Administrative law Rules of natural justice - Existence of duty to observe rules of natural justice - Under legislation - Particular cases - Obligation imposed on Resource Management and Planning Appeal Tribunal. (Aust Dig Administrative Law [25].)

Local Government **-**Appeals - Tasmania - Resource Management and Planning Appeal Tribunal - Natural justice - Failure to afford party opportunity to deal with issue not raised at hearing.

Local Government - Appeals - Tasmania - Resource Management and Planning Appeal Tribunal - Natural justice - Failure to afford party opportunity to be heard upon a reconsideration ordered by this Court - Meaning of "reconsideration". Resource Management and Planning Approval Tribunal Act (1993), s23(2). Livesey v New South Wales Bar Association (1982 - [1983] HCA 17; 1983) 151 CLR 288; R v Watson; ex parte Armstrong (1976 - [1976] HCA 39; 1977) 136 CLR 248; R v Lusink; ex parte Shaw (1981) 55 ALJR 12, applied. (Aust Dig Local Government [299].)

HOBART, 5, 9 December 1996, 12 March 1997 (hearing), 15 April 1997 (decision)

First Named Respondents: M E O'Farrell and M H Lyon

1. This appeal concerns a decision of the Hobart City Council made on 24 April 1995 with respect to a change of use for five specified apartments in the Salamanca Mews complex in Gladstone Street, Hobart. On that day the Council "granted approval unconditionally for change of use to visitor accommodation ..." with respect to all five apartments. This decision set in train a long legal battle that will not end with this judgment. From the Council decision there was an appeal to the Resource Management and Planning Appeal Tribunal ("the Tribunal"). On 10 August 1995, the Tribunal set aside the decision of the Council. From that decision there was an appeal to this Court. It was determined by Slicer J on 3 May 1996 (A24/1996). Relevantly, his Honour ordered:

"1 The determination of the Resource Management and Planning Appeal Tribunal dated 10 August 1995 be set aside.

2 That the matter be remitted to the said Tribunal for reconsideration in accordance with the law."

2. On 1 August 1996, the Tribunal made exactly the same order as it made on 10 August 1995, viz, "that the Council's decision of 24th April 1995 is set aside in respect to the use of apartments 2/5, 5/5, 6/5, 9/5 and 15/7 Gladstone Street." From that decision, this appeal is now brought. At the commencement of the hearing of the appeal the respondent Council appeared by counsel and stated that it did not wish to be heard on the merits of the appeal and accepted that it would be bound by any order this Court may make.

3. The Resource Management and Planning Appeal Tribunal Act 1993, s25 ("the Act"), confers a right of appeal from the Tribunal to this Court "on a question of law". The powers of this Court on the hearing of appeal are set out in the Act, s25(5) and (6). By this appeal, the appellants seek the same order that they sought on the hearing of the last appeal to this Court viz, that the decision of the Tribunal dated 1 August 1996 be set aside and that consequential orders for a rehearing be made.

"1A There was an error of law in that the Tribunal was not properly constituted in accordance with the Resource Management & Planning Appeal Tribunal Act 1993, s10. 1 There was an error of law in that procedural fairness required that the Tribunal was differently constituted for the purposes of reconsidering the appeal, because of; (a) an apprehension of bias; and/or (b) the requirement to re-evaluate the evidence and its effect. (Alternatively) 2 There was an error of law by way of a lack of procedural fairness in failing to re-hear the appeal; or alternatively, in that there was no agreement by the appellant that the evidence taken at the first hearing be taken as the whole of the evidence for the purposes of the Tribunal's reconsideration of the appeal. 3 There was an error of law in that the ruling recorded by letter of 19 July 1996, in relation to the reception of further evidence was not made by the Tribunal constituted to hear and determine the appeal. 4 There was an error of law in that the Tribunal refused to receive further evidence which it was required to do in order to reconsider the appeal, namely: (a) evidence in relation to amenity impact which had arisen since the appeal was previously heard and determined on 31 July and 4 August 1995; (b) evidence as to owner expectations as to the use of the apartments at the time of purchase. 5 There was an error of law in that the Tribunal failed to make findings of fact essential to the determination of the appeal, namely; (a) the nature and extent of the proposed use; (b) whether such use was 'visitor accommodation' within the meaning of the Battery Point Planning Scheme 1979; (c) the nature and extent of any impact of the proposed use; and (d) the nature of the amenity involved. 6 There was an error of law by way of lack of procedural fairness in that the Tribunal took into account and acted upon the representation by Mr and Mrs Charles Crawford without giving the parties notice that it proposed to rely upon that representation and without giving them the opportunity to cross-examine the representors. Dated 12 March 1997."

