Procedure - Supreme Court procedure - Tasmania - Jurisdiction and generally - Stay of operation of order pending appeal - Appropriate procedure - Judicial Review Act 2000, s26 / Supreme Court Rules 2000, r676 - Principles governing exercise of discretion.

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685; Irwin v Meander Valley Council [2007] TASSC 12; National Foods Milk Limited v Smith (No 2) [2006] TASSC 70; Jennings Constructions Limited v Burgundy Royale Investments Proprietary Limited [1986] HCA 84; (1986) 161 CLR 681; Cellante and Anor v G Kallis Industries Pty Ltd and Ors [1991] VicRp 99; [1991] 2 VR 653; R v Resource Planning & Development Commission; ex parte Dorney (No 2) [2003] TASSC 69; (2003) 12 Tas R 69; Skipper v Resource Planning and Development Commission [2007] TASSC 83, referred to.

Judicial Review Act 2000 (Tas), s26.

Judgment Number: [2007] TASSC 91

KARL IRWIN and JOHN HAYWARD v MEANDER VALLEY COUNCIL (NO 4)

1 At the beginning of 2007, the Meander Valley Council ("the council") granted two planning permits to people by the name of Richards for the purpose of enabling them to carry out forestry operations on their land at South Mole Creek ("the Richards' land"). Forest Practices Plans were in place in respect of that land. The company to conduct the actual operations was Gunns Ltd. Karl Irwin owned land which adjoined the Richards' land and had established a conservation sanctuary on it.

2 Mr Irwin sought a judicial review of the council's decision to grant the permits pursuant to the Judicial Review Act 2000 ("the JRA"). Pending the hearing of that application, he sought an order pursuant to the JRA, s26, for a suspension of the operation of the decision of the council. He was successful in that application. At the time and for the purpose principally of giving an undertaking as to damages, a John Haywood was joined as an applicant in the proceedings. The substantive application under the JRA was duly heard and on 22 October 2007 judgment was handed down. The application for review was dismissed. Karl Irwin and John Haywood ("the appellants") lodged an appeal which is now pending.

3 The appellants have now filed an interlocutory application, again pursuant to the JRA, s26, by which they seek a stay of the operation of the decision of the council pending the hearing of their appeal to the Full Court. The application is opposed by Gunns Ltd and the council, who are represented by one counsel. I will refer to them together as "the respondents". The only other person served with notice of the appeal and this application was Councillor Michael Kelly who did not appear on the hearing of the application. The Richards were not served with notice of the hearing of this application.

4 The respondents contended that the JRA, s26 , did not give this Court jurisdiction to make the order sought and that any jurisdiction to order a stay could only arise pursuant to the Supreme Court Rules 2000 ("the Rules"), r676. Counsel for the appellants had not anticipated this objection. He did not concede it was correct, but nevertheless made an immediate application to amend his interlocutory application to, in effect, provide for an application pursuant to r676 as an alternative. His ultimate submission was that it really made no difference to the application, although counsel for the respondents submitted that the test to be applied was different.

"26 (1) The making of an application to the Court under section 17 relating to a decision does not -

(b) prevent the taking of action to implement the decision.

(2) Despite subsection (1), the Court or a judge -

(a) may, by order, suspend the operation of the decision; and

(b) may order a stay of any proceeding under the decision.

(b) on the application of the person who made the application."

"676 (1) An appeal does not operate as a stay of proceedings unless the Court or a judge so orders.

(2) An order staying proceedings may be made -

(a) as to the whole or any part of the proceedings in the proceeding; and

(b) on any terms the Court or judge granting the stay thinks fit."

7 Counsel for the respondents submitted that the JRA, s26, only applied where there was an application pursuant to the JRA, s17, pending before the Court. Once those proceedings were determined, the JRA had no application. Where, as here, what the Court was dealing with was an appeal from a single judge to the Full Court, regard should be had to the provisions of the Supreme Court Civil Procedure Act 1932 and the Rules. On the other hand, counsel for the appellants submitted that nowhere in the JRA, s26, did it require that there be a pending application pursuant to the JRA, s17, before s26 could be invoked, although he conceded that s26 had no role in isolation from such an application. What he submitted was that a party could, for example, invoke s26 and file a s17 application later. He may very well be right as to that. However, that response does not meet the point raised by the respondents. Nor is it the situation in which the parties in this case find themselves.

8 There is no application pursuant to the JRA, s17, either pending or contemplated. There was such an application filed early in 2007 but it has been disposed of by a decision of a single judge. What is now pending is an appeal from that single judge to the Full Court. I am unable to see how the JRA can have any role in such proceedings. Quite clearly what s26 contemplates is that the making of an application pursuant to the JRA, s17, does not operate to stay the operation of the decision sought to be reviewed. However despite that, the Court or a judge is given a discretion to suspend the operation of that decision.

9 In this case that discretion was invoked and exercised in the appellants' favour after the application pursuant to the JRA, s17, was filed, and pending its determination. The determination was unfavourable to the appellants and, in my view, in proceedings not brought by reference to the JRA, they cannot seek to invoke that jurisdiction again.

10 The jurisdiction for any stay is more properly exercised by reference to r676.

11 In Irwin v Meander Valley Council [2007] TASSC 12, Underwood CJ, on 7 March 2007, delivered reasons for judgment in respect of an application by Karl Irwin pursuant to the JRA, s26. He dealt with that application as being one akin to an application for injunctive relief. He determined the matter effectively on two bases, that is by reference to whether the appellants had made out an arguable case on the merits and the balance of convenience. He dealt with a number of issues raised and determined that in respect of only one would he consider there was an arguable case. He then went on at pars34 - 36 of his reasons to address the balance of convenience issue. He said:

"There was evidence that leads to an inference that logging on one or both pieces of land has commenced. There was no direct evidence of how long it will take to clear fell both pieces of land, but each forest practices plan makes a reference to a logging period of six months.

If injunctive relief is not granted and the applicant succeeds at trial, there arises a risk that between now and trial the environment he says needs protection will suffer irreparable harm. On the other side of the coin, if injunctive relief is granted, but the applicant fails at trial, the land owners, the loggers, the cartage contractors, the processors and perhaps others, are all likely to suffer financial loss.

In essence then, the balance of convenience requires weighing the risk of environmental harm and the risk of financial loss. If the applicant is right, the risk of environmental harm pending trial will be eliminated by making the order sought. However, those who may be adversely affected by the making of such order are also entitled to be protected in the event that permanent injunctive relief is not granted. The applicant must be prepared to acknowledge this by entering into undertakings that are suitably backed by resources, to pay any damages that the Court thinks he ought to pay to those persons whom the Court determines are entitled to damages by reason of the making of an interlocutory order pursuant to the Judicial Review Act, s26."

12 Counsel for the appellants contended on the present application, when arguing his case by reference to the JRA, s26, that the basis outlined by Underwood CJ was correct and that factually the situation had not changed. There was, he submitted, a very arguable case in respect of grounds of appeal nos 1 and 2, and the balance of convenience, as Underwood CJ articulated it, still applied.

13 Counsel for the respondents contended the test to be applied in respect of an application for a stay by reference to r676 was a far more stringent test than that adopted by Underwood CJ in respect of the s26 application. He submitted that now the appellants were seeking the exercise of a discretion in their favour in circumstances where they had, in his words, comprehensively lost before the learned trial judge. The respondents, or perhaps more specifically Gunns Ltd and the Richards, were entitled to the benefit of the judgment and to proceed to conduct forestry operations which they had been prevented from doing for over seven months. He submitted that unless the appellants could demonstrate that there were some special circumstances why the discretion should be exercised in their favour, there should be no stay.

14 Counsel for the respondents referred to National Foods Milk Limited v Smith (No 2) [2006] TASSC 70 where, in pars20 - 24, I referred to authorities which dealt with rules similar to r676. In particular, in par24, I referred to Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 and quoted from some passages from the judgment of the court at 693 and 694 as follows:

"In order to consider whether a stay should be granted in the present case, it is appropriate to refer to the principles, suggested by earlier cases, concerning the granting of a stay pending appeal. In a number of cases, including recent pronouncements of this Court, it has been said that a judgment creditor is entitled to the 'fruits of his victory' unless the appellant can show 'special' or 'exceptional' circumstances which warrant the imposition of a stay. This principle is often traced to the case of The Annot Lyle (1886) 11 PD 114. It has been expressed in many cases, including recently in this Court and in the Full Court of the Supreme Court of Victoria: see Monk v Bartram [1891] 1 QB 346; Klinker Knitting Mills Pty Ltd v L 'Union Fire Accident & General Insurance Co Ltd [1937] VicLawRp 28; [1937] VLR 142; Scarborough v Lew's Junction Stores Pty Ltd [1963] VicRp 20; [1963] VR 129; Bridges v Australian Consolidated Press Ltd (Court of Appeal, 16 June 1970, unreported); Trlin v Marac Finance Australia Ltd; cf Noulikas Holdings Pty Ltd v State Insurance Office (Full Court, Supreme Court of Victoria, 22 March 1985, unreported).

There are three reasons why it is appropriate to reconsider this formulation of the test for the grant of stays pending appeal. First, there is no suggestion in the rule that 'special' or 'exceptional' circumstances must be established before the discretion conferred upon the Court will be exercised. This is significant because, where the Act or the rules contemplate the need for special or exceptional circumstances to warrant a particular course they generally say so. For example the very next rule (Pt 51, r 11) dealing with security for costs of an appeal says, in terms, that such an order may be made 'in special circumstances'. No such limitation appears in Pt 51, r 10: cf also Supreme Court Act 1970, s75A. If it had been contemplated that 'special circumstances' were required or that 'exceptional circumstances' should be established to attract the discretion to grant a stay pending appeal, it might have been supposed that the legislature would have said so in terms. The absence of such a provision implies, at least in the practice of this Court, that no such requirement exists.

Secondly, the principle and the like expression of it in Barker v Lavery (1885) 14 QBD 769 and in Monk v Bartram first appear in decisions of the courts when the facility of appeal (which was not generally available at common law) was still relatively novel. In these circumstances the courts might more readily look upon appeals as an exceptional process. Today this is not the case. Far from being exceptional, appeals are common. Particularly is this so in commercial matters, where large sums are at stake. Appeal courts are enjoined, statute apart, to weigh competing inferences from the proved or accepted facts, and even where the credibility of witnesses is involved, to consider whether the advantages of the trial court may not be outweighed by compelling inferences to be drawn from the evidence proved: Voulis v Kozary [1975] HCA 44; (1975) 50 ALJR 59; 7 ALR 126. Where facts are undisputed or, though disputed, are established by the finding of the trial judge, the appellate court is said to be in as good a position as the trial judge to decide the proper inferences to be drawn from those facts. Though the appeal court will give respect and weight to the conclusion of the trial judge, once having reached its own conclusion, it must not shrink from giving effect to it. This principle was established immediately after the introduction of the facility of appeal by the Supreme Court of Judicature Act 1873 (Imp): see eg The Glannibanta (1876) 1 PD 283 at 287 - 288. Although it was for a time eclipsed (see eg Watt v Thomas [1947] AC 484 at 487 and Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296), it was seen re-established in England (see Benmax v Austin Motor Co Ltd [1955] AC 370 at 376) and later in Australia: see Warren v Coombes [1979] HCA 9; at 551; ; at 426. These modern duties of appellate courts, or at least of this Court, involve an historic change in the facility of appeal, particularly when compared to the position in the late 19th century when such facility was doubtless still considered by some judges to be novel, so that they were reluctant to interfere with verdicts by granting stays.

Thirdly, recent decisions of this Court, reflecting the language of the rules and the frequency and nature of appeals, have expressed the approach to be taken without reference to the need for 'special' or 'exceptional' circumstances to justify a stay. Thus in Waller v Todorovic (at 3) the court merely pointed to the need for the party seeking a stay to establish a reason therefor. To like effect is the judgment of Mahoney JA (with whom Moffitt P and Glass JA agreed) in Re Middle Harbour Investments Ltd (In Liq) (Court of Appeal, I5 December 1976, unreported). In that case, Mahoney JA said this (at 2):

'Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.'

Although it is true that, in a number of more recent decisions of the Court, reference has been made to the requirement of 'exceptional' and 'special' circumstances, and although the same requirement appears still to be observed in Victoria, the general practice of the Court conforms more closely to that stated by Mahoney JA. In our opinion it is not necessary for the grant of a stay that special or exceptional circumstances should be made out. It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour."

15 In Jennings Constructions Limited v Burgundy Royale Investments Proprietary Limited [1986] HCA 84; (1986) 161 CLR 681, the High Court said:

"In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of the High Court's discretion. When the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies."

16 In Cellante and Anor v G Kallis Industries Pty Ltd and Ors [1991] VicRp 99; [1991] 2 VR 653, the court held that:

"... the power to order a stay of execution is to be exercised only where special or exceptional circumstances exist. Such circumstances will exist where there is a real risk that the appeal, if successful, will be rendered nugatory."

17 Counsel for the appellants relied only upon grounds 1 and 2 of the notice of appeal for the purpose of arguing this application. Those grounds, absent the particulars, are as follows:

"Ground 1

The learned trial Judge erred in not upholding Grounds 1 and 2 of the appellants' application for review under the Judicial Review Act:

1 The decisions of the Respondent involved a breach of the rules of natural justice (Judicial Review Act s17 (2) (a)) or was otherwise contrary to law (Judicial Review Act s17 (a) (i)) in that one of the members of the Respondent who participated in the decisions the subject of this application, Councillor Kelly and or members of is [sic] family, had an expectation of being likely to receive a pecuniary benefit from the decisions the subject of this application.

2 The procedures that were required to be followed by law to be observe [sic] relating to the making of decisions were not observed, (Judicial Review Act s17 (a) (b)), in that the decisions were reached in circumstances where Councillor Kelly has breached the Local Government Act 1993 sections 28 E(4) and s48.

Ground 2

The learned trial Judge erred in not upholding Ground 6 of the appellants' application for review under the Judicial Review Act:

6 The decisions of the Respondent were contrary to law in that the relevant clauses on the Meander Valley Planning Scheme upon which (DA246/ 2005 and DA247/2005) were determined whereby forestry on rural land was a permitted use under that Scheme were never exhibited for public comment and thereby denied the applicants natural justice."

18 Those grounds are in almost identical terms to grounds 1 and 6 as they were pursued at the hearing of the originating application to review at first instance, and which were dismissed by the learned trial judge. The assertion on appeal is simply that the learned trial judge made an error in not upholding the grounds.

19 The appellants relied upon an affidavit of Mr Irwin sworn 1 November 2007. He was cross-examined. It was clear from both the affidavit and his cross-examination that Mr Irwin is vehemently opposed to any form of forestry operations on the Richards' land. The substantive basis for the application now brought is that logging operations commenced almost immediately after the decision of the learned trial judge was delivered and, if allowed to continue pending the hearing of the appeal, will result in damage to Mr Irwin's property by the time the appeal is heard. The Richards' land may also already be cleared by that time and the benefit of any successful appeal lost. The appellants contend that, in effect, the situation today and that which faced Underwood CJ when he dealt with an application pursuant to s26 in March of this year, is the same and the result should be the same.

20 The earliest date for the hearing of the appellants' appeal is the beginning of First Term 2008 (25 February 2008), or three and a half months away. Much of the material relied on by the appellants in relation to what was going to happen on the Richards' land during the intervening period was speculation on the part of Mr Irwin. However, I am satisfied forestry operations recommenced on the Richards' land within a few days of the appellants' review being declared to be unsuccessful and that since 26 October 2007, there have been chainsaws in use in the area on the Richards' land covered by DA 246/2005 (the smaller of the two coupes), trees have been cut down and logs have been removed by log trucks.

21 Mr Irwin deposed at par8 of his affidavit that operations such as:

"... the clearing of the land, or much of it; the removal of timber; bulldozing debris into winrows; burning off; and replanting."

were likely to have occurred before his appeal was determined. It was apparent from his cross-examination, however, that he had no actual knowledge as to when any of these activities might be carried out on the Richards' land, or indeed, if they would. He had made no enquiries. He was basing his belief on what he knew of the usual steps taken in forestry operations and what he knew to be permitted on the property by the relevant Forest Practices Plans. He had seen no bulldozers on the property. The only machinery he had seen was two excavators, one of which he had seen parked and the other of which had "grabbers" on the front used for picking up logs. He had seen no wholesale clearing, bulldozing of debris into winrows, burning off or replanting.

22 Mr Irwin set out in pars9 - 11 of his affidavit detriment he asserted would be occasioned were forestry operations to occur on the Richards' land. From the way in which his affidavit was structured and simply because the material was there, I infer the Court was expected to deal with the material on the basis that all this could occur in the next three and a half months. Quite clearly, from the decision of the learned trial judge, the matters identified were all matters raised at the hearing at first instance and form the basis for Mr Irwin not wanting any forestry operations at all. The evidence does not support any finding that indeed all these things will happen in the near future.

23 Indeed, in respect of some, it was apparent that in any event they would have little impact on Mr Irwin. In respect of dust, there was no evidence any operations on the Richards' land were actually generating unacceptable levels of dust. The only evidence related to that which might be generated by trucks on Blairs Road which was a dirt road. Mr Irwin conceded that any traffic on that road would generate some dust. His home was sufficiently far from the road for any dust occasioned by trucks not to cause a particular problem. Similar comments applied to his complaint about noise. He had heard chainsaws, but they did not operate all day, every day, nor did they operate at night. Mr Irwin suggested that pollutants from machinery would escape onto his land via the water systems. When pressed to identify what he meant, he said that it was not impossible that a fuel tank of machinery used on the Richards' land could be pierced such there would be a fuel spill. His evidence as to that was unconvincing and of no real use.

24 He asserted silt would escape onto his land and cause damage. He conceded silt washing down streams could be a natural occurrence, but suggested that somehow the forestry operations on the Richards' land would cause excessive silting and damage. He could not justify this claim. He asserted fertilizers would escape onto his land and cause damage. He had no information as to what, if any, fertilizers would be used or when, or their potential impact.

25 There can be little doubt that what Mr Irwin was attempting to do in this application was agitate the overall complaints that he had relative to long term logging operations and that there was no convincing evidence arising from pars9 - 12 of his affidavit or the cross-examination in respect of it to allow the Court to make findings or draw inferences that, if forestry operations were not halted pending an appeal, the detriment identified would all occur in the intervening period and the potential benefit from a successful appeal would be lost.

26 I accept, however, that it is likely clearing operations which involve the cutting down of trees and the removal of logs is likely to continue in the absence of a stay order.

27 The question arises whether there is a serious issue to be tried, an arguable case, or a substantial prospect of the appeal succeeding. All of these terms appear in the authorities. In determining whether there was an arguable case when he dealt with the JRA s26 application in March 2007, Underwood CJ identified at pars30 - 33, the issue now raised by ground 1 of the notice of appeal and found there was an arguable case in relation to that matter. However when he made that finding he had not had the benefit of the evidence or submissions ultimately put before the learned trial judge.

28 The learned trial judge dealt with ground 1 at pars16 - 39 of his decision. The complaint of the appellants is that the learned trial judge did not properly identify the issue to be considered in that he dealt with the review on the basis Councillor Kelly did not declare an interest when he voted at the relevant council meeting. Counsel submitted that, in approaching the matter that way, his Honour incorrectly limited the scope of the review. The appellants' case was that the failure to declare and voting without that declaration were not the only matters. The Local Government Act 1993 ("the LGA"), s48(1), required that a councillor not participate at a meeting and not that he simply not vote. Counsel argued that the participation of a person at a meeting, whether they voted on the subject matter or not, could have an impact on the outcome.

29 Counsel submitted that the LGA, s56, provided no exception for participation. Further, he submitted there was evidence capable of supporting a finding that Councillor Kelly and/or his mother had an expectation of financial interest and the learned trial judge had failed to determine this. This was a case, he said, consistent with apprehended bias. His Honour, he said, referred to that at par35 but ignored it at par38.

30 The learned trial judge made reference to the LGA, s56, which provides:

"56 Any proceedings or decisions of a council, council committee, special committee, controlling authority, single authority or joint authority are not invalid by reason only that at the time the proceedings were held or the decisions were made, a councillor or member-

(a) had not declared an interest as required by section 48 or 48A; or

(b) had voted on a matter in respect of which the councillor or member had not declared such an interest."

"Assuming that Councillor Kelly had an expectation of receiving, or was likely to receive, a pecuniary benefit as claimed by the applicants, with the result, at common law, that the council's decision would have been liable to be quashed or set aside, the circumstances of the case fall squarely within the provisions of the section. The complaint of the applicants is that Councillor Kelly did not declare an interest, as required by s48, and he voted on the matter, in respect of which he had not declared such an interest. The provisions of the section are clear. The operation of the common law must be treated as having been excluded. Contrary to the submission of the applicants' counsel, such a conclusion is not inconsistent with R v West Coast Council; ex parte The Strahan Motor Inn [1995] TASSC 47; (1995) 4 Tas R 411 for that case was not concerned with a pecuniary interest of a councillor and the circumstances did not fall within s56. The circumstances for which the section provides are exceptional and do not extend to a disqualification based on actual or apprehended bias because of some factor other than a failure by a councillor to declare an interest of the kind referred to in s49 or voting on a matter in respect of which the councillor had not declared such an interest. See R v Barnsley Licensing Justices [1960] 2 QB 167 at 177 - 180, 182 and 184 - 185."

31 It is not my role upon this application to determine the grounds of appeal, but simply to make an assessment as to whether there appears to be an arguable case, a serious issue to be tried, or a substantial prospect of the appeal succeeding. It is relevant to note in this regard that contrary to counsel for the appellants' submission, the learned trial judge did indeed make reference to the issue of apprehended bias in both pars37 and 38. He did so in the context that s56 did apply to provide an exception to the common law and it is really that determination to which exception is taken. The appellants seek to interpret s56 as providing no exception in a situation where a councillor participates in the meeting which results in the decision sought to be impugned and only an exception where such a councillor votes on that decision. I am not satisfied that the appellants have demonstrated there is an arguable case in respect of that issue.

32 As to the second ground of appeal relating to ground 6 of the application to review, counsel for the appellants set out those parts of the learned trial judge's decision to which argument would be directed on appeal. He said that the learned trial judge decided:

"b Considerations of the type discussed in Dorney did not apply in this case because the modification potentially increased the rights of owners such as Irwin.

c Any breach of the principles of natural justice did not deprive the Appellants from making representations to the panel as there was no evidence that anyone would have made representations."

The first matter which is apparent applies to point (c). His Honour appears to have made a finding of fact at par10 that the appellants "presented no evidence that if they had learned of the proposed change they would have made representations or done anything else about the matter ...". He does not appear to have decided as a matter of law the matter asserted in para(c).

33 As to subpara(b), the argument to be mounted is that his Honour erred in distinguishing the case of R v Resource Planning & Development Commission; ex parte Dorney (No 2) [2003] TASSC 69; (2003) 12 Tas R 69. He should not have, but should have accepted that "these changes decreased the position of Irwin for the reasons that can be seen summarised in his affidavit" and the principles of natural justice must apply. Counsel referred to the decision of Blow J in Skipper v Resource Planning and Development Commission [2007] TASSC 83 where he said much of the relevant law was dealt with. Indeed, Blow J referred to a number of authorities in the context of the case with which he was dealing which was unlike the present. Counsel in the present case did not refer to any of those authorities, nor did he articulate which supported the particular proposition for which he contended. Having read that case, I was unable to identify any proposition such as is now pursued, other than in the context of the particular facts with which his Honour was dealing which, as I said, are very different from those in this case.

34 The point the learned trial judge made in par11 of his reasons was that in this particular case the panel required the council to modify the draft planning scheme. The relevant legislation in those circumstances did not require there to be notification to the public, or any member of it, of an intention that such a modification should be made. There was no complaint that there was a failure to comply with any provision of the Land Use Planning and Approvals Act 1993 ("LUPAA"). His Honour determined that the draft planning scheme as it was finally approved was validly so approved. That was the situation when the matter was dealt with in November 1997. The appellants' contention, which it changed to mid-hearing, was that while the changes were made in compliance with LUPAA, the common law rules of natural justice imposed a requirement, not present in LUPAA, for the appellants to be notified of the modification before it occurred. His Honour determined that was not the case.

35 Mr Irwin in his affidavit set out a number of matters which, in effect, were negative effects he claimed would flow were any forestry operations conducted on the Richards' land. Prior to the modification to the relevant planning scheme, the draft planning scheme provided that forestry in a Rural zone and a Forestry zone was a discretionary use. The modification was to delete the Forestry zone, define forestry operations as establishing, managing or harvesting trees, classify forestry as a discretionary use in the Open Space zone and a permitted use in the Rural and Utility Services zone. Although it is not apparent from the papers on this application, I presume that, insofar as it related to both the Richards' land and that of Mr Irwin, the modification resulted in forestry moving from a discretionary to permitted use.

36 I am unable to see how the matters raised by Mr Irwin in his affidavit, as his counsel asserted, could be categorised as decreasing his rights, such decrease having been occasioned by a modification to a planning scheme in 1997. They are effects which might or might not flow were forestry operations conducted on the Richards' land and would be occasioned, if at all, by such operations. At all relevant times forestry operations could have been conducted on both the Richards' and Irwin's lands. All the modification in 1997 did was limit the powers of a planning authority to refuse to allow such operations. It retained the power even where there was a permitted use to impose conditions (see LUPA, s51(4)). The reasons of the learned trial judge disclose that at the time at which the planning authority was considering the draft planning scheme prior to its decision to modify it, it advertised and sought public comment, held public hearings and heard 278 representations. If the submission of the appellants is correct, what the planning authority should have done in 1997 was personally notify every landowner within its municipality of its proposal to modify the draft planning scheme as a consequence of the public hearings, even in the absence of any legislative requirement to do so.

37 The learned trial judge drew a conclusion at par14 of his reasons that:

"If common law principles of natural justice or procedural fairness applied to proceedings of the Panel they did not extend to the protection of members of the public at large."

That conclusion was not challenged. In the circumstances, I am unable to see in the context of this case that the appellants have demonstrated an arguable case, a serious question to be tried or, indeed, a substantial prospect of success on appeal in relation to this issue.

38 The other issue argued by the appellants was the balance of convenience which, when it became apparent they might need to consider an alternative or additional test, was rolled into a consideration of whether special circumstances existed which might justify the discretion provided for in r676 being invoked. I have already referred to the appellants' position in par12.

39 However there are other considerations. The owners of the land where operations are being conducted are potentially affected by any decision. They were not given notice of this application and have not been heard in relation to it. I infer that, had they been, they would also have opposed it. There is no evidence that either Gunns Ltd or the Richards would actually suffer a loss if a stay were granted. However, it is an inevitable inference to be drawn. Gunns Ltd would not be conducting operations without an expectation of profit, and the Richards are unlikely to have permitted them to conduct such operations without an expectation of some reward. Any benefit to either will be foregone, at least until the end of February, if the stay is granted in circumstances where they have now waited several months already and have been wholly successful in the proceedings brought to have the decision of the council overturned.

40 The potential for financial loss by the respondents and the Richards could be dealt with by an appropriate undertaking as to damages. Counsel for the appellants has put to the Court an undertaking by the appellant Hayward. However, in this case the appellants are seeking the exercise of a discretion in their favour. They have not in my view satisfied the Court that there are circumstances which would justify the discretion of the court being exercised in their favour, irrespective of the test to be adopted.

41 The application for interlocutory relief is dismissed.