Administrative Law - Judicial review - Grounds of review - Error of law - Whether any evidence that costs order "fair and reasonable".

Land Use Planning and Approvals Act 1993 (Tas), s 59.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s 28.

Statutes - Acts of parliament - Interpretation - General approaches to interpretation - General matter does not derogate from special matter - Application to provisions within same Act.

Land Use Planning and Approvals Act 1993 (Tas), s 59.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), s 28.

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1, applied.

Judgment Number: [2015] TASSC 29

1. This appeal concerns a regrettable dispute between two public bodies, the Launceston City Council ("the Council") and the Tasmanian Water and Sewerage Corporation Pty Ltd ("TasWater"), about the legal costs of proceedings before the Resource Management and Planning Appeal Tribunal ("the Tribunal"). The proceedings arose from an application by TasWater to the Council in March 2012 for a planning permit to develop and use a water reservoir near Lalla in northern Tasmania. Despite the terms of the permit being resolved by agreement of the parties in August 2012, this is the second appeal to this Court about costs issues which have also necessitated two separate decisions of the Tribunal.
2. On 20 August 2014, the Tribunal ordered that the Council pay the costs of an application made by TasWater under the Land Use Planning and Approvals Act 1993 ("LUPA"), s 59. The order was made by resort to the costs power in the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), s 28(2). In brief summary, the Council contends that the Tribunal erred because, firstly, it had no power under s 28 to make such an order and, secondly, because there was no evidence which justified the order.

1. An application for a planning permit which a planning authority has discretion to refuse or permit, is to be determined by the planning authority within a statutory time limit: LUPA, s 57(6). By s 59, the failure to determine such an application within the statutory time limit is deemed to constitute a decision by the planning authority to grant a permit on conditions to be determined by the Tribunal. In those circumstances, an applicant may apply to the Tribunal for an order determining the conditions on which the permit is granted: s 59(3).
2. The failure to determine a development application within the time limit has costs consequences for the planning authority. LUPA, s 59(5), provides that subject to an exception which has no application here, "after hearing an application under subsection (3), the Tribunal must direct the planning authority to pay:

(a) to the Tribunal an amount determined by the Tribunal as being the costs of the appeal; and

(b) to each other party to the appeal an amount determined by the Tribunal as being the appeal costs of that party." [Emphasis added.]

1. On 22 March 2012, TasWater made a development application to the Council for a permit for a minor subdivision and construction of the reservoir. In Launceston City Council v Tasmanian Water and Sewerage Corporation Pty Ltd [2013] TASSC 71, a decision published on 19 November 2013, Porter J affirmed a decision of the Tribunal that the Council failed to deal with TasWater's development application within the time limit. However his Honour also determined that the Tribunal was wrong to order, when it did so on 5 April 2013, that the Council pay costs to the Tribunal and TasWater under s 59(5). His Honour found that the power to order costs under s 59(5) did not arise because there had been no "hearing" of the application. Although there had been a series of procedural hearings before the Tribunal, the grant of a permit and the conditions to which it was to be subject were resolved by agreement between the parties before a hearing on the merits of the application was necessary: see his Honour's reasons at [46]-[49].
2. On 20 December 2013, after his Honour's decision was published, TasWater made a further and different application to the Tribunal for an order that the Council pay its costs. This application was made pursuant to the general costs provision in the RMPAT Act, s 28(2). The RMPAT Act establishes the Tribunal and governs its operation. On 20 August 2014 the Tribunal, differently constituted, acceded to the application and ordered that the Council pay TasWater's costs at 90% of the Supreme Court scale. The Council's appeal is against that order.

1. There are three grounds of appeal. As I will later explain, grounds 2 and 3 resolve, in substance, to one issue and will be dealt with together. The grounds allege:
   • Ground 1 - The Tribunal erred in law by finding it had jurisdiction to make an order for costs under s 28 of the RMPAT Act, when there was no such jurisdiction.
   • Ground 2 - The Tribunal misdirected itself as to the proper interpretation and application of the RMPAT Act, s 28(2) and (3).
   • Ground 3 - The Tribunal erred in law in its determination that it was satisfied for the purposes of the RMPAT Act, s 28(2) that it was fair and reasonable to order the Council to pay TasWater's costs of the s 59 application, such finding not being reasonably open to the Tribunal having regard to a number of factors identified in the ground.

1. Ground 1 asserts that, on the proper construction of the legislation, it having been determined that the Tribunal had no jurisdiction to make an order for the payment of the costs in the s 59 application under s 59(5) of LUPA, it had no jurisdiction to make an order for the costs of the application under the RMPAT Act. Where s 59 of LUPA applies the Tribunal must order the planning authority to pay the appeal costs. By LUPA, s 59(6), an application under s 59 is deemed to be an appeal for the purposes of the RMPAT Act. The costs provision in s 28 of the RMPAT Act makes general provision for the costs of an appeal in the following terms:

(1) Each party to an appeal is to pay its own costs.

(2) However, the Tribunal may order a party to proceedings to pay all or part of the costs of another party to the proceedings if the Tribunal is satisfied that it is fair and reasonable to do so.

(3) For the purposes of subsection (2), the Tribunal may take into account any of the following matters:

(a) whether the proceedings appear to the Tribunal to have been instituted merely to delay or obstruct;

(b) whether in the Tribunal's opinion a party has raised frivolous or vexatious issues;

(c) the relative merits of the claims made by each of the parties;

(d) whether in the Tribunal's opinion a party has unnecessarily or unreasonably prolonged the proceedings or increased the costs of them;

(e) whether a party has failed to comply with a direction or order of the Tribunal without reasonable excuse;

(f) whether a party has failed to comply with any relevant law or planning scheme;

(g) the nature, complexity and outcome of the proceedings;

(h) the capacity of the parties to meet an order for costs;

(i) any other matter the Tribunal considers relevant."