4. Messrs J J Caulfield, R E J Cannell and C A Eastaugh, appointed under the Act to be members of the Tribunal, constituted the Tribunal when it determined the appeal in the first instance and when it reconsidered the appeal pursuant to the order of the Court. The Chairman did not sit with them. On behalf of the appellants Mr Porter QC submitted that a Tribunal thus constituted was not authorised by the Act, s10 (1). The submission was that a Tribunal consisting of more than one member, but not including the chairperson, had no jurisdiction to hear and determines appeals. Section 10 provides as follows:

"10 (1) Subjection to section 12, the Appeal Tribunal is to be constituted for the purposes of the hearing and determination of an appeal by (a) the chairperson; or (b) a member other than the chairperson; or (c) subject to subsection (2), the chairperson and not more than 4 other members.

(2) The Appeal Tribunal may be constituted for the exercise of powers in relation to the hearing and determination of an appeal, or for purposes other than the hearing and determination of an appeal, by the chairperson or any other member."

5. On behalf of the appellant it was submitted that this section vests jurisdiction to hear and determine an appeal in the Tribunal comprising:

- the chairperson alone; or

- the chairperson sitting with up to 4 other members; or

- a member not being the chairperson.

- but not in a Tribunal comprising more than one member unless those members sit with the chairperson.

Prima facie the appellants' submission is in accordance with the terms of s10(1).

6. Mr O'Farrell, senior counsel for the first respondent, and Mr Norris for the Attorney-General submitted that the expression "a member other than the chairperson" as enacted in s10(1)(b) includes the plural and consequently the three members who made the decision from which this appeal is brought acted within the statutory jurisdiction. Reliance was placed on the Acts Interpretation Act, s24(d) which provides that "words in the singular shall include the plural ...". However, the Acts Interpretation Act, s4(1) excludes that rule if it is "inconsistent with or repugnant to the true intent and object" of the Act, or is "inconsistent with the context" of that Act. As Mr Porter QC submitted, if the singular includes the plural it would produce an inconsistency in that a Tribunal constituted under s10(1)(b) could consist of any number of members, but a Tribunal sitting with the chairperson and constituted under s10(1)(c) is limited to not more than four other members.

7. The predecessor to s10 is the Local Government Act 1962, s733G(5). It provided for the hearing of an appeal by either the chairman or deputy chairman and two other members or:

"... by the Chairman, a Deputy Chairman, or a member who is a person qualified and experienced in town and country planning"

8. For the appellant it was submitted that it is clear that the singular did not include the plural in the now repealed provision and that the present legislation merely re-enacted the repealed provision omitting all reference to a deputy chairman and by increasing to four, the number of members who could sit with the chairman. The observation about the provenance of the Act, s10(1) is no doubt correct, but I do not think that it helps to resolve the present problem, for the question of whether the singular includes the plural arises with equal force under both pieces of legislation. Resort must be had to first principles of statutory interpretation.

9. There is a presumption that the draughtsperson of the Act, s10(1) had in mind the statutory rule that absent inconsistency with content or object, the singular does include the plural. In Blue Metal Industries Ltd & Anor v Gilley & Anor (1967 - [1969] UKPCHCA 2; 1968) 117 CLR 651, the Privy Council said, with respect to the New South Wales equivalent of the Acts Interpretation Act (Tas), s24(d) at 656:

"Such a provision is of manifest advantage. It assists the legislature to avoid cumbersome and over-elaborate wording. Prima facie it can be assumed that in the processes which lead to an enactment both draughtsman and legislators have such a provision in mind. It follows that the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole."

10. If the singular does not include the plural in the Act, s10(1)(b), there are real difficulties about the meaning of s11. It provides:

"11 At the hearing of an appeal before the Appeal Tribunal at which the Appeal Tribunal is constituted for the purposes of the appeal by more than one member, the chairperson or other member appointed by the chairperson is to preside unless another member is directed under section 12 to preside."

11. That section appears to contemplate that the Tribunal may comprise more than one member, so unless the singular includes the plural in s10(1)(b) it will only have effect in those cases when the chairperson is sitting on the Tribunal but does not want to preside. In that case the chairperson can appoint one of the members to preside. It seems to me unlikely that Parliament had this circumstance in mind when it enacted s11. It is inconsistent with the whole tenor of the Act which clearly contemplates that whenever the chairperson sits on the Tribunal, he or she will preside. On the other hand, if the singular does include the plural in s10(1)(b), s11 has effect each time the Tribunal comprises more than one member. The chairperson will preside if he is a member of the Tribunal and if he is not, the section empowers him to appoint one of the sitting members to preside. The substance of the considerations concerning s11 apply with equal force to s12.

12. It is to be noted that only par(c) of s10(1) is expressed to be "subject to subsection (2)". I find this provision a little hard to understand and, in any event, am unable to discern any reason why this expression should not also govern par(b), especially if the singular includes the plural. Section 10(2) provides:

"(2) The Appeal Tribunal may be constituted for the exercise of powers in relation to the hearing and determination of an appeal, or for purposes other than the hearing and determination of an appeal, by the chairperson or any other member."

13. The subsection contemplates the exercise of powers by the chairperson or any other member:

"in relation to the hearing and determination of an appeal"; and

for purposes other than the hearing and determination of an appeal.

14. Mr O'Farrell submitted that the expression "in relation to the hearing and determination of an appeal" included the hearing of an appeal but I do not think that is right. The jurisdiction to hear and determine an appeal is conferred by s10(1), and to confer it again in different terms by subs(2) would be otiose.

15. The Act may be described as a "machinery Act" in that it creates the Tribunal and prescribes the manner in which it is to work. Jurisdiction is conferred by other legislation. With respect to the first limb of s10(2), the Act, s22(1) confers a general power to "do all things necessary or convenient to be done for or in connection with the hearing and determination of the appeal". Pursuant to this power, the Tribunal may deal with all manner of interlocutory matters that might arise between the institution of an appeal and its hearing and determination. Any such matter, not otherwise specifically provided for (see, eg, ss16 and 17(1)), could be dealt with by the chairperson or any other member pursuant to the power conferred by s10(2).

16. The Tribunal may be called upon to exercise powers that are not in the nature of the hearing and determination of an appeal. Such powers are conferred, for example, by the Land Use Planning Approvals Act 1993, s64 (civil enforcement proceedings) and by s80 (amendment to an agreement). See also Environmental Management and Pollution Control Act 1994, s48 which, like the Land Use Planning Approvals Act, s64, provides for civil enforcement proceedings. Thus, it might be argued that the exercise of the powers conferred by these sections involve something "other than the hearing and determination of an appeal" within the meaning of the Act, s10(2). Attractive though that argument might be, it has no validity, for each of the sections to which I have referred contains a subsection deeming the application to the Tribunal to be an appeal for the purposes of the Act. There may be other legislative provisions that confer powers on the Tribunal that are not in the nature of an appeal and not deemed to be the hearing and determination of appeal of which I am unaware. However, for present purposes, the real problem is to ascertain why only par(c) of s10(1) is expressed to be subject to subs(2). A related question is whether the expression "any other member" in s10(2) includes "any other members". Whatever may be the answers to these apparent legislative conundrums arising out of the second limb of s10(2) and the opening words of s10(1)(c), I have come to the clear view that "member" includes "members" in s10(1)(b). Such construction is consistent with the true intent of the Act and the context in which the word "member" appears, particularly, ss11 and 12. Although it is to some degree inconsistent with the limit placed by s10(1)(c) on the number of members who may comprise the Tribunal when members sit with the chairperson, such inconsistency is insignificant when regard is had to the context and the object and purposes of the Act. I might add that this approach is reinforced by the fact that it is hard to conceive of a reason why Parliament would think it desirable to confer jurisdiction on one member but not on more than one unless those members sat with the chairperson. Ground 1A is not made out but before leaving it, I should observe that it was only added to the notice of appeal at my instigation and after I raised the question of the jurisdiction of the Tribunal with counsel and after Mr Norris had been given leave to intervene in these proceedings on behalf of the Attorney-General. I am obliged to all counsel for their assistance.

