Counsel on the appeal submitted this laid squarely before the learned trial judge what the position of the appellant was which was contrary to the argument attributed by the learned trial judge to the appellant.
64 As a starting point I should say that, having read the transcript of counsel for the appellant's submissions before the learned trial judge, I found them confusing and very difficult to follow. I also found the wording of ground 7(d) itself convoluted. The thrust of the appellant's argument is clearer if regard is had to the written submissions which appear at 52 - 62 of appeal book 1. It is apparent, when regard is had to those submissions and the statement at 131, that the learned trial judge did indeed incorrectly attribute an argument to the appellant.
65 Counsel for the appellant then asserted there was a second error. In par(b) of ground 1, the appellant asserted that the learned trial judge "correctly held" a certain thing, but failed to identify it as the appellant's argument. With respect, his Honour's comments in par39 as identified cannot on any basis be construed as a definitive finding or his having "held" anything. All he was there doing was postulating that certain things may occur and what he referred to accorded with the appellant's argument.
66 In par(c) of ground 1, counsel referred to a third error. This was that the learned trial judge rejected the ground of review, having relied on an argument not that of the appellant. Had he identified the appellant's correct argument, he ought to have upheld the ground of review. In par39 of his reasons, the learned trial judge accepted that Parliament could never have intended that an objector who argued a loss of opportunity to have input into the planning system automatically would suffer direct and material disadvantage within the meaning of the Act, s8(2)(f). As I understand the arguments put on this appeal, no party has any quarrel with that view. He also appeared to accept that the loss of opportunity to have input either alone or together with other factors might sometimes justify a finding that an individual would be directly and materially disadvantaged. As I understand the argument from the appellant, he says that view is correct. Ultimately, however, the learned trial judge dismissed the ground of review and the question for this Court is, was he correct in so doing?
67 The appellant's submissions were directed to the basic premise that the FPT should have identified that it needed to ask, did the loss of opportunity to have input through the planning system in the appellant's case amount to direct and material disadvantage for him? The FPT did not ask the correct question in the first place and certainly did not answer that question. Therefore their decision was wrong. Hence the learned trial judge made an error.
68 In support of this contention, counsel for the appellant began by addressing the meaning of direct and material disadvantage. He referred to Hayward & Anor v Forest Practices Tribunal& Anor (2003) TASSC 60. At pars36 - 43, Slicer J, considered the meaning of the words "direct and material disadvantage" in the context of the Act. Commencing at par37, he said: