[2009] TASSC 9

Environment and Planning - Environmental planning - Planning schemes and instruments - Tasmania - Amendments to planning schemes - Requirement that part of a draft planning scheme be done again - Impact on decision making of planning authority as to application for planning permit.

Land Use Planning and Approvals Act 1993 (Tas), s28(1) and (5).

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117, referred to.

Environment and Planning - Environmental planning - Courts and tribunals with environment jurisdiction - Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors - Powers and duties on appeal - Power to set aside decision and remit for reconsideration in accordance with any directions or recommendations - Whether directions or recommendations must be given.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s23(2)(c)(ii).

Minister for Immigration and Multicultural Affairs v Perth City Mission [2000] FCA 397; Civil Aviation Safety Authority v Allan [2001] FCA 1064; (2001) 114 FCR 14, referred to.

Judgment Number: [2008] TASSC 9

v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL

1 This is an application pursuant to the Judicial Review Act 2000 for the review of decisions made by the respondent tribunal in relation to proposed subdivisions of land owned by the applicants at Opossum Bay. The decisions under review relate to two applications made by the applicants to the Clarence City Council ("the council") for permits for the subdivision of the land. The council decided to reject each of those applications. The applicants instituted two appeals to the tribunal - one from each of the council's decisions. The tribunal heard the two appeals together. On 13 December 2007 the tribunal published a written decision and reasons in respect of both appeals. It disposed of the first appeal by remitting the first subdivision application to the council for reconsideration, and dismissed the second appeal. Within days, the council's solicitor/counsel persuaded the tribunal to change its mind in relation to the first appeal. On 21 December 2007 the tribunal published a further written decision and reasons, dismissing the first appeal. The applicants are now seeking the review of the tribunal's decisions of both 13 December 2007 and 21 December 2007.

2 As the respondent to this application, the tribunal has filed a notice pursuant to the Supreme Court Rules 2000, r777G, stating that it will submit to any order that the Court makes. The application has been opposed by the council, which was represented at the hearing by Mr McElwaine.

3 In the proceedings before the tribunal, one important issue was the adequacy or otherwise of the road access to the area of Opossum Bay where the applicants' land is situated. There is only one main road leading to that area, namely Spitfarm Road. That road is old and narrow, and has a limited carrying capacity.

4 Another important aspect of the proceedings before the tribunal concerned a draft planning scheme. The provisions of the Eastern Shore (Area 2) Planning Scheme 1986 applied to the applicants' land, but a new planning scheme was being prepared in accordance with the applicable legislation. Questions arose as to the approach that the council and the tribunal were required to take to the provisions of the draft planning scheme that related to the applicants' land.

5 In my view the tribunal made three significant errors:

• In its first decision, it dismissed the second appeal, rather than remitting the second application to the council, because it considered itself obliged by legislation to apply the provisions of the draft planning scheme, and thought that its provisions necessitated the second application being refused. For reasons that I state below, I think that the tribunal was not obliged to apply the provisions of the draft planning scheme in relation to the second application; that the actual and proposed provisions of the draft planning scheme were relevant considerations that the tribunal was able to take into account; and that it was open to the tribunal either to grant or refuse the relevant application.

• In its second decision, the tribunal took the view that its order in relation to the first appeal, which formed part of its first decision, was a nullity. For reasons that I state below, I have concluded that it was not a nullity, but valid.

• In its second decision, the tribunal held that, if the council were to reconsider the first subdivision application, it would be obliged by legislation to apply the provisions of the draft planning scheme, and that the first application would, as a result, inevitably have to be rejected. For reasons that I state below, I have concluded that the council would not have been obliged to apply the provisions of the draft planning scheme; that the actual and proposed provisions of the draft planning scheme were relevant considerations that the council could have taken into account; and that it would have been open to the council either to grant or refuse the first subdivision application.

6 The Land Use Planning and Approvals Act 1993 ("the LUPA Act") contains detailed provisions as to the preparation of new planning schemes in ss20 - 30. At all material times, the draft Clarence Planning Scheme 2002 was in the course of preparation in accordance with those provisions. Under the original planning scheme the applicants' land was zoned "residential". Under the draft scheme, part of their land was zoned "village" and part of it zoned "rural". By March 2003, it appears that the draft planning scheme had been publicly exhibited, that representations had been received from members of the public, and that those representations were considered by the council. The Resource Planning and Development Commission ("the RPDC") received a report from the council in accordance with s26(2) on 31 March 2003. Delegates of the RPDC held hearings commencing in September 2003 and concluding on 16 April 2004. Those delegates submitted a report to the RPDC dated 10 November 2004, in which they recommended, amongst other things, that the RPDC require the council to modify the draft planning scheme in certain respects pursuant to s28(1)(a), and that the RPDC require that specified parts of it be done again pursuant to s28(1)(b)(ii). The LUPA Act, s28(1) provides as follows:

"(1) The Commission may, after its consideration under section 27 of a draft planning scheme prepared by a planning authority -

(a) require the planning authority to modify the draft planning scheme after having regard to the report made under section 26, and any evidence and submissions made in a hearing under section 27 in relation to it; or

(b) by notice in writing given to the authority-

(ii) direct that a specified part of the draft planning scheme be done again."

7 The RPDC considered the delegates' report at a meeting on 22 August 2005. Rightly or wrongly, it took the view that it did not have the power both to require the council to modify the draft planning scheme under s28(1)(a) and to give the council a notice directing that parts of it be done again pursuant to s28(1)(b)(ii). It therefore resolved to proceed under s28(1)(b)(ii). The relevant part of its resolution read as follows:

"1 pursuant to Section 28(1)(b)(ii) of the Land Use Planning and Approvals Act 1993 (the Act) to direct the planning authority to do again the Ordinance and the parts of the plans referred to in Attachments 1 and 2 to the report of the Delegates dated 10 November 2004 taking into account the recommendations made by the Delegates in those Attachments; ...".

Attachment 1 was the list of s28(1)(a) modifications recommended by the delegates. Attachment 2 was the list of parts of the draft planning scheme that the delegates recommended that the RPDC direct to be done again.

8 When the tribunal determines an appeal, it is required by the LUPA Act, s62(3) and (4), to determine the appeal in accordance with the applicable planning scheme as in force as at the time of the decision appealed from and, where applicable, any other obligations that the planning authority had at that time. Those subsections read as follows:

"(3) The Appeal Tribunal must determine an appeal in accordance with the planning scheme that was in place at the time the planning authority determined the application for a permit.

(4) In determining an appeal in accordance with subsection (3), the Appeal Tribunal has the same obligations as a planning authority at the time the planning authority determined the application for the permit."

9 When the RPDC requires a council, as a planning authority, to "modify" a draft planning scheme, the council's powers to grant permits, from then until the new scheme comes into operation, are limited by the LUPA Act, s28(5), which reads as follows:

"(5) Where the Commission requires the planning authority to modify the draft planning scheme, the planning authority must not issue a permit or do any other thing that would, if the draft planning scheme modified as required had at that time been approved as a planning scheme, be a contravention of that approved planning scheme."

10 That provision is duplicated in s51(3), the relevant provisions of which read as follows:

"(3) The decision of a planning authority on an application referred to in subsection (1A) or (1B) is to be made by reference -

(a) to the provisions of the planning scheme or special planning order as in force at the date of that decision; or

(b) if the planning authority has been required under section 28(1)(a) to modify a draft planning scheme and that draft planning scheme has not been approved by the Commission at the date of that decision, to the provisions of the draft planning scheme modified as required; or

Subsection (1A) is the provision under which the applicants applied for permits for both proposed subdivisions. Subsection (1B) is of no present relevance.

