submitted that, while the two tribunals were governed by sections in almost identical terms, it was the context in which the tribunal worked which defined the extent of the obligation to give reasons. Counsel made reference to the several pieces of legislation which conferred jurisdiction on the tribunal and the nature of the work the tribunal did when acting under that differing legislation in an effort to demonstrate the differing roles.

85 Counsel submitted that the duty of the tribunal to state reasons included a duty to resolve any conflict in the evidence. In the present case the tribunal had on the face of it ignored the evidence of the appellant's witnesses. In those circumstances it had a duty to explain why, and did not.

86 Counsel conceded that the majority of the court in Yusuf did not advert to the nature of a tribunal's proceedings when considering the interpretation of s430. He submitted however that it was considered in Wang's case (supra), a subsequent decision of the High Court where again proceedings before the Refugee Review Tribunal were under consideration. Counsel referred the Court to pars71 and 72 in the joint judgment of Gummow and Hayne JJ where their Honours said:

"In adversarial litigation, findings of fact that are made will reflect the joinder of issue between the parties. The issues of fact and law joined between the parties will be defined by interlocutory processes or by the course of the hearing. They are, therefore, issues which the parties have identified. A review by the Tribunal is a very different kind of process. It is not adversarial; there are no opposing parties; there are no issues joined. The person who has sought the review seeks a particular administrative decision - in this case the grant of a protection visa - and puts to the Tribunal whatever material or submission that person considers will assist that claim. The findings of fact that the Tribunal makes are those that it, rather than the claimant, let alone adversarial parties, considers to be necessary for it to make its decision. Those findings, therefore, cannot be treated as a determination of some question identified in any way that is distinct from the particular process of reasoning which the Tribunal adopts in reaching its decision.

The Tribunal's written statement of its reasons and, in particular, its statement of the findings on any material questions of fact, must be understood in this way. Indeed, so much follows from Minister for Immigration and Multicultural Affairs v Yusuf (supra), where six members of the Court held that the Act's requirement for the Tribunal to set out findings of fact was a requirement that focussed upon the subjective thought processes of the Tribunal, not some objectively determined set of 'material' facts. That is, it was held that the Act required the Tribunal to set out the findings it did make rather than findings it ought to have made."

87 As a consequence of this statement, counsel argued that in proceedings such as those before the tribunal, which were by their nature adversarial and where issues were joined by opposing parties, the test should not be as limited as was outlined in Yusuf's case. Because, he argued, the tribunal was exercising judicial powers, its duty to give reasons was greater. The difficulty in giving effect to this statement in the manner sought by counsel must be the context in which the statement was made. The court was not considering the interpretation of the Migration Act, s430. The comments set out above do not detract from the decision of the court in Yusef and in fact the court in Wang followed Yusuf.

88 The emphasis of counsel was upon the fact that the tribunal, though a tribunal, was exercising a function very different from that considered in Yusuf when dealing with an appeal pursuant to the LUPA Act as it was in the present case. In particular issues were joined by the parties and not the tribunal and the proceedings were adversarial in nature. Yusuf, however, is clearly binding authority in the absence of any capacity to distinguish it. The emphasis placed by counsel on the differences between how tribunals operate, in the light of what he described as the "persuasive" words of Tobias JA, is the basis upon which counsel for the appellant submits Yusuf should be distinguished.

89 The RMPAT Act, s24, sets out the obligations of the tribunal to give reasons. The words in an almost identical section with relevance to another tribunal have been interpreted by the High Court to impose a certain obligation. While proceedings in the tribunal pursuant to the LUPA Act are perhaps closer in nature to those of a court as we know it, there can be no doubt the proceedings are very different. While the parties are at liberty to raise issues and to concentrate upon those at a hearing, the tribunal itself may also raise issues if it believes there are issues to be dealt with that the parties have not. The tribunal is not confined to issues raised by the parties since it must have regard to various factors irrespective of the emphasis which parties may or may not wish to place on them. The proceedings in a tribunal are relatively informal. While they are adversarial in nature to a degree, they are not wholly so.

90 Nothing in counsel's submissions addressed the question, why the nature of the tribunal's process should alter the test to be applied to the reasons it gives. He asserted that it should and referred to statements by other courts where the differences in process were set out. However he did not explain why. I am not persuaded in the circumstances that he has put forward a basis for distinguishing Yusuf's case and hence persuading the Court that the learned trial judge erred in the construction of the RMPAT Act, s24.

91 The learned trial judge, having found that Yusuf's case laid down the appropriate test, concluded that the tribunal had complied with its obligations. Counsel for the appellant submits that, even if Yusuf is the correct test, the tribunal did not give adequate reasons. In support of this contention he referred to a decision of the Federal Court of Australia in Secretary, Department of Employment & Workplace Relations v Homewood [2006] FCA 779 where French J dealt with an appeal from a decision of the Administrative Appeals Tribunal in Western Australia. The tribunal was dealing with social security legislation. The obligation to give reasons was contained in the Administrative Appeals Tribunal Act 1975 (Cth), s43, which relevantly provided:

"43 ...

(2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision.

...

(2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."

92 French J said at par39:

"As Sheppard J said in Brackenreg v Comcare Australia [1995] FCA 1129; (1995) 56 FCR 335 (at 349):

Although the obligations to state the findings of fact and the evidence upon which those findings were based are related to the obligation to give reasons, they are independent and separate obligations.

That statement neatly identifies what might be called the tripartite nature of the obligation under s 43. it is an obligation:

(ii) to include in its reasons its findings on material questions of fact;

(iii) to include in its reasons reference to the evidence or other material on which those findings are based."

93 There is an essential difference between s43 as dealt with by French J and the RMPAT Act, s24, in that s24 does not contain a general obligation to give reasons independent of the further requirements it contains. Its opening requirement is simply that reasons, whatever they be, be in writing. For this reason I am not persuaded this case is of any real assistance to the appellant's argument.

94 The issue in this case, asserted by the appellant not to have been properly dealt with, was the issue of car parking. The application for use as a multiple dwelling was governed by the provisions of the City of Hobart Planning Scheme 1982 ("the planning scheme"). The planning scheme, by reference to a calculation based on the number of bedrooms and space, determined the number of car spaces which were required for the particular use. There were some differences on the evidence as to just how many car spaces were required as a result of the application of the relevant formula. However there was no dispute that the application did not provide for whatever number was required by the application of the formula, that it provided for only 17 car spaces and that, for the application to be approved with only 17 car spaces, the tribunal had to exercise a discretion by reference to cl E7.2 of the planning scheme.

95 Clause E7.2 provided:

"In a Residential Zone the Council may vary, limit, reduce or waive the number of parking spaces required under Section E.4 if:

(i) the provision of the total number of spaces required would be detrimental to residential amenity, the environment, the streetscape or traffic/pedestrian safety;

(ii) the use by its nature and location can be serviced by on street or other existing off site car parking capacity, without detriment to traffic/pedestrian safety or the convenience and amenity of nearby residents."

Other relevant provisions of the planning scheme are as set out by June Noble, a witness who gave evidence against the application. These were cl 11 and Principle 14. These provide respectively:

"E.11.1 Having regard to the Planning Scheme overall, particularly Principles 14 and 15, Council has a discretion to refuse or permit any proposed use or development which does not comply with the quantitative standards imposed by this Schedule."

"P.14 Development will only be permitted provided it will facilitate the mutual compatibility of public and private transport and it can demonstrate that it will not create traffic flows and movements that are detrimental to safety or amenity, and can make adequate provision for the direction, access, turning and parking of all vehicular traffic, as well as provision for pedestrian movement, in accordance with Council requirements."

96 The tribunal determined that the relevant provision to be considered was cl E7.2 and neither counsel takes issue with that. Hence, for the tribunal to permit the use absent the required number of car spaces, it had to be satisfied as to the two criteria in cl E7.2. The learned trial judge, applying the test expounded in Yusuf's case, determined the tribunal complied with its obligation to state reasons in respect of these matters. Counsel for the appellant submitted that on any version of the test applied to the obligation of the tribunal to give reasons about this issue, the tribunal did not comply with its obligations.

97 The witnesses whose evidence dealt with parking related issues were Mr Read, Mr Midson, Ms Noble, Mr Clark and Ms Howarth. Mr Read, a town planner, was what might be described as the principal witness for the respondent. In his proof and oral evidence, however, he did not specifically address cl E7.2. His evidence was directed to cl E11. Counsel for the appellant placed emphasis on this to support his contention that, in relying on Mr Read's evidence as it clearly did, the tribunal, and hence his Honour, erred.

98 The tribunal's reasons in relation to parking and traffic issues are contained in pars25 - 33 of its decision which provide:

"25 What then is the consequence of this conclusion? The Council submitted that there was no evidence at all that went to any of the factors listed in E7.2. It was said, and we did not understand the Appellant to disagree with this proposition, that Clause (i) and (ii) are conjunctive. The consequence of this is that both are to be read together and the proposal assessed against both. It was submitted that there was, simply put, no evidence at all upon which the Tribunal could be satisfied that there was compliance with the clause. The only evidence from the Appellant about the matter came from Mr Frazer Read. Mr Read's proof of evidence (A7) dealt with the issue at paragraph 3.5.2. It is plain that he concluded that the applicable clause in the Planning Scheme was E11.1. His opinion was predicated on an assumption that it was the applicable clause. He did not provide any evidence, at all, in relation to how, and if so in what way, the proposal was to be assessed by reference to E7.2. In contrast evidence from Ms Noble and Mr Clarke, two other planners called by the Council and the parties joined respectively, both assessed the proposal by reference to the appropriate standard, namely E7.2 and both opined, that the proposal was inappropriate.

