Rumpf v Mornington Peninsula Shire Council [2000] VSC 311

The form of that order is considered at paragraphs 128 and following below_._

22. The plaintiff's grounds of appeal are as follows:

1. The Tribunal erred in law in failing to hold that by reason of the provisions of section 61(3) of the Planning and Environment Act 1987 ("the P & E Act") it had no power to grant a permit;

2. The Tribunal erred in law in that by reason of section 61(3) of the P & E Act it should have upheld the application for review and pursuant to section 61(3) directed that no permit be issued;

3. The Tribunal misdirected itself as to the content and extent of Mr Nixon's submissions, and in particular only considered his submissions with respect to section 61(2) of the P & E Act and failed to consider and decide upon his and the other Applicants' submissions with respect to section 61(3) of the P & E Act;

4. The Tribunal erred in law in holding that the refusal of the application for consent under the Coastal Management Act 1995 ("the Coastal Management Act") was a procedural deficiency;

5. The Tribunal erred in law in holding that section 62 of the Schedule of the VCAT Act applied to enable it to disregard the provisions of section 61(2) of the P & E Act;

6. If the Tribunal was entitled to apply section 62 of the Schedule of the VCAT Act to enable it to disregard the provisions of section 61(2) of the P & E Act (which it is contended it was not entitled to do), the Tribunal misdirected itself in the exercise of its discretion thereunder;

7. The Tribunal erred in law by having regard to and considering the submissions made by Mr Cicero and "the new consent" after the conclusion of the hearing;

8. The Tribunal erred in law and denied the Applicants procedural fairness by not re-listing the Application for Review for further hearing and providing the Applicants with a proper opportunity of dealing with the submissions made by Mr Cicero and "the new consent".

9. The Tribunal erred in law by failing to have regard to Mr Warfe's response to the submissions made by Mr Cicero and "the new consent" and in particular Mr Warfe's contention that "the new consent" was invalid and improperly given in the circumstances and that were the Tribunal to have regard to "the new consent" the Tribunal must first determine its validity;

10. The Tribunal erred in law by failing to have regard to Mr Rumpf's response to the submissions made by Mr Cicero and "the new consent" and in particular Mr Rumpf's contention that "the new consent" was ultra vires;

11. The Tribunal erred in law by failing, contrary to Clause 42.01-3 of the planning scheme, to have proper regard to the matters specified in Clause 4 of Schedule 25 of the Environment Significance Overlay ("the overlay") and in particular the combined use or reuse of existing buildings;

12. The Tribunal erred in law by failing, contrary to Clauses 36.02-5 and 42.01-3 of the planning scheme, to have proper regard to the matters specified in Clause 21.08 of the Municipal Strategic Statement ("the strategic statement") and in particular the requirements to "ensure preference is given to the reuse of existing structures" and to give effect to "the preferred option to investigate the reuse of existing buildings and the multi use of buildings . . . in preference to a proliferation of separate buildings and structures";

13. The Tribunal misdirected itself in holding that alternative or existing structures should only be considered if the merits of the proposed development could not be sustained because of the environmental impact of the development;

14. The Tribunal erred in law by failing to have regard to the availability and suitability of alternative sites and existing structures and the multi use of buildings;

15. The Tribunal erred in law by failing to have regard to the availability and suitability of the existing building used by the Rosebud Sea-Scouts as an alternative site;

16. The Tribunal erred in law by failing to give proper regard to the availability and suitability of the existing lighthouse dwellings as an alternative site;

17. The Tribunal, not being constituted by members who were judicial members or legal practitioners, erred in that it failed to act in accordance with the provisions of section 107 of the VCAT Act, with respect to questions of law that arose in the proceeding, namely:-

(i) What matters was it required to consider upon the failure of the Rosebud & District Lifesaving Club to produce the documents referred to in the summons issued by the Registrar upon the application of Mr Rumpf?

(ii) Can [Clause 62 of schedule 1] of the VCAT Act be applied by the Tribunal to enable it to disregard the provisions of section 61(2) of the P & E Act?

(iii) Can [Clause 62 of schedule 1] of the VCAT Act be applied by the Tribunal to enable it to disregard the provisions of section 61(3) of the P & E Act?

(iv) Was the refusal of the application for consent under the Coastal Management Act a procedural deficiency?

(v) Was the Tribunal entitled to have regard to and consider the submissions made by Mr Cicero and "the new consent" after the conclusion of the hearing?

(vi) Was the Tribunal obliged as a matter of procedural fairness to re-list the Application for Review for further hearing and provide the Applicants with a proper opportunity of dealing with the submissions made by Mr Cicero and "the new consent"?

48. Those grounds can conveniently be broken up into four groups, dealing with, respectively:

* Grounds 1-6 The deemed refusal under the Coastal Management Act;

* Grounds 7-10 The correspondence after the hearing

56. It is convenient to set out here a number of well-known statements of relevant principle.

59. In Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6 at 18, Smith J, with whom Adam J concurred, expressed in the following terms the circumstances in which error by the Planning Appeals Board (a forerunner of the Tribunal) might lead to an order nisi for review being made absolute:

. . .the appellant, in order to succeed in this case, has to demonstrate to the satisfaction of this Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.

63. Mason J said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40:

Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

67. To quote again from Mason J at pages 40-41 of Peko-Wallsend:

The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion and a decision made within those boundaries cannot be impugned.

71. It is not in issue that failure by an administrative tribunal to consider relevant matters can constitute a vitiating error of law. Whether such a vitiating error has occurred will always turn on the circumstances of the particular case, including the legislative requirements imposed on the tribunal in question. In Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, Barwick CJ said at 679-80:

Of course, if it is shown that a Tribunal such as the present, in making an order within its competence, has failed to take into account relevant matters, its determination can be reviewed, as in this case, upon an order to review. So much is a settled facet of the relevant jurisprudence. But that course cannot be taken unless it clearly appears that there has been a material error of that kind. Whether or not it has occurred is a matter of fact and not of surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some cases it may be indicative. But, in any case, such a failure to advert to some material circumstance, if it exists, must be weighed in the light of all the circumstances of the proceedings including the nature and extent of the charter of the Tribunal.

75. That question is further discussed by Ormiston J in Body Corporate Strata Plan No 4166 & Ors v Stirling Properties Ltd (No. 2) [1984] VicRp 73; [1984] VR 903 at 913-4, where his Honour said:

Further, it seems established that failure to consider relevant matters can constitute a vitiating error. As Gowans J observed in Wattle Glen Estates Pty Ltd v MMBW (1974) 40 LGRA 104 at 109:

In this connexion reliance was placed on the limited reasons stated by the tribunal at the time of giving its decision as indicating a failure to give consideration to relevant circumstances and considerations advanced in evidence adduced and in arguments submitted for the appellant. If it were established that there was a failure of this kind, there would be, in my opinion, a miscarriage of discretion vitiating the determination: see Harrison v Mansfield [1953] VicLawRp 60; [1953] VLR 399.

On the other hand some caution must be exercised in reaching such a conclusion. The proper test was stated by Sholl J in Yendall v Smith Mitchell & Co Ltd [1953] VicLawRp 53; [1953] VLR 369 at p 379 as adopted by Adam J in McConkey v McConkey [1960] VicRp 47; [1960] VR 295 at p 300 . . .

81. The test stated by Sholl J is most clearly set out by him in the following extract from Harrison v Mansfield at 404, where His Honour said, after referring back to Yendall v Smith Mitchell:

The true principle . . . must be, not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to that matter not having been considered as it should have been, or if the magistrate's observations indicate, on a comparison of what he said with what he did not say, that the matter in question has not been considered as it should have been, the appellate tribunal may properly draw such an inference, and the magistrate will have no cause to complain if it does so.

(I should point out that the extract of that test as set out in the report of Stirling Properties is incorrect, in the omission of the word "not" before "been considered" where fourth appearing, and is also confusing in other ways.)

86. In Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors (1980) 44 LGRA 65, Fullagar J, after referring to Kentucky Fried Chicken and other authorities, said at 67:

. . . the cases show, as one would expect, that decisions of [the Town Planning Appeals Tribunal] are not to be set aside by over-legalistic analyses of reasons stated or by over-zealous drawing of inferences from things not stated.

90. In Spurling v Development Underwriting (Vic.) Pty. Ltd. [1973] VicRp 1; (1973) VR 1 at 11, Stephen J said:

In approaching the decision of an expert tribunal I must, I think, not only refrain from making up my own mind on the evidence before it, must not only confine myself to inquiring whether on any reasonable view of the evidence the [Town Planning Appeals] Tribunal's decision on a question of fact can be supported, but must also bear in mind that I am concerned with areas in which members of the Tribunal have special expertise and experience which the legislation plainly intends them to employ. I must, therefore, be slow to conclude that on no reasonable view could this Tribunal decide a particular matter of fact as it has.

95. The evidence before the Court derives principally from the affidavit of the plaintiff and the extensive exhibits thereto. There is a conflict on the evidence as to certain matters which occurred during the hearing before the Tribunal, relevant to the final ground of appeal. An affidavit in reply by Mr Cicero, who appeared for the Club at that hearing, was filed, and deals with those matters and with certain other events which occurred after the hearing. As to the events at the hearing, affidavits in reply to that of Mr Cicero were filed by the plaintiff, and by three other objectors, Mr Warfe, Mr Clark and Councillor Graley. The contents of those affidavits are inconsistent with each other and with the affidavit of Mr Cicero. No party served notices requiring any deponent to attend for cross-examination. No transcript had been taken at the hearing, and the notes of the members of the Tribunal were obtained from the Registrar of the Tribunal and admitted by consent of all counsel. Those notes, however, are inconclusive as to the matters in dispute.

98. Mr Hooper, for the plaintiff, submitted that the Court should seek to resolve the conflict on the affidavits by reference to the members of the Tribunal who heard the Application for Review. He referred to the judgments of Sholl J in Thomson v Cross [1954] VicLawRp 89; [1954] VLR 635 at 636-7, Lowe J in Rogers v Ventura [1955] VicLawRp 26; [1955] VLR 139 at 141 and Smith J in Lindgran v Lindgran [1956] VicLawRp 34; [1956] VLR 215 at 221-3 as authority for the proposition that that was an appropriate course in these circumstances, rather than adopting the practice of preferring the answering affidavit. Mr Finanzio, for the Club, supported that submission. Both Mr Hooper and Mr Finanzio indicated that it had been agreed that notices for cross-examination would not be served, on the basis that reference to the Tribunal members was the most appropriate way to resolve the issue. Mr Peake, for the Council, supported the submissions of Mr Finanzio on the issue in dispute, without making any specific reference to this question.

101. Rule 58.14 of Chapter I of the Supreme Court (General Civil Procedure) Rules provides that a judge hearing an appeal from a magistrate may call for a report from the court below, and if the contents of that report have first been made available to the parties, may act upon that report. There is no corresponding provision in Chapter II of the Rules dealing with appeals from tribunals. This lack does not, in my view, inhibit the making of an enquiry, and given the submissions of all three counsel I considered it appropriate that I consult the members of the Tribunal as requested. Accordingly, I caused an enquiry to be made of the Registrar of the Tribunal as to the members' recollection of the events the subject of the conflicting evidence.

104. This was done by forwarding to the Tribunal the relevant portions of the affidavits so that the members would be aware of the nature of the conflict, rather than by posing questions for the Tribunal which might have brought into their consideration matters which were not in conflict on the evidence before the Court.

107. The members responded, setting out their recollection of the matters in dispute, and I am grateful to them for their assistance. The only one of those matters to which, in the event, it has been necessary to refer, is considered further at paragraphs 107 and following below.

Grounds 1-6: The deemed refusal under the Coastal Management Act

112. The legislative provisions relevant to these grounds of appeal are sections 1, 4, and 37-40 of the Coastal Management Act, sections 55, 61, 82AA and 85 of the P & E Act and section 98 and clauses 1, 2 and 62 of Schedule 1 of the VCAT Act. Those provisions, so far as relevant, are extracted in the following three paragraphs. Sections 39 and 58 of the VCAT Act provide that Schedule 1 sets out variations from Parts 3 and 4 of that Act for certain types of proceedings. It is common ground that the subject land is "coastal Crown land" as defined in section 3 of the Coastal Management Act so as to bring into operation, in this context, the provisions of that Act and also sections 61(3) and 82AA of the P & E Act. Nor is it in issue that the Minister administering the Coastal Management Act is the Minister for Environment and Conservation.

115. Coastal Management Act provisions:

(a) to establish the Victorian Coastal Council; and

(b) to provide for the establishment of Regional Coastal Boards; and

(c) to provide for co-ordinated strategic planning and management for the Victorian coast; and

(d) to provide for the preparation and implementation of management plans for coastal Crown land; and

(e) to provide a co-ordinated approach to approvals for the use and development of coastal Crown land.

(a) to plan for and manage the use of Victoria's coastal resources on a sustainable basis for recreation, conservation, tourism, commerce and similar uses in appropriate areas;

(b) to protect and maintain areas of environmental significance on the coast including its ecological, geomorphological, geological, cultural and landscape features;

(c) to facilitate the development of a range of facilities for improved recreation and tourism;

(e) to improve public awareness and understanding of the coast and to involve the public in coastal planning and management

A person must not use or develop coastal Crown land unless the written consent of the Minister has first been obtained.

(1) An application for consent to use or develop coastal Crown land must be made in a form and manner approved by the Minister.

(2) If the responsible authority under the Planning and Environment Act 1987 gives the Minister, the Secretary or the Department of Natural Resources and Environment, as a referral authority under that Act, a copy of an application under that Act for a permit for a use or development of coastal Crown land, that application is deemed also to be an application under this section for consent to that use or development unless consent has already been given under this Division for that use or development.

(1) Subject to sub-section (3), the Minister must make a decision within 28 days after receiving an application for consent to use or develop coastal Crown land.

(2) The Minister may ask for additional information in respect of an application.

(3) If additional information is requested, the Minister must decide the application within 28 days after receipt of that further information.

(1) After considering an application, the Minister may -

(b) consent to the use or development subject to conditions; or

(2) In deciding whether or not to consent to a use or development, the Minister must have regard to -

(b) any Coastal Action Plan applying to the land; and

(c) any recommendation of the Land Conservation Council for the land in respect of which notice has been given to the Department of Natural Resources and Environment under section 10(3) of the Land Conservation Act 1970; and

(d) the purposes for which land was reserved, in the case of land reserved or deemed to be reserved under the Crown Land (Reserves) Act 1978.

(3) If the Minister fails to make a decision within the time required under section 39, the Minister is deemed to have refused to consent to the use or development.

(1) A responsible authority must give a copy of an application [for a permit to use or develop land] to every person or body that the planning scheme specifies as a referral authority for applications of that kind without delay unless the applicant satisfies the responsible authority that the referral authority has --

(a) considered the proposal for which the application is made within the past three months; and

(b) stated in writing that it does not object to the granting of the permit for the proposal.

(c) to refuse to grant a permit on any ground it thinks fit.

(2) The responsible authority must decide to refuse to grant the permit if a relevant referral authority objects to the grant of the permit.

(a) must not decide to grant a permit to use or develop coastal Crown land within the meaning of the Coastal Management Act 1995 unless the Minister administering that Act has consented under that Act to the use or development; and

(b) must refuse to grant the permit if the Minister administering that Act has refused or is deemed to have refused under that Act to consent to that use or development.

Despite anything to the contrary in section 77 or 79, an applicant for a permit for the use or development of coastal Crown land within the meaning of the Coastal Management Act 1995, has no right to apply to the Tribunal for review of -

(a) a decision by a responsible authority to refuse to grant the permit, if the Minister administering that Act has refused or is deemed to have refused to consent to that use or development under that Act; or

(b) the failure of the responsible authority to grant the permit within the prescribed time, if the Minister administering that Act has not consented to that use or development under that Act.

(1) After hearing an application for review, the Tribunal may -

(b) in the case of an application for review of a refusal or failure to grant or a decision to grant a permit -

(i) grant the permit and direct the responsible authority to issue it; or

(ii) grant the permit, direct that the permit must or must not contain any specified conditions and direct the responsible authority to issue the permit; or . . .

179. VCAT Act provisions:

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.

(4) Sub-section (1)(a) does not apply to the extent that this Act or an enabling enactment authorises, whether expressly or by implication, a departure from the rules of natural justice.

The purpose of this Schedule is to set out variations from Parts 3 and 4 for certain proceedings under certain enabling enactments.

(f) Planning and Environment Act 1987 (except sections 94(5) and 105);

Part 16 - Planning Enactments

The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.

213. It is common ground that at the relevant time the Department was a "referral authority" for the purposes of Division 1 of Part 4 of the P & E Act, and accordingly the Council was required by section 55 of that Act to give the Department a copy of the application by the Club for a permit to use the subject land as a patrol base. It did so on 11 November 1998. By virtue of section 38(2) of the Coastal Management Act, as consent under Division 4 of Part 3 of that Act had not already been given, that application was deemed to be an application under section 38(1) of that Act for the consent of the Minister to the use or development of the subject land as required by section 37 of that Act.

216. By letter dated 2 December 1998, an officer of the Department replied to the Council, requesting additional information. The additional information was received by the Department on 25 January 1999.

219. On 2 March 1999, two documents were issued, both signed over the signature block "Judy Backhouse Regional Manager Port Phillip Region". The first was a letter ("the delegate's first letter") on the letterhead of the Department, with a heading defining the permit application number and the site of the subject land, and reciting the facts set out in the previous two paragraphs. That letter continued:

As delegated under Section 40 of the [Coastal Management Act], I consent to the use and development of a patrol base for life saving activities subject to the conditions listed on the attached copy of Consent for Use and Development of Coastal Crown land.

Accordingly, the Department does not object to a permit being granted subject to the conditions of the consent being complied with, and subject to the following conditions being included in the planning permit. . . .

There followed a number of conditions not presently relevant. The attached document ("the delegate's second letter") was headed:

Consent for Use and Development of Coastal Crown land

Consent for: Rosebud and District Life Saving Club Patrol Base

The operative part of the delegate's second letter read:

As delegated pursuant to Section 40 of the Coastal Management Act, I consent to the proposed use and development subject to the following conditions. . . .

There were set out the conditions appearing in the delegate's first letter and some additional conditions.

231. It is to be assumed, despite the repetition, that the delegate's first letter was intended to express the consent to the application of the Department, as referral authority, pursuant to section 55 of the P & E Act, and the delegate's second letter was intended to express the consent of the Minister, Mrs Tehan, under section 40 of the Coastal Management Act.

234. It appears that it was only at the actual hearing before the Tribunal that it was realised by any person involved that 2 March 1999, the date of issue of the delegate's second letter expressing the consent of the Minister, was more than 28 days after the receipt of the additional information on 25 January 1999. When this became apparent, Mr Nixon of counsel, who represented certain of the objectors, submitted that, if the delegate's second letter was to be regarded as the decision of the Minister on the application, the Minister had failed to make a decision within the time required by section 39 of the Coastal Management Act. Accordingly, he submitted, by virtue of section 40(3) of that Act the Minister was deemed to have refused to consent to the use or development the subject of the application.

237. There is a difference between the account of Mr Nixon's further submissions given in the Reasons and the account given in the affidavit of the plaintiff, and it is not necessary for present purposes to resolve that difference. It is clear that he submitted that the effect of the deemed refusal was that it was not open to the Council, as responsible authority, to decide to grant the permit, and accordingly the Tribunal should set aside the decision under review.

240. The Tribunal, at the hearing, accepted the submission as to the existence of a deemed refusal by the Minister. After the hearing Mr Cicero, the solicitor who appeared for the Club at the hearing, wrote to the Minister, now Ms Garbutt (following the State election on 18 September 1999), and received a reply from the Minister herself, dated 2 December 1999, in which she said:

I have considered the issues raised in your letter and accept that your letter is a fresh application for consent to use and develop coastal Crown land under the Coastal Management Act 1995.

I support the intent of the Coastal Management Act consent issued on 2 March 1999 and, to remove any uncertainties surrounding the earlier consent, my delegate will issue a new Coastal Management Act consent.

A document ("the delegate's third letter") was issued to Mr Cicero and was effectively in the same terms as the delegate's second letter (with some minor changes to the conditions), but dated 2 December 1999. That is the document which is referred to in the Reasons and in the grounds of appeal as "the new consent" and which is considered further below, in a different context, at paragraphs 61 and following. It is sufficient at this stage to say that it was forwarded to the Tribunal by Mr Cicero.

246. In its Reasons, the Tribunal accepted that the circumstances as outlined by Mr Nixon leading to the finding of a deemed refusal by the Minister were not disputed by any of the parties. It found that the issue of the delegate's third letter did not rectify what it referred to as "the original procedural deficiency" constituted by that deemed refusal. It initially referred erroneously to the effect of the deemed refusal as arising from section 61(2) of the P & E Act. Mr Hooper submitted that the error indicated a lack of understanding by the Tribunal of the problem which it faced, and indicated that it had misdirected itself. However, passages later in the Reasons show that the Tribunal was aware that the relevant provision was section 61(3), and I do not regard its earlier error as significant. I would refer to the passages from Portland Properties, Peko-Wallsend and Michaelis Bayley which are cited in paragraphs 8, 9 and 14 above.

The issue of the new consent does however confirm in the Tribunal's mind that a consent under the Coastal Management Act was always intended to be issued and that subject to the conditions contained within the consent, the proposal enjoys the support of the Minister acting as both a Referral Authority under the Planning and Environment Act and under the provisions of the Coastal Management Act. It is significant that no party submitted that the proposal did not enjoy the Minister's support. Rather the submissions revolved around a technical failure which in the Tribunal's mind constitutes a minor administrative oversight which has no bearing on the consideration on the merits of the proposal.

The Tribunal referred to two provisions of the VCAT Act, section 98(1)(d) and clause 62 of Schedule 1 (see paragraph 24 above), and continued at paragraph 26:

Having regard to the fact that it was clearly the intent of the Minister to issue a consent for the proposed use and development of the land, an intent reinforced by the issue of a new consent, the Tribunal considers that it is appropriate in the circumstances to apply the above provisions [ie section 98(1)(d) and clause 62] and to proceed with the consideration of the merits of the proposal.

255. In effect, the Tribunal had found that by relying on those two provisions, and in particular clause 62, it was able to cure the jurisdictional defect created by the deemed refusal of consent by the Minister, so as to have power to deal with the merits of the matter before it, which it proceeded to do.

The Issues: The Essential Submission of the Plaintiff

259. The submission of Mr Hooper, for the plaintiff, to this Court, is that the submission of Mr Nixon as to the deemed refusal is correct; and that it follows from that deemed refusal, by virtue of sections 61(3)(b) and 82AA(a) of the P & E Act, that the Tribunal had no power to consider the application by the Club for a permit for the use and development of coastal Crown land, and no power to grant such a permit. Further, he submitted, clause 62 of Schedule 1 of the VCAT Act did not empower the Tribunal to disregard the effect of the deemed refusal. Those submissions were not accepted by counsel for the plaintiff or for the Council.

263. I should consider first the submission of Mr Peake that the deemed refusal by the Minister could not be established, because it could not be established that the Minister did not "decide the application within 28 days after receipt of [the] further information" as required by section 39(3) of the Coastal Management Act. Mr Hooper submitted that that issue had not been raised below and should not be considered on appeal. However, given the uncertainty as to what actually did occur before the Tribunal, I think it appropriate that I deal with the submission.

266. Mr Peake submitted that the copy of the Minister's consent which the Council had on its file (i.e. the delegate's second letter) was prima facie valid and the presumption of regularity must be applied to it, by virtue of section 63 of the Evidence Act 1958 ("the Evidence Act"). Accordingly, it was for those who asserted its invalidity to establish that claim. The argument that the Minister's decision was out of time, and that accordingly there was a deemed refusal by the Minister by virtue of section 40(3) of the Coastal Management Act, was predicated on the assumption that the receipt by the Department of the additional information on 25 January 1999 was receipt by the Minister. Mr Peake submitted that that was an assumption which could not be made, and accordingly the argument was not sustainable. There was a distinction between the Department as a referral authority and the Minister whose consent was required under section 37 of the Coastal Management Act. To establish that the consent was issued outside the 28 days, he submitted, the appellant must establish that the additional information was received by the Minister, as opposed to the Department, before 1 February 1999. This had not been done, and accordingly the appellant could not rely on the claimed deemed refusal.

269. To begin with, there is not before the Court any copy of the consent of the Minister other than the delegate's second letter. That document is not contained in a copy of the Victorian Government Gazette (section 63(a) of the Evidence Act), nor is it printed by the Victorian government printer (section 63(b)), nor is it certified to be true by a Minister of the Crown (section 63(c)). While neither the execution of that document by the Minister's delegate, nor the validity of her delegation, is in issue, section 63 of the Evidence Act is of no assistance to Mr Peake in giving the document the status which he claims for it.

272. Mr Hooper, in response, relied on the following passage from the judgment of Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend (paragraph 9 above) at 66:

Although the Minister is the repository of the power conferred by s 11(1) of the [Aboriginal Land Rights (Northern Territory) Act 1976] and although he may not delegate that power to his departmental officers, the Minister cannot be regarded in his exercise of the power as unaware of information possessed by his Department. As Lord Diplock said in Bushell v Environment Secretary [1980] UKHL 1; [1981] AC 75 at p 95:

To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament's intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his own expertise.

277. That passage appears to me to dispose of the question. I am satisfied, for those reasons, that the submission of Mr Peake cannot be sustained, and that the deemed refusal by the Minister, constituted by her failure to comply with section 39(3) of the Coastal Management Act, is established.

281. That being so, the effect of the legislative provisions is clear. By virtue of section 61(3)(b) of the P & E Act and the deemed refusal, the Council had no power to decide to grant the permit; and if it had refused to grant the permit, as it was required to do by that provision, section 82AA(a) of the P & E Act had the effect that the Club would have had no right to apply to the Tribunal for review of that refusal. I accept Mr Hooper's submission that the Tribunal's description of the result of the deemed refusal as "a procedural deficiency" was inappropriate; it was a matter going to jurisdiction. In any case, "procedural deficiency" is not a term of art, and it is not clear to me what the Tribunal meant to convey by its use of that term. However, that minor misdescription does not constitute an error of law. The question is whether the Tribunal was bound to accept the effect of those legislative provisions.

Clause 62 of Schedule 1 of the VCAT Act

285. The Tribunal is the creature of statute, and derives its jurisdiction from the provisions of the VCAT Act. However, in a proceeding under the P & E Act those provisions include clause 62 of Schedule 1. For convenience of reference, that clause is repeated here. It reads:

The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure to comply with the planning enactment or any other enactment and, in doing so, may determine to disregard that failure if the Tribunal considers it in the interests of justice to do so.

289. Two questions then arise for consideration. First, had there been a "failure to comply with . . . any . . . enactment" under the first limb of clause 62, which the Tribunal was able to disregard; and second, if so, was there any error of law in the Tribunal's decision, made under the second limb of clause 62, to disregard that failure. I am particularly indebted to Mr Finanzio for his careful analysis of decisions of this Court and of the Tribunal and its predecessors which have considered the application of clause 62 and its predecessors.

293. Mr Hooper submitted that the first limb of clause 62 must be read as though the underlined words were inserted, thus:

The Tribunal has jurisdiction to determine a proceeding under a planning enactment despite any failure of that proceeding to comply with the planning enactment or any other enactment.

If there had been a failure to comply with an enactment (which he did not concede), the failure had not been in the proceeding before the Tribunal, and accordingly, he submitted, clause 62 had no application.

298. I do not accept that submission. Clause 62 has a history. Its earliest ancestor appears to be section 54 of the Planning Appeals Board Act 1980, later the Planning Appeals Act 1980 ("the Planning Act"). That provision was broadly similar to clause 62, although differently and more discursively expressed, but was limited to the extent that the "failure to comply" had to be "in relation to" one of a number of specific documents "or any other document". Parliament made minor administrative amendments to section 54 on several occasions before it was repealed and replaced by section 28 of the Administrative Appeals Tribunal (Planning) Act 1991 to become section 54(1) of the Planning Act, which was almost identical in substance, if not in form, with clause 62, and which read:

(1) If in any proceeding before the Tribunal it appears to the Tribunal or it is submitted that there has been a failure to comply with this or any other Act or the regulations made under an Act, the Tribunal has jurisdiction to determine the appeal and, if it appears to it just to do so, may determine to disregard that failure.

Thus between 1980 and the enactment of the VCAT Act in 1998, Parliament had several opportunities to consider the provision and to amend it by the addition of the words "of that proceeding" (or perhaps better, "in that proceeding") had it wished to do so. It did not do so, and must be taken to have intended to retain the wide operation apparent on the face of clause 62 as it stands.

305. Mr Hooper submitted further that there was in fact no "failure to comply with . . . any . . . enactment". However, the style of section 39(3) of the Coastal Management Act requires compliance, by providing that "the Minister must decide the application within 28 days". In the present case, the Minister did not decide the application within 28 days and thus failed to comply with the enactment constituted by section 39 (see section 7 of the Interpretation of Legislation Act 1984).

308. One question which may be asked is whether the Tribunal is empowered by clause 62 to disregard not only the failure to comply, but also the result which the Act decrees shall follow from that failure to comply, that is, the deemed refusal. It is clearly the intention of Parliament that the default situation, as it were, is constituted by refusal. The Coastal Management Act is intended to ensure co-ordinated development of coastal Crown land, and the need for the consent of the Minister to any proposed development is paramount. Nevertheless, clause 62 exists and its meaning is plain; and if the failure to comply is disregarded, it seems to me to follow that the deemed refusal, being the statutory result of that failure to comply, must automatically be disregarded along with the failure which gave rise to it. The point of requiring compliance with the 28 day time limit is to ensure that the Minister's consent to a proposed use or development cannot be lightly obtained.

311. Mr Hooper submitted that, as by virtue of section 61(3) of the P & E Act the Tribunal did not have jurisdiction to consider the application for review, it could not confer jurisdiction upon itself by a determination under clause 62. Before the amendment of section 54 of the Planning Act in 1991, there was authority that if the decision under review by the Tribunal was, as here (see paragraph 40 above), invalid because of a failure to comply with a statutory requirement, section 54 could not be used to empower the Tribunal to disregard that failure. In the Second Reading Speech on the Administrative Appeals Tribunal (Planning) Bill (No. 2) (Hansard Legislative Assembly 19 September 1991 p 759), which introduced the substituted section 54 set out in paragraph 45 above, the Minister said at 760:

The Planning Appeals Act provides that where there has been a failure to comply with certain statutory requirements, the [Administrative Appeals Tribunal] may disregard the failure and amend the document or deal with it as it sees fit. However, the Supreme Court has held in one decision that where a responsible authority has not complied with a mandatory requirement of the Planning and Environment Act the authority's decision to grant or refuse a permit is invalid the permit is void and the tribunal has no jurisdiction to hear the matter. This conflicts with another Supreme Court decision on this question.

The Bill addresses this problem by giving the tribunal clear jurisdiction to hear a matter notwithstanding a failure to comply with any Act or regulation.

316. As I have said in paragraph 45 above, the amended section 54 of the Planning Act substituted on the passing of that Bill is almost identical in substance with clause 62. I am satisfied on the face of clause 62 that the intention of the amendment, as described in that extract from Hansard, was achieved. I note that there are recent decisions of the Tribunal to that effect. See for example, as to the amended section 54, the decision of Deputy President Byard and Ms Monk in B I K Pty Ltd v City of Greater Bendigo (1997) 19 AATR 10 at 24; and as to clause 62, the decision of Deputy President Macnamara in Castik Investments Pty Ltd v Stonnington City Council (1999) 3 VPR 46 at 57.

319. Taking all of these matters into account, I am satisfied that the Tribunal had power, by virtue of clause 62, to disregard the failure of the Minister to comply with section 39(3) of the Coastal Management Act.

The Determination to Disregard the Failure to Comply

323. The question then is whether there was any error of law in the Tribunal's determination, pursuant to clause 62, to disregard that failure to comply. Mr Hooper submitted that the Tribunal should not have taken the delegate's third letter into account as a new consent of the Minister. I note that the Tribunal expressly stated that it did not treat that document as replacing the consent which was out of time, in such a way as to overcome the problem created by the deemed refusal. That said, it continued:

The issue of the new consent does however confirm in the Tribunal's mind that a consent under the Coastal Management Act was always intended to be issued and that subject to the conditions contained within the consent, the proposal enjoys the support of the Minister acting as both a Referral Authority under the Planning and Environment Act and under the provisions of the Coastal Management Act. It is significant that no party submitted that the proposal did not enjoy the Minister's support. (Emphasis added).

327. Mr Hooper's first submissions on this point were based on the matters raised in grounds 7 to 10 of the notice of appeal, and are dealt with at paragraphs 61 and following below. It is sufficient to state here that, as set out in paragraph 78 below, I do not find any of the errors there described to constitute a vitiating error of law so as to justify the Court in overturning the decision of the Tribunal.

330. Mr Hooper next submitted that the scheme of the Coastal Management Act and sections 61(3) and 82AA of the P & E Act was that once the Minister had refused or was deemed to have refused consent to a use or development of coastal Crown land, no further action could be taken on an application for a planning permit for that use or development. Parliament had provided that the Minister had in effect a power of veto on such applications. He cited from the Second Reading Speech on the Coastal Management Bill (Hansard Legislative Council 21 March 1995 p 134 at 135):

Use and development control will be implemented via planning schemes established pursuant to the Planning and Environment Act 1987 while ensuring that the landowner - the Crown - retains a veto role.

He submitted that it would be contrary to the legislative intention if that veto were to be circumvented by the operation of clause 62.

335. That submission is undoubtedly correct. Nevertheless, clause 62 exists, and in one form or another has existed for many years, and itself expresses a legislative intention. It is there to be employed, and has been employed over the years by the Tribunal and its predecessors to circumvent the intention of Parliament by disregarding, in various circumstances, a failure to comply with an enactment. Parliament has given the Tribunal that power, albeit to be exercised only when the Tribunal considers it to be in the interests of justice to do so. Examples of the application of section 54 by the Tribunal can be seen in Pescott v Rural City of Bellarine (1992) 9 AATR 327 and Plan Printing & Drafting Pty Ltd v City of Caulfield (1993) 11 AATR 310. Examples where it was held by the Tribunal that the application of section 54 would not be in the interests of justice are Cartledge v Shire of Flinders (1992) 10 AATR 120 and McDermott v Rural City of Bellarine (1992) 7 AATR 327.

338. Mr Hooper used the expression "the Tribunal stands in the shoes of the responsible authority". That time-hallowed expression, used to describe the relationship between an administrative tribunal and the decision-maker whose decisions are reviewable by that tribunal, conveys that the tribunal has all the powers, and no more than the powers, of the decision-maker. However, it does not correctly describe the relationship between the Tribunal and a responsible authority under the P & E Act.

341. The powers conferred on the Tribunal by the VCAT Act are very wide, and its powers when dealing with matters arising under the P & E Act are wider. Section 52 of the VCAT Act limits the jurisdiction of the courts in planning matters. Section 85 of the P & E Act gives extensive powers to the Tribunal in determining an application for review under that Act, in addition to the powers conferred by section 51 of the VCAT Act. (See paragraphs 128 and following below.) The original jurisdiction of the Tribunal to grant injunctions and make declarations, conferred by sections 123 and 124 of the VCAT Act, is expanded by the power to make enforcement orders, conferred by section 114 of the P & E Act, the wider declaration and direction powers conferred by sections 149A and 149B of that Act, and the power to cancel or amend planning permits conferred by section 87 of that Act. Thus, clause 62 is consistent with the general legislative approach of giving the Tribunal the extensive powers which are necessary to enable it to resolve planning issues which arise in the community, and to resolve them according to the merits of the case. Its powers are in many respects wider than the powers of the responsible authorities whose decisions it reviews.

344. Mr Finanzio submitted that there were a number of considerations relevant to the question of whether it would be just to determine, under clause 62, to disregard the failure to comply with section 39(3) and thus in effect to negate the deemed refusal. To begin with, the Minister's consent was given only 6 days out of time. Further, the Department, in its role as a referral authority, had been represented at the hearing before the Tribunal and had made written and oral submissions in support of the application for the permit. The delegate's third letter, as the Tribunal found, did not cure the deemed refusal, but was significant as indicating the Minister's intention to consent to the proposed development, despite the apparent oversight which had led to the deemed refusal.

347. Mr Finanzio submitted that it was also relevant that all parties had acted, until the defect became apparent at the hearing, on the basis that the consent had been regularly given. The Council had acted under a misapprehension, rather than in deliberate disregard of the legal position. Section 61(3) bound the responsible authority, but did not expressly inhibit the Tribunal from granting the permit in the absence of the Minister's consent and, for the reasons set out in paragraph 56 above, the Tribunal was not limited to the powers of the responsible authority. Section 82AA did not, he submitted, prohibit an application by objectors for review of a decision of the responsible authority to grant a permit.

350. Taking all those matters into account, I can find no error of law in the Tribunal's exercise of the discretion conferred upon it by clause 62. That discretion is exercisable by the Tribunal "if it appears to it just to do so". The consideration which goes most clearly to the justice of the matter is that appearing in the passage emphasised in the extract from the Reasons set out in paragraph 51 above. The Tribunal disregarded the failure to comply with an enactment, which had the effect that the Minister was deemed to have refused her consent to the proposed development. But there was evidence before the Tribunal, in the form of the delegate's third letter, from which it could find that the Minister's intention was to consent to the proposed development; and, most tellingly, when the interests of justice are considered, in the words of the Tribunal, "no party submitted that the proposal did not enjoy the Minister's support".

353. Having considered the matters put before me as arising from the deemed refusal of the Minister under the Coastal Management Act, I find that the plaintiff's grounds of appeal numbered 1-6 fail.

Grounds 7-10: The Correspondence after the Hearing

358. The events at and after the hearing which are relevant to these grounds of appeal are described in the affidavits of the plaintiff and Mr Cicero and the exhibits thereto. Towards the end of the hearing, Mr Cicero requested that the Tribunal defer its decision until his client had had the opportunity to obtain a fresh consent from the Minister under section 37 of the Coastal Management Act. Mr Nixon, in response, said that a fresh consent would not assist the Club as the illegality resulting from the deemed refusal could not be cured. The presiding member then announced that the Tribunal reserved its decision and the proceedings were closed. It appears that nothing was said by the Tribunal as to the obtaining of a fresh consent or the making of any further submissions.

361. The next day, 5 November 1999, Mr Cicero, as set out in paragraph 31 above, wrote to the Minister on behalf of his client explaining what had occurred, and applying for consent to the proposed development. He received in reply the letter from the Minister and the delegate's third letter, which are described in paragraph 31 above. On 6 December 1999 he sent copies of both documents to the members who had constituted the Tribunal, with a submission ("the further submission") that "the fresh consent has removed any bar that might have previously existed pursuant to Section 61(3) of the Planning & Environment Act 1987". He also wrote on the same day to those objectors who had appeared or been represented at the hearing, although not, apparently, to the Council (although nothing was made of this), in the following terms:

We ask that you advise the Tribunal within the next seven days whether you agree or disagree with the Permit Applicant's contention that the fresh consent has removed the bar that might otherwise have existed under Section 61(3) of the Planning & Environment Act for the Tribunal to now consider the planning merits of our client's application.

366. The plaintiff wrote to the Tribunal indicating his disagreement with the submission. Mr Warfe, another objector, also wrote, submitting that the Tribunal should not consider the material. He referred to City of Springvale v Heda Nominees Pty Ltd (1982) 1 PABR 287 (discussed below at paragraph 73). He submitted that the delegate's third letter did not change the position and was invalid and improperly given in the circumstances, as to which he referred to Antoniou v Roper (1990) 4 AATR 158 (which does not, however, appear to me to be directly in point, and was not referred to by counsel). Finally, he expressed the view that the hearing should only be re-listed on the basis that the Club pay the costs, including legal costs, of the other parties. Mr Nixon, on behalf of his client, wrote to the Tribunal adopting the submissions of Mr Warfe. Mr Cicero then wrote to the Tribunal on 20 December responding to those submissions and concluding that there was no need for any further hearing.

369. On 22 December Mr Warfe wrote again to the Tribunal, claiming that there would be a breach of procedural fairness were the Tribunal to uphold the submissions of Mr Cicero without giving the objectors a proper opportunity to address them. Mr Cicero wrote to the Tribunal on 23 December, referring to the correspondence and expressing the view that in the circumstances the Tribunal had no option but to list the matter for hearing.

372. There was no further correspondence and no further hearing. The Tribunal handed down its decision on 14 January 2000.

376. Mr Hooper submitted that the Tribunal, by accepting the submission of Mr Cicero as to the effect of the delegate's third letter without hearing from the other parties, had denied those parties procedural fairness. He relied on the summary by Batt J in Keller v Bayside City Council [1996] VicRp 23; [1996] 1 VR 356 at 378, where His Honour said:

The law in Australia now is . . . that there is a strong presumption that an administrative or executive decision-maker, the repository of a statutory power, owes a duty to accord procedural fairness, and in particular a "hearing" in some form or other, to any person affected or likely to be affected by the decision, and not merely in respect of a legal or proprietary interest, even though that person is not directly involved in the decision-maker's proceedings; and a clear contrary legislative intent is required to rebut the presumption: Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383 at 395-6; FAI Insurances Ltd v Winneke [1982] HCA 26; (1982) 151 CLR 342 at 360; R v Ludeke; Ex parte Customs Officers' Association of Australia [1985] HCA 31; (1985) 155 CLR 513 at 528_; Kioa v West_ [1985] HCA 81; (1985) 159 CLR 550 at 584, 609-12 and 618-19; Haoucher v Minister for Immigration & Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648 at 651-3 . . . ; and Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596 at 598.

380. It should be noted that the nature of the "hearing" required by the presumption may vary according to the circumstances of the case. See for example Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487 where Aickin J, with whom Stephen and Mason JJ agreed, having found that a person being warned off racecourses by the respondent pursuant to a statutory power should be "accorded an opportunity of speaking in his own defence", went on to say at 515-6:

This is not to say that the Commission is obliged to adhere to the rules of evidence or conduct formal hearings or to be satisfied according to any stated onus of proof. It is clear that the Commission has an "absolute discretion", in the sense that they may devise their own criteria and no appeal is available against their decision, whether it be mistaken or not. . . . Fairness requires that the person affected should, save in an emergency, be given notice by the Commission of its intention to issue a warning-off notice and of the grounds for that proposed action and should be afforded an opportunity to make representations to the Commission on his own behalf, which it must consider before taking action. . . . I do not think that fairness requires in this context an oral hearing though in some circumstances the Commission may well find that it cannot resolve inconsistencies between its information and written submissions from the person concerned without such a hearing. It is however for the Commission itself to devise its own procedures in the light of its obligation to act fairly.

384. The relevant legislative provisions are sections 98(1)(a) and (4) of the VCAT Act, set out in paragraph 24 above. It was not suggested by any party that there was any relevant provision in the VCAT Act or in the P & E Act (the relevant "enabling enactment") which would authorise the Tribunal to depart from the rules of natural justice or procedural fairness in terms of section 98(4).

387. Section 100(2) provides:

(2) If the parties to a proceeding agree, the Tribunal may conduct all or part of a proceeding entirely on the basis of documents, without any physical appearance by the parties or their representatives or witnesses.

That sub-section is not, in my view, intended to allow the Tribunal to proceed without giving all parties the opportunity to make submissions; the key to its meaning is in the phrase "without any physical appearance".

394. Mr Hooper submitted that if the Court found, as it has done, that the Tribunal did have power to grant the application for a permit despite the existence of the deemed refusal, the failure to afford procedural fairness to the objectors vitiated the exercise by the Tribunal of that power.

397. However, he conceded that, as set out in paragraphs 32 and 33 above, the Tribunal did not rely on the delegate's third letter as replacing the consent given out of time which established the deemed refusal. What the Tribunal did was to take that letter into account as an indication of the intent of the Minister, and thus as justifying its exercise of the power conferred upon it by clause 62 of Schedule 1 of the P & E Act to disregard the deemed refusal.

400. He submitted that had the Tribunal called the case on again so as to give the opportunity for a hearing on this matter, the objectors could have criticised the way in which Mr Cicero had approached the matter, in that he had written to the Minister without copying his letter to the other parties, and as though the problem was merely a technical defect. The objectors were effectively prevented from putting material to the Tribunal or to the Minister.

403. Mr Hooper then submitted that, as the hearing had closed without leave being given for further submissions, the Tribunal should not have received the further submission of Mr Cicero. He relied on Heda Nominees (see paragraph 63 above) in which Southwell J said at 290, after referring to supplementary submissions on behalf of the appellant, which had been sent to the Planning Appeals Board (a predecessor of the Tribunal) after the conclusion of a hearing:

In what seems to me to have been a well-reasoned response, the Council, by letter dated 8 April 1982 under the hand of Mr LR Boyd, City Engineer, complained that the applicants had "simply felt that they did not get their point across well enough on the day so decided to reopen the matter. This behaviour is considered, at best, totally contrary to the spirit of the appeal system". I feel bound to interpolate the comment that, while it is true that s.25 of the Act gives the Board wide powers to determine its own procedures, e.g. it is not bound to have regard to technicalities or legal forms, and it is not required to conduct proceedings in a formal manner, it does seem to me that, in general, where parties have had ample opportunity to consider the issues involved and to prepare and present their cases on appeal, and the Board has reserved its decision (as it did in this case), the Board should not entertain further submissions. In this case, the City Engineer complained at some length as to the procedure adopted, and in my view, the reasons advanced in support of that complaint were sound.

407. In the present case, the further submission of Mr Cicero was based on more than a mere feeling that he did not get his point across well enough on the day. Furthermore, the Tribunal is empowered by section 98(3) of the VCAT Act to regulate its own procedure, and by virtue of section 98(1)(b) is not bound by the rules of evidence or by the practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures (as to which see paragraph 24 above). However, those provisions do not appear to me to be intended to authorise, by implication, a departure from the rules of natural justice, in terms of section 98(4); they are placed too close to section 98(1)(a) for that to be likely. The principle enunciated by Southwell J in Heda Nominees, while intended to be of general application, is not expressed in absolute terms, and it is clear that his Honour had in mind that there might well be cases where the receipt of later submissions is appropriate.

410. It is, of course, always possible for the Tribunal to give leave for the making of further submissions after the close of the hearing. When the Tribunal reserved its decision without giving such leave, it was aware that Mr Cicero intended to ask the Minister for a fresh consent to the development. That being so, it would have been wiser for the Tribunal to have made an express ruling as to whether further submissions would be accepted. As it made no such ruling, it would have been wiser to have rejected the further submission, or, when it decided to take the further submission into account, to have given to all parties the opportunity to be heard thereon.

413. I would go so far as to say that the Tribunal was wrong in law, first, in entertaining the further submission when leave had not been given, and second, having done so, in not granting the opportunity to the other parties to be heard. However, it is necessary to consider whether there is an error of law sufficient, in all the circumstances of this case, to vitiate the decision, in terms of the extract from Portland Properties cited in paragraph 8 above. There are a number of matters to take into account in that regard.

416. To begin with, the use made by the Tribunal of the delegate's third letter and the Minister's own letter was, as I have already said more than once, not to adopt them as constituting the consent of the Minister for the purpose of the Coastal Management Act. What the Tribunal did was to accept those documents as an indication of the view of the Minister, which was relevant to the decision of the Tribunal to apply clause 62 of Schedule 1 of the VCAT Act. It was a second indication of the view of the Minister, given that the Tribunal already had before it the delegate's second letter, which contained the consent of the Minister, albeit one which in the event had the formal effect only of a deemed refusal. Mr Cicero had raised at the hearing the possibility of obtaining a fresh consent from the Minister, and Mr Nixon had submitted that that would not cure the effect of the deemed refusal. Written submissions in response to the further submission were, in fact, made to the Tribunal by the plaintiff, by Mr Warfe and by Mr Nixon, and the Tribunal referred to those submissions at paragraphs 22 and 23 of the Reasons. In particular, it expressly accepted the submission of Mr Warfe as to the effect of the delegate's third letter, which had been adopted by Mr Nixon. Neither in those submissions nor in material before the Tribunal was there any suggestion that "the proposal did not enjoy the Minister's support" (see paragraph 51 above). The Tribunal at paragraph 26 of the Reasons referred to its obligations under section 98(1)(d) of the VCAT Act (see paragraph 24 above). It might also have referred to section 97 of the VCAT Act, requiring it to act fairly and according to the substantial merits of the case.

419. Taking all those matters into account, while I find, as I have said, that the Tribunal erred in law, I do not find, in all the circumstances, a vitiating error of law sufficient to justify the Court in setting aside the decision of the Tribunal.

423. Grounds 11 to 14 and 16 all relate to a submission which was put to the Tribunal by the objectors to the effect that the appropriate method of establishing the Club's patrol base, rather than the construction of a new building on the foreshore as proposed in the application for a permit, would be the re-use of two existing houses at the McCrae lighthouse, situated just inland from the subject land ("the lighthouse dwellings"). This submission appears to have derived originally from the McCrae Foreshore Study, published in 1996 by the Rosebud Foreshore Committee of Management, which included a Community Preferred Concept Plan resulting from a consultation process. Ground 15 relates to a similar submission made by the Port Phillip Conservation Council to the effect that the appropriate method of establishing the patrol base would be by the Club's sharing the building used by the Rosebud Sea Scouts.

427. It is not in issue that in terms of the planning scheme, a permit is required for the use of the subject land as proposed by the Club, on the basis set out in paragraphs 35 to 39 of the Reasons. Nor is it in issue that the subject land is in a "designated activity node" in terms of clause 21.08 of the planning scheme, is in a Public Park and Recreation Zone and is affected by Schedule 25 to the Environmental Significance Overlay.

430. A number of the provisions of the planning scheme are referred to in grounds 11 to 16, and others were relied on by counsel. Those provisions, to the extent that they are relevant, read:

To protect and enhance the natural ecosystems and landscapes of the coast for the benefit and enjoyment of present and future generations.

* Limit the development of new structures on the foreshore to designated activity nodes where possible.

* Ensure that preference is given to the re-use of existing structures where feasible and the removal of degraded foreshore structures wherever possible.

* Applying a precautionary approach to decision making, . . .

* Avoiding the construction of additional structures on the foreshore except where substantial net benefits to the community and/or coastal environment are clearly demonstrated.

To achieve coordinated development of public and private facilities that increases the sustainable social, economic and recreational value of the coast and foreshore to the community.

* Limit the number of structures within foreshore areas to that necessary to meet demonstrated community needs. The preferred option is to investigate the re-use of existing buildings and the multi use of buildings and structures and the upgrading of existing facilities in preference to a proliferation of separate buildings and structures.

Before deciding on an application to use or subdivide land, construct a building or construct or carry out works, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

Before deciding on an application, in addition to the decision guidelines in Clause 65, the responsible authority must consider, as appropriate:

* The State Planning Policy Framework and the Local Planning Policy Framework, including the Municipal Strategic Statement and local planning policies.

* The statement of environmental significance and the environmental objective contained in a schedule to this overlay.

* Any other matters specified in a schedule to this overlay.

Schedule 25 to the Environmental Significance Overlay

Before deciding on an application, the responsible authority must consider, as appropriate:

* The ability to reduce the number of buildings and other structures by combined use or re-use of existing buildings.

* The Victorian Coastal Strategy, Siting and Design Guidelines for Structures on the Victorian Coast (May 1998) and Landscape Setting Types for the Victorian Coast (May 1998).

These extracts constitute only some of the matters which the Tribunal was required to take into account in its consideration of the merits of the Club's proposal.

483. The whole text either of those extracts or of the matters to which they refer was set out at length in the Reasons. Mr Hooper submitted, however, that in the Reasons the Tribunal did no more than set out the existence and contents of those various provisions but did not take them into account.

486. Whether the Tribunal took those provisions into account as it was required to do is a question of fact, "unless it clearly appears that there has been a material error of that kind" as Barwick CJ said in the passage cited from Kentucky Fried Chicken in paragraph 11 above. I cannot find that to be the case, noting the careful attention which the Tribunal gave, in the light of those provisions, to the question of whether the re-use of the lighthouse dwellings would be preferable to the Club's proposal for a new building.

489. Mr Hooper drew attention, in particular, to the passage in paragraph 62 of the Reasons which reads:

In the Tribunal's view, in the event that the merits of the proposed development could not be sustained because of the environmental impact of the development, then consideration could appropriately be given to the use of an alternative or existing structure. As will be discussed subsequently the Tribunal does not believe that this is the case. The Tribunal makes two further comments with respect to the proposal for the club to locate within the existing dwellings. Firstly the Tribunal was provided with no evidence as to the availability of these dwellings. Secondly, having inspected the site, the Tribunal considers that the amenity of the Lighthouse precinct could be substantially improved if the Lighthouse dwellings were in fact removed.

He submitted that in the first part of this passage the Tribunal had reversed what was required by the planning scheme. The planning scheme required other sites to be investigated, and their feasibility assessed, before consideration was given to the merits of the proposed new structure. The Tribunal's approach was not consistent with the "precautionary approach to decision-making" required by clause 21.08 of the planning scheme, or with the reference in that clause to "avoiding the construction of additional structures on the foreshore except where substantial net benefits to the community and/or coastal environment are clearly demonstrated".

494. The passages from clause 21.08 to which Mr Hooper referred are not mandatory. They are among the "policies and exercise of discretion" by which the strategies to achieve the first objective of the clause are to be implemented. The exercise of the discretions conferred upon it by the legislation and the planning scheme is the task of the Tribunal. I would refer to the passages cited from Peko-Wallsend, Kentucky Fried Chicken, Michaelis Bayley and Spurling in paragraphs 10, 11, 14 and 16 above. I see no basis for interfering in the manner in which the Tribunal has chosen to exercise its discretion.

497. Mr Hooper also drew attention to material before the Tribunal which he submitted indicated the availability of the lighthouse dwellings. The only passage which bore on availability rather than preference was paragraph 5.4 of the Club's application for a permit, in which it is stated that "the Club was offered use of one of the lightkeepers residences for use as a patrol base". That is not sufficient information on which to decide to reject an application for a permit on the basis that another site is available. As Mr Hooper pointed out, the Tribunal could have made its own enquiries as to whether the lighthouse dwellings were available for use by the Club; but it was not obliged to do so.

500. There is no specific mention in the Reasons of the submission that the Club should share the premises used by the Rosebud Sea Scouts (see paragraph 79 above). However, I am unable to find that the Tribunal did not consider that submission, which was before it, and if I were to make such a finding I would not consider it to be a vitiating error of law, looked at in the context of the Reasons as a whole.

503. For the reasons given, I find that none of grounds 11 to 16 is made out.

508. Section 107 of the VCAT Act reads:

(1) A question of law arising in a proceeding must be decided by a judicial member or a member who is a legal practitioner.

(3) If a question of law arises in a proceeding where the Tribunal is constituted by a member or members who are not judicial members or legal practitioners -

(a) the question must be decided by another member who is a judicial member or legal practitioner; and

(b) for that purpose only, the Tribunal in the proceeding is to be reconstituted to include that other member.

(4) In this section "question of law" includes a question of mixed law and fact.

518. Clause 66 of Schedule 1 of the VCAT Act (which appears in Part 16 of that Schedule, as to which see paragraphs 21 and 24 above) reads:

(1) Despite section 107(1), if the Tribunal is constituted for the purposes of a proceeding under a planning enactment without a judicial member or a member who is a legal practitioner, a question of law arising in the proceeding may be decided -

(a) by the presiding member if the parties agree; or

(b) in accordance with the opinion of a judicial member or a member who is a legal practitioner nominated by the President.

(2) Section 107(3)(b) does not apply to a proceeding under a planning enactment.

526. The combined effect of those two provisions is that, if the Tribunal is constituted for the purposes of a proceeding under a planning enactment without a judicial member or a member who is a legal practitioner, a question of law arising in the proceeding may be decided by any one of three procedures, namely:

s by another member who is a judicial member or legal practitioner; or

s by the Tribunal as constituted for the purposes of the proceeding, but in accordance with the opinion of a judicial member or a member who is a legal practitioner nominated by the President.

Further, if the question is decided by another member who is a judicial member or legal practitioner, the Tribunal is not required to be reconstituted to include that other member. However, if the question is decided by the Tribunal as constituted for the purposes of the proceeding, but in accordance with the opinion of a member who is a legal practitioner but not a judicial member, that member must be formally nominated by the President.

533. As to nomination, I should say, for the sake of completeness, that the provision as drafted appears to me to contemplate a specific nomination for the purposes of a particular question which requires decision, rather than a general nomination by the President of all members of the Tribunal who are legal practitioners to determine questions generally for the purposes of clause 66(1)(b). In any case, there is nothing before me to suggest that there has been any general nomination of that kind.

537. The questions of law to which ground 17 applies are listed in paragraph 5 above. To begin with, as will be apparent from paragraph 41 above, I do not perceive question 17(iv) as a question of law, or a question of mixed fact and law, and accordingly it is not relevant to the consideration of ground 17 as a whole. Any general reference which I may make to ground 17 is not intended to relate to question 17(iv), and I will say no more about it.

540. Mr Peake submitted that question 17(i) turned on relevance only and was not a question of law, but I am satisfied that the issue of what the Tribunal is required by the legislation to consider on an application for review under section 82 of the P & E Act is a question of law. See for example Kentucky Fried Chicken v Gantidis (paragraph 11 above) at 681 and 687.

543. It was not suggested that any of questions 17(ii), (iii), (v) and (vi) was not a question of law. Question 17(ii), however, appears to have been included from an abundance of caution; as appears from paragraph 32 above, I am satisfied that the decision of the Tribunal was made with reference to section 61(3) of the P & E Act, and not with reference to section 61(2).

547. As has been said, neither of the two Members who constituted the Tribunal for the purposes of this proceeding was a judicial member or a legal practitioner. There are five questions of law which the plaintiff claims were not decided in accordance with section 107. As to question (i), the Reasons conclude, in paragraph 7 "the Tribunal did not exercise the discretion available to it . . .". It can be inferred from the manner in which that conclusion is expressed that the decision on this point was made by the Tribunal as constituted for the purposes of the proceeding. As to questions 17(ii) and 17(iii), paragraphs 25 and 26 of the Reasons, which record the Tribunal's decision to apply clause 62 of Schedule 1 of the VCAT Act, use the expressions "the Tribunal is of the view"; "in forming this view the Tribunal has had regard to"; and "the Tribunal considers that it is appropriate in the circumstances". The same inference may be drawn. There is no reference to any of these decisions having been made by any person other than the Tribunal. Nor, leaving question 17(i) on one side (as to which see paragraph 121 and following below), is there any reference to any of these decisions having been made in accordance with the opinion of any other person.

550. As to question 17(v), the Tribunal in paragraph 22 of the Reasons sets out Mr Warfe's submission that the further submission should not be considered. The Reasons then proceed to consider the further submission, demonstrating, without recording, the making of a separate decision to do so. Similarly, as to question (vi), the Tribunal in its Reasons does not even raise the question, although it had been put to the Tribunal by Mr Cicero in his letter of 23 December 1999 (see paragraph 64 above). As the matter was not relisted for hearing, it may be inferred that a decision was made not to re-list it. There is, however, no indication in the Reasons as to by whom (or in accordance with whose opinion) those two decisions were made.

553. This is an entirely unsatisfactory state of affairs. The Tribunal should have set out in its Reasons by what procedure each of the five questions of law was decided. The legislation provides that if the Tribunal is constituted without a judicial member or a member who is a legal practitioner, questions of law are not to be decided by the Tribunal as constituted for the purposes of the proceeding, unless it decides in accordance with the opinion of a judicial member or a member who is a legal practitioner. Thus the Tribunal as constituted for the purposes of this proceeding had no jurisdiction to determine those matters itself other than in accordance with the prescribed opinion. Accordingly, it is entirely inappropriate for the Tribunal as constituted to record decisions made by the Tribunal on questions of law, as was done in regard to questions (i), (ii) and (iii), without stating on whose opinion each of those matters was decided and how that decision or opinion was obtained. (As to question 17(i), see paragraph 121 and following below.) It is equally inappropriate to decide a question of law without any reference in the Reasons to the making of that decision, as was done in the case of questions (v) and (vi).

556. To begin with, an appellate court must be able to determine the validity of decisions which are the subject of an appeal. Much time in the present proceeding has been devoted to that question. There are also other considerations. In Shire of Sherbrooke v FL Byrne Pty Ltd [1987] VicRp 29; [1987] VR 353, Southwell J was concerned, on the return of an order nisi to review a decision of the Planning Appeals Board, with section 20 of the Planning Act which provided that if a question of law arose before a Board constituted by a person without legal qualifications, that question was to be determined by the Chief Chairman. Section 20(3) contemplated that the question of law would be "referred" to the Chief Chairman and that the Chief Chairman would give an opinion. Evidence was before the Court that the reference to the Chief Chairman of the relevant question of law was made verbally, and that his response was verbal, given on a date which he could not precisely state. No opportunity was given to the Shire to make submissions, although the Chief Chairman was aware that the Shire had earlier had the opportunity, in another matter, to make submissions on the point at issue and the Shire was aware of the Chief Chairman's view on the point.

Notwithstanding the latter fact [the Shire's awareness of the Chief Chairman's view], I am of opinion that the procedure here adopted was so divergent from that which was appropriate that the order nisi ought to be made absolute. . . .

It should go without saying that the reference, and the opinion given in response, must be in writing; the parties are entitled to know precisely what passed. It would be desirable if, as with most cases stated, the terms of the reference were the product of agreement between the parties; in the absence of agreement, there should be submissions as to those terms. The opinion of the Chief Chairman should be given only after the parties have been given the opportunity of making submissions, a course which I am informed is normally followed by the Chief Chairman.

564. In Macedon Ranges Shire Council v Mander and Patterson (1995) 15 AATR 111, JD Phillips J referred to that decision. The provision there relevant was section 47(1)(c) of the Administrative Appeals Tribunal Act 1984 ("the AAT Act"), which provided that a question of law before the Planning Division of the Tribunal, if constituted without a legal practitioner, should be decided, in accordance with the opinion of (inter alia) a Deputy President. Mr Buckley, the Member who constituted the Tribunal, was not legally qualified, and he obtained the opinion of a Deputy President, Mr Webb, and decided the question in accordance with that opinion.

It may well be that the terms of the [AAT] Act in this regard are significantly different from the terms of the statute considered by Southwell J in Shire of Sherbrooke v FL Byrne Pty Ltd [1987] VicRp 29; [1987] VR 353 (to which counsel referred me): but what was said there about procedure may still have some application at least so far as concerns the need (which is always present) to see that the parties do not lose the opportunity of being heard on the question on which the opinion of another is being sought. Perhaps it was unfortunate that no attention appears to have been paid in this case to what was said in Shire of Sherbrooke. For instance, the opinion of Mr Webb appears to have been sought somewhat informally and before at least the responsible authority had made its submissions on the question. Yet once the opinion had been obtained, it would seem that under s.47(1)(c) Mr Buckley was required to decide in accordance with that opinion. Certainly at first glance it appears to be unsatisfactory that only then did Mr Traficante make his submissions on the point and, after that, make application for an adjournment to take legal advice - after the event, as it were. But I have heard no argument on this aspect of the case and only one party is now represented. Moreover, counsel for the responsible authority expressly disclaimed any separate complaint on this score and so I pass it by.

571. His Honour appears to have been of the view, as was Southwell J in Shire of Sherbrooke, that it was appropriate that there be a degree of formality about the obtaining of the opinion of the Deputy President. The differences between section 47(1) of the AAT Act and the legislation with which I am now concerned are not so great as to remove the desirability of that degree of formality. The making of a decision on a question of law requires formality. Where the Tribunal is constituted without a legally qualified member, the manner of making a decision of law should be formal and such a decision and the manner of its making should be formally recorded in the Reasons for Decision of the Tribunal.

574. The other matter which concerned JD Phillips J was the need for the parties to have the opportunity to be heard on the matter as to which the opinion of another person is being sought. In the present case, there is no evidence that any formality or any opportunity for the making of submissions to any person on whose opinion any of the decisions in issue were made, attended the making of any of the various decisions on questions of law which are the subject of this ground of appeal.

577. I was referred by counsel to the Tribunal's Practice Note Planning 1 - General Procedures in Matters in the Planning List of the Administrative Division, which it appears was in operation at the time of the hearing below. I was also referred to the Practice Note Planning List 1 - General Procedures, which replaced the earlier Practice Note with effect from 1 December 1999.

580. Both of the Practice Notes provide for action to be taken by a party when it becomes apparent to that party that a legal question is likely to be required to be determined. Both Practice Notes establish machinery enabling a legal question to be heard separately from the balance of the hearing, whether or not the Tribunal as constituted for the hearing includes a legal practitioner. The establishment of that machinery indicates an awareness in the Tribunal of the significance of the matters raised by Southwell J in Shire of Sherbrooke v Byrne and adverted to by JD Phillips J in Macedon Ranges v Mander & Patterson.

584. The conflict of evidence referred to in paragraphs 16 to 20 above relates to what was said by the Tribunal as to the determination of question 17(i) and the basis on which that question and other legal questions were decided. Question 17(i) was raised by the plaintiff as a preliminary question at the outset of the hearing, and was decided then, with the Tribunal agreeing to give written reasons for the decision. Those reasons appear in paragraphs 2 to 7 of the Reasons. As I said in paragraph 17 above, counsel were in agreement that the conflict on the affidavits should be resolved by reference to the Members of the Tribunal as constituted to hear the matter.

587. The relevant portions of the response of the Members to my enquiry ("the response") read:

Our reading of the material provided shows two main points of conflict of evidence:

1. Whether consent was sought and obtained by the Tribunal from the parties for the Tribunal to determine the preliminary point of law with respect to the subpoena requiring [the Club] to produce a list of members and any subsequent points of law that might arise in the course of the hearing,

The recollection of both Tribunal Members with respect to the first point is that the matter was stood down to enable us to consult with respect to the subpoena for the list of club members, and that our decision not to take the list was predicated by a clear indication that if in the course of the hearing it became apparent that the list of members was relevant, we would revisit the matter. We are certain that we informed the parties that neither of us were legal members. We are equally certain that we did not seek or obtain leave from the parties with respect to determining questions of law. We discussed the issue of the subpoena during the stand down period with a legal member.

594. Copies of the response were forwarded to the legal advisers of the parties and the matter was called on again to enable the making of further submissions arising out of what was there said, and submissions were made by counsel for each party.

597. The response indicates first, that the Tribunal told the parties at that stage that neither of them was a legal member, which meant that from then on all parties were aware of that position. It appears from Mr Rumpf's affidavit that the representative of the Department, and Councillor Graley, one of the objectors, both of whom left the hearing at an early stage, were still present at the time when question 17(i) was dealt with.

600. The expression "we did not seek or obtain leave from the parties with respect to determining questions of law" can only mean that the Members did not seek or obtain the agreement of the parties for the presiding member to decide questions of law, in terms of clause 66(1)(a). In any case, as appears from paragraphs 96 and 97 above, none of the five questions of law in issue is said to have been made by the presiding member.

603. Mr Finanzio submitted, however, that where a decision was said to have been made by "the Tribunal" it could be inferred that it was made by the presiding member, and it was merely a matter of coincidence that the other member agreed with her. That inference cannot be drawn. An expression such as "the Tribunal is of the view" (see paragraph 96 above) could be intended to mean "the Tribunal has formed the view in accordance with the opinion of a judicial member [or of a member who is a legal practitioner]". In any case, even if agreement had been given by the parties for the presiding member to decide questions of law, which the response of the Members indicated was not the case, it would not have been appropriate for the non-legal member to join in any such decision. It is not a matter in which the other non-legal member is to be concerned. As I have said, the basis on which decisions of questions of law are made in the Tribunal must always be clearly set out. "The Tribunal" and "the presiding member" are two different bodies. Jurisdiction to decide questions of law, with the agreement of the parties, is conferred on the presiding member by clause 66, not on the Tribunal.

606. Mr Peake, if I understood him correctly, also submitted in effect that there is a presumption that the presiding member decided a legal question, and that strong evidence is needed to show that this was not the case. However, given that there are three effective means by which a legal question can be decided by the Tribunal, it cannot be assumed, if nothing is said, that one method was adopted rather than another.

609. In that context I note that in one affidavit, and one only, that of the solicitor for the Club, it was deposed that:

All of the parties consented to the Tribunal hearing and determining [the point referred to in ground 17(i)] and any other questions of law that might arise during the proceedings.

Had that been so (which the response of the Members indicates it was not), such a consent of the parties would have been ineffectual. To repeat, the power conferred by clause 66(1)(a) is for a question of law arising in the proceeding to be decided "by the presiding member if the parties agree". Thus that power is conferred on the presiding member, not on the Tribunal. The parties cannot by agreement confer on the Tribunal as constituted for the purposes of the proceeding the power to decide questions of law. (Although it can in effect do so when there is only one member of the Tribunal as so constituted, so that the Tribunal and the presiding member are one and the same, that was not the case here.)

614. Clause 1.4 of the Practice Note in operation at the time of the Tribunal hearing reads in part:

If the Tribunal is constituted without a legal practitioner and any party withholds consent to the question being determined by the Presiding Member, the parties shall notify the Presiding Member accordingly.

618. Mr Finanzio and Mr Peake both submitted that that requirement obliged a person not agreeing to say so; it was not permissible to remain silent and then to appeal on the ground that the legal question had been determined by the presiding member without the agreement of that person. There were good public policy reasons for the requirement. In their submission the parties must, by their silence, and given their knowledge that neither of the members was a judicial member or a legal practitioner, be taken to have agreed to the determination of legal questions by the presiding member.

621. There are, of course, circumstances in which silence can be taken to constitute consent. I do not believe that it is the intention of the legislature that this should be one of those circumstances. As Mr Hooper submitted, people are entitled to assume that questions of law will be decided by lawyers. The Act provides for questions of law to be decided by, or in accordance with the opinion of, lawyers. The only exception to that principle, provided for in clause 66(1)(a), depends on the parties agreeing that a question of law may be decided by a person who is not a lawyer. That agreement should be expressly made and should be recorded. The Practice Note is concerned with administration, and can be appropriately administered consistently with what may well be its public policy objective, and with the provisions of the Act.

624. Mr Peake submitted that "parties" in clause 66(1)(a) must mean "parties who are present at the hearing at the time when the issue arises". It could not be thought, he submitted, that an objector who was formally a party, and who had chosen not to attend the hearing should be required to agree before a legal question could be determined by the presiding member. It would be necessary to adjourn the hearing in order to obtain agreement. However, clause 66 says "if the parties agree". If Parliament had meant by "parties" to say "parties who are present at the hearing at the time when the issue arises", it could have done so. I cannot imagine that it would have done so; the problems with such a provision are obvious.

627. Mr Peake and Mr Finanzio submitted, in the same context, that it was clear from the material that the several objectors presented their case as a team, each speaker being responsible for a different aspect of their submissions. Mr Nixon of counsel presented the legal arguments for the objectors generally and not merely for his own client. In making the submissions described in paragraph 29 above on the question of law relating to the effect of the deemed refusal to a Tribunal whose members he knew to be not legally qualified, Mr Nixon must be taken to have agreed, on behalf of all the objectors, to that Tribunal, so constituted, making the decision on that question. The short answer to that submission, as Mr Hooper pointed out, is that in making those submissions, Mr Nixon was not to know that the Tribunal would not refer the question for decision to an appropriately qualified member, or obtain the opinion of such a member and decide the question in accordance with that opinion.

631. In summary, there is no basis on which I can find that any of the five decisions in question was made by the presiding member, or, even if that had not been so, that the parties or any of them agreed to her making any of the decisions.

634. Turning specifically to question 17(i), the members in their response said that they had "discussed the issue of the subpoena [that is question 17(i)] with a legal member". They do not state that the decision was made "in accordance with the opinion of" the legal member, and there is no basis on which I could find that to have been the case. I would point out that if it was the case, the Tribunal should have said so. As I have said, decisions made by the Tribunal on questions of law should be formally recorded. In addition, I assume, although they do not state, that the "legal member" was a member of the Tribunal who was a legal practitioner, but not a judicial member, on the basis that, had that person been a judicial member, the members would have said so in their response. However the members do not suggest that that legal member had been "nominated by the President" as required by clause 66(1)(b). That being so, and given the circumstances of a "stand-down period", it seems more probable than not that the "legal member" was not so nominated, and accordingly that the requirement of clause 66(1)(b) was not met.

637. Having considered the issue, and taking into account the matters set out above, I find that the legal question set out in ground 17(i) which the Tribunal purported to decide was not decided in accordance with section 107 of the VCAT Act as expanded by clause 66 of Schedule 1 of that Act. It was not said to have been decided "in accordance with the opinion of a judicial member or a member who is a legal practitioner nominated by the President", I have already found none of the decisions in issue to have been made by the presiding member with the agreement of the parties, and there is no suggestion that the decision was made by another member who is a judicial member or a legal practitioner in terms of section 107(3)(a).

640. In summary, I have found that question 17(i) was not decided in accordance with section 107, as expanded by clause 66; and as appears from paragraphs 96, 97 and 120 above there is no evidence before the Court on which I could find that any of the other questions of law set out in ground 17 was decided in accordance with those provisions. The only conclusion can be that all five decisions were made, as decisions (i), (ii) and (iii) were expressed to be made, by the Tribunal as constituted for the purposes of the proceeding, which had no jurisdiction to make them. Accordingly none of those questions of law was validly decided and ground 17 is made out.

643. The next matter to consider is the significance of that finding. Ground 17(i) arose because the plaintiff had caused the Registry of the Tribunal to issue a summons requiring production of a list of members of the Club. The purpose of the summons was, according to the affidavit of the plaintiff, to test the claim of the Club that it had some 330 members, and thus demonstrated a significant public service need and level of community support. The Tribunal decided not to direct the Club to produce the documents. That decision was not, in my view, of such importance that its invalidity constitutes a vitiating error of law in terms of Portland Properties.

646. I have already found (see paragraphs 76 to 78 above) that the entertaining of the further submission when leave had not been given, and the failure to grant an opportunity to the other parties to be heard on that submission, which are the matters with which questions 17(v) and (vi) are concerned, did not establish a vitiating error of law. Accordingly, the same can be said of the finding of the invalidity of those decisions.

649. Question 17(ii) is not relevant to the final decision of the Tribunal. (See paragraph 95 above.) However, question 17(iii) goes to the heart of that decision. By virtue of sections 61(3)(b) and 82AA(a) of the P & E Act and the deemed refusal of the Minister to the use or development the subject of the application, the Council had no power to grant the permit. By exercising its powers under clause 62 of Schedule 1 of the VCAT Act to disregard the failure of the Minister to comply with section 39(3) of the Coastal Management Act, the Tribunal was able to cure the jurisdictional defect caused by the deemed refusal, and to consider and decide the matter before it on its merits, which it proceeded to do. I have now found that the Tribunal did not have jurisdiction to decide to exercise those powers. Accordingly, the Tribunal did not have power to consider the matter before it on its merits, and to decide it, and that decision, made without power, is necessarily ineffective.

653. That being so, the decision of the Tribunal will be set aside and the matter remitted to the Tribunal to be heard and decided again. There will be directions that the rehearing take place before a differently constituted Tribunal, and that the question of the hearing of further evidence be a matter in the discretion of the Tribunal.

657. There is one other matter to which I should refer. Two aspects of the Order of the Tribunal in my view call for comment. By virtue of sections 42(1) and 51(1) of the VCAT Act and section 82 of the P & E Act, the jurisdiction of the Tribunal in this matter derives from a combination of the provisions of those two Acts. In formulating its order, the Tribunal wisely was concerned to comply with both section 85(1) of the P & E Act and section 51(2) of the VCAT Act, two provisions which do not necessarily sit easily together. Those provisions appear in paragraphs 23 and 24 respectively above.

660. The first matter which causes me concern is the opening passage of the Order reading "The Application for Review is disallowed". The word "disallowed" is presumably intended as a variation on "dismissed". I can find no basis for that statement in the provisions of either Act and Counsel were unable to direct me to any statutory provision justifying its inclusion in the decision. Its effect is confusing to the reader. It is not necessary to the Tribunal's order.

663. Next, the Tribunal states that "the decision of the Responsible Authority is affirmed". This statement is prima facie an exercise of the power conferred upon it by section 51(2)(a) of the VCAT Act. However, it is apparent from the second part of the order that what the Tribunal has done, by adding a new condition to the permit, is not to affirm the decision of the responsible authority, but in fact to vary that decision, as it was entitled to do by virtue of both section 51(2)(b) of the VCAT Act and section 85(1)(b)(ii) of the P & E Act. My concern here is not with what has been done, but with the formal expression of what has been done. The only error is the use of the word "affirmed" rather than the word "varied". Again, the effect is confusing.

666. Thus in my view the first sentence of the Order should read simply:

The decision of the responsible authority is varied as set out below.

670. Ultimately, the intention of the Tribunal in formulating its order is clear, and I do not see either of these matters, in this case, as affecting the validity of the order. However, on another occasion, that might not be so. I would refer to the discussion of a related, but different, formulation of an order by the Administrative Appeals Tribunal in Transport Accident Commission v Dohnal (1996) 10 VAR 361 at paragraphs 21-29. As I there said, there is well-known authority that an appellate court should not construe the words used in reasons for decision of an administrative tribunal "minutely and finely and with an eye keenly attuned to the perception of error" (per Lockhart J in Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708; and see the passage cited from Michaelis Bayley in paragraph 14 above). However, the formal order of an administrative tribunal is a different matter. If care is not taken to ensure that the formal order is so expressed as to be a proper exercise of the statutory power conferred on the tribunal in question, there is always a danger that the tribunal will fall into error of a more fundamental kind.