11 The applicants contend that neither s28(5) nor s51(3)(b) was applicable in this case because the RPDC had not required the council to "modify" the draft planning scheme under s28(1)(a), but instead had directed that parts of it "be done again" pursuant to s28(1)(b)(ii).

12 I agree. Since s28(1)(a) is specifically referred to in s51(3)(b), it is impossible to construe that provision as applying when only s28(1)(b)(ii) has been invoked. So far as s28(5) is concerned, I think it is very significant that s28(1) draws a distinction between modification and doing again. The only sensible way to interpret s28(5) is as applying only when a requirement to modify has been made. In my view there is a fundamental distinction between a requirement of modification and a direction that part of a planning scheme be done again. When a modification has been required pursuant to s28(1)(a), the principal requirements of the relevant provisions of the draft planning scheme will be clear. Matters of detailed drafting may remain to be completed by the council, but anyone examining the documents will be able to read the provisions of the draft planning scheme, and the requirements made by the RPDC for their modification. But, at least ordinarily, when part of a draft planning scheme has to be done again pursuant to s28(1)(b)(ii), it is as if the council or planning authority has been told to start again with a blank sheet of paper in relation to any matter specified in the s28(1)(b)(ii) direction. In that situation, s28(5) simply could not apply. Otherwise the council or planning authority would have to consider what the position would be if a specified part of a draft planning scheme were done again, before determining the content of the part required to be done again.

13 The RPDC did not require all of the draft planning scheme to be done again. Its resolution applied only to the ordinance, ie, the text, and to parts of the plans. It did not apply to a plan, which formed part of the draft planning scheme, which showed that part of the applicants' land was to be zoned "village", and part of it was to be zoned "rural". There is nothing in the LUPA Act that required the council or the tribunal to take that change to the zoning of the applicants' land into account, even if it was inevitable that that change would be made when the new planning scheme came into force. That may have been the result of an oversight on the part of the legislature. Sections 28(5) and 51(3)(b) apply when a draft planning scheme has reached the stage where some of its provisions have been accepted by the RPDC but some are required to be modified, but there is no equivalent provision that applies when part of a draft planning scheme is acceptable to the RPDC and part of it is required to be done again. However there is common law authority that the decisions that have been made in relation to a planning scheme in the course of preparation must be taken into account in the course of a council's discretionary decision-making: Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117. It follows that the decisions and recommendations made in relation to the draft planning scheme were relevant matters for the tribunal to take into account.

14 The tribunal's reasoning in relation to the draft planning scheme, which led to it dismissing the second appeal, was as follows:

"13 The evidence in relation to this point reveals that the Resource Planning and Development Commission (the 'Commission') required the Council to do again specified parts of its draft planning scheme. The Commission directed the Council to carry out those modifications pursuant to section 28 (1)(b)(ii) , but invoked neither section 28(5) nor section 51(3)(b) of the Land Use Act.

14 The evidence also disclosed, and this was not disputed, that subdivision is prohibited in the rural zone of the draft planning scheme.

15 Mr Shepherd's evidence, which the Tribunal accepts (and again which was neither disputed nor challenged) was that the effect of the modifications as far as zoning of Mr and Mrs Howlin's land was that in effect the subject property would be split in half and roughly half of the proposed subdivision would fall within the Rural (and thus prohibited) zone.

16 It follows that the Tribunal, charged with the obligations of the planning authority at the time it determined both development applications must not issue a permit 'or do any other thing' which would be a contravention of the approved planning scheme. To uphold the appeal and approve the plans the subject of the second development application would be in contravention of this provision.

15 The paragraphs I have quoted reveal a number of errors:

• In par13, it was wrong of the tribunal to say that the RPDC directed the council to carry out modifications pursuant to s28(1)(b)(ii). It can direct a council to carry out modifications pursuant to s28(1)(a). That is not what it did. It directed that parts of the draft planning scheme be done again pursuant to s28(1)(b)(ii).