1. In support of its submission the appellant invokes the maxim of statutory interpretation expressum facit cessare tacitum. Although the maxim is referred to by Pearce and Geddes in Statutory Interpretation in Australia, 8th ed (2014) at 181 [4.36] as "difficult to translate", in Balog v Independent Commission Against Corruption [1990] HCA 28; (1990) 169 CLR 625, at 632, Mason CJ, Deane, Dawson, Toohey and Gaudron JJ describe it as being "that the express mention of something excludes that which is not mentioned". The exposition of the principle most commonly referred to is in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1. In that case, Gavan Duffy CJ and Dixon J said, at 7:

"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."

1. The decision in Anthony Hordern was considered in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50; (2006) 228 CLR 566. Gummow and Hayne JJ observed in that case at [59]:

"Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the 'same power', or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power." [Footnotes omitted.]

1. The principle is to be applied with caution and is no more than a guide to ascertaining the intention of the legislature: Konestabo v Brown [2001] TASSC 152. The provisions in question must be construed to determine whether one is to be preferred over, or overrides, the other: Drewitt v Resource Management & Planning Appeal Tribunal [2008] TASSC 70; (2008) 163 LGERA 222 at [27]. In Balog v Independent Commission Against Corruption (above) the plurality said at 632:

"However, that maxim, whilst a valuable servant, is apt to be a dangerous master and it is necessary to seek confirmation in the broader context of the whole Act."

1. As was pointed out by French CJ in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 at [50]:

"Like all such principles, however, it must be applied subject to the particular text, context and purpose of the statute to be construed."

1. In brief substance, the appellant submits that the principle operates to exclude a power for the Tribunal to make an order for costs in a s 59(3) application based on the RMPAT Act, s 28, because the power to order costs in a s 59 application is expressly dealt with in s 59 and is subject to the conditions and qualifications of that provision. Here, as was also the case in Drewitt v Resource Management & Planning Appeal Tribunal, the principle enunciated in Anthony Hordern cannot have a literal application, because the provisions in question are not in the same statutory instrument. Despite some authority to the effect that the maxim can have little, if any application in those circumstances, Pearce & Geddes express the view at [4.37] that the application of the maxim should not turn on whether the conferral is in one or separate instruments, but on whether or not the "specific enforcement mechanism is intended to be exhaustive". It seems to me that some weight is added to that view when the separate legislation, as here, is part of a scheme of interconnected legislation. The clearest guide to legislative intention is the words used in the text of the legislation. Consideration of its meaning includes examination of the context and the purpose and policy of the provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69], Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at 47 [47] and Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 at [82].
2. I do not think that s 59 of LUPA should be interpreted as conferring an exclusive and exhaustive power to order costs in every application under that provision and to the exclusion of the power in the RMPAT Act, s 28. There is nothing in the text of the legislation which indicates that the two powers cannot operate concurrently. Nor do I think that the conclusion follows from the context, purpose and policy of the legislation. Parliament has created two provisions by which a planning authority may, in different circumstances, be made subject to the same consequences. The circumstances in which an order may be made under s 59(5) are confined to a circumstance in which an application under that provision proceeds to a hearing. It is important that s 59(5) is not only a source of jurisdiction to order costs. It goes further. It mandates an order against the planning authority when the Tribunal has heard an application under that provision. If a planning authority fails to determine an application within the statutory time limit, and an application to determine the conditions of a permit under s 59(3) proceeds to a hearing, then a costs order against the planning authority must be made. Parliament has legislated for, in those circumstances, a mandatory costs consequence for a planning authority. It is a provision which is intended to encourage the timely determination of applications by planning authorities. However, the existence of the obligation to order costs in those circumstances is not incompatible with the conclusion that the power under the RMPAT Act, s 28, may be exercised when the power under s 59(5) does not apply. If there has been no hearing then s 59(5) has no application at all. There can be no resort to it. The terms of s 59 do not, contrary to the appellant's submission, limit the power to order costs to proceedings under that provision which involve a hearing. Rather, the provision creates an obligation to order costs in s 59 applications, but limits the obligation to proceedings which involve a hearing. It does not deal exhaustively with the issue of costs of s 59 applications. The general power contained in the RMPAT Act, s 28, may be exercised in proceedings which do not involve a hearing because such proceedings are not the subject of the special provision. The imposition of an obligation in one circumstance is not repugnant to resort to the general power when that circumstance does not exist. There is nothing in the context and purpose of the legislation which suggests a legislative intention to exclude the operation of s 28 for every application under s 59, whether it proceeds to hearing or not.
3. In my view, the Tribunal was correct to conclude that it had power under the RMPAT Act, s 28, to make a costs order in the s 59 application. This ground of appeal is not made out.

1. Appeal grounds 2 and 3 were argued together. Consideration of the grounds requires more detailed analysis of the terms of the application to the Council and how it was ultimately resolved. The application concerned TasWater's Lilydale Treated Water Pipeline Project, a project to construct a 20km pipeline from Mt Direction to provide reticulated water to Lilydale. The application was prepared and made by consultants on TasWater's behalf. Because the pipeline corridor and pump station site were exempt from planning approval, the application concerned only the development and use of a proposed one megalitre water reservoir, 5.7 metres high and 17.5 metres in diameter, and constructed of unpainted reinforced concrete. The reservoir was to be located on land zoned Rural about 370 metres from Lalla Road, but adjacent to an already constructed access road. The application required a subdivision of 3954 square metres from the existing title for the reservoir and the access road.
2. Once advertised the application generated representations from members of the public. Most of the representations centred upon the impact of the construction of the reservoir on the local, scenic, cultural and heritage values of the nearby WAG Walker Reserve, Lalla ("the Reserve"). The Reserve is a privately owned 104 hectare rhododendron garden. One representation was from the owner of the Reserve. Access to the Reserve is, and has been for many years, by right of way over the same access road which TasWater proposed as access to the reservoir, and the reservoir was to be located almost directly opposite the entrance to the Reserve. The development application included an assessment of the site and its surrounds, but asserted that the use and development of the reservoir "will not detrimentally impact the reserve".
3. The application was considered by the Council's planning officer. He conducted a full assessment according to the Launceston Planning Scheme 1996. He reported that the reservoir site itself was not the subject of any the scheme's scenic protection or regional significance provisions, but that the Reserve is a property identified as an Area of Regional Significance and is heritage listed under the scheme. It is also listed on the Australian Government's non-statutory Register of the National Estate and had, until recently, been administered by the Tasmanian Parks and Wildlife Service as a tourist operation. The planning officer's report included the following passage:

"A number of considerations and sub-considerations outlined under Clause 6 of the Planning scheme are relevant to the application ... These considerations support the provision of essential services, tourism, and the protection of places of historic and scenic significance for the promotion of communities. They point to a balance between these objectives being achieved with appropriate setbacks, landscaping, external treatments, and lots having sufficient sizes. To ensure, that is, developments can be properly provided with the features and landscaping that they require to minimise visual impacts as much as possible.

In this regard the application is deficient". AB241

1. The report recommended approval of the application but with 22 conditions aimed at addressing the deficiencies identified by the planning officer relevant to protection of the heritage importance and regional significance of the Reserve. The first recommended condition is the most relevant. It required submission of amended plans for approval and endorsement which provided for:
   • a minimum setback of 10 metres from the eastern boundary;
   • dense landscaping with species reflecting the existing surrounding vegetation;
   • a significant increase in the size of the proposed reservoir lot to provide for the establishment and survival of the landscaping plants; and,
   • treatment of the outside of the reservoir by colour or texture to "recede into the dense landscape plantings".
2. The planning officer's report recommending conditional approval was reviewed and approved by the Council's Acting Director Development Services. However, although the application was received by the Council on 22 March 2012, it did not go before a Council meeting until 14 May 2012. By that date, the time limit provided by LUPA, s 57, for determination of the application had expired. Council's failure to determine it in time amounted to a deemed approval. By 10 May 2012, before the date of the Council meeting, TasWater had applied to the Tribunal pursuant to s 59 for determination of the permit conditions. Nevertheless, the Council proceeded to resolve, contrary to its planning officer's recommendation, to refuse the application. It expressed seven grounds for doing so, mostly related to the impact of the proposed development on the regional significance and natural landscape and scenic value of the Reserve. It issued a notice of the refusal listing those seven grounds on 21 May 2012.
3. Thereafter, the application based on the deemed approval went to the Tribunal. Some of those who had made representations to the Council about the application were joined as parties to the Tribunal proceedings. A telephone directions hearing was conducted on 22 May 2012. Hearing dates were allocated. Also, during the directions hearing, counsel for TasWater raised a series of objections to the adequacy, validity, relevance and correctness of the various grounds advanced by the Council for its refusal. Then followed an exchange of correspondence and submissions to the Tribunal by the legal advisors of TasWater on the one hand, and a representor and the Council on the other, concerning the issues raised. On 10 June 2012, TasWater lodged an appeal under LUPA, s 61, against the Council's purported refusal of the application. By letter to the Tribunal dated 14 June 2012, counsel for TasWater indicated that, to avoid prolonged dispute about the grounds identified by the Council in its notice of refusal, he would "have my witnesses prepare appropriate proofs of evidence for the purposes of the appeal based on these grounds". The s 61 appeal was dealt with contemporaneously with the s 59 application. A mediation was conducted on 18 June 2012 which did not resolve the proceedings. Procedural directions were made by the Tribunal, including for the exchange of evidentiary material. On 29 June 2012, the Tribunal determined, when considering the s 61 appeal that grounds 1, 2, 4 and 5 of the Council's notice of refusal were deficient in several respects but were sufficient to enable the parties to know, "at least in a general sense", the areas in which the Council contended the application did not meet the planning scheme. Proofs of expert evidence were prepared and filed by TasWater. No proofs of evidence were filed by the Council or the representors. The hearing of the proceedings, originally scheduled for 23 and 24 July 2012, was adjourned until 20 August 2012, but a hearing was not ultimately required. The proceedings were resolved by agreement. On 15 August 2012, the solicitor for the Council filed with the Tribunal a consent memorandum signed by the parties in each proceeding. The consent memorandum was accompanied by an amended plan of subdivision, four drawings and a list of agreed conditions incorporating the amended plans. The drawings show the reservoir, rather than being supported on an above ground pad, substantially set into the ground and almost entirely concealed by ground works and vegetation. The consent memorandum filed in each proceeding was identical except that the memorandum in the s 61 appeal contained a paragraph in which the parties agreed that "each party pay their own costs of and incidental to this appeal".
4. The Tribunal did not, immediately, make orders in accordance with the memorandum. The reason for that was that the Council disputed the validity of the s 59 application. The parties did not agree whether the orders were to be made in the s 59 application or the s 61 appeal, presumably because of the Council's apprehension (at that stage at least) about the operation of the costs provision in s 59. On 5 October 2012 the Tribunal determined that the s 59 application was valid. It determined that "the appropriate power that the Tribunal exercises to dispose of the matter is that conferred by Section 59". It ordered, pursuant to LUPA, s 22(3), that TasWater's development application be amended to accord with the plans lodged with the consent memorandum, and directed the Council to issue a planning permit in accordance with the agreed conditions incorporating the amended plans. I cannot find that any order has yet been made by the Tribunal disposing of the s 61 appeal which proved unnecessary, but nothing turns on that.
5. The Council then appealed to the Supreme Court. When Porter J affirmed the Tribunal's decision about the validity of the s 59 application, the validity of the Tribunal's order made under that provision was also affirmed. However Porter J's determination that that the power to order costs under s 59(5) did not arise because there had been no "hearing", led TasWater to make application for costs of the s 59 application under the RMPAT Act, s 28. The Tribunal received written submissions. On 20 August 2014 the Tribunal, differently constituted, allowed the application and ordered that the Council pay TasWater's costs of the "appeal". The Tribunal expressed its reasons for the order in the following terms:

"31 The Tribunal is satisfied that an order should be made in favour of the Applicant pursuant to Section 28(2) of the RMPAT Act. The Tribunal is satisfied that it is fair and reasonable to depart from Section 28(1). That is because it finds that the conduct of the Council in refusing to accept the objective advice of its own planners, and in prolonging the resolution of the matter in the face of expert evidence which required such result, without any evidence to justify the contrary position, unnecessarily prolonged the proceedings; unnecessarily increased the costs of the proceedings; unreasonably prolonged the proceedings; and unreasonably increased the costs of them. (Section 28(3)(d) of the RMPAT Act) (original emphasis).

32 That conclusion exposes another relevant matter which is that the relative merits of the claims made by each of the parties were significantly in favour of the Applicant's case and not at all in favour of the position adopted by the Council up until the point it resolved the matter. In AJ deCesare v Clarence City Council [2010] TASRMPAT 178, at 13, the Tribunal dealt with the situation where the Council had refused a development application contrary to the recommendation of its own planning officer. The Tribunal said this:

'The Appellant seeks to introduce this fact as a matter the Tribunal might consider relevant under the catchall provision appearing in Section 28(3)(i). The Appellant submits that the refusal by the Council should be scrutinised carefully. It is acknowledged by the Applicant that Councils are entitled to make decisions contrary to officer recommendation, and indeed, this regularly occurs. It is important to recognise at the outset that it is not the failure of the Council to follow its planning officer's recommendation that is relevant. The Tribunal exercises no jurisdiction over the conduct of the Council, and has no jurisdiction to award costs on the basis of the conduct of the Council when it was seized of the matter. Thus, the failure to follow the recommendation of the Planning Officer will only be relevant insofar as, and if the Council at appeal maintains its refusal in the face of the Appellants' evidence, and itself, adduces little or no evidence to support its case against the Appellant. That would be relevant because it would amount to conduct that occurs in the context of the appeal and which is a relevant general consideration, as well as a matter which probably falls within the scope of Section 28(3)(c) and 28(3)(d).'

33 The Tribunal finds in this case that the conduct of the Council falls within the scope of Section 28(3)(c) of the RMPAT Act. Where, as here, the Councils failure was to do nothing, the impact of that failure was to necessitate the obtaining of expert reports and the preparation for a hearing. None of that should have been necessary and had the Council discharged its function with diligence would not have been. It should pay the Applicant's costs.

34 The Tribunal wishes to add one further observation about matters dealt with under section 17 of the RMPAT Act. That section requires the Tribunal to make a decision about a development application which has been appealed, and mediated, and about which a proposal intended to resolve the appeal, is put to it. In all such cases the Tribunal undertakes a process whereby it assesses the development application, the appeal grounds, and the proposed resolution recorded in the consent memorandum against the relevant parts of the planning scheme. If it is satisfied that the resolution which is proposed is 'appropriate' and a decision in those terms is open to it, the Tribunal may proceed to make such decision. The Tribunal powers on a Section 59 appeal include a power of refusal. In adopting the resolution contained in the consent memorandum the Tribunal was determining that a refusal of the development application was an inappropriate response to the development application having regard to the matters made relevant by the planning scheme. In that respect there has been a determination on the merits. Admittedly, that is not after a full merits hearing where oral evidence was led, and as that concept is described by Porter J, but it nevertheless constitutes a decision of the Tribunal arrived at after thorough and careful consideration of the matter. The Tribunal does not simply 'rubber stamp' consent memoranda. The Tribunal has made that point previously; see for example LA Arnold Pty Ltd v Sorell Council [2012] TASRMPAT 126, C and H Alexander v Glenorchy City Council [2012] TASRMPAT 019."

1. The full terms of the RMPAT Act, s 28, are set out earlier in these reasons. Section 28(1) provides that each party to an appeal is to pay its own costs. However the Tribunal may order a party to an appeal to pay all or part of the costs of another party if it is satisfied that it is "fair and reasonable" to do so. Read with subs (3), these provisions evince a legislative intention that the starting point when considering the costs of an appeal is that each party pay its own costs. The Tribunal may depart from that position but only when satisfied that it is "fair and reasonable" to do so. Section 28 was amended to its current form on 17 December 2004 following the decision of Underwood J (as he then was) in Hardman v Ward [2004] TASSC 74; (2004) 13 Tas R 134. The second reading speech at the time of the amendment sheds further light on the legislative intention:

"The Government believes that the starting point should be that parties should meet their own costs. It is also believed that this was the intention of the Parliament when the original bill was considered in 1993.

In August the minister announced that legislation would be developed to deal with the recent decision of the Supreme Court and this bill delivers on that commitment. However, while the primary purpose of this bill is to make clear that, in matters before the tribunal, parties will ordinarily bear their own costs, at the same time there must be clear disincentives against inappropriate behaviour. In this context, inappropriate behaviour would include vexatious litigation, time wasting and non-compliance with tribunal requirements, et cetera.

There is also a need for the tribunal to be able to consider particular circumstances where it is fair and reasonable to order that one party pays the costs of another party. To deal with these matters, the bill both identifies a number of specific behaviours which are considered to be inappropriate as well as providing a general discretion to the tribunal to take account of any other matters relevant to its decision.

The net result of the passing of this bill, Mr President, will be an appropriate balance between, on the one hand encouraging public participation in planning and environment matters and, on the other, discouraging frivolous and vexatious legal action against well-thought-out development proposals and inappropriate behaviour in an appeal."

1. Section 28 now represents a departure from the general proposition that the costs of proceedings should follow the event, that is, that the successful party should have their costs unless good reason is shown to the contrary. The general position just stated applied to Tribunal proceedings prior to the legislative amendments to which I have referred: see Hardman v Ward, in which Underwood J undertook a detailed examination of the decisions of the High Court in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 and Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72. In Hunter Development Brokerage Pty Ltd v Cessnock City Council (No 2) [2006] NSWCA 292; (2006) 68 NSWLR 177 at [16]- [19], Basten JA, with whom Santow and Bryson JJA agreed, identified three different types of statutory powers to make orders for costs:

"16 Statutory powers to award costs may be found in one of three forms. The first is an unconstrained conferral of power without direction or limitation. ... As was explained by Gaudron J and Gummow J in Oshlack [v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72], adapting the words of Dixon J in Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 the power is 'unconfined except in so far as "the subject matter and the scope and purpose" of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be "definitely extraneous to any objects the legislature could have had in view"': Oshlack (at 81 [22]).

17 As identified in Latoudis v Casey (1990) 170 CLR 532 the primary and generally the only relevant consideration is that the power is conferred 'to compensate the successful party against the expense to which that party has been put by reason of the legal proceedings': Oshlack (at 82 [25]); see also Ruddock v Vadarlis (2001) 115 FCR 229 at 235 [12] (Black CJ and French J).

18 The second category of cases covers those which expressly identify the principle that the power to award costs is intended to permit the successful party to be compensated or indemnified for costs incurred in the litigation, by providing that 'the court is to order that the costs follow the event unless it appears to the court that some other order should be made': Uniform Civil Procedure Rules 2005, r 42.1.

19 The third category of cases encompasses those, like Pt 16, r 4(2) [of the Land and Environment Court Rules 1996 (NSW)], which provide as a general rule that there shall be no order as to costs, with a discretionary power to depart from that rule in particular circumstances, including where the court considers that it is fair and reasonable."

1. The power in the present s 28 falls within the third category identified in Hunter Development Brokerage. The effect of such a provision is that the basic rule is that parties to the proceedings will bear their own costs, save for exceptions where the circumstances justify the making of an order: Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 at 505. The general rule must yield to a finding by the Tribunal pursuant to s 28(2). The costs provision is similar, but not identical, to the provision in the Civil and Administrative Tribunal Act 1998 (Vic) considered by Gillard J in Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117. His Honour confirmed that a finding (in the terms of that legislation) that the Tribunal is satisfied that it is "fair to do so" is essential to making an order.
2. The provision considered in Vero is different in one respect. It required the Victorian tribunal to have regard to a number of identified considerations. The RMPAT Act, s 28, provides that the Tribunal "may" have regard to identified considerations. The Tribunal may take into account the matters listed in subs (3)(a) to (h) but, as subs 3(i) makes clear, those matters are not exhaustive and the Tribunal may take into account any other matter it considers relevant. There is, as a result, no requirement for the Tribunal to take any of the identified considerations into account or make specific findings about any or all of them. Any one of them may be the basis of a costs order. The Tribunal may also take into account the extent to which consideration of any one or more of the specified matters may indicate against the making of an order for costs. Further, the existence of subs (3)(i) means that the Tribunal may make an order (or not make an order) based on circumstances which, provided that in the opinion of the Tribunal they are relevant, are not one of the identified matters. Once the Tribunal is satisfied that it is fair and reasonable to depart from the general rule, subs (1) must then yield. There is no requirement to demonstrate special or exceptional circumstances before an order may be made. These provisions confirm the broad nature of the Tribunal's discretion. The terms of s 28 do not impose any fetter on the discretion of the Tribunal in considering whether it is satisfied that it is fair and reasonable to depart from the position that each party should pay its own costs. They point to a legislative intention that the Tribunal may adopt a broad and flexible approach to its consideration of fairness and reasonableness. It is for the Tribunal to attach and balance the weight to be given to particular considerations, both for and against the making of an order.
3. It is important to remember, however, that even in cases involving an unconstrained discretion to order costs without direction or limitation, the discretion must be exercised judicially. In Cretazzo v Lombardi (1975) 13 SASR 4, Bray CJ said at 11:

"I think the guiding principle still stands as it left the House of Lords in the famous case of Donald Campbell & Co v Pollack [1927] AC 732, that the general discretion is absolute and unfettered, except that it must be exercised judicially, not arbitrarily or capriciously, and that it cannot be exercised on grounds unconnected with the litigation."

1. Where legislative direction is given, the scope and purpose of the legislation provides some indication of what is irrelevant or extraneous to the exercise of the discretion. As was pointed out by Gaudron and Gummow JJ in Oshlack at [22] concerning the statutory costs power conferred on the Land and Environment Court in New South Wales:

"The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent. However, subject to such considerations, the discretion conferred is, to adapt the words of Dixon J, unconfined except in so far as 'the subject matter and the scope and purpose' of the legislation may enable an appellate court to pronounce the reasons given by the primary judge to be 'definitely extraneous to any objects the legislature could have had in view': Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205."

1. There are a number of aspects of the legislation which shed light on the subject matter and scope and purpose of the legislation, and on what matters may be extraneous to the legislative objects of the s 28 costs power. The RMPAT Act and LUPA are interconnected legislation dealing with the use, development and management of resources in Tasmania. The RMPAT Act provides, in s 5(3), that the Tribunal is part of the State's resource management and planning system, the objectives of which are set out in Sch 1. LUPA, s 5, is entitled "Objectives to be furthered" and provides that "it is the obligation of any person on whom a function is imposed or a power is conferred under this Act to perform the function or exercise the power in such a manner as to further the objectives set out in Schedule 1". The Schedule to each Act sets out the Objectives of the Resource Management and Planning System of Tasmania common to a number of Acts dealing with the use and development of resources in Tasmania as follows:

"The objectives of the resource management and planning system of Tasmania are -

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

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

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

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

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

1. As to these objectives it is relevant to par (c) that the public involvement in resource management and planning is encouraged if members of the public who, under LUPA, require no particular standing, are not deterred from approaching the Tribunal for fear of an adverse costs order. It is to be borne in mind that the Tribunal deals with appeals involving a wide range of issues, often concerning issues of general community importance. Parties to appeals come from many different government, business, social and economic circumstances. They seek to pursue or defend a variety of interests. Sometimes persons are drawn into proceedings with little choice. It is perhaps partly for these reasons that s 28(3)(h) permits resort to at least one matter, the capacity of the parties to meet an order for costs, which is ordinarily irrelevant to the exercise of the costs discretion because it is unconnected to the proceedings: State of Tasmania v Anti-Discrimination Tribunal [2008] TASSC 23; (2008) 17 Tas R 227 at [22]- [23].
2. The creation of the general rule in s 28(1) suggests that the mere fact of success or failure in an appeal would not ordinarily make it fair and reasonable to award costs against the unsuccessful party, although the Tribunal may take into account the "outcome of the proceedings", s 28(3)(c), and the "relative merits", s 28(3)(g). The reference to the "relative merits" suggests that when considering whether a costs order is justified, the Tribunal may take into account the relative strength or lack thereof of the parties' claims. Such considerations are not unusual when considering costs orders. For example, if a party unreasonably pursues or persists with points which have no merit, such conduct will constitute a consideration relevant to the ordering of costs, even in circumstances where that party is generally successful. It is, however, to be kept firmly in mind that no one factor, whether a factor identified in s 28 or some other relevant factor, is to be considered in isolation. It may still be fair to award costs, on a merits basis or some other basis, even if a claim is not unreasonable or untenable or unarguable. The relative merits of a claim are just one of the matters the Tribunal may take into account. It is also necessary to point out that, subject to the terms of any applicable statutory provision, costs orders are generally compensatory and not punitive. An award of costs is not made to penalise or punish an unsuccessful party. Rather it is to compensate the successful party for the expense of the proceedings: Latoudis per Mason CJ said at 543. I do not see anything in s 28 which incorporates any element of punishment or penalty.

1. As I read the Tribunal's reasons, there were particular considerations which led it to the order it made. It may be that, without saying so, it took into account other matters listed in s 28(3) as matters the Tribunal may take into account for the purposes of s 28(2). However it made reference to some matters in particular. In summary form, the Tribunal was satisfied that:
   • the Council refused to accept the advice of its own planner, thereby unnecessarily and unreasonably prolonging and increasing the cost of the proceedings;
   • the Council unnecessarily and unreasonably prolonged and increased the cost of the proceedings by failing to approve the application in the face of "expert evidence which required that result" and without evidence to the contrary;
   • the "relative merits of the claims made by each of the parties were significantly in favour of the application", and not at all in favour of the Council's position;
   • the Council failed by doing nothing and did not "discharge its function with diligence".
2. The first and fourth dot points refer to s 28(3)(d) which provides that the Tribunal may take into account whether, "in the Tribunal's opinion, a party has unnecessarily or unreasonably prolonged the proceedings or increased the costs of them". The third dot point is a reference to s 28(3)(c) which provides that the Tribunal may take into account "the relative merits of the claims made by each of the parties". The second dot point seems to me to be a combination of both matters.

1. Before further addressing appeal grounds 2 and 3, consideration is required of the nature of an appeal from a decision of the Tribunal. In the ordinary course, on appeal from the exercise of discretion it is generally open, according to well established principle, to show that the court or tribunal appealed from has misdirected itself on a relevant matter of principle, has mistaken the facts in some significant way, has taken into account something that is irrelevant or has failed to have regard to something relevant: House v The King [1936] HCA 40; (1935) 55 CLR 499 at 504-505; Australian Coal and Shale Employees' Federation v Commonwealth (1953) 94 CLR 62. In appeals against costs orders there is a strong presumption in favour of the correctness of the exercise of the discretion at first instance which can only be displaced where this Court is satisfied that "some error had been made in exercising the discretion": House at 505. However, the nature of the error which justifies appellate intervention concerning a decision of the Tribunal is even further constrained. The RMPAT Act, s 25, confines appeals to this Court to questions of law. As to the nature of such an appeal, in Launceston City Council v Tasmanian Water and Sewerage Corporation Pty Ltd (above) Porter J explained at [27]:

"When there is an issue of whether a thing falls within the description of a word or phrase in a statute, a question of law is shown if, on the facts found, only one conclusion is open; if different conclusions are reasonably possible, the determination of the correct conclusion only involves a question of fact: Attorney-General (Tas) v Cameron [2007] TASSC 22; (2007) 152 LGERA 45 per Blow J (as he then was) at 65 [71] and the cases cited. On that basis, the question is whether the conclusion was one that no tribunal, acting judicially and properly instructed as to the relevant law, could have reached: Protective Security Pty Ltd v Bedelph [2004] TASSC 128; (2004) 13 Tas R 354 per Crawford J (as he then was) at 363 -364 [22] - [23], per Blow J at 381 [69] - [70]."

1. It would be an error of law for the Tribunal to have acted on a wrong principle or taken into account extraneous or irrelevant matters. No doubt for that reason, the appellant submitted first that the Tribunal was wrong in principle to take into account that the Council had failed to comply with the statutory time period for determination of the development application, because that was a matter irrelevant to the exercise of the costs discretion. It is well established that conduct unconnected with the proceedings is not relevant to the exercise of the costs discretion: Cretazzo v Lombardi; Huxley v West London Extension Railway Company (1899) 14 App Cas 26 at 32-33; Donald Campbell & Co v Pollak [1927] AC 732 at 812. However, I do not accept that the Tribunal took an irrelevant or extraneous matter into account. Whatever else may be said about the Tribunal's reasoning, the Council's failure to comply was not unconnected with the application under s 59 which followed. It was the Council's failure which was the direct and necessary precondition for the application and which led directly to it. That it occurred before the application does not deprive it of the necessary element of connection with the application. It was the very thing which made the application necessary. It was the conduct which formed the basis of the application, and it was the only conduct which could have done so. In support of its contention that the Tribunal acted on an irrelevant matter, the appellant's written submissions assert that the Tribunal identified, at [31] of its reasons, the Council's "purported refusal of the permit application" as a reason for its order. A distinction is to be drawn between the Council's failure to comply with the time limit, which was the basis of the s 59 application, and its later purported (and ineffective) refusal of the application, which was not. I do not agree that the Council's purported refusal of the application was irrelevant either. By that time the two alternative proceedings were substantially intertwined. The Council's refusal reflected the view it took towards the application generally. In any event, the Tribunal did not make the statement attributed to it. In the relevant part of its reasons the Tribunal did not refer to the refusal of the application but rather to the Council's "refusal to accept the objective advice of its own planners". A fair reading of the Tribunal's reasons as a whole make it clear to me that the Tribunal was referring to the failure to accept the advice received on 22 March 2012 to approve the application prior to the expiry of the time limit (on my calculations) on about 3 May 2012.
2. The appellant also submitted that the Tribunal misdirected itself, and thus erred in law, as to the application of s 28(3)(c) and (d). In short summary, the appellant contends that there was no evidence upon which the Tribunal could have been satisfied that the "relative merits of the claims made by each of the parties" justified an order, or that the Council "unnecessarily or unreasonably prolonged the proceedings or increased the costs of them". The appellant's submission is put in those terms because the appellant is mindful that this Court cannot intervene unless the appellant demonstrates an error of law. Errors of fact are to be ignored because they do not justify appellate intervention. In the context of this appeal it is a difficult hurdle for the appellant to overcome. In Caccavo v Collins [2014] TASFC 7 the Full Court considered the distinction between a question of law and a question of fact in the context of an appeal "in point of law" pursuant to the Justices Act 1959, s 123(1). I will repeat some of the points I made in that appeal. Reference was made to the decision of the Supreme Court of New South Wales, Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, a decision also earlier applied by the Full Court of the Supreme Court of Tasmania in Australian Securities and Investments Commission v Hosken [No 2] [2000] TASSC 12. Azzopardi concerned an appeal confined to questions of law from the Workers' Compensation Commission of New South Wales. At 155-156, Glass JA said:

"To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney: Ex parte White; [1966] HCA 69; (1966) 116 CLR 644 at 654."

1. In Azzopardi, Kirby P, although he was in the minority for other reasons, relevantly said at 151:

"The court is limited, relevantly, to points of law. The finding of what have been called the primary facts of a case does not, in itself, expose the trial judge to review on a point of law, unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function. The evaluation of competing evidence and inferences is reserved in compensation cases to the judge of the Compensation Court. Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge as against the weight of the evidence."

1. Whether there is any evidence of a particular fact is a question of law. In McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9:

"The question whether there is any evidence of a particular fact is also a question of law: Sittingbourne Urban District Council v Lipton Ltd ([1931] 1 KB 539 at 544) and Mersey Docks and Harbour Board v West Derby Assessment Committee ([1932] 1 KB 40 at 110, 111). But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact."

1. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356, Mason CJ, with whom Brennan and Toohey JJ agreed, said at 355-356:

"The question whether there is any evidence of a particular fact is a question of law. Likewise, the question whether a particular inference can be drawn from facts found or agreed is a question of law. This is because, before the inference is drawn, there is the preliminary question whether the evidence reasonably admits of different conclusions. So, in the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law." [Citations removed.]

1. The proposition that an error of law is made when a tribunal decides a question of fact when there is "no evidence" in support of the finding was confirmed by the High Court in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [33] and [91]. In Australian Broadcasting Tribunal v Bond, Mason CJ noted at 356 that "want of logic is not synonymous with error of law" and continued that "[S]o long as there is some basis for an inference - in other words the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place".
2. As I earlier explained, it is in light of the authorities to which I have just referred that the appellant submits that there was no evidence in support of the Tribunal's conclusion that it was fair and reasonable to make a costs order.
3. The written submissions for the appellant refer to the subjective state of satisfaction to be arrived at by the Tribunal as a "jurisdictional fact". In the course of the hearing of the appeal an application was made to amend the ground of appeal to assert that the Tribunal fell into jurisdictional error, but the application was not proceeded with. Although the appellant did not contend that this ground asserts a "jurisdictional fact enquiry", it nevertheless submitted that the "jurisdictional fact on which the Tribunal purported to reach the state of satisfaction required to enliven the discretion in s 28(2) could not exist", and the Tribunal did not "acquire jurisdiction to exercise the discretion". The submission was directed to the terms of s 28 which require that the Tribunal be "satisfied that it is fair and reasonable" before it may exercise its power to order costs. For my own part, I find it difficult to accept that a state of satisfaction that an order is "fair and reasonable" amounts to a jurisdictional fact, but the terms of the appellant's grounds of appeal make it unnecessary to decide.

Do the Tribunal's reasons disclose an error of law?

1. Ground 3 asserts an error of law in the Tribunal's determination that a costs order was fair and reasonable because it was "not reasonably open to the Tribunal". The appellant correctly submits that ground 2, which asserts a misdirection as the "proper interpretation and application" of s 28, adds nothing to ground 3. That is so because the appellant contends that the Tribunal must have misdirected itself in some unspecified way because there was no evidence to support its determination.
2. The Tribunal, as it was required to do, correctly directed itself to the terms of s 28 and satisfied itself that it was fair and reasonable to make the order it made. There are, however, other aspects of the Tribunal's reasoning which, with respect, I find some difficulty in understanding. The Tribunal's comments that the Council did nothing and failed to accept the advice of its planner refer to the Council's failure to determine the application within the statutory time limit. On my calculations the statutory time limit for this application expired on or about 3 May 2012. It is hard to see how the failure to approve the development in accordance with the planning officer's recommendation by that date unreasonably prolonged or added to the cost of the proceedings when the alternative, as was demonstrated by the Council's resolution of 14 May 2012, was refusal of the application. So far as is relevant to s 28, the result of the expiration of the time limit was hardly any different, if it was different at all, than the result would have been, had the Council simply refused the application, thereby necessitating an appeal. TasWater would have been required to undertake the same preparation and engage the same experts as it did for the application to determine the conditions of its deemed approval.
3. To my mind, the matter at the forefront of the Tribunal's reasoning was its view that the Council failed to approve the application, and unreasonably opposed and persisted with opposition to the application, when the Council's position was unmeritorious and unsupported by expert evidence. By application of the principles I explained earlier, to succeed in this appeal the Council must demonstrate that there is no evidence on which the Tribunal could, rather than should, have come to that conclusion. The Council must further demonstrate that there is no evidence on which the Tribunal could conclude that it was fair and reasonable to make the costs order it made. A question of law is not shown unless, on the facts found by the Tribunal, only one conclusion is open. If different conclusions are reasonably possible, the determination of the correct conclusion only involves a question of fact.
4. Ground 3 refers to a number of specific factors which, it submits, should lead this Court to the conclusion that the Tribunal's determination was "not reasonably open":

"(a) The Tribunal's finding (at [31]) that the Appellant by its conduct 'prolong[ed] the resolution of the matter in the face of expert evidence which required such result';

(i) is a finding of fact unsupported by any evidence.

(ii) is against the fact that none of the expert evidence supported the final outcome; it all supported the original proposal.

(iii) is against the fact that none of the plans appended to the consent memorandum and the final approval formed part of the original application or of any of the expert evidence.

(b) The Tribunal overlooked or failed to have any regard to the fact that the proposal that was approved by way of the consent orders that were made as the result of agreement between the parties, with the conditions imposed on it by the parties' agreement, differed substantially from the original proposal.

(c) The Tribunal's findings (at [31]) that the Appellant by its conduct 'unnecessarily prolonged the proceedings; unnecessarily increased the costs of the proceedings; unreasonably prolonged the proceedings; and unreasonably increased the costs of them' were all findings of fact that were unsupported by any evidence.

(d) The Tribunal has not identified in its reasons any evidence to support the findings of fact (at [31]) that the Appellant by its conduct 'unnecessarily prolonged the proceedings; unnecessarily increased the costs of proceedings; unreasonably prolonged the proceedings; and unreasonably increased the costs of them'.

(e) In making its findings (at [32] and [33]) purporting to be findings of fact concerning 'the relative merits of the claims made by each of the parties' (RMPAT Act, s 28(3)(c)):

(i) the Tribunal appears to have based those findings solely on the fact that an application for a permit was granted by consent orders subject to conditions agreed to by the parties together with 'the position adopted by the Council up until the point it resolved the matter'; but ignores the fact that the proposal that was approved by way of the consent orders that were made as the result of agreement between the parties, with the conditions imposed on it by the parties' agreement, differed substantially from the original proposal.

(ii) the Tribunal erroneously put the Appellant's failure to determine the original application for a permit, resulting in the application under the RMPAT Act, s 59(3), 'within the scope of s 28(3)(c)', that is, as a matter going to 'the relative merits of the claims made by each of the parties', ignoring the fact that the proposal that was approved by way of the consent orders that were made as the result of agreement between the parties, with the conditions imposed on it by the parties' agreement, differed substantially from the original proposal.

(iii) having regard to the fact, as the Tribunal observed (at [34]), that the LUPA Act, s 59, includes a power in the Tribunal to refuse the application for a permit (s 59(4)(c)), the Tribunal erroneously determined (at [34]) that its adoption of the consent orders that were proposed by the parties after mediation amounted to a determination that refusal of the original application was inappropriate, ignoring the fact that the proposal that was approved by way of the consent orders that were made as the result of agreement between the parties, with the conditions imposed on it by the parties' agreement, differed substantially from the original proposal."

1. Although not intended to be a complete distillation of the matters referred to, it seems to me that the appellant's main contentions reduce to the following:
   • The Council's planner did not, at any stage, recommend unconditional approval. He identified deficiencies in the application. His recommendation for approval was qualified by the recommendation of conditions reflective of the matters raised in the public representations.
   • The conditions ultimately agreed to by TasWater, the Council and the other parties represented a development that was substantially different from the development originally applied for.
   • The expert evidence referred to by the Tribunal concerned the original proposal, and did not address the planners' recommended conditions or a development in the terms finally agreed upon and approved.
   • The merits of the respective parties' claims about the terms of the original development application were never tested in a hearing because they were agreed.
   • The Tribunal did not specify the evidence it relied on for its conclusion.
2. I think that at least some of the points made by the appellant have force. However, a careful reading of the matters it relies on in its ground of appeal makes it immediately clear that they are, or derive from, issues of fact about which there was evidence. I do not accept, whether I agree with the Tribunal's determination or not, that there was no evidence upon which it could, rather than should, have concluded that it was fair and reasonable for the Council to pay TasWater's costs. The appellant's submissions, in my view, do no more than contend that the Tribunal should have come to a different conclusion. In its reasons the Tribunal said, at [34], that it had made orders in terms of the consent memorandum only after following a "thorough and careful consideration of the matter", determining that "refusal of the development was an inappropriate response to the development application having regard to the matters made relevant by the planning scheme". The Tribunal expressed the view that "in that respect there has been a determination on the merits". The Tribunal's view of the merits of the respective claims, and the evaluation of the competing claims and inferences, was a matter for the Tribunal. It had a detailed background of the history of the application. It had the application and all of the supporting material. It had documents outlining the contention of other parties. It was in a position to form a view about the merits of the original development application, consider the evidence in support of it and compare it first to the terms of what was recommended by the planner, and second to what was ultimately agreed upon. The Tribunal is a statutory tribunal charged with dealing with such matters. These were questions of judgment and degree. The Tribunal was not determining the existence of an objective fact, but whether it was satisfied an order was "fair and reasonable". The Tribunal was able to make its own assessment of the evidence and the merits of each party's case. It had the benefit of written submissions from both sides on the costs issue. It had the benefit of all of the facts I set out in detail earlier in these reasons. It had no obligation to refer to every fact or inference which led it to its own assessment of the relative merits of the respective claims or the fairness and reasonableness of an order. No error of law is demonstrated even if I were to prefer a contrary argument or draw different inferences from those facts. In determining whether an error of law is shown, the appellant must demonstrate that, taking into account all the factors referred to in s 28 and any other relevant fact, the conclusion that it was fair and reasonable to make an order that the Council pay TasWater's costs was not a conclusion open to the Tribunal. That has not been made out.
3. Grounds 2 and 3 fail.

1. None of the three grounds of appeal have been made out. The appeal is dismissed.