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[2012] TASSC 60
Supreme Court of Tasmania
2012-09-24
Blow J, Porter J, Professor J
Original judgment source is linked above.
CITATION: Kidd v Resource Management and Planning Appeal Tribunal
APPEALED FROM: Peart and Kidd v Sullivans Cove Waterfront Authority
and Citta Property Group [2011] TASRMPAT 181
Environment and Planning - Courts and tribunals with environment jurisdiction - Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors - Powers and duties on appeal - Statutory duty to give reasons.
Citta Property Group Pty Ltd: S R Morris QC and D R Armstrong
Tasmanian Heritage Council: Director of Public Prosecutions
Judgment Number: [2012] TASSC 60
1 This is an appeal from a decision of the respondent, the Resource Management and Planning Appeal Tribunal ("the tribunal"). It concerns a proposal that involves the demolition of the former Government Printing Office at 2-4 Salamanca Place, Hobart. That building is a "registered place" for the purposes of the Historic Cultural Heritage Act 1995 ("the HCH Act"). That is to say, it is a place entered in the Heritage Register pursuant to that Act.
2 A developer named Citta Property Group Pty Ltd proposes to redevelop an area that has become known as "Parliament Square". That area is bounded by Salamanca Place, Davey Street, Murray Street, and Parliament House. Its proposal involves the demolition of 2-4 Salamanca Place and 10 Murray Street, and the construction of a new office building. The sequence of events leading up to this appeal, so far as they are relevant, can be summarised as follows:
"The Heritage Council or planning authority may only approve a works application in respect of works which are likely to destroy or reduce the historic cultural heritage significance of a registered place or a place within a heritage area if satisfied that there is no prudent and feasible alternative to carrying out the works."
4 By virtue of the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), s23(1), the tribunal had all the powers that were conferred by the relevant legislation on the Heritage Council. It was required to consider the works application de novo. By reason of the HCH Act, s41, it was empowered to affirm the Heritage Council's decision only if it was satisfied that there was "no prudent and feasible alternative" to the demolition of 2-4 Salamanca Place. The appellant contends that, in making its second decision, the tribunal made a number of errors of law concerning the application of s41. In an appeal of this nature, the right of appeal is confined to questions of law: RMPAT Act, s25(1).
5 In his judgment concerning the tribunal's first decision, Porter J made a number of observations about the effect of s41. The following propositions were made clear by him in his judgment:
6 In pars[1] - [7] of its second decision the tribunal dealt with background matters, including the nature of Citta's proposal, its earlier decision, the decision of Porter J, and the constitution of the tribunal. In pars[8] - [19], the tribunal dealt with the question arising under the relevant planning scheme which Porter J had held that the tribunal had earlier failed to consider. In addressing that issue, the tribunal made some comments, in pars[13] and [18], that were relevant or possibly relevant to the question whether there was any "prudent and feasible alternative" to carrying out the works proposed by Citta.
7 At par[13] the tribunal made a finding that, in historic cultural significance terms, the building at 2-4 Salamanca Place was "of low significance". It went on to say that the building's stairwell and façade were "of a somewhat higher significance". It accepted the correctness of a comment in a conservation management plan that the building was a "neutral element in the urban streetscape largely due to its non-distinctive façade character".
8 A provision in the planning scheme made it necessary for the tribunal to consider whether the building was "capable of continued beneficial use". At par[18] the tribunal said the following about the building:
"The reality is that, in the Tribunal's view, the building was a purpose built industrial printing complex. Whilst it is possible to conceive of a number of other uses to which it might be put (an art gallery was one canvassed) the reality is that there are several fundamental reasons why the building is not capable of continued beneficial use, not least of which are the problems identified as arising from the disparate floor levels. The Tribunal is not satisfied that 2-4 Salamanca place [sic] is capable of continued beneficial use; in fact the Tribunal is satisfied that it is not so capable."
9 The Tribunal dealt with the issue arising under the HCH Act at pars[20] - [33] of its reasons. In pars[20] - [23] it quoted relevant provisions from the HCH Act and extracts from the reasons of Porter J. In par[24], after some uncontroversial comments about the "prudent and feasible" test, the tribunal said the following:
"Simply because something is an alternative which may be feasible (such as an art gallery) does not necessarily mean that it will also be prudent. The converse is also the case; prudence may dictate a particular course which is simply not feasible. In this case the Tribunal is firmly of the view that whilst there may be any number of feasible alternatives to the demolition of 2-4 Salamanca Place (and alternative uses to which it may be put) none are conceivably both feasible and prudent, particularly in terms of context, scope, benefit and social utility of the proposal."
10 In par[25], the tribunal referred to the fact that the building in question is next door to Parliament House and, after some discussion, expressed the view that "any use to which it is put should support the Parliamentary process", and the view that prudence "dictates where at all possible any use in the future should relate to the parliamentary process". Evidently the tribunal was implying that, when considering the prudence of possible future uses of the building as alternatives to its demolition, a factor that weighed against some alternative uses being regarded as prudent was that they had no connection with the activities of the Tasmanian Parliament.
11 In pars[26] - [29], the tribunal considered the benefits that would accrue to the community from the implementation of the Parliament Square proposal, and concluded that those benefits were so significant that: "the destruction in this instance of heritage significance is justified".
"That conclusion is made somewhat easier to reach when the cultural heritage significance of 2-4 Salamanca Place is analysed in some detail in the context of the consideration of the Planning Scheme. In short, 2-4 Salamanca Place does not possess such iconic significance as to preclude its diminution or its removal."
Evidently the tribunal was referring to the findings it made at par[13] as to the extent of the building's heritage significance.
13 In pars[30] and [31] of its reasons, the tribunal considered s90 of the HCH Act, which required it to take into account certain things. Under s90(c), it was required to take into account any relevant provisions of the Building Act 2000, but it held, in effect, that there were none. Under s90(a), it was required to take into account "the retention of the historic cultural heritage significance of the place". All that the tribunal said about that factor was that "retention of the listed place is the central consideration and starting point in a situation such as this". Under s90(b), the tribunal was required to take into account "the objectives of the resource management and planning system and the planning process set out in Schedule 1 to the Land Use Planning and Approvals Act 1993". The tribunal commented that it was doubtful that those objectives added "anything much to the equation". The tribunal seized on some words in the definition of "sustainable development" in Sch1, Pt1, cl 2, and said that the objectives served to emphasise the importance of the "social, economic and cultural well-being" of the community as a whole. It went on to say that "for the reasons already canvassed ... there are no prudent and feasible alternatives to this proposal which necessarily involves the demolition of 2-4 Salamanca Place".
14 In par[32] of its reasons, the tribunal acknowledged the need for a "clear and compelling case" to satisfy it that there was "no prudent and feasible alternative" to demolition. Without introducing any new reasoning, it concluded that the case for demolition was clear and compelling.
15 In par[33] of its reasons, the tribunal considered, as one alternative, the possibility of Citta amending the design for its Parliament Square proposal. It expressed its conclusion as follows:
"In the Tribunal's view based on copious relevant evidence adduced, this approach would not be appropriate for a number of reasons, not the least of which are questions relating to the acceptance of 'facadism' in heritage matters and the very serious constraints to a satisfactory redevelopment arising from a lack of access and/or openness to the larger site from the Salamanca Place frontage."
Scope of the tribunal's consideration of alternatives - grounds (a) and (b)
16 The appellant's first two grounds of appeal assert that the tribunal erred in law as follows:
"(a) it failed to act in obedience to the orders made by this Honourable Court on 31 August 2011 in that in its reconsideration of the application for a works permit the subject of a [sic] the appeal to it (the application) it confined the scope of its inquiry pursuant to section 41 of the Historic Cultural Heritage Act 1995 (the Act) as to prudent alternatives to the context, scope, benefit and social utility of the application rather than of alternatives to it.
(b) alternatively to ground (a) it misconstrued section 41 of the Act in that having determined that there are feasible alternatives to the application, it confined the scope of its inquiry as to prudent alternatives to the context, scope, benefit and social utility of the application rather than of alternatives to it".
17 Porter J held that the tribunal, in its first decision, had erred in its approach to s41 by limiting its consideration as to alternatives to the question of how the objectives of Citta's proposed development could be achieved by alternatives to the proposed works. The appellant contends that the tribunal made the same error in its second decision. Her counsel argued that the tribunal did not identify any reason why it considered alternatives to be imprudent, other than the merit of Citta's proposal; that it did not consider any alternatives, or feasible alternatives, to the works proposed by Citta; and that it gave its attention entirely to Citta's proposal, and its objectives, reasons and benefits.
18 It is true that the tribunal gave a lot of attention to Citta's proposal and its benefits. It dealt with them very thoroughly. It was so impressed that it was moved to refer to the redevelopment of Rome under Pope Sixtus V during the 16th century, the redevelopment of Paris by Baron Haussman during the reign of Napoleon III, and the redevelopment of the Regent Street area of London by John Nash during the 19th century. It was entitled to treat the reasons for the proposed works and their degree of social utility as very significant factors. The critical question is whether it, for a second time, erred by limiting its consideration of alternatives to a consideration of alternative means of achieving the objectives of Citta's proposed development.
19 Because of the wording of par[24] of the tribunal's decision, I do not think I can be satisfied that it limited its consideration of alternatives in the way that the appellant contends. It is clear from that paragraph that it did not evaluate the feasibility of any alternatives to the demolition of the premises, simply concluding that "there may be any number of feasible alternatives". However it went on to say, at the end of that paragraph, that no alternatives to the demolition of the premises, and no alternative uses of the premises, were "conceivably both feasible and prudent, particularly in the terms of the context, scope, benefit and social utility of the proposal". That was a reference to Citta's Parliament Square proposal. The word "particularly" implies that the tribunal, in considering whether there were any prudent alternatives to demolition, did not limit its consideration to alternative ways of achieving Citta's objectives. It is true that the tribunal did not state what alternatives it considered, did not list the factors relevant to the prudence issue other than the benefit and social utility of Citta's proposal, and did not expose its reasoning in relation to those other factors. However, in the light of what the tribunal said at the end of par[24], I cannot rule out the possibility that it evaluated the prudence of alternatives without improperly limiting its consideration of them as it did in its first decision. Grounds (a) and (b) must therefore fail.
20 The appellant's next ground of appeal asserts that the tribunal erred in law as follows:
"(c) it misconstrued section 41 of the Act as authorising it to consider the use proposed, or possible uses, of the registered place in the discharge of its obligation to be satisfied that there is no prudent and feasible alternative to carrying out the works the subject of the application".
21 Counsel for the appellant made submissions to the effect that s41 of the HCH Act is not concerned with land use, and that the tribunal's reasoning concerning the possible use of the premises in a way that supported the parliamentary process involved an error of law. It was submitted that the tribunal misdirected itself, in concluding that there was no prudent alternative to demolition, by referring to considerations of use and future use.
22 It is true that s41 is concerned with "works which are likely to destroy or reduce the historic cultural heritage significance of a registered place or a place within a heritage area". The decision-maker, in this case the tribunal, needs to determine whether "there is no prudent and feasible alternative to carrying out the works". The focus must be on alternatives to "works". However, in my view, in considering what is prudent, possible uses of the place in question must be relevant. One possibility, of course, is that the place in question might be kept intact but not used at all. But possible future uses of the place must be relevant.
23 Under s90(b) of the HCH Act, which I have already mentioned, every decision-maker exercising any power under that Act is required to take into account "the objectives of the resource management and planning system and the planning process set out in Schedule 1 to the Land Use Planning and Approvals Act 1993". Under Pt1, cl 1(b) of that schedule, one of the objectives of the resource management and planning system of Tasmania is "to provide for the fair, orderly and sustainable use and development of air, land and water". It must follow that land use is a matter relevant to the exercise of the power to approve a works application, and therefore to the consideration of alternatives for the purposes of s41. Ground (c) must fail.
24 It is convenient to deal next with the appellant's ground (e). By that ground she asserts that the tribunal erred in law as follows:
"(e) ... it failed to discharge its obligation pursuant to section 24 of the Resource Management and Planning Appeal Tribunal Act 1993, in that it failed to refer to the evidence or other material upon which it determined that there is no prudent and feasible alternative to the carrying out of the works the subject of the application except in the context of the proposal before it".
25 The tribunal has a duty to give reasons for its decisions pursuant to the RMPAT Act, s24. That section reads as follows:
"(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."
26 The effect of a similar provision, in migration legislation, was considered by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. In that case at pars[68] and [69], McHugh, Gummow and Hayne JJ said the following (omitting footnotes):
"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 [Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469], significance was attached to the use of the word 'material' in s 430(1)(c). It was said 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.
27 The Full Court held in Hobart City Council v Resource Management and Planning Appeal Tribunal [2007] TASSC 99; (2007) 17 Tas R 137 that the principles set out in Yusuf applied to the requirements as to the giving of reasons imposed on the tribunal by s24.
28 In its second decision, the tribunal dealt thoroughly with the reasons for the proposed Parliament Square redevelopment and its social utility, but said little about the existence or otherwise of prudent or feasible alternatives to the proposed demolition outside the context of the Parliament Square proposal. As far as I can tell, the tribunal did not evaluate the feasibility of any alternative to the demolition of the building, except perhaps in relation to the possibility of Citta amending its design. In par[24] of its reasons it acknowledged that there "may be" feasible alternatives to the demolition, not that there were. It mentioned an art gallery as one alternative which may be feasible, but not any other alternatives. It was not required to evaluate the feasibility of any alternative if it was satisfied that there were no prudent alternatives. Its conclusion was that there were no alternatives that were "both feasible and prudent". One might get the impression that the tribunal rejected every alternative as not being prudent, but the tribunal did not say that. Taking its reasons at face value, one cannot tell whether it considered some alternatives to be prudent but not feasible, and none of the rest to be prudent.
29 The tribunal's published reasons are clearly deficient in relation to the evaluation of the prudence or imprudence of alternatives to demolition. Its use of the word "particularly" in par[24] implies that it evaluated the prudence of alternatives to Citta's proposal, but it said nothing, in par[24] or elsewhere, as to what such alternatives it considered. The degree of heritage significance was referred to, without reference to any particular alternatives, at pars[13] and [33]. The preferability of any new use of the premises supporting the work of the Parliament was referred to in par[25]. Disparity in floor levels was referred to in another context in par[18]. The tribunal said in that paragraph that there were "several fundamental reasons why the building is not capable of continued beneficial use", but did not identify any of those fundamental reasons other than a disparity in floor levels. It did not explain what evidence or other material it relied on in relation to the disparity in floor levels. It said nothing as to what part, if any, the disparity in floor levels played in its assessment of the feasibility and prudence of alternatives to demolition. Its conclusion, in par[18], that the building was not "capable of continued beneficial use" would appear to be inconsistent with its view, expressed at par[24], that "there may be any number of feasible alternatives to the demolition". The tribunal has not made it clear whether its finding that the building was not capable of continued beneficial use was something that it took into account in evaluating the feasibility and prudence of alternatives nor, if that finding was taken into account, what part that finding played in its reasoning.
30 The tribunal did not expose its full reasoning in relation to the factors that it took into account in making the finding that there were no alternatives to demolition that were both feasible and prudent. It clearly took into account the benefit and social utility of Citta's proposal. It can be inferred that it gave some weight to the preferability of any new use supporting the work of the Parliament, and the degree of heritage significance. It did not make it clear whether it took into account the disparity in floor levels or, if so, how.
31 Another minor point is that, in par[33] of its reasons, when the tribunal rejected the possibility of Citta amending the design for its Parliament Square proposal, it said that that approach would not be appropriate "for a number of reasons". It identified some of those reasons but not others. The identified reasons related to facadism and "a lack of access and/or openness to the larger site from the Salamanca Place frontage". However there must have been other unidentified reasons which it did not mention.
32 For those reasons, I conclude that the tribunal failed to comply with s24 in that it failed to give proper written reasons for its determination, and failed to make adequate reference to the evidence or other material on which it based its finding that there were no feasible and prudent alternatives to the demolition. Ground (e) must therefore succeed.
33 This ground asserts that the tribunal erred in law in the following respect:
"(d) it determined that there was no prudent alternative to the carrying out of the works the subject of the application when there was no evidence before it as to the prudence or imprudence of any alternative to those works".
34 This ground concerns the tribunal's finding, at par[24] of its second decision, that there were no alternatives to the demolition of 2-4 Salamanca Place that were "both feasible and prudent". That was a finding of fact. The appellant contends that the making of that finding of fact involved an error of law because there was no evidence to support it.
35 There can be no doubt that the making of a finding of fact when there is no evidence to support that finding amounts to an error of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Mason CJ at 355 - 356. Since the power to approve a works application may not be exercised without the decision-maker being satisfied in accordance with s41 that "there is no prudent and feasible alternative to carrying out the works", a finding to that effect, when there is no evidence to support that finding, amounts to a jurisdictional error: Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at par[57].
36 Counsel for the appellant made lengthy and detailed written submissions with a view to establishing that none of the evidence before the tribunal tended to prove that there were no alternatives to the demolition of 2-4 Salamanca Place that were both feasible and prudent. Counsel for Citta made lengthy submissions, referring to many passages in the evidence, with a view to persuading me to reach the opposite conclusion. The tribunal is a specialist tribunal. It is better placed than I am to determine what evidence amounts to evidence of the infeasibility or imprudence of an alternative. Since it did not explain what evidence, if any, formed the basis of its conclusion that there were no feasible and prudent alternatives to demolition, it would be an enormous task for me to analyse the many pieces of evidence to which counsel have directed me and to determine their relevance or irrelevance to the fact in issue. Since ground (e) has succeeded, it is not appropriate that I undertake that task.
The inquisitorial role of the tribunal - ground (f)
37 The appellant's final ground of appeal asserts that the tribunal erred in law as follows:
"(f) properly construed section 41 of the Act, required it to seek out and evaluate information as to prudent and feasible alternatives to the application before it could be satisfied as required by section 41. It failed to discharge its statutory obligation by proceeding in this manner."
38 Counsel for the appellant submitted that, if there was no evidence before the tribunal of a prudent and feasible alternative to the proposed works, then the tribunal had an inquisitorial duty to seek out and evaluate information as to alternatives. He relied on a passage in the judgment of Wilcox J in Yates Security Services Pty Ltd v Keating [1990] FCA 432; (1990) 98 ALR 21 at 57. That case concerned a provision in the Australian Heritage Commission Act 1975 (Cth) which imposed duties on Commonwealth Ministers in respect of places on the Register of the National Estate to ensure that departments and authorities did not take any action that adversely affected such a place unless "satisfied that there is no feasible and prudent alternative to the taking of that action". His Honour held that the duty to be so satisfied required a Minister, if necessary, "to seek out and evaluate information on alternatives".
39 There is good reason to think that, depending on circumstances, the Heritage Council, and the tribunal when exercising the Heritage Council's powers, could sometimes have a duty to seek out and evaluate alternatives. Taking such a course would not be necessary if adequate evidence and/or other material, relating to alternatives, was available. To determine whether there was such a lack of evidence or other material, I would need to undertake the same analysis that would have been necessary to determine ground (d). As ground (e) has succeeded, I will not undertake that task.
40 This appeal must succeed because of the tribunal's failure to comply with its statutory obligations in relation to giving reasons for its decision.
41 Counsel for the appellant submitted that, in the event of the appeal succeeding otherwise on the basis of ground (d) - the "no evidence" ground - I should remit the matter to the tribunal for reconsideration with a direction that the tribunal be differently constituted. He relied on R v Resource Planning and Development Commission; ex parte Dorney (No 3) [2003] TASSC 84; (2003) 12 Tas R 147. Counsel for the Heritage Council made no submission as to whether or not I should order that the tribunal be reconstituted. Counsel for Citta asked for an opportunity to make written submissions as to the point. I propose to give him that opportunity. I will hear counsel as to the question of a time limit for those submissions.
42 At this stage, I will order only that the decision made by the respondent tribunal on 2 December 2011, only insofar as it decided to affirm the decision of the Tasmanian Heritage Council to grant a permit under s39 of the Historic Cultural Heritage Act 1995, is set aside.
Kidd
Resource Management and Planning Appeal Tribunal [2012] TASSC 60
(2001) 206 CLR 323
(2000) 98 FCR 469
(2007) 17 Tas R 137
(1990) 170 CLR 321
(2011) 244 CLR 144
(1990) 98 ALR 21
(2003) 12 Tas R 147