• It was wrong to say that the RPDC "invoked" neither s28(5) nor s51(3)(b). Those provisions are worded so that they apply automatically when the RPDC has required a council to modify a draft planning scheme under s28(1)(a). They do not ever get "invoked".

• In par14, it was wrong of the tribunal to say that "subdivision is prohibited in the rural zone of the draft planning scheme". Any such prohibition would have been contained in the ordinance. The RPDC had required the council to do the ordinance again. There was therefore nothing in the draft planning scheme as to what was or was not prohibited in the rural zone. However it was open to the tribunal to be satisfied that the council and the RPDC both intended that the ordinance should contain provisions in accordance with the draft considered by the RPDC's delegates in 2004, subject to the modifications recommended to the RPDC by those delegates.

• Similarly, the evidence of Mr Shepherd as to "the effect of the modifications" was no more than evidence as to what the delegates had proposed.

• Despite having taken the view in par13 that ss28(5) and 51(3)(b) had not been "invoked", the tribunal proceeded in par16 as if the RPDC had required modifications under s28(1)(a), and those provisions therefore applied in relation to the applicants' land so as to prohibit the granting of a permit for a subdivision. As a matter of law, that was not the case. The tribunal was entitled to take into account the evidence as to the proposals of the RPDC and the council as to the provisions of the relevant parts of the planning scheme that were to be done again, but was not bound by the legislation to give effect to the proposed provisions of the draft planning scheme. It concluded that it had no discretion, when it did have a discretion to make a decision that a permit for the subdivision be granted.

Validity of the first decision in relation to the first appeal

16 When the tribunal dismissed the first appeal on 21 December 2007, it took the view that its earlier decision, insofar as it related to that appeal, had been a nullity. It reached that conclusion because of the wording of the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), s23(2), which reads as follows:

"(2) The Appeal Tribunal must make a decision in writing -

(a) affirming the decision appealed against; or

(c) setting aside the decision appealed against and -

(i) making a decision in substitution for the decision appealed against; or

(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Appeal Tribunal."

17 The basis upon which the tribunal disposed of the first appeal in its first decision appears in the following paragraphs of its reasons for that decision:

"24 Given the fact that the Tribunal has reached the view that some type of subdivision is appropriate it is minded to exercise its power under Section 23(2)(c)(ii) of the Appeal Tribunal Act and remit the matter for reconsideration by the Council in the light of these observations.

25 Accordingly there will be orders remitting appeal 103/05S to the Council for reconsideration and dismissing appeal 2/06S."

18 In its reasons for the second decision, at par2, the tribunal said the following:

"2 It has been brought to the Tribunal's attention that there is a fundamental error in relation to the order purporting to remit the appeal 103/05 S to the Council. The error is such that in the Tribunal's view the order amounts to a nullity. In such circumstances, consistent with the High Court decision of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, the Tribunal is of the view that not only is it empowered to correct an error or amend a decision (see Section 23(4), (5) and (6) of the Resource Management and Planning Appeal Tribunal Act 1993) it is obliged so to do where the decision is such that no decision has been made and therefore the Tribunal's obligation to deliver a decision has not been complied with."

19 The tribunal went on to conclude, wrongly in my view, that the LUPA Act, s28, would preclude the council, on reconsidering the matter, from issuing a permit. The tribunal then went on to say, in par5:

"5 This is quite apart from the fact that the original order was also fundamentally flawed in that it failed to quash the original decision as required by Section 23 of the Appeal Tribunal Act."

20 In my view the part of the tribunal's first decision that related to the first appeal was not a nullity. I think it is quite clear from pars24 and 25, quoted above, that the tribunal intended to exercise the power conferred by the RMPAT Act, s23(2)(c)(ii). The power conferred by that subparagraph is a power to set aside the decision appealed against and remit the matter for reconsideration in accordance with any directions or recommendations of the tribunal. Even though the chairman of the tribunal was a legal practitioner, looseness in the language of the tribunal and unhappy phrasing of its thoughts cannot result in its decision being a nullity when the substance of its decision, read as a whole, is clear: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, 291 - 293; Attorney-General v Cameron (2007) 152 LGERA 45; [2007] TASSC 22 at pars9, 55 - 56. Plainly the tribunal had decided to set aside the decision appealed against, and to remit the first subdivision application for reconsideration by the council.

21 Mr McElwaine submitted to me that the order remitting the matter was not valid because the tribunal had not given any directions or made any recommendations as contemplated by s23(2)(c)(ii). I disagree. That provision empowers the tribunal to make a decision in writing "setting aside the decision appealed against and ... remitting the matter for reconsideration in accordance with any directions or recommendations of the Appeal Tribunal." (My emphasis.) The use of the word "any" indicates that Parliament intended the tribunal to have the power to give directions or make recommendations, as distinct from a duty to do so. If it had intended there to be a duty to give directions or make recommendations, Parliament need only have said, "... in accordance with directions or recommendations of the Appeal Tribunal."

22 Section 23(2) appears to be modelled on the Administrative Appeals Tribunal Act 1975 (Cth), s43(1). By s43(1)(c)(ii), the Administrative Appeals Tribunal is empowered to make a decision in writing "setting aside the decision under review and ... remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal". The reference in that provision to "any directions or recommendations" has been treated by judges of the Federal Court as permitting, rather than requiring, the Administrative Appeals Tribunal to give directions or make recommendations. In Minister for Immigration and Multicultural Affairs v Perth City Mission [2000] FCA 397 at par23, Lee J said:

"The terms of s 43(1)(c)(ii) of the AAT Act enable the Tribunal to assist the decision-maker to whom the matter is returned by offering 'directions or recommendations' ...".

In Civil Aviation Safety Authority v Allan [2001] FCA 1064; (2001) 114 FCR 14 at 19, Moore J said:

"... the Tribunal can remit the matter for reconsideration to the primary decision-maker and, in so doing, may give the primary decision-maker a direction or make a recommendation to reflect conclusions the Tribunal had reached about the matter falling for decision."

23 If the tribunal were required to give directions or recommendations every time it remitted a matter for reconsideration, the results would sometimes be absurd. For example, if a decision were set aside and remitted for reconsideration because of bias on the part of the original decision-maker, it would be absurd for the tribunal to be required to give a direction that the new decision-maker was not to be a person who was biased. Further, when there has been an error of law on the part of a decision-maker, the reasons of the tribunal should ordinarily make it very clear what the error has been, so that there will often be no need for any directions or recommendations.

24 Neither the absence of an express statement that the tribunal's first decision was set aside, nor the absence of any directions or recommendations, resulted in the part of the tribunal's first decision that related to the first appeal being a nullity. The tribunal, in its second decision, erred in law in treating it as a nullity.

25 In par2 of its reasons for its second decision, quoted above, the tribunal referred to its powers to correct an error or amend a decision, and to the RMPAT Act, s23(4), (5), and (6). Those subsections read as follows:

"(4) A decision of the Appeal Tribunal comes into effect at the expiration of the period of 10 days after the day on which the decision is made or, if a later day is specified in the decision, that day.

(5) The Appeal Tribunal may correct a clerical mistake or an error arising from any accidental slip or omission or an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in its decision.

(6) The Appeal Tribunal may amend its decision on an appeal if it is satisfied that the amendment -

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

(b) will not cause an increase in detriment to any person."

26 Plainly s23(4) does not confer any power on the tribunal to do anything. Plainly s23(5) did not confer any power on the tribunal to do what it did in its second decision. It was not correcting a clerical mistake, an error arising from any accidental slip or omission, a miscalculation, or a mistake in the description of any person, thing or property. As the tribunal's first decision on the first appeal did not involve the imposition of any conditions, s23(6)(a) could not operate to preclude the tribunal from amending that decision. As the tribunal did not make a finding that any amendment of its first decision would not cause an increase in detriment to any person, it was unable to exercise the power conferred by s23(6)(b).