17. The Battery Point Planning Scheme governs the use of land upon which the five apartments are built. According to the Scheme, the Hobart City Council has a discretion whether to approve a change of use from "Private Residence" to "Visitor Accommodation" within the meaning of the Scheme. The appellants made application pursuant to the Land Use Planning Approvals Act 1993, s57. As already mentioned, the Council granted the application unconditionally on 24 April 1995.

18. On its first determination, the Tribunal's order was that the Council decision be set aside. No other order was made. It seems to me that this left the appellants' application to the Council unresolved. Under the Act, s23(1), the Tribunal is vested with all the relevant powers of the Hobart City Council and by subs(2) must make a written decision:

"(a) affirming the decision appealed against; or (b) varying the decision appealed against; or (c) setting aside the decision appealed against and (i) making a decision in substitution for the decision appealed against; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Appeal Tribunal."

19. A proper exercise of the power to set aside the decision appealed against required the Tribunal to also make a consequential order being an order of the kind set out in either par(c)(i) or (ii). However, it does not appear that inadequacy of the Tribunal's order was raised on the hearing of the appeal that was determined by Slicer J and it certainly was not raised on the hearing before me, even though the Tribunal made exactly the same order after it had reconsidered the appeal. It seems to me that although not a ground of appeal, the determination of the Tribunal is defective in that it had no power to simply set aside the decision without also exercising one of the alternative prescribed consequential powers conferred by the Act, s23(2)(c). In result the issue the Tribunal had to determine has not been determined. No doubt if this was a ground of appeal and it was the only ground that succeeded, the inevitable outcome of this appeal would be an order of this Court, in exercise of the power conferred by the Act, s25(5) and (6), that the application for a change of use be dismissed. As this appeal succeeds on other grounds, it is unnecessary to explore this further.

20. With respect to the Tribunal's first determination, Slicer J held that errors of law occurred in that the Tribunal:

- failed to make and state sufficient findings of fact with respect to several key matters; and

- failed to resolve conflicts in the evidence.

21. His Honour determined that the errors vitiated the decision. In that event, the Court's powers were those conferred by the Act, s25(5) and (6) which provide:

"(5) The Supreme Court must hear and determine an appeal duly made under this section, and may make such orders as it considers appropriate.

(6) Without limiting subsection (5), the orders that may be made by the Supreme Court on an appeal include (a) an order affirming a decision of the Appeal Tribunal; and (b) an order setting aside a decision of the Appeal Tribunal and (i) making a decision in substitution for the decision set aside; or (ii) remitting the matter for reconsideration in accordance with any directions of the Supreme Court."

22. In addition to setting aside the order of the Tribunal, Slicer J also ordered that "the matter be remitted to the Resource Management and Planning Appeal Tribunal for reconsideration in accordance with law." This is what followed.

23. On 27 June 1996, the chairman held a "directions hearing" with respect to the future conduct of the appeal. He noted the terms of the order made by Slicer J and immediately observed that "the matter should be reheard then." There followed a discussion about available dates for rehearing and how many days the rehearing might occupy. Junior counsel on the hearing of this appeal, who appeared at the directions hearing for the respondents, then submitted that there was no need for a new hearing at all:

"It was [sic] only necessary for the Tribunal which previously heard the matter to have reference to the transcript and rewrite its decision in accordance with law."

24. The solicitor for the appellants who appeared on the directions hearing submitted that there were matters to be put to the Tribunal and in effect, a reconsideration by the same members could not be impartial as their views had already been made clear in the decision that had been set aside. The solicitor for the appellants also pointed out a year had passed since the Council permitted the change of use and the Tribunal should receive evidence of the impact (if any) of the change of use on the objectors' premises. The chairman reserved his decision as to how the matter should proceed. After some prompting from the solicitor for the appellants, the chairman wrote to that solicitor on 19 July 1996 (inter alia):

"The Tribunal will not conduct a hearing of this appeal for the purpose of receiving further evidence. The Tribunal will determine the appeal upon the basis of the evidence and submissions already received by it."

25. The next thing that happened was the publication of the Tribunal's determination and written reasons on 1 August 1996.

26. By order of Slicer J on 3 May 1996, the determination of the Tribunal dated 10 August 1995 was set aside. In result, the appeal to the Tribunal from the decision of the Council to grant the permit required hearing and determination in accordance with the provisions of the Act and in accordance with any directions given by the judgment of this Court. The only direction given by the judgment of this Court was that the Tribunal reconsider "the matter". The "matter" must mean the appeal from the Council's decision. There was no other matter before the Court. The Court did not order a rehearing of the appeal as it could have done in exercise of the powers conferred by the Act, s25(5) but instead remitted the appeal to the Tribunal with the direction to reconsider it in accordance with law. "Reconsider" means to consider a decision a second time with a view to changing or amending it. It is an expression well known in commercial arbitration. The Commercial Arbitration Act 1986, s38(3)(b) gives the court a power to either set aside the award or to remit it to the arbitrator for "reconsideration". The use of that word in that legislation clearly contemplates a reconsideration of a decision that has not been set aside. As to the circumstances in which it is appropriate to exercise that power rather than the power to set aside and order a rehearing, see Tuta Products Pty Limited v Hutcherson Bros Pty Limited (Receivers Appointed) (1971 - [1972] HCA 4; 1972) 127 CLR 253 at 290.

27. "Reconsideration" obviously has a different meaning in the Act, s25(6) for the power to remit for reconsideration only arises if the court sets aside the decision of the Tribunal. It might be thought that in the ordinary case (which in my opinion includes the matter at hand) the appropriate order on setting aside a decision is the rehearing of the appeal. Indeed, it might be thought that as enacted by the Act, s25(6)(b)(ii), the power to remit should seldom be exercised without the specific accompanying directions. "Reconsideration" is almost indistinguishable in this context from "review", a word often used in workers compensation and administrative appeals legislation. "Review" and "reconsideration" do not have fixed meanings. What has to be done on a review or reconsideration will depend upon the statutory context in which the word is used. It may be restricted to a simple testing of the process by which a decision has been reached and an assessment of the correctness of that decision. See Coalcliff Collieries Ltd v Campbell [1964] HCA 53; (1964) 38 ALJR 180. It may mean a de novo examination of all the material upon which the decision is reached. See, eg, Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 586 - 587.

28. In the present case, as the impugned decision of the Tribunal was set aside by order of Slicer J, reconsideration can mean nothing less than a rehearing and determination of the appeal from the determination of the Council which is, in my view, akin to a rehearing. Provided there is compliance with the provisions of the Act, it is for the Tribunal to decide the manner in which the appeal is reconsidered. The Act, s16(1) provides:

"16 (1) In an appeal before the Appeal Tribunal (a) the procedure of the Appeal Tribunal is within the discretion of the Appeal Tribunal; and (b) the appeal is to be conducted with as little formality and technicality, and with as much expedition, as a proper consideration of the matters before the Appeal Tribunal permit; and (c) the Appeal Tribunal is not bound by the rules of evidence and may inform itself on any matter in any way that it considers appropriate; and (d) the Appeal Tribunal must observe the rules of natural justice; and (e) ... (f) ...".

29. There is no statutory prohibition on the members who made the determination that has to be reconsidered from comprising the Tribunal for the purpose of the reconsideration. However, it would be inappropriate for the same members to reconsider the determination if that would give rise to apparent bias. The test is whether a reconsideration and determination of the appeal by the same members who made the decision in the first place, would give rise to a reasonable apprehension that impartial and unprejudiced minds might not be applied to the resolution of the matter. See Livesey v New South Wales Bar Association (1982 - [1983] HCA 17; 1983) 151 CLR 288 at 294. See also R v Watson; ex parte Armstrong (1976 - [1976] HCA 39; 1977) 136 CLR 248; R v Lusink; ex parte Shaw (1981) 55 ALJR 12. It appears that neither the chairman nor the members who constituted the Tribunal considered that such apprehension would arise although it is difficult to understand why not. Fundamental to the reasons for setting aside the first decision was that, in important respects, the inadequacy of the Tribunal's reasons prevented the court from ascertaining whether the Tribunal had properly taken into account matters that it ought to have taken into account. To require the same members to approach a reconsideration untainted by their conclusions reached on the first occasion is an impossible task. For some reason the view appears to have been taken that the first determination was set aside because the Tribunal's reasons were defective in form, and all that was required to remedy or reconsider the matter was a rewrite of the Tribunal's reasons in the appropriate form. Indeed, this was suggested to the chairman at the directions hearing by the solicitor for the respondents. That view is erroneous. What was required was a rehearing. With respect to the evidence, this might be taken wholly by way of the transcript of proceedings on the first appeal, or partly by that method and partly by receipt of oral or written testimony including any that was relevant and not given on the previous occasion, or it might be taken by a total rehearing of all the relevant evidence. This would, it seems to me, include evidence of the effect (if any) of the change of use on the objector's property since the change of use was approved by the Council. A rehearing or reconsideration also required the Tribunal, however constituted, to hear any submissions the parties wished to put to it. The Act, s19 imposes a statutory duty on the Tribunal to give every party to an appeal a reasonable opportunity to present its case. None of this was done on the reconsideration. The Tribunal did not give the appellants any opportunity to be heard at all. The members simply went off by themselves and rewrote their reasons. In his reasons for judgment Slicer J said at 7:

"If one asks 'on what basis did the Tribunal decide to set aside the decision of the Hobart City Council' it is difficult to identify any factors which led to the conclusion."

30. The adopted procedure of the same members of the Tribunal simply rewriting the original reasons without giving the parties an opportunity to be heard was a plain denial of natural justice and a breach of the provisions of the Act, ss16 and 19. The right to be heard is, of course, a fundamental principle of natural justice expressed as an obligation to "act in good faith and fairly listen to both sides" by the House of Lords in Board of Education v Rice [1911] AC 179 at 182. On the reconsideration the Tribunal did not hear anybody at all. For this reason the decision of the Tribunal must once again be set aside.

31. Although it is unnecessary to consider any of the other grounds of appeal, I should refer to one other matter which may have significance in the event of a rehearing. In its reasons, which are the subject of challenge on this appeal, the Tribunal wrote:

"The representation by Mr and Mrs Charles Crawford of 10/11 Gladstone Street states: - 'The proposed change is contrary to best planning practices because the benefits of inner city housing, so vigorously expounded by your Council will be diluted and/or negated if Visitor Accommodation is allowed. Our understanding of the intention behind inner city housing is that continuous residential accommodation is the aim and not intermittent short term stays with, off season vacancies that would be provided with visitor accommodation.' This representation comes from a resident of the southern block who is not personally affected, but as Chairman of the Sullivans Cove Development Authority has an intimate knowledge of the area. The Tribunal concurs with this representation."

32. It appears that neither Mr nor Mrs Crawford gave evidence before the Tribunal and no proof of their evidence was produced. At the original hearing, neither the appellants nor the respondents referred to or sought to rely upon any material that had been attributed to either Mr or Mrs Crawford. During the course of the initial hearing, the Tribunal did not refer to any statements made by Mr and Mrs Crawford. However, the statement was included amongst the somewhat voluminous material in the Hobart City Council file that had, in accordance with standard practice, been referred to the Tribunal. The reference to Mr and Mrs Crawford's evidence and the reliance upon it was a clear breach of the Act, s19 and constituted a denial of natural justice. Quite apart from the Act, I agree with the following passage taken from the judgment of Wright J in Cain v Glamorgan/Spring Bay Council & Ors A19/1996 (unreported, available in SCALEplus) at 8:

"There is clear authority for the proposition that an adjudicating body such as the Tribunal is obliged to raise an issue upon which it proposes to decide an appeal with all relevant parties before deciding the case upon such a basis if that issue has not been raised during the course of proceedings before it. To do otherwise is to breach the rules of natural justice see City of Brighton v Selpam Pty Ltd [1987] VicRp 5; (1986) 61 LGRA 167 and Rosebud Village Pty Ltd v Amos and City of Doncaster and Templestowe (1989) 68 LGRA 403."

33. As somewhat of an aside, I observe that the impugned statement purports to have been made by Mr and Mrs Crawford but it had added significance for the Tribunal because it was made by the chairman of the Sullivans Cove Development Authority. Therein seems to lie an unwarranted assumption that Mrs Crawford had little input into the statement.

34. The appeal is allowed. