v Maning & Ors [2002] TASSC 36

Statutes - By-laws and regulations - Validity - Vagueness and uncertainty - Particular cases - State Coastal Policy - "Coastal zone" - Impossibility of determining extent.

King Gee Clothing Co Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184; Cann's Pty Ltd v Commonwealth [1946] HCA 5; (1946) 71 CLR 210, applied.

Judgment Number: [2002] TASSC 36

RICHARD G BEJAH INSURANCE & FINANCIAL SERVICES PTY LTD

1 The appellant is the owner of undeveloped land on Four Mile Creek Road in the Break O'Day Municipality. It wished to construct a residence on the land and applied to the Break O'Day Council for development permission. The Council granted planning approval upon a number of conditions. An appeal was brought to the Resource Management and Planning Appeal Tribunal which, after a hearing, allowed the appeal and set aside and replaced the planning permit with a refusal. The appellant appealed from the Tribunal's orders to this Court. The respondents had made representations opposing planning permission and were the appellants to the Tribunal.

2 The land is bounded on the east by sand dunes and a beach, on the north partly by the Tasman Highway, and on the west by Four Mile Creek Road (which forms a junction with the Tasman Highway at the north-west corner of the land). The residence it was proposed to erect was designed with the object of limiting its visibility. For example, part of its roof was to be covered in sod planted with natural grass and shrubs common to the area, and aspects of the structure were to be shielded or "softened" by native shrubs and other vegetation. Some 800 metres to the south of the proposed site was a discrete group of houses in the area of subdivision and settlement known as Four Mile Creek. About 400 metres to the south-west of the site and north-west of Four Mile Creek settlement, about halfway between the two, and a little west of Four Mile Creek Road, was a single residence. There was a further area of settlement slightly west of south of the Four Mile Creek settlement.

3 A party to an appeal before the Tribunal may appeal to this Court on a question of law. Resource Management and Planning Appeal Tribunal Act 1993, s25(1). There were originally nine grounds of appeal to this Court, but the second and third grounds were abandoned. The remaining grounds are as follows:

"1 The Tribunal erred in law in failing to deal with a submission by the appellant that the State Coastal Policy was ultra vires for vagueness and or uncertainty or alternatively erred in law in that it failed to find that the State Coastal Policy was ultra vires for vagueness and or uncertainty;

4 The Tribunal erred in law in that when considering the visual aspects of the proposed development, the Tribunal concluded that the proposed development did not adequately protect the high landscape values of the area in that it failed to consider and or apply the provisions of the Break O'Day Planning Scheme 1996 (the planning scheme) criteria for the assessment of visual impacts of developments within the coastal and resource management zone, in particular the requirements of clause 8.1(d) and (e) of the planning scheme and in addition failed to state in its reasons why the evidence of the witness Risby as to compliance with these matters was either not acceptable or was rejected by it;

5 The Tribunal erred in law in that in asking itself whether the proposed development would be visible, it asked itself and answered for itself a question which was not relevant in accordance with the provisions of the planning scheme;

6 The Tribunal erred in law in failing to appreciate that if the State Coastal Policy has the meaning and is to be interpreted in the way set out at paragraph 34 of the Tribunal's reasons, the planning scheme in this case was made after the implementation of the State Coastal Policy and as a matter of law the planning scheme must comply with the policy by reason of section 20(1)(d) of the Land Use Planning & Approvals Act 1993;

7 The Tribunal erred in law in that if its interpretation of the State Coastal Policy and its application to developments as set out at paragraph 34 of its reasons was correct, then it failed to apply that interpretation when considering the development the subject of the appeal before it at paragraphs 36-39, 43 and 46 of its reasons for decision;

8 The Tribunal erred in law in that if it was correct in concluding at paragraph 90 of its reasons that reference to the State Coastal Policy was not permissible, it formed a conclusion adverse to the proposed development at paragraph 91 of its reasons without reference to the provisions of the planning scheme and by asking itself questions relating to the impact of the proposed development on the scenic beaches of the area, without having regard to and applying the provisions of the planning scheme concerning visual impact, in particular clause 8.1(d) and (e) and part 17.

9 The Tribunal erred in law at paragraph 55 of its reasons in apparently concluding that the roof proposed for the development would not be durable and as a result a more prominent roof fabric may be required as a substitute in that it overlooked the fact that if the development was approved as proposed then the roof structure was a condition of the development and was required to be maintained and if some other roof form was proposed at some later stage, that would require a separate application for and issue of a permit pursuant to the planning scheme."

4 Four of those grounds concern the State Coastal Policy. It was referred to extensively by the Tribunal in the course of the reasons for its decision. It was the submission of the respondents, both to the Tribunal and this Court, that the Policy was invalid and should have been ignored by the Tribunal.

5 The Policy was purportedly made under the State Policies and Projects Act 1993. In his Second Reading Speech to that legislation in the form of a Bill, on 4 May 1993, the Minister for Environment and Land Management described the proposed Act as the central piece of legislation in establishing an integrated resource management system for Tasmania. The Bill was supported by the Land Use Planning and Approvals Bill 1993, which related to planning and development control at the local level, and the Resource Management and Planning Appeal Tribunal Bill 1993, which would establish a consolidated appeal body for the system. The Minister said that the legislation would also be supported by new environment protection legislation, which was in the course of preparation.

6 The Minister referred to the principal weakness of the then current planning system as being the lack of focus on long-term policy making for the State, which could ill afford to waste its public resources and to suffer inconsistency and lack of co-ordination in policy making for the State as a whole. To make the best use of the State's resources, and to develop them in a sustainable way, it was necessary to think more strategically. State policies would be the key to resolving those long-term issues for the benefit of the State, the Minister said. They would also be the means by which an integrated approval system would be implemented. State policies would be made in relation to issues of State significance and would seek to ensure a consistent and co-ordinated approach throughout the State, although they "must incorporate the minimum amount of regulation necessary to achieve their objectives", the Minister said. It was the Government's intention, to be embodied in the new legislation, that a State Policy would be made by the Governor and, if not disallowed by either House of Parliament, would have the force of law. It would be an offence not to comply with it. The Minister said that it would be incorporated in all local planning schemes.

7 By the State Policies and Projects Act, s5(1), pars(a) to (d), a State Policy must seek to further the objectives set out in Sch1 of the Act; may only be made where there is, in the opinion of the Minister, a matter of State significance to be dealt with in the State Policy; must seek to ensure that a consistent and co-ordinated approach is maintained throughout the State with respect to the matters contained in the State Policy; and must incorporate the minimum amount of regulation necessary to obtain its objectives. In Sch1, cl 1, paragraphs state the objectives of the resource management and planning system of Tasmania. They include (a) the promotion of sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; (b) the provision of fair, ordinary and sustainable use and development of air, land and water; and (e) the promotion of the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State. The expression "sustainable development" in cl 1(a) is defined by cl 2 to mean "managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural well-being and for their health and safety while (a) sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and (b) safeguarding the life-supporting capacity of air, water, soil and ecosystems; and (c) avoiding, remedying or mitigating any adverse effects of activities on the environment."

8 By s5A, a State Policy may contain matters relating to one or more of (a) sustainable development of natural and physical resources; (b) land use planning; (c) land management; (d) environmental management; (e) environment protection; and (f) any other matter that may be prescribed. The Act provides for draft State Policies to be publicly exhibited and for representations to be considered by the Resource Planning and Development Commission established under the Resource Planning and Development Act 1997. Under s11(3), the responsible Minister may, on receipt of the Commission's report on a draft State Policy, recommend to the Governor that it be made as a Tasmanian Sustainable Development Policy. When the Governor makes it, he fixes a day on which it will come into operation (s11(5)). The Policy is notified in the Gazette and tabled in both Houses of Parliament, either of which may disallow it (s11(7)).

9 In the planning area, the effect of a State Policy may be considerable. The Act binds the Crown (s4) and a State Policy binds the Crown and a local council (s13C). Where there is an inconsistency between a provision of a State Policy and a provision of a planning scheme or an interim order in force at the time when a State Policy comes into operation, the provision of the planning scheme or interim order is varied to the extent of the inconsistency (s13(1)). As soon as practicable after a State Policy comes into operation, the Resource Planning and Development Commission must amend planning schemes to incorporate all those parts of the State Policy which are relevant to them and to remove any inconsistency between them and the State Policy (s13(3)). Such an amendment is deemed to have come into operation at the date on which the State Policy came into operation (s13(5)(a)).

10 Considerable force and effect appears to have been given to State Policies by s14(1) which provides that "a person who contravenes or fails to comply with a provision of a State Policy or a requirement or obligation imposed under a State Policy is guilty of an offence punishable on summary conviction". By subs(2) such an offence is punishable by a fine not exceeding 500 penalty units (currently $50,000) and in addition a fine not exceeding 50 penalty units ($5,000) for each day during which the contravention or failure to comply continues, with a further additional daily penalty of 50 penalty units ($5,000) for each day such contravention or failure continues after the person has been convicted.

11 The State Coastal Policy was made on 23 January 1996 and gazetted on 7 February 1996. Its preamble refers to a State Policy as "a statutory document which is intermediate between the provisions of an Act and the lesser policies and provisions of planning schemes and other mechanisms identified in the relevant legislation comprising the [Tasmanian Resource Management and Planning] System". The preamble states that "this particular State Policy, the State Coastal Policy, specifically requires planning authorities to implement it", pointing out that "compliance with a State Policy is enforced through the provisions of s14(1)", which are set out. The preamble then concludes: "On the whole, all government bodies at State and local level are required to give effect to a State Policy 'to ensure that a consistent and coordinated approach is maintained throughout the State' as set out in s5(1)(c) of the State Policies and Projects Act."

12 An issue indirectly raised by this appeal is the extent to which, if at all, the Coastal Policy contains provisions which, if contravened or not complied with, will render a person or body liable to the substantial penalty provisions of the State Policies and Projects Act, s14. A clear intention is revealed in the Minister's Second Reading Speech, the Act and the Coastal Policy itself, that policies made under the Act and the Coastal Policy in particular, will be or are principally designed to operate at a government level, including the local government level, and to affect and influence the contents of planning schemes and the like and in that way impact substantially on the future use and development of the environment by all persons and bodies, both private and public. In the Coastal Policy, under the heading "Application of the State Coastal Policy", it is stated that "this Policy applies to the Crown in all its capacities, in particular by force of ss4 and 14 of the State Policies and Projects Act 1993 and s63(2) of the Land Use Planning and Approvals Act 1993", that "subject to contrary statutory provision, it also applies to statutory authorities" and that "planning authorities are also required to give effect to this Policy".

13 The substantive provisions of the Coastal Policy are considerable and are largely designed to control and manage activities, including use and development, in what is referred to as the "coastal zone". It is the apparent uncertainty of the meaning of that term upon which the appellant principally relied for its submission that the Coastal Policy was ultra vires, together with a level of delegation in the definition to planning authorities to determine the full extent of the coastal zone. The policy defines coastal zone as follows:

"The coastal zone includes at least the following primary elements:

* dunes, beaches, sea cliffs, wave cut platforms and hard rock areas,

* wetlands, marshes, lagoons and swamps along, and immediately inland of, the coast,

The zone extends seaward to the outer limits of the territorial sea adjacent to Tasmania, embracing islands and outcrops within the jurisdiction of the State, excluding Macquarie Island, and extends inland to the extent necessary to embrace activities, uses and developments which may have a significant effect upon the amenity and environment of the coast as constituted by the primary elements listed above.

(a) to embrace proposed activities, uses and developments which in the opinion of the relevant planning authority may, if allowed to proceed, impact on the coast; and

2 to achieve the principles, objectives and outcomes of this Policy."

14 The references to the coastal zone including "associated areas of vegetation", "associated areas of animal habitat" and "associated areas of human habitat and activity" are impossible to understand.

15 The drafting of the last two paragraphs is very poor. The use of (a) and 2 to letter and number the two subparagraphs of the last paragraph is obviously erroneous and raises the thought that some more significant drafting error has occurred. It is difficult to understand the reason for the difference between the respective extending provisions of the last half of the penultimate paragraph and subpar(a) of the last paragraph. Subparagraph (a) extends the coastal zone inland to the extent necessary to embrace proposed activities, uses and developments which in the opinion of the relevant planning authority may, if allowed to proceed, impact on the coast, whereas the last half of the penultimate paragraph appears to extend the coastal zone inland to the extent necessary to embrace activities, uses and developments, whether existing or proposed, which may have a significant effect upon the amenity and environment of the coast as constituted by the listed primary elements. Unexplained is whether "the coast as constituted by the primary elements listed above" is different from "the coast" in subpar(a). Presumably there is a reason for referring in the penultimate paragraph to "a significant effect upon the amenity and the environment of the coast" and in the last paragraph to "impact on the coast", but it is difficult to understand. I note that the extent a zone might be extended by a relevant planning authority under subpar(a) might not be the same as the extent by which the zone might be extended under the penultimate paragraph.

16 It is difficult to understand whether in the last paragraph the conditions of each of the subparagraphs must both apply at the same time to extend the zone inland to the extent necessary, or whether either one may be sufficient for that purpose. Another uncertainty arises out of the expression "the relevant planning authority". It probably means the council in the municipality to which the relevant land belongs, and the Resource Management and Planning Appeal Tribunal on an appeal from a council.

17 Another difficulty with the definition is that the inland extending provisions of the last two paragraphs extend the area of land and water, and the atmosphere above, known as the coastal zone, to embrace subjects which are not areas, namely activities, uses and developments. An industrial development might pollute the coast 50 or more kilometres away by river borne pollution. That raises the question whether the coastal zone extends inland to the source of every river having its mouth at the coast. Air borne pollution could come from almost anywhere and the coastal zone might extend therefore to almost anywhere.

18 It was submitted by counsel for the appellant that the provision in subpar(a) of the last paragraph for a relevant planning authority to form an opinion which will thereby result in the coastal zone being extended inland, amounts to an unlawful delegation of the policy making power to planning authorities. The submission was unsupported by authority or argument and I do not propose to substantially address it. I doubt that it is valid because it seems to me that in essence, all the provision is designed to do is to ensure that when considering proposals for activities, uses and developments, a planning authority should regard the Coastal Policy as extending to those activities, uses and developments if they may impact on the coast.

19 I turn from the definition of coastal zone to the requirements of the Coastal Policy relative to the coastal zone, particularly in the light of the penalty provisions of s14 in the event of a contravention or failure to comply with a provision. After the definition provisions, the Policy repeats the objectives of the Resource Management and Planning System of Tasmania as expressed in the State Policies and Projects Act, Sch 1, but with erroneous paragraph numbering and references. It states that the objectives are central to the intent of the Policy and that "all other provisions are based on these objectives either explicitly or implicitly". Presumably, the "other provisions" are the provisions of the Policy other than the objectives.

20 There are then stated three principles, the purpose of which is said to be "to guide the outcomes". I will deal with the Policy's extensive collection of outcomes shortly. The three principles are expressed as being that "natural and cultural values of the coast shall be protected", "the coast shall be used and developed in a sustainable manner" and "integrated management and protection of the coastal zone is a shared responsibility". Each of the principles is stated to be "based on the understanding of a variety of factors". Whose and what understanding and what factors are not expressly explained, but the answer is probably to be found in the lists of matters each of the principles is said to recognise. Thus, for example, it is stated that the principle that "natural cultural values of the coast shall be protected" recognises (inter alia) "that the natural character of the coastal zone is of special cultural value to Tasmanians and to visitors from elsewhere", "the importance of the coastal zone to Aboriginal people, in particular traditional use and Aboriginal culture", "the dynamic, complex and interconnected nature of biological and physical processes in the coastal zone (terrestrial and marine)" and "the importance of maintaining representative or significant natural ecosystems and sites of biological importance, and the biodiversity of Tasmania's indigenous coastal flora and fauna". It is clear that what are stated as objectives and principles, and what the principles recognise, are merely what they purport to be and do not amount to the creation of duties or obligations for contravention or breach of which an offence under s14(1) might be committed.

21 The State Coastal Policy then moves on to and concludes with 85 statements of "Outcomes". Most of them amount to statements of policy and could not be interpreted as creating specific duties or obligations which, if contravened or not complied with, would attract the penal provisions of s14. Five examples are:

"1.1.1 The coastal zone will be managed to ensure sustainability of major ecosystems and natural processes.

1.2.1 Areas within which Aboriginal sites and relics are identified will be legally protected and conserved where appropriate.

2.1.4 Competing demands for use and development in the coastal zone will be resolved by relevant statutory bodies and processes ....

3.1.2 Coastal management should be considered as an integral component of regional planning undertaken in the State.

4.2 The main vehicles for implementation of this Policy will be land use planning controls, marine farming development plans, and local council strategic and operational plans."

22 However, there are a small number of outcomes which do not appear as mere statements of policy and which appear to impose requirements with regard to which, because of the provisions of s14, a contravention or failure to comply would probably amount to an offence. Examples are:

"1.4.2 Development on actively mobile landforms such as frontal dunes will not be permitted.

2.6.5 Councils will ensure that there will be a coastal safety assessment for any new coastal development likely to attract people to the coast to indicate the level and type of lifesaving facilities and personnel required.

2.7.2 Future development of camping areas on public land in the coastal zone will only be permitted where such development does not conflict with the protection of natural features and cultural values, but not within 30 metres above high water mark.

2.7.3 Expansion of shack sites on public land in the coastal zone will not be permitted."

23 When looked at as a whole the drafting of the Policy makes it apparent that its provisions are intended to directly apply to local councils and government agencies and not to persons or corporations who might wish to use or develop land in a particular way, or who are using or have used or developed land in a particular way. As is stated in the preamble, all government bodies at State and local level are required to give effect to it, to ensure that a consistent and co-ordinated approach is maintained throughout the State. By its name it purports to be a policy document. Notwithstanding the expression in the Act, s14(1), that it is an offence if "a person" contravenes or fails to comply with a provision of a State Policy or a requirement or obligation imposed under a State Policy, it is my opinion that the Coastal Policy only imposes duties and obligations on government bodies at State and local level, including local councils, for contravention or failure to comply with which the penal provisions of s14 will operate. The Policy does not impose duties and obligations on the general public. Further, requirements which, if contravened or not complied with, might result in an offence being committed by a State or local government body, are small in number, quite possibly only those of cls 1.4.2, 2.6.5, 2.7.2 and 2.7.3, and of them only cls 2.7.2 and 2.7.3 depend on the meaning of "coastal zone" for their effect. However, I have not had the benefit of submissions about that last aspect, apart from cursory ones.

24 40 of the 85 outcomes expressly refer to "coastal zone" and almost all of those depend on the meaning of that expression for their own meaning and effect. The uncertainty concerning the meaning of it is substantial, to the extent that I have concluded that it is impossible to determine the extent of the areas included within it. So much of the Policy depends on the expression for its effect that I have also concluded that all of the Policy is ultra vires for uncertainty, or perhaps it is better expressed as being ultra vires because, as a consequence of the impossibility of understanding objectively what is encompassed by the expression "coastal zone", the Policy is not a true exercise of the policy making power in the State Policies and Projects Act. See King Gee Clothing Co Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184, particularly the judgment of Dixon J; Cann's Pty Ltd v Commonwealth [1946] HCA 5; (1946) 71 CLR 210; and the discussion in Delegated Legislation in Australia by Pearce and Argument, 2nd ed at 243 - 244.

The Tribunal's reasons and its reliance on the State Coastal Policy

25 The Tribunal did not determine whether the Policy was ultra vires, notwithstanding that it was submitted for the appellant that it was, but it acknowledged that in one respect "this submission may be valid". It avoided resolving the submission in the following manner. It determined that no matter what the meaning of "coastal zone" was, the site of the proposed development was plainly within it. As there was no issue that the definition of "coastal zone" included the site, the Tribunal was entitled to take the Policy into account. It held that it was therefore necessary for it to consider the appeal upon the basis that the Coastal Policy, to which in fact the Break O'Day Planning Scheme 1996 made one reference (in the last clause on page 166), was valid.

26 With respect, there is obvious illogicality in the Tribunal's reasoning. If the Coastal Policy was ultra vires it could not also be valid. Once the issue that the Policy was invalid had been raised, it was necessary for the Tribunal to determine that issue, before it could treat the Policy as valid.

27 The appellant's land fell within the Coastal and Resource Management Zone in the Break O'Day Planning Scheme because it was in a coastal area within the municipality. The effect of Table 8.1 Issue (p) of the Scheme was that the proposed use or development was not to be approved, unless a development suitability assessment in accordance with Schedule 3 had been carried out and submitted with the application. Under cls 21.2.1 and 21.2.2 of that Schedule, the purposes of such an assessment were to provide details of the resources, opportunities for and constraints to development within the Coastal and Resource Management Zone and to enable more detailed decision making to be made in respect of the proposal. By cl 21.3.1 a development suitability assessment was required to be submitted to the Council with the application for use or development. Clause 21.5.1 required the assessment to include a number of topics including (inter alia) a description of the land and its land forms, slope, flora, fauna and areas of high environmental value, and a description of the matters which were to be taken into account, including vegetation cover and habitats to be maintained, coastal land form protection and the protection of areas of high landscape value.

28 However, the purpose of a development suitability assessment was not confined to the mere provision of information concerning the land and the proposed development. By the Scheme, Table 8.1, Issue (s), Acceptable Solution (iv), because the proposed use and development was residential, the appellant, as the applicant, was required to demonstrate by means of the development suitability assessment submitted by it "that the values of the zone will be protected". The zone in question was the Coastal and Resource Management Zone under the Scheme, and by cl 8.2.1(d), the "values" of the zone were stated to be associated (inter alia) with "landscape and scenic features of beaches, coastal and inland hills and mountains, estuaries, lagoons, headlands and coastal vegetation".

29 The final clause of the Schedule, and of the Scheme itself, was cl 21.5.2, which included the Scheme's only reference to the State Coastal Policy. It provided that development suitability assessments were to have regard to any plans or reports covering the subject land, including (inter alia) the Break O'Day Settlement Strategy and State Coastal and Water Quality Policies. In this case an assessment of a development planning and information consultant, Mr Brian Risby, was submitted. It purported to provide the information required of such an assessment. It had regard to the State Coastal Policy, the author noting that the Policy "has considerable bearing on the site". He referred to and commented upon the relationship between four of the Policy's "outcomes" and the proposed use and development.

30 The Tribunal concluded that the State Coastal Policy was not intended to apply as a test to individual developments, but rather to be a framework of principles for the formulation of planning schemes. However, it also concluded that because the Scheme, cl 21.5.2, directed that a development suitability assessment have regard to the State Coastal Policy, the only way an assessment could do so was by assessing how closely the qualities of the proposed development did or did not comply with the provisions of the Policy.

31 I will summarise the way in which the Tribunal presented its detailed reasons, expressed over 94 paragraphs, for upholding the appeal and refusing the application for a permit.

Paragraphs 1 - 3. It explained the nature of the application; the land; the design and siting of the proposed residence; the relationship of the site, including its proximity, to the nearby settlement known as Four Mile Creek, roads, other residences and proposed residences, the coastal dune and the high water mark.

Paragraphs 4 and 5. It summarised the respondents' representations to the Break O'Day Council in opposition to the proposal; the Council's granting of approval; and the grounds of the appeal from that.

Paragraphs 6 - 19. It detailed the provisions in the Break O'Day Planning Scheme which it considered to be relevant to the determination of the appeal. In the course of doing so, it referred to cl 21.5.2 of the Scheme that required development suitability assessments to have regard to any plans or reports covering the subject land, including the Break O'Day Settlement Strategy and the State Coastal and Water Quality Policies.

Paragraphs 20 - 24. It detailed provisions in the Break O'Day Settlement Strategy it considered to be relevant.

Paragraphs 25 - 29. It detailed provisions in the State Coastal Policy it considered to be relevant.

Paragraphs 30 - 33. It referred to evidence concerning the character of the site, and dealing with such matters as land forms, vegetation types, existing development and public use of the land, and made findings concerning such matters.

Paragraph 34. It briefly considered the application of the State Coastal Policy and the Break O'Day Settlement Strategy to the application for the permit and the appeal.

Paragraphs 35 - 42. It determined that nearby Four Mile Creek was a "settlement" within the Break O'Day Settlement Strategy and a "township" within the State Coastal Policy, but that the evidence established that the proposal site, being approximately 800 metres from Four Mile Creek, was not within it.

Paragraphs 43, 44 and 46. It determined on the evidence that the proposed site was not "based on" Four Mile Creek, as that expression was used in the State Coastal Policy, outcome 2.4.2, and that the proposal was in conflict with that outcome which provided that urban and residential development in the coastal zone would be based on existing towns and townships and that compact and contained planned urban and residential development would be encouraged in order to avoid ribbon development and unrelated cluster developments along the coast.

Paragraph 45. It determined that the proposal was in conflict with provisions of the Break O'Day Settlement Strategy, because it would involve a development of land outside any existing service area, adding to demand in a minimal way upon the Four Mile Creek Road infrastructure, and would lead to an extension of the Four Mile Creek settlement or town through incremental growth.

Paragraphs 47 - 49. It referred to some of the outcomes in the State Coastal Policy. The "thrust" of outcome 2.4.1 was to minimise, or where possible, totally avoid, any impact on environmentally sensitive areas. The "overall tenor" of Part 2.4 was to discourage the expansion of residential areas where that would impact on environmentally sensitive areas, to ensure that residential development in the coastal zone was "based on existing towns and townships" (outcome 2.4.2), to encourage compact and contained planned urban and residential development (outcome 2.4.2) and to identify areas for such development in the coastal zone through designation of areas in planning schemes consistent with the principles, objectives and outcomes of the Policy (outcome 2.4.3). The Policy sought to have the design and siting of buildings in the coastal zone to be subject to planning controls, to ensure compatibility with natural landscapes (outcome 1.1.10) and to ensure that the siting and design of buildings and infrastructure in the coastal zone was sensitive to the natural and aesthetic qualities of the coastal environment (outcome 2.1.3). It concluded that in some respects, the proposed residence tended not to conform with the thrust of Part 2.4 of the outcomes.

Paragraph 50. It noted that evidence had been given relating to the environmental sensitivity and values of the area under the State Coastal Policy, Part 2.4 of the outcomes, the natural landscape values under outcome 1.1.10, the natural and aesthetic qualities of the coastal environment at the location under outcome 2.1.3, as to the values of the coastal zone referred to in Table 8.1, Issue (s)(iv), identified in cl 8.2.1(b) (biological values), (c) (Aboriginal cultural values) and (d) (landscape and scenic values) of the Break O'Day Planning Scheme.

Paragraphs 51 - 63. It referred at length to evidence that had been given relevant to what I will loosely describe as landscape and scenic issues, and it made what proved to be findings of fact that were determinative of the appeal. It found, on the evidence, that the area of the land in question had a high visual importance because of its relatively natural state and uninterrupted vista, and its exposure to the Tasman Highway, particularly from the north. It found that from the south, on the Tasman Highway, the site was visible as one looked over it to the headland to the north, and the beach and the ocean to the east. It found that the proposed house would be visible from the north and that the existing natural visual character of the beach and the area immediately behind it, including the subject site, would be diminished by the proposed house to a degree which was significant, even assuming that a proposed sod roof was successful, and more so if it was unsuccessful and the roof material was more prominent. It found that from the south-west, on the Tasman Highway, the house would be visible, although trees could be grown to screen it and, in such event, that would not be a significant detrimental factor. The Tribunal considered that the visual impact of the proposed house was one which would add a significant man-made presence to the existing natural appearance of the area of the beach and its hinterland. To that extent, it would detract from the principal visual values of the zone, represented by the existing natural landscape appearance of the beach and coastline, with the subject site lying immediately behind the coast and forming part of the picture. While the proposed house site was as unobtrusive as possible on the land, there was, on the evidence, nowhere on the land which would avoid the visual intrusion referred to. The Tribunal regarded its findings as significant when taking into account the Break O'Day Settlement Strategy's provisions, particularly those referring to the great advantage of the coastline in the municipality being a low level of development and intrusion into the landscape. The Tribunal noted that a very considerable and unusually high degree of effort and skill had been expended in ensuring that, as far as possible, the proposed house interfered as little as possible with the special values of the site. Most significantly, the Tribunal found on the evidence "that the site is inappropriate for any residential building development". It found that the development would, in its design quality, be sensitive to the natural and aesthetic qualities of the coastal environment (obviously referring to the State Coastal Policy, (outcome 2.1.3)) but that the siting of the development would not be sensitive in those respects. It declared that "overall, taking into account all viewpoints, the Tribunal finds upon the above evidence that the house has a significant potential to impact upon the surrounding landscape and to diminish its existing natural visual quality, which is one of the significant aspects of the value of the site".

Paragraphs 64 - 66. It considered evidence of the likely impact of the proposed use on fauna and in general concluded that it was not likely to be significant.

Paragraphs 67 and 68. It assessed that the potential environmental impact of the proposed development and subsequent use was better than the existing pattern of use and its effect upon the ecological quality of the land.

Paragraph 69. It determined that Aboriginal heritage values would be better protected by the proposed development, than by the existing situation.

Paragraph 70. It noted that the land in question was an isolated site and as a consequence, there would be relatively infrequent scrutiny from potential enforcement bodies, and that adherence to an appropriate management plan would therefore not be certain.

Paragraph 71. It noted that precluding development on the land so as to preserve visual, ecological and heritage values, might be equivalent to restricting the use of the land to that of a reserve, but resolved that the planning and environmental question was whether the proposed development was appropriate, rather than what other uses were available for the present owner of the land.

Paragraphs 72 - 87. It considered and determined a number of submissions made in support of an argument that the State Coastal Policy was invalid. It rejected almost all of those submissions. However, with respect to a submission that the Policy was ultra vires for vagueness and uncertainty because of the use in the Policy of the expressions "coastal zone", "coast" and "coastal areas and resources", it acknowledged that the submission might be valid. It determined nevertheless to consider the appeal upon the basis of the Break O'Day Planning Scheme, on the assumption that the Coastal Policy to which the scheme referred was valid, because it could see no issue that the definition of "coastal zone" included the site.

Paragraph 88. It rejected a contention for the appellant that the Tribunal was bound to accept the validity and accuracy of conclusions reached or facts stated in Mr Risby's development suitability assessment.

Paragraphs 89 - 91. It then articulated, concisely and clearly, why it had determined to allow the appeal and refuse the permit:

"89 For all of the above reasons relating to the impact of the proposed development upon the landscape and scenic features of the beach and coastal area behind the beach, of which the subject site is part, the Tribunal is not satisfied that the proposed development on the subject land adequately protects this area of high landscape value. The proposed development is satisfactory or could be made satisfactory by the application of appropriate conditions, in each other respect. Because the proper conclusion of a Development Suitability Assessment would upon the evidence before the Tribunal have been as above, the proposed residential development is not one which demonstrates that the values of the zone will be protected, under Acceptable Solution 8.1(s)(iv). Pursuant to Clause 2.7.1 of the Planning Scheme the application must be refused.

90 Against the event that reference to the State Coastal Policy is not permissible, the Tribunal considers that the same result is reached by reference only to the provisions of the Scheme, ignoring the Coastal Policy.

91 It should again be emphasised that the particular characteristics of the site compel this result, notwithstanding the extensive effort which has clearly been devoted to designing the proposal to accord as far as possible with the site character."

Paragraphs 92 - 94. It stated its orders and raised the question of the costs of the appeal.

33 The ground is sustained, for reasons I have already stated. In my opinion, the Tribunal should have determined the submission that the State Coastal Policy was ultra vires in the appellant's favour and, having found the Policy to be ultra vires, it should have ignored all of its provisions when it considered further the merits of the appeal.

34 It follows that the Tribunal should not have found, as by inference it obviously did, that a permit for the proposed development should be refused because it did not conform with some of the outcomes expressed in the State Coastal Policy.

35 Nevertheless, it is clear from par90 of the Tribunal's reasons, that it concluded that the same result was reached by reference only to the provisions of the Break O'Day Planning Scheme, ignoring the State Coastal Policy. It must follow that notwithstanding that ground 1 is sustained, the appeal should not be allowed on that basis. Even if the Tribunal had ignored the provisions of the Policy, the result would have been the same.

36 The ground does not challenge that the Tribunal, on a consideration of the evidence, was not satisfied that the proposed development adequately protected the area, which it determined to be of high landscape value, and found that the proposal was not one which demonstrated that the values of the Zone would be protected under the Break O'Day Planning Scheme, Acceptable Solution 8.1(s)(iv) and that pursuant to cl 2.7.1, the application had to be refused. However, it complains that in doing so, the Tribunal erred in law by failing to consider and apply the Scheme's criteria for the assessment of visual impacts of developments within the Coastal and Resource Management Zone, in particular the requirements of the Acceptable Solutions and Performance Criteria in Table 8.1(d) and (e). The reference in the ground to cl 8.1(d) and (e) is erroneous. The ground also complains that the Tribunal failed to state its reasons for rejecting or not accepting Mr Risby's assessment and evidence that the proposal complied with those requirements.

37 Under the Break O'Day Planning Scheme, the site was within the Coastal and Resource Management Zone under cl 2.2.2 and the proposed use was Residential under cl 2.3.3. A Residential use in the Zone was within a secondary use class under cl 8.5.2 and not a primary use class under cl 8.5.1. As a secondary use, it was potentially within the values of the Zone provided that it occurred in a way and in a location that did not adversely affect the values of the Zone (cl 2.3.6(b)). By cl 8.2.1(d), the values of the Coastal and Resource Management Zone were expressed to be associated with (inter alia) "landscape and scenic features of beaches, coastal and inland hills and mountains, estuaries, lagoons, headlands and coastal vegetation". Accordingly, the proposed use was within those values of the Zone if it was to occur in a way and in a location that did not adversely affect such landscape and scenic features. It is clear that the Tribunal was not satisfied that the proposed use would not do so and that it concluded that the proposed use was not within the values of the Zone.

38 Because the proposed use was within a secondary use class, the Council (and the Tribunal on appeal) could exercise its discretion under cls 2.6.1(b) and 2.6.2 to approve, with or without conditions, the proposed use, if (i) the proposed use relied wholly or in part on performance criteria applicable to it, and (ii) it was demonstrated that the proposed use was in accordance with the values of the Zone through compliance with any Scheme standard applicable to that use in that Zone. The existence of that discretion was subject to cl 2.7.1, which required that an application for use or development must be refused if it could not be demonstrated that there would be compliance with any Scheme standard applicable to that use or development. It was in purported compliance with cl 2.7.1, that the Tribunal allowed the appeal and refused the permit.

39 I turn to deal with the Scheme standards and the reasons for the Tribunal concluding, by reference to Acceptable Solution 8.1(s)(iv), that compliance with a Scheme standard had not been demonstrated, as was required for a secondary use class such as residential. Acceptable Solution (iv) provided that "applicants for residential or commercial use or development are to demonstrate by means of a development suitability assessment as set out in Clause 21.5.1. that the values of the zone will be protected". As I have mentioned, the values in this case included "landscape and scenic features of beaches, coastal and inland hills and mountains, estuaries, lagoons, headlands and coastal vegetation". It is clear from the Tribunal's reasons that it was satisfied that it had not been demonstrated that those values would be protected. That conclusion was open on the evidence and the Tribunal's reasons for so concluding were adequately explained. Earlier, the Tribunal cited provisions of the Scheme expressing the intent of the Zone and its objectives in cls 8.3 and 8.4. By cl 8.3.1, "the intent of the Coastal and Resource Management Zone is to provide for the management of areas and resources in areas of high environmental value for reasons of environmental protection, nature conservation, ... scenic amenity". By cl 8.4.1, one of the objectives of the Zone was expressed to be to "ensure that ... areas of high environmental quality or scenic amenity ... are maintained and/or protected". The Tribunal pointed out that the primary use classes in the Zone were "environmental management" and "recreation" and that "residential" was only within the secondary use classes. It referred to some of the specific Scheme objectives, expressed in cl 1.4.1, such as "residential ... activities are primarily to be concentrated in existing and established towns and settlements"; "land and resources outside towns and settlements are to be utilised primarily for agriculture, forestry, tourism, environmental protection and conservation purposes"; "important scenic and visual components of the landscape are to be maintained"; and "the special environmental qualities and fragile nature of coastal resources are to be recognised while providing for use and development that does not cause degradation, loss or damage of these resources ...". The Tribunal referred to the need for applications for use or development to demonstrate that they were in accordance with "the relevant acceptable solutions" or "the relevant performance criteria" (cl 2.4.2).

40 The Tribunal referred to the visual impact requirements for buildings on skylines, ridgelines or exposed slopes, in Table 8.1(e), but did not determine the application against the appellant on the basis of it. It did not refer to the siting and design requirements for buildings in Table 8.1, Issue (d), but made it clear in its reasons that it was satisfied, in favour of the appellant, with regard to design.

41 Counsel for the appellant relied on cl 2.4.4 of the Scheme, which provided that if the use or development complied with relevant Scheme standards, it should be taken as ensuring compliance with the Scheme intent and objectives, the Zone intent and objectives and the Zone values. But that is not to say that compliance with one relevant Scheme standard was sufficient. Compliance with the Standards for secondary use classes in Table 8.1, Issue (s) was necessary in this case, notwithstanding that there may have been compliance with the standards for Issues (d) and (e).

42 Concerning its rejection of Mr Risby's evidence, the Tribunal gave ample reasons for reaching its conclusion that it was not satisfied that the proposed development adequately protected what it determined to be an area of high landscape value. It held that it was not bound by Mr Risby's conclusions on the subject and that the evidence led to a different conclusion. The Tribunal referred to a considerable amount of evidence before coming to it.

43 For these reasons ground 4 has not been established.

44 I have difficulty understanding what error of law was raised by this ground. Counsel for the appellants submitted that the Scheme was not concerned with the fact that a proposed building would be visible. The submission is defeated by the requirement of Table 8.1 Issue (s) (Secondary Use Classes) Acceptable Solution (iv), that an applicant for residential use or development had to demonstrate that the values of the Zone would be protected.

45 The Break O'Day Planning Scheme was made after the State Coastal Policy. The Land Use Planning and Approvals Act, s20(1)(b), required the Scheme to be prepared in accordance with State Policies made under the State Policies and Projects Act, s11. Counsel for the appellant submitted that because the law required that the Scheme be prepared in accordance with the State Coastal Policy, the Tribunal should have assumed that it had been and as a result, the Tribunal should not have considered the provisions of the Policy. If the Scheme accorded with the Policy, so the submission ran, the Tribunal needed only to consider the Scheme and should not have had regard to the Policy. However the submission ignored cl 25.5.2 of the Scheme which required development suitability assessments to have regard to the State Coastal Policy. It was because of that express provision in the Scheme that the Tribunal considered the Policy.

46 In any event, the Tribunal held that if reference to the Policy was not permitted, it considered that it should find against the appellant by reference only to the provisions of the Scheme, ignoring the Policy. It follows that if there is merit in the ground, nevertheless the appeal must fail.

47 As argued, the ground is based on the view expressed by the Tribunal that the Policy was not intended by its maker to apply as a test to individual developments. It was effectively the same submission as was made a number of times for the appellant, that the Policy should have been ignored by the Tribunal and that only the provisions of the Scheme should have been considered. As I have made clear, the submission is defeated by the fact that the proposed use or development was rejected by the Tribunal disregarding the Policy.

48 I hold that there is no merit in this ground, for reasons I expressed when considering ground 4.

49 At par55 of its reasons, the Tribunal dealt with the proposed sod roof for the residence. It noted that a problem would arise if the sod roof, with its natural vegetation, could not be successfully maintained. It would depend upon continued artificial watering for at least its establishment period and the evidence was unclear, according to the Tribunal, whether further artificial watering and maintenance would be needed after the roof was fully established. The Tribunal found upon the evidence that it was probable that the roof would be successful, but there was a risk that it might not be, and that some more prominent roof fabric might be required as a substitute. The Tribunal was entitled to consider such possibilities and did not err in law when it did so. Its failure to state that if a different roof form proved to be necessary, a separate application for a permit would be necessary, was of no material consequence.