27 It follows that the tribunal's second decision did not constitute a valid exercise of any of the tribunal's statutory powers to correct an error or amend a decision. It follows that the second decision, in the words of the Judicial Review Act, s17(2)(d), "was not authorised by the enactment under which it was purported to be made".

28 In its reasons for its second decision, the tribunal said:

"... given the Tribunal's ruling in relation to the import of Section 28 of the Land Use Act any remission to the Council would call upon the Council to do something that the Tribunal is satisfied as a matter of law it could not do, ie, issue a permit."

29 It is clear from the material submitted to the tribunal on behalf of the council after the making of its first decision that the reasoning underlying the passage I have quoted was as follows:

• The RPDC, following its meeting of 22 August 2005, had directed the council that parts of the draft planning scheme were to be done again.

• For the purposes of the LUPA Act, s28(5), that amounted to a requirement that the council modify the draft planning scheme.

• If the first subdivision application were remitted to the council for reconsideration, s28(5) would oblige the council not to issue a permit for the subdivision if doing so "would, if the draft planning scheme modified as required had at that time been approved as a planning scheme, be a contravention of that approved planning scheme".

• If the draft planning scheme had been modified as required by the RPDC, the subdivision of the applicants' land would not have been permitted.

30 This line of reasoning contains two of the same errors that the tribunal made in its first decision:

• The RPDC's requirement that parts of the draft planning scheme were to be done again did not amount to a requirement that the council "modify the draft planning scheme". Section 28(5) would therefore not apply to any reconsideration by the council.

• Because the ordinance of the draft planning scheme was required to be done again, there was no ordinance in the draft planning scheme at that time. Therefore the granting of a permit for a subdivision would not have been inconsistent with the provisions of the draft planning scheme.

31 The applicants, who were not legally represented in the proceedings before me, relied upon 33 grounds of review that are set out in their originating application. Some of those grounds of review relate to the issues that I have discussed above, but many relate to other issues that I have not yet addressed. In particular, there are numerous grounds of review relating to traffic issues, and others relating to a practice direction of the tribunal concerning expert witnesses, bias, the raising of issues by the council at the tribunal hearing outside the scope of a list of "revised grounds of refusal", and miscellaneous other procedural fairness issues. For reasons that I state below, I do not think determining any or all of those other grounds of review favourably to the applicants would make any difference to the outcome of their application to the Court. I will therefore now address the question of what relief, if any, should be granted as a result of the tribunal having made the errors identified above.

32 Mrs Howlin, the second applicant, submitted that, if the application for judicial review were successful, I should make an order granting a permit for the subdivision of the land. In my view that would be most inappropriate. I think it is very significant that, when Parliament passed the RMPAT Act and thereby established the tribunal, it made provision, in s25 of that Act, for appeals from the tribunal to this Court only on questions of law. As I have said before, I think it was the intention of Parliament that there would be a right of appeal for the purpose of enforcing the tribunal's obligations to conduct its proceedings and its decision-making in accordance with the law: St Helen's Area Land Care & Coast Care Group Inc v Break O'Day Council [2007] TASSC 15; (2007) 16 Tas R 169 at 186. In Kempster v Manning (2006) 148 LGERA 1; [2006] TASSC 31 at par41, Underwood CJ described the role of the Court in relation to the tribunal in the following terms:

"This Court exercises a supervisory jurisdiction over the work of the Tribunal. The Court's job is to ensure that the Tribunal's decisions are made in accordance with the law. It is not the Court's job to re-hear an appeal to the Tribunal, nor to substitute its view of the facts for that taken by the Tribunal."