26 Ultimately however the Tribunal's role is clear. It is necessary to assess, as has been determined, against the provisions in E7.2, the proposal and determine whether or not it is appropriate to exercise the undoubted discretion that exists in the manner that the proponent requests. Of course the Tribunal may inform itself in any way that it sees fit (see Section 16(I)(c) of the Planning Appeal Act). This however does not in the Tribunal's view authorise it, except in the most extreme cases, to substitute its own view for the views of expert witnesses. The Tribunal's view is that it would be in the circumstances of this particular case appropriate to exercise the discretion and is satisfied that the needs to be assessed are adequately addressed on the evidence. It reaches this conclusion not withstanding the facts, as is acknowledged, Mr Read's analysis is based on an assessment of a clause that, in our view, is not applicable. But from that assessment can be drawn various conclusions. Those conclusions include that to provide any more car parking spaces would be detrimental to residential amenity, the environment and the streetscape, due to the impact on the existing trees in the car park and/or removal of other landscaped areas. The proposed parking plan utilises only the existing pave areas. It is also clear from this evidence that the second limb of E.7.2 is able to be addressed. No on street parking need be utilised in Star Street. It can be more than adequately provided, in the unlikely event it is needed, in Fitzroy Place, without any negative impact upon 'traffic/pedestrian safety or the convenience and amenity of nearby residents'.

27 The evidence adduced, at the request of the Tribunal, in relation to parking patterns at the Anglicare facility in Burnie was also particularly important in reaching this conclusion. It supports the case advanced by the proponent that the likely levels of car ownership, and hence use, of residents will be low. The Tribunal's conclusion, consistent with that evidence, is that even though it is proposed to have a residency of in the order of 24 - 25 people it is inherently unlikely that all of those persons living will in fact own cars. Even if one adds visitors and service and other vehicles it is unlikely that there will be many, if any, occasions during the year when the 17 car places that can be provided on site will be insufficient and create a need for parking to be undertaken offsite. Put another way the Tribunal is satisfied that provision of either 23 or 25 spaces as required under the Scheme is not necessary in the circumstances of this case. The facility will be more than adequately served by 17 spaces.

28 Additional, legitimate, concerns in relation to the taking up of the very limited car parking facilities available on Star Street are justified. But these can be addressed, in the Tribunal's judgement, by an appropriate condition or conditions in relation to traffic flow on and from the site.

29 Traffic should be required to enter the site from Star Street and exit it on to Fitzroy Place. If this method of ingress and egress is supported not only by appropriate signage but also electronically operated boom gates which only allow for vehicle movement in that fashion then any overflow parking, in the unlikely event that any is necessary, will occur on Fitzroy Place and not in Star Street.

30 Traffic issues in relation to traffic and pedestrian safety were raised. These are linked to parking availability and car use associated with the site.

31 For reasons indicated in relation to the issue of parking above the Tribunal's view is that there is no issue in relation to traffic safety or the safety of pedestrians.

32 The Tribunal is satisfied there will be no detrimental impact in relation to amenity, the environment or the streetscape traffic or pedestrian safety as a result of the increased traffic in the area.

33 The fact is, although not relevant to this determination, it is difficult to escape the conclusion that this proposal, when compared to alternative uses to which the site might be put, such as student accommodation or an office facility, is likely to generate, comparatively low levels of traffic."

99 The tribunal took the view that, notwithstanding Mr Read's assessment addressed an incorrect clause, his evidence, because it dealt with matters of fact relevant to cl E7.2, could still be considered. As a consequence it relied on his evidence to produce certain conclusions. The only direct reference it made to the evidence of Ms Noble, Ms Howarth and Mr Clark was contained in par25. Part of counsel's complaint was that Mr Read did not in his evidence address the correct clause in the planning scheme. It is trite to say that it is the tribunal which was required to consider the facts and exercise a discretion having regard to the facts it accepted. Counsel's argument appeared almost to be predicated upon the logic that Mr Read addressed the wrong clause, the appellant's witnesses addressed the correct one, therefore the opinions the latter expressed must be those the tribunal accepted and it could not do otherwise unless it explained itself. However, clearly the tribunal took the view that the evidence of Mr Read and his conclusions were still available to it.

100 The tribunal could not exercise its discretion unless it was satisfied that "the provision of the total number of spaces required would be detrimental to residential amenity, the environment, the streetscape or traffic/pedestrian safety" and "the use by its nature and location can be serviced by on-street or existing off-site car parking capacity, without detriment to traffic/pedestrian safety or the amenity of nearby residents." The tribunal at 26 expressed itself satisfied that the discretion should be exercised and that "the needs to be assessed are adequately addressed on the evidence." It then indicated that, notwithstanding Mr Read had addressed a different clause, it proposed to rely on his evidence. It was perfectly entitled to do that. That reasoning is apparent.

101 I am not persuaded in the circumstances that the learned trial judge erred as to his assessment of the adequacy of the tribunal's reasons.

102 Neither ground in the notice of appeal has been made out and I would dismiss the appeal.

[1] The Central Commercial and Administrative Zone comprising Precincts 2, 3, 4, 5A, 8A and IIA.

[2] Due to the number (over 30) and nature of the representations on the proposal.