APPEALED FROM: G and V Fulton v Meander Valley Council [2013] TASRMPAT 78

Environment and Planning - Courts and tribunals with environment jurisdiction - Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors - Powers and duties on appeal - Directed issue of permit - Failure to direct specified conditions of permit.

Land Use Planning and Approvals Act 1993 (Tas), s62(1)(c)(ii).

Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2009] FCAFC 114; (2009) 178 FCR 385, applied.

Administrative Law - Administrative tribunals - Statutory appeals from administrative authorities to courts - Errors of law established - Remitter for reconsideration - Circumstance within which it is inappropriate to remit matter to a differently constituted tribunal.

Kidd v Resource Management and Planning Appeal Tribunal (No 2) [2011] TASSC 46; Kidd v Resource Management and Planning Appeal Tribunal (No 2) [2012] TASSC 79, considered.

Acting Attorney-General: P Turner amicus curiae

Judgment Number: [2013] TASSC 42

RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL

1 The appellant has appealed against a decision of the Resource Management and Planning Appeal Tribunal, upholding an appeal by Mr and Mrs G and V Fulton against the refusal by the Meander Valley Council to grant a permit for a change of use at premises at 20 Simmons Street, Carrick.

2 The Tribunal's critical findings and observations were expressed in its written reasons for decision as follows:

"34 The crucial question for the Tribunal is whether, on the evidence, it can be satisfied that the activities are not likely to cause environmental harm or environmental nuisance. Whilst it is inapposite to speak of an onus of proof in the Tribunal, the evidence must support a finding which enables the Tribunal to be comfortably satisfied that such harm or nuisance is not likely to be caused.

35 The evidence of Mr Terts contains sufficient basis for the Tribunal to be satisfied the noise generated by the workshop activities could be acceptable within the WHO and AS 2107 standards. This is evident from, inter alia, Paragraphs 21 '[t]hese levels are calculated for the existing situation, that is, no additional applied noise mitigation measures' and 26 '[a]lthough the measured noise from the existing workshop is unlikely to impact on sleep....' The Tribunal accepts the observations of counsel for the Appellant that noise is an incident of human activity, but the Tribunal must be satisfied of something specific under the Act and may not proceed unless it is. The evidence of Mr Terts may be lacking in some respects as noted above but after careful consideration the Tribunal has determined that the proposal is capable of being managed, but only under clear, measurable and stringent conditions and monitoring. It will be necessary to reference an appropriate standard, WHO or the Australian Standard, against which to measure noise. Clear and comprehensive conditions going to limitations on the location, type, intensity and impact of intended activities will be required. Specifics of the noise mitigation measures must be adduced and a timetable given for their installation, along with details of their estimated effects on noise levels measured in accordance with the adopted standard. Given the nature of the proposal, the evidence adduced in these proceedings and the unusual nature of the relevant planning controls (that is, two zones over the same lot), the Tribunal will impose a condition limiting the life of the permit to nine (9) months. Within this time, the Appellant is to establish the sound mitigation recommendations put forward by Mr Terts, monitor the sound levels at the adjoining dwelling in accordance with the adopted standard and methodology and submit that information to the Council in an application for a permit in the usual fashion. The Tribunal will also impose significant restrictions on hours of operation, limiting activities to the hours of 8 am to 4 pm Monday to Friday.

36 Other conditions will, of course, be required to address the other issues which arose in this matter. In that respect the Tribunal records that it has considered the other matters raised in this appeal, and in particular the suggestion that the fact that the subject site traverses two zones, creates insurmountable difficulties in enforcement terms. Whilst enforcement difficulties, if they exist, will not of themselves constitute a basis for rejection, the Tribunal is satisfied that through appropriate conditioning this particular issue can be managed.

37 The decision of the Tribunal is that appeal 26/13P is upheld. Council is directed to issue a permit. The parties are directed to prepare a schedule of conditions to be attached to the permit for the consideration of the Tribunal. This schedule is to be prepared within 21 days of the date of this Decision. If no agreement as to the terms of those conditions can be reached within that time, the matter is to be re-listed for further hearing to determine their terms." (Underlining added.)

3 The appellant relies on five grounds of appeal. They are set out in its notice of appeal and assert that the Tribunal erred in law in that:

"(a) It failed to discharge its statutory function pursuant to the combination of sections 61 of the Land Use Planning & Approvals Act 1993 (LUPA) and 16(1)(e), 23(1) and 23(2) of the Resource Management & Planning Appeal Tribunal Act 1993 (the RMPAT Act) in that it failed to make findings of fact in order to support the conditions of the permit that it directed the appellant to issue and having failed to do so, then failed to specify the terms of such conditions and as a consequence actually or constructively failed to exercise its jurisdiction to make the correct or preferable decision in accordance with the facts as found by it;

(b) It purported to exercise its statutory power conferred by section 62(1)(c)(ii) of LUPA without determining what conditions are to be contained in the permit which it directed the appellant to issue;

(c) It purported to exercise the power at section 62(1)(c)(ii) of LUPA by directing the appellant to issue a permit without specifying which conditions were to be contained in or attached to such permit and as a consequence failed to make a decision in substitution for the decision the subject of the appeal, contrary to its obligation at section 23(2)(c)(i) of the RMPAT Act and section 62(1)(c)(ii) of LUPA;

(d) It purported to direct the appellant to grant a permit, without specifying the conditions to be contained in that permit whilst reserving to itself the power to determine the conditions at a subsequent time; and/or

(e) It failed to comply with its obligation pursuant to section 24 of the RMPAT Act in that it failed to include its findings on material questions of fact and a reference to the evidenced or other material on which those findings were based in that it:

(i) failed to make findings and to expose its reasoning process as to what conditions must be contained in the permit; and

(ii) failed to make findings of fact or to expose its reasoning process as to how it resolved each of the other issues in the appeal as identified by it at paragraph [36] of the decision."

4 Upon appeal to this Court by the Meander Valley Council against the Tribunal's decision, Mr and Mrs Fulton filed a notice of submission, and the Acting Attorney-General was granted leave to appear as amicus curiae to assist the Court with the disposition of grounds (a) to (d) above.

5 The gravamen of the complaint common to all of the grounds of appeal is that the Tribunal decided the appeal and directed the appellant to issue a permit, without specifying the conditions that were to be attached to the permit in order to resolve the issues referred to by the Tribunal at pars[35] and [36] of its reasons set out above, and without making findings of fact or exposing its reasoning process relevant to all of the conditions that should be contained in the permit.

6 Counsel for the Acting Attorney-General, Mr Turner, submitted that the Tribunal should be permitted to, in effect, invite the parties to bring in permit conditions for approval as that is "unexceptional and in accordance with the long established and common practice in the Tribunal".

7 I have considered that submission, in particular I have considered whether par[37] of the Tribunal's decision, set out above, can be liberally, rather than literally, construed as merely foreshadowing an intention on the Tribunal's part to uphold the appeal and as merely foreshadowing an intention to direct the appellant to issue a permit only after conditions addressing the Tribunal's concerns expressed in pars[35] and [36] were agreed between the parties or, failing agreement, then after conditions were determined by the Tribunal following a further hearing held for that purpose.

8 I have decided that it cannot. I am conscious that the Tribunal's reasons for decision are not to be construed minutely and finely with an eye keenly attuned to the perception of error or a verbal slip (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287, Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272), but I am not here concerned so much with the Tribunal's reasons as with its orders, which cannot be liberally construed.

9 On a not overly zealous reading of the reasons it seems clear that the Tribunal felt that a permit with suitable conditions could be envisaged and one can imagine what it was that the Tribunal had in mind to achieve but, if it is in fact the Tribunal's common practice to make such orders, then that practice is wrong in law.