33 Of course this is not an appeal pursuant to s25 but an application pursuant to the Judicial Review Act. A decision of the tribunal may be challenged in either of those types of proceedings, or both. However under the Judicial Review Act, s27, this Court has a discretion as to what relief it grants. In my view it is appropriate to take into account Parliament's intentions as to the relationship between the tribunal and the Court, and their respective roles, when deciding what relief should be granted. There may be exceptional cases when it would be appropriate for the Court to take on the tribunal's roles as a fact-finder and discretionary decision-maker, but this is certainly not such a case. The Court does not have the same expertise or resources as the tribunal in relation to matters relevant to the making of discretionary planning decisions. For these reasons it would not be appropriate for the Court to determine either of the applicants' subdivision applications on their merits.

34 The disposition of this application in relation to the applicants' second subdivision application and their second appeal is relatively simple. They appealed to the tribunal from the council's decision. They were entitled to a hearing de novo on the merits. The tribunal dismissed their appeal on technical legal grounds as a result of the errors identified above concerning the status of the draft planning scheme. The appropriate remedy in such a situation is ordinarily an order quashing the dismissal and requiring a new hearing by the tribunal.

35 The position in relation to the applicants' first subdivision application and their first appeal to the tribunal is not so clear. Obviously the tribunal's second decision, whereby it dismissed the second appeal, must be quashed because of the tribunal's errors as to its earlier disposition of the first appeal constituting a nullity, and as to the status and effect of the draft planning scheme. But none of the errors that I have identified can lead to a conclusion that the tribunal's decision-making in relation to the first appeal in its first decision was in any way impeachable. Ordinarily, in that situation, the unimpeachable part of a decision should be left undisturbed.

36 However there are three reasons why, in the circumstances of this case, it would be inappropriate for the first subdivision application to remain remitted to the council for reconsideration:

• As a result of the robust opposition of the council to the present application, it might reasonably be apprehended that the members of the council, with all due respect to them, might not bring open minds to their decision-making task.

• The draft planning scheme is no longer a draft, but has come into operation. It did so on 2 April 2008 as the Clarence Planning Scheme 2007 (sic). As a result, by virtue of the LUPA Act, s29(5), the 1986 planning scheme no longer applies to the area where the applicants' land is situated. There is no transitional provision that would require the council to apply, or take into account, the provisions of the old planning scheme. The applicants can therefore no longer get what the tribunal ordered - a reconsideration of their first subdivision application in accordance with the provisions of the old planning scheme.

• It would be ridiculous if the outcome of this application was that the first subdivision application was to be reconsidered by the council and the appeal relating to the second subdivision application reheard by the tribunal.

37 Under the Judicial Review Act, s27(1)(a), when this Court considers an application for an order of review relating to a decision, it may make "an order quashing or setting aside the decision, or part of the decision". There may be nothing wrong with that part of the tribunal's first decision that related to the first appeal. However, because I think it appropriate for the second appeal to be reheard by the tribunal, I think the most appropriate course is for me to quash the whole of the tribunal's first decision, as well as its second, and to order that both appeals be reheard by the tribunal. The tribunal should, of course, be constituted so as not to include any of the members who constituted the tribunal at the previous hearing.

38 The LUPA Act, s62(3), will then require the tribunal to determine the two appeals in accordance with the planning scheme that was in place at the time of the council's original determinations - the old planning scheme. It will of course be open to the tribunal to take into account the provisions of the new planning scheme, but it will be open to the tribunal to make a decision inconsistent with the provisions of the new planning scheme if it thinks that would be appropriate. This will have the advantage of giving the tribunal flexibility. It is only fair that applicants should have a chance to have one of their applications granted. There is no other way of giving them that chance.

39 This is the best possible outcome for the applicants in these proceedings. It is therefore not necessary to determine any of the grounds of review that do not relate to the issues addressed above.

40 I have therefore decided to make the following orders:

1 That the decision of the respondent tribunal made on 13 December 2007 in respect of appeals 103/05S and 2/06S be quashed.

2 That the decision of the respondent tribunal made on 21 December 2007 in respect of appeal 103/05S be quashed.

3 That those appeals be re-heard by the respondent tribunal, which is to be constituted so as not to include any of the persons who made those decisions.