Administrative Law - Judicial review at common law - Procedural fairness - Disqualification from bias - In general - Direction to planning authority to make draft amendment did not, in circumstances of case, give rise to an apprehension of bias in the decision making process.

R v The Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Re JRL Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, applied.

Administrative Law - Judicial review at common law - Procedural fairness - In general - No breach of rules of natural justice.

Respondent Commission: Director of Public Prosecutions

Judgment Number: [2000] TASSC 40

THE QUEEN v THE RESOURCE PLANNING & DEVELOPMENT COMMISSION; ex parte JOHN McCLURE HAYWARD

1 The prosecutor lives near Weegena, a small township not far from Deloraine. He and his wife own two properties which have a combined area of approximately 24 hectares. Both properties lie within the Kentish Municipality on the boundary of that municipality and the Meander Valley Municipality. With the exception of the enclave which is the smaller of the two pieces of land owned by the prosecutor and his wife, the boundary between the two municipalities at this point is the Mersey river.

2 A draft Planning Scheme was prepared by the Meander Valley Council. Included in it was land on the other side of the river from the prosecutor's land. On 19 December 1995, the Land Use Planning Review Panel ("the Panel"), the predecessor of the Resource Planning & Development Commission ("the Commission"), certified in accordance with the Land Use Planning and Approvals Act 1993 ("the Act"), s24(2)(a) that the draft Scheme was suitable for public exhibition.

3 The exhibited draft Scheme proposed that the land across the river from the prosecutor's land, together with other lands in the vicinity, be zoned Residential 2 ("R2"). Forestry was a proposed discretionary use for land zoned R2.

4 Many representations were received by the Meander Valley Council. The statutory procedures prescribed by the Act for the implementation of a planning scheme were followed. The Panel conducted hearings. Throughout this process, the prosecutor and others expressed opposition to forestry being a discretionary use in R2. Their case was that such use in that zone should be prohibited.

5 This view prevailed and on 22 October 1997, the draft Planning Scheme received final Ministerial approval as is provided by the Act, s29(1). Forestry became a prohibited use on land in zone R2.

6 On 1 January 1998, the Resource Planning & Development Commission Act 1997 ("the Commission Act") came into operation and the functions of the Panel were taken over by the Commission. Nothing turns upon this change because of the provisions of the Commission Act_,_ s22, Sch5, cl 1, which provides:

"All acts, matters and things done or omitted to be done by, or done or suffered in relation to, the Land Use Planning Review Panel ... before the commencement of this Act are taken to have been done or omitted to be done by, or done or suffered in relation to, the Commission."

7 Mr Andrews and Mrs MacDonald each owned land in the newly created R2 zone. Both pieces of land lie opposite the prosecutor's land across the Mersey River. From the material put before the Court on the return of the order nisi, it appears that either just before the Planning Scheme took effect, or just after it had taken effect, Mr Andrews and Mrs MacDonald made applications, pursuant to the Forest Practices Act 1985, s5, for their lands to be declared private timber reserves. It seems that Mr Andrews and Mrs MacDonald wanted to carry out forestry on their lands but since 22 October 1997, this use of their land was prohibited by the Planning Scheme.

8 On 17 June 1998, the Executive Commissioner of the Commission wrote a Minute to the Minister for Environment and Land Management. It advised:

* That several decisions of the Panel, and later the Commission, had been overturned by the Supreme Court and accordingly, procedures were under review to ensure the provision of natural justice.

* With respect to the Meander Valley Planning Scheme, 278 representations covering 400 issues had been received.

* After the hearings, the draft Scheme was modified (inter alia) to change forestry from a discretionary use to a prohibited use in zone R2.

* "Whilst the decision was a reasonable planning outcome, problems have arisen from the process involved in making the decision".

* Two individuals [inferentially Mr Andrews and Mrs MacDonald] were content with the Scheme as exhibited and made no representations, but they were not content with the change which made forestry a prohibited use of land in R2. "The planning scheme process however denied them the chance to be heard as that status was changed".

* Procedures for the future will see mooted changes made available for public scrutiny in order to give persons opposed to such possible changes a chance to be heard.

* "The amended procedures are cold comfort to the two affected persons covered by the new Meander Valley Planning Scheme. There is the danger that any approach to the Supreme Court on this matter could see the whole scheme overturned and the exhibition-hearing process be undertaken again, at great cost and time to all concerned" [emphasis added].

* In order to address the position in which [Mr Andrews and Mrs MacDonald] find themselves, the Commission proposes that an amendment to the Scheme be put forward, changing forestry from a prohibited use to a discretionary use in zone R2. In the statutory procedures that will ensue, those affected by the proposed changes will be heard.

* "The Commission would not have a view about whether such a reinstatement was desirable. That view would be formed as an outcome of the proponents, any opponents and Council's arguments put to a hearing. From the Commission's point of view the important thing would be that the land owners would have a reasonable opportunity to participate in decisions affecting them." [emphasis added].

9 The Minute concludes with a request that the Minister approve the Commission giving a direction to the Meander Valley Council to initiate such an amendment as is required by the Act, s34(2).

10 The Minister gave his approval and on 6 July 1998, the Commission directed the Council to resolve "to amend the Planning Scheme to make forestry discretionary on certificate (sic) Titles Volume 249662 Folio 1, Volume 49523 Folio 1, and Volume 48816 Folio 1".

11 The resolution was duly passed by the Council and the statutory amendment procedure commenced. During the exhibition phase, 14 representations were received and on 9 September 1998, the Council sent them and its report on the proposed amendment, to the Commission. The Council's view about the draft amendment is expressed in the following motion passed by Council on 8 September 1998:

"Recommend to the Resource Planning & Development Commission that the proposed amendment 3/98 to the Meander Valley Planning Scheme 1995 be rejected because it would consciously create potential conflict from forestry operations adjacent within an established residential zone and therefore would be contrary to objectives of sustainable development on which the Land Use Planning and Approvals Act is based."

12 The Commission held a hearing at Westbury on 16 November 1998. In addition to officers from the Meander Valley Council, approximately 16 persons spoke at the hearing. The Commission's delegates who conducted the hearing, Messrs Vandenberg and Pryor, prepared a report on the hearing. On 2 February 1999, the Commission considered the draft amendment "in terms of s40 of the Land Use Planning and Approvals Act 1993". The Commission decided to approve the draft amendment pursuant to the Act, s42(1).

13 It appears that the prosecutor's wife was not able either to attend the hearing in Westbury or to stay long enough to make an oral submission but, with the consent of the Commission's delegates, she sent in a written submission on 26 November 1998. In addition, the prosecutor wrote to the Commission the day after the hearing, which letter included a request to see advice given to the Commission by the Solicitor-General.

14 By these proceedings, the prosecutor seeks to quash the decision to approve the draft amendment upon the grounds of apparent bias in the decision making process and/or a denial of natural justice by reason of a defective report of the hearing conducted by the Commission's delegates. With respect to the claim of apprehended bias, the order nisi sets out the following grounds upon which it is alleged that a reasonable person would have entertained an apprehension that the Commission might not have brought an impartial and unprejudiced mind to the resolution of the question whether to grant approval to the amendment to the Planning Scheme:

"i) The Respondent gave its final approval to the said Scheme under S29 of the Land Use Planning and Approvals Act 1993 with a modification making forestry a prohibited use in the Low Density Residential Zone, without first having given landowners in that zone an opportunity to make submissions as to such a prohibition.

ii) The Respondent formed the view that two owners of land in that zone, Andrews and MacDonald, were aggrieved by the Respondent's failure to afford them such an opportunity, and were likely to apply for and obtain a Writ of Certiorari quashing the approval of the said Scheme or an order to the same effect.

iii) The Respondent, for the purpose of avoiding or reducing the risk of such approval being quashed, required the Meander Valley Council to initiate Amendment 3/98 to the said Scheme, providing for forestry to become a discretionary use on the land owned by Andrews and MacDonald.

iv) Had the Respondent not granted approval to the said amendment, Andrews and/or MacDonald might have applied for and obtained a Writ of Certiorari quashing the approval of the said Scheme or an order to the same effect."

15 The fact alleged in the first ground was not in dispute. With respect to the second ground, although there was no evidence that Mr Andrews and Mrs MacDonald were likely to commence proceedings to obtain a writ of certiorari, it was not disputed that the Commission was of the opinion that if they did commence such proceedings, it was likely that a writ would issue and the whole planning scheme would be declared invalid. The fact alleged in the third ground was not in dispute. The key to the prosecutor's argument lies in the matter alleged in the fourth ground namely, had the Commission not granted approval to the amendment making forestry a discretionary use of the lands of Mr Andrews and Mrs MacDonald, they might have applied for, and obtained, a writ of certiorari quashing the whole scheme.

16 Mr Blow QC submitted that a reasonable apprehension of bias in favour of amending the Planning Scheme arises because:

(a) the Commission itself initiated and determined the proposed change;

(b) the proposed change was confined to the lands of two individuals who, in the view of the Commission, had not been afforded natural justice;

(c) the Commission believed that those two individuals might, by application to this Court, upset the whole Planning Scheme and wished to avoid the risk of that event;

(d) in propounding the proposed amendment, the Commission exercised its powers to avoid litigation, rather than in pursuit of its statutory objectives as enacted by the Act, s5.

17 The principles of law in accordance with which the Commission was obliged to discharge its statutory obligations are well settled. See R v The Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546; R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248; Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Re JRL Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 and Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568. As Hayne J said in Helljay Investments Pty Ltd v Deputy Commissioner of Taxation [1999] HCA 56 at par11, "What must be demonstrated to the requisite degree is the appearance of prejudgment, not simply that a particular outcome of the litigation is likely or unlikely".

18 The relevant test was stated by Dawson J in Grassby v R [1989] HCA 45; (1989) 168 CLR 1 at 20 in the following terms:

"The test which is to be applied when bias is raised has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the matter before him: see Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Reg v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248. If so, then the judge ought not to proceed to hear the matter. Of course, as Gibbs CJ pointed out in Reg v Simpson; Ex parte Morrison [1984] HCA 25; (1984) 154 CLR 101, at p 104, the mere expression of the apprehension of bias does not establish that it is reasonably held; that is a matter which must be determined objectively."

19 Application of the test needs to bear in mind that the hypothetical person will be aware of the work of the Commission and its statutory obligations, and will be as well informed as is this Court with respect to all the circumstances surrounding this particular case. See R v Carter and the Attorney-General; Ex parte Gray and McQuestin 90/1991 at 47.

20 As Mr Ellis submitted, there is no evidence that either Mr Andrews or Mrs MacDonald were even contemplating proceedings against the Commission which, if successful, may have resulted in the invalidity of the Meander Valley Planning Scheme. The unchallenged material before the Court discloses that in the course of reviewing its procedures generally in order to ensure compliance with the requirement to afford natural justice, the Commission became aware that Mr Andrews and Mrs MacDonald had not, in its opinion, been afforded natural justice, and that if they took proceedings, may upset the whole Planning Scheme.

21 It is abundantly clear that the Commission wanted to ensure, if at all possible, that the Meander Valley Planning Scheme was not lost as a result of an application to this Court for a writ of certiorari by Mr Andrews and Mrs MacDonald. Mr Blow QC submitted that by propounding an amendment in order to avoid the risk of losing the whole Planning Scheme, the Commission acted contrary to the provisions of the Act, s5, Sch1. I do not accept this submission. The objectives that s5 obliged the members of the Commission to pursue are set out in Sch1 in very wide terms. It seems to me that initiating the amendment in order to afford Mr Andrews and Mrs MacDonald a right to be heard, thereby avoiding the risk of losing the whole Planning Scheme, was all part and parcel of the proper management of the use and development of land within the terms of Sch1, cl 1 and a step in the achievement of the objectives prescribed by Sch1, Pt2. Further, even if initiating the amendment was not in accordance with the provisions of the Act, s5, Sch1, the reasonable bystander would not, in the circumstances of this case, thereby infer bias in the decision making process.

22 Mr Blow QC also submitted that not only did the Commission act other than in pursuit of its statutory objectives but it also failed to delegate the power to conduct a hearing pursuant to the Act, s40(2) and the power to make a final decision pursuant to s42 to some person who was not a member of the Commission and its predecessor, the Land Use Review Panel, which gave approval to the Meander Valley Planning Scheme. This, he contended, together with other matters, gave rise to a reasonable apprehension of bias. The Commission Act, s8 provides:

"8 - (1) The Commission may delegate any of its functions or powers other than this power of delegation.

(2) Without limiting subsection (1), the Commission may delegate any of its functions or powers which relate to a particular region of the State to a prescribed body."

23 The Resource Planning and Development Commission is central to the orderly use, management and control of land use in this State. In addition to its role under the Act, the Commission has statutory duties to perform pursuant to other legislation. See, eg, Marine Farming Planning Act 1995, s20, Environmental Management & Pollution Control Act 1994, s26 and State Policies and Projects Act 1993, s6.

24 By the Commission Act, s4(3), the Commission is a body corporate with perpetual succession. There are six members of the Commission, all of whom are appointed by the relevant Minister. The Commission Act, s5(1) requires each member, other than the chairperson, to have experience in one of the following fields:

* public administration relating to project implementation;

25 The Commission Act, s5 and Sch2, set out detailed provisions with respect to the appointment, constitution and membership of the Commission. Schedule 2, Cl 3 obliges the Minister to consult in the prescribed manner before making an appointment to the Commission. Clause 6 makes provision for the payment of remuneration and allowances to persons who have been appointed members of the Commission. Clause 8 provides for the appointment of deputy members. Deputy members are required to have the same experience as the member for whom he or she may deputise. By cl 8(3), deputy members are empowered to perform the duties of the member for whom they deputise "if [the] member is unable for any reason to perform the duties of a member".

26 The foregoing brief survey of some of the provisions of the Commission Act clearly disclose an intention by Parliament to appoint a relatively small, but highly skilled, group of persons, together with a like group of equally skilled deputies, to perform a wide range of significant statutory duties in diverse environmental planning and development areas. To assist it perform these duties, the Commission Act, s9 provides:

"The Commission may, by instrument in writing, establish committees of such persons as the Commission considers appropriate for the purpose of assisting it in the performance of its functions and the exercise of its powers."

27 In these circumstances, it is inconceivable that Parliament intended to give the Commission the power by s8(1) to delegate any or all of its functions or powers to any person at all, regardless of that person's experience and skill. Notwithstanding the absence of expressed restriction on the wide power of delegation conferred by s8(1), it would defeat the whole intention of the Commission Act and related legislation if this subsection conferred a power to delegate to any person all the Commission's powers and functions, other than the power of delegation, at the whim of the Commission.

28 It is necessary to consider s8 in the statutory context in which it is enacted. See Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 304. As Burt J (as he then was) said in Trowse v Trowse [1975] WAR 176 at 179:

"The words used must be construed having regard to the policy of the Act revealed by a consideration of all its provisions."

29 The whole policy of the Commission Act would be aborted if the Commission were empowered to delegate its functions to any person (presumably unpaid) to do its work.

30 Application of that principle to s8(1) leads to the conclusion that the power of delegation is confined to delegation to a member of the Commission appointed pursuant to the provisions of the Commission Act, s5 or, in the event of he or she being unable to act, his or her deputy appointed in accordance with the provisions of Sch2, cl 8.

31 There was no direct evidence of the membership of the Land Use Review Panel which approved the Meander Valley Planning Scheme, nor of its successor, the Commission. However, from previous decisions of this Court I am aware that the delegates who conducted the hearing in connection with the draft amendment were members of both bodies, and the arguments were conducted upon the basis that at all material times, the membership of both bodies was the same or substantially the same. Accordingly, as I have held that the power of delegation is confined to delegation to a member of the Commission, the failure of the Commission to delegate its functions with respect to the proposed amendment would not excite a reasonable apprehension of bias in the mind of the hypothetical bystander.

32 The informed, reasonable, hypothetical bystander would be aware that in propounding the amendment the Commission had stated:

"The Commission would not have a view about whether such a reinstatement was desirable. That view would be formed as an outcome of the proponents, any opponents and Council's arguments put to a hearing. From the Commission's point of view the important thing would be that the land owners would have a reasonable opportunity to participate in decisions affecting them."

33 Although the proposed amendment only related to the lands of those who had not, in the opinion of the Commission, been afforded natural justice, the bystander would have no reason to be sceptical about the statement made in the first sentence of the Commission's statement because of the validity of the proposition in the last sentence of that statement. As Mr Ellis submitted, in order to succeed, the prosecutor has to establish apprehended bias in the making of the decision to change forestry from a prohibited use to a discretionary use in zone R2. It is not sufficient to merely show apprehended bias in the decision to direct the Council to put forward the draft amendment.

* protect the Scheme from the risk of being declared invalid; and

* afford Mr Andrews and Mrs MacDonald natural justice

the Commission had to do no more than give them, and those with a legitimate interest in the issues, an opportunity to be heard. The outcome of the process was immaterial to the achievement of the objectives. Both objectives were achieved as soon as the s40 hearing was complete. The hypothetical bystander would not apprehend bias in the making of a decision pursuant to the Act, s42 because by the time the Commission approached that task, Mr Andrews and Mrs MacDonald had been afforded natural justice and there was no longer a risk that the Planning Scheme may be declared invalid. The material before the Court makes it clear that during the exhibition period, the hearing and subsequently, the Commission gave everyone with a legitimate interest in the draft amendment a full opportunity to be heard. Apprehended bias on the grounds alleged by the order nisi, par1(a), is not made out.

35 The order nisi, par1(b), alleges that the prosecutor was denied natural justice because the delegates who conducted the hearing required by the Act, s40(2) provided the Commission with a report that was defective in that:

"i) It inadequately reported the scope of the issues raised by persons opposed to the said amendment in relation to the loss of residential amenity, in that it did not refer to representations or evidence as to the loss of residential amenity resulting from adverse impacts on visual amenity, the poisoning of wildlife, dangers to domestic pets, apprehensiveness about heavy herbicide use, the siltation or [sic] watercourses, and the recurrence of clear felling.

ii) It contained no reference to an argument advanced at the hearing that the presence of forestry around the relevant zone was a reason for reserving that zone from the destruction of forestry.

iii) It contained no reference to the cross-examination of Mrs MacDonald whereby her assertions that she had a sentimental attachment to the land and wanted to keep it for enjoyment by her grandchildren were challenged.

iv)It contained no reference to evidence of a witness named Ellis that she hoped to receive organic farm certification for her land, and that the amendment placed the chances of such certification at risk."

36 The Commission delegated its obligation to hold a hearing to two of its members, Messrs Vandenberg and Pryor. After the hearing, the delegates made a written report. It was sent to the Commission. With respect to the Commission exercising the power to make the final decision after delegating the power to conduct the hearing, I venture to repeat the observations I made in R v Davis and Vandenberg; Ex parte Calvary Hospital [1999] TASSC 49 at 31:

"However, whether the rules of natural justice are satisfied in a case where the exercise of those powers are split between one or more persons will depend upon what information about the hearing is conveyed to the decision-maker in each case. The nature and complexity of the hearing and the accuracy and completeness of the information contained in the report will no doubt be significant factors in ascertaining whether the decision-making powers have been exercised in accordance with the rules of natural justice. Whether the separation of the hearing power from the determinative power will result in procedural unfairness will depend upon the circumstances of each case. It is easy to envisage a hearing, even a contested hearing, where there is a single simple issue, the evidence with respect to which is quite clear. In such a case a comprehensive report to the Commission would no doubt satisfy the natural justice rule. On the other hand, in a case where there are many witnesses involving substantial issues of credit, cross-examination and the use of documents, it may be very difficult to comply with the procedural fairness rule by way of report from the person who exercised the power, pursuant to the Land Use Act, s40(2) to the person(s) exercising the power conferred by ss41 or 42."

37 In the present case, the issues were relatively simple. In order to make out the four matters of complaint particularised in ground 1(b) of the order nisi the prosecutor relies upon the contents of his affidavit sworn 7 September 1999 and the report itself. With respect to the complaint in particular (i) of inadequate reporting, the delegates' report noted:

"Evidence against the amendment centred on the issues of habitat destruction, effect on native species, use of herbicides and 1080 poison, effect on water quality and loss of residential amenity because of noise (from timber trucks) and reduced traffic safety. No expert evidence was presented by the representors about those issues. The narrowness and poor standard of Kellys Cage Road was of concern to several representors."

"The weight of evidence was that forestry could be managed in a manner that would not jeopardise the health, safety or amenity of the community, nor the natural resources of the district."

38 It may safely be assumed that the Commission, with its experience and expertise, would be well aware that forestry almost invariably attracts complaints of unsightliness from those who live within view of that industry. No doubt that is what is meant by the reference in the report to "loss of residential amenity". In my view, the report refers sufficiently to the substance of the matters referred to in particular (i). In any event, even if the report is defective as particularised in ground (i), all of the matters referred to therein were the subject of detailed submissions in the letter written by the prosecutor's wife to the Commission after the hearing by its delegates. Accordingly, it cannot be said that the prosecutor has been denied natural justice by virtue of any omission from the report, or inadequate reference in the report to the matters set out in ground (i), for each of those matters came to the attention of the Commission upon its receipt of his wife's letter.

39 With respect to particular (ii), it is true that there is no reference in the report to the argument referred to therein, but it is impossible to refer in the report to every argument that is put at a hearing. Likewise, with respect to particular (iii), the report contains no reference to the cross-examination of Mrs MacDonald, challenging some assertions she made in evidence-in-chief, but again, it is impossible to put every piece of cross-examination in the report. The same observation can be made about the complaint in particular (iv), but in this case, the evidence, as it is described in the prosecutor's affidavit, par7, was so vague and insubstantial that it did not call for special mention in the report.

40 On the return of the order nisi, Mr Casey, the Executive Officer of the Commission, gave evidence that in addition to the report, the Commission received all the written submissions made to the Council during the exhibition period, the Council's report made pursuant to the Commission Act, s39, and a number of post-hearing submissions including the one made by the prosecutor's wife. Accordingly, even if I am wrong in concluding that the report was not "defective" as alleged and particularised by the order nisi, ground 1(b), any alleged defect did not result in a denial of natural justice to the prosecutor because all the matters set out in the particulars, other than the cross-examination of Mrs MacDonald and the vague evidence of the witness Ellis, were contained in the written material that was before the Commission before it made the impugned decision to approve the draft amendment.

41 The grounds set forth in the order nisi are not made out and the order is discharged.