10 In so holding I accept the submission of counsel for the appellant, Mr McElwaine SC, that the Tribunal proceeded erroneously in its purported separation of what is an integral process. The reasoning in Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2009] FCAFC 114; (2009) 178 FCR 385 at [54] is, in my view, compelling. The permit and the conditions are not two separate things. They are components of a single process. I am wholly unable to see how a decision to grant a permit can be made without consideration of the specific conditions to be imposed on that permit as being necessary to justify the exercise of the discretion involved. As is clear from the reasoning in Lawyers for Forests Inc and as Mr McElwaine submitted, those two things are inextricably linked.

11 Counsel for the Acting Attorney-General submitted that s62(1)(c)(ii) does not have the effect contended for by the appellant, and does not restrict the Tribunal to a single decision. He did not rely on any authority to that effect but on a suggested construction of s62(1)(c) and on a purposive approach to the procedural provisions of the Land Use Planning and Approvals Act 1993 and the Resource Management and Planning Appeal Tribunal Act 1993, bearing in mind s8A of the Acts Interpretation Act 1931.

12 Mr Turner drew attention to the fact that s62 provides three options to the Tribunal in its disposition of an appeal, and that, in particular, s62(1)(c)(ii) provides not for one direction to a planning authority but for two directions, one to "grant the permit" and one that "the permit must or must not contain any specified conditions".

13 I am unable to accept, even taking a wholly purposive approach to the construction of s62, while bearing in mind the other procedural provisions of the suite of planning legislation as it is concerned with appeals to the Tribunal, that the allusion to two directions connotes or permits a two-stage decision-making process. For the reasons I have already given, the permit and the conditions are of necessity, in terms of the reasoning involved in the decision making process, two components of a single process.

14 It is correct, as Mr Turner has pointed out, that the Tribunal is obliged to endeavour to facilitate a merits outcome and to consider relevant options open to it (Kain v Glamorgan/Spring Bay Council (1996) 90 LGERA 326 at 334 and 338), however the Tribunal was not at liberty to create options that it did not have under its enabling legislation. The Tribunal is a creature of statute and has no inherent jurisdiction (Fernando v Medical Complaints Tribunal [2007] TASSC 44; (2007) 16 Tas R 237 at 243 [14] per Crawford J, as he then was).

15 The Tribunal quite clearly and unambiguously upheld the appeal, as it was empowered to do by s23(2) of the Resource Management and Planning Appeal Tribunal Act, and it quite clearly and unambiguously exercised its power to direct the appellant to issue a permit, as it was empowered to do pursuant to s62(1)(c)(i) of the Land Use Planning and Approvals Act, without specifying all the conditions that would satisfy it that the activities proposed were not likely to cause environmental harm or environmental nuisance, and that would address "the other issues which arose" as mentioned at par[36] of its reasons. It should not have done so, however, in the way in which it did. In order to take that course it was, in my view, necessary for the Tribunal to make such findings of fact and/or to expose so much of its reasoning as would enable the appellant to frame the conditions itself. In my judgment the Tribunal did not do either of those things.

16 I accept, as was succinctly submitted by Mr McElwaine SC in his written submissions, that, "the Tribunal was clearly concerned not to grant a permit which did not regulate the noise issue effectively. Despite this it purported to determine the appeal by the grant of a permit without resolving the conditions which it thought necessary and which justified, in its view, a favourable exercise of the discretion."

17 It was, no doubt, the Tribunal's intention that if the parties could not agree upon and bring in permit conditions acceptable to the Tribunal, then it would re-list the appeal for further hearing to determine the conditions necessary to satisfy all of its concerns. However, in circumstances where it had not yet determined for itself what was required to do that, or indeed, whether it was actually possible to do that in all respects, it was clearly premature to uphold the appeal and to direct the appellant to issue a permit.

18 The Tribunal had no power to determine the appeal by upholding it, while reserving to itself the power, if necessary, to set at a subsequent time the conditions it might require to properly satisfy itself the activities were not likely to cause environmental harm or environmental nuisance. If it had wished to embark upon a course of upholding the appeal, but only once certain permit conditions had been agreed by the parties and found acceptable to the Tribunal, or if not, then set by the Tribunal after a further hearing, then it should have merely foreshadowed its determination and announced that course.

19 If the Tribunal did not take that course then it was inappropriate for it to exercise its power to direct the appellant to issue a permit, other than pursuant to s62(1)(c)(ii) of the Land Use Planning and Approvals Act which required, relevantly, that the Tribunal direct the appellant that the permit issued must contain "specified conditions", which of course it did not do, or at the very least, on a benevolent reading of par[35] of its reasons, did so in a way that was manifestly incomplete.

20 In taking the course it did, of granting the permit without determining all of the conditions that ought to be imposed upon the grant of that permit, and without making findings of fact sufficient to allow the appellant to set such conditions, the respondent failed to discharge its statutory function under either s62(1)(c)(i) or (ii) of the Land Use Planning and Approvals Act and the result is a constructive failure by the Tribunal to exercise its jurisdiction under s23(2) of the Resource Management and Planning Tribunal Act.

21 It follows from what I have said that the appeal is upheld on all five grounds and the decision of the Tribunal is set aside.

22 I am not satisfied however, that it is necessary to remit the matter to a differently constituted Tribunal.

23 In Kidd v Resource Management and Planning Appeal Tribunal (No2) [2011] TASSC 46, Porter J observed, after reviewing a number of cases:

"25 Speaking generally, there are two aspects of the assessment of whether an apprehension reasonably exists that the same tribunal might not bring an impartial and unprejudiced mind to the issue to be determined, or whether other notions of unfairness compel a remitter to a different tribunal. Leaving aside the case of a decision being set aside on the basis of actual or apparent bias, the first aspect is what the tribunal has done and said; the second is what it needs to do."

24 I am conscious, as was said by Blow J (as he then was), in Kidd v Resource Management and Planning Appeal Tribunal (No 2) [2012] TASSC 79 at par[33] that sometimes it will be appropriate to direct the reconstitution of a statutory decision-making body where the common law would not require the original decision-makers to disqualify themselves on the ground of a reasonable apprehension of bias: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39; Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562 at 577; Amalgamated Television Services Pty Ltd v Marsden (No 2) [2003] NSWCA 186; (2003) 57 NSWLR 338 at par[48]; R v Resource Planning and Development Commission; ex parte Dorney (No 3) [2003] TASSC 84; (2003) 12 Tas R 147 at pars[13] - [19].

25 I do not regard this as one of those cases however. The original decision-makers in that case had twice made decisions in favour of the unsuccessful party on appeal to this Court, both times publishing reasons that showed "great enthusiasm" for that party's development proposal. Blow J was as a result moved to observe:

"In those circumstances, I think a fair-minded lay observer might reasonably apprehend that they might not bring impartial minds to their third decision-making process. If I am wrong about that, I believe the appellant may think that a re-hearing before the same decision-makers could be worthless, their views already having been stated, and that it would therefore still be appropriate to direct that they not take part in the reconsideration. I will therefore give such a direction."

26 Quite unlike the scenario in that case the complaint on this appeal is one, in the nature at least, of "technical" non-compliance with the relevant machinery provisions of the Tribunal's governing legislation, and of inadequacy, not superfluity, in recording fact-finding and reasoning.

27 The same Tribunal would, in my view, be perfectly able, without giving rise to apprehension by any person of prejudgment (or anything akin to it), to proceed to reconsider the matter and specify the conditions it requires, either through a process of agreement between the parties or one of a further hearing if necessary, but in either case to do so before and not after it exercises any power under s23(2) of the Resource Management and Planning Appeal Tribunal Act or under s62 of the Land Use Planning and Approvals Act.

28 Similarly, I see no reason why the Tribunal would be unable to reach a different conclusion as to the outcome of the appeal if the intellectual rigour of undertaking either or both of those processes compelled it to a conclusion that conditions necessary to satisfy all its expressed concerns could not be formulated as it thought.

29 The appeal is upheld and the decision of the Resource Management and Planning Appeal Tribunal is set aside. The matter is remitted to the Tribunal for reconsideration in the light of these reasons and for determination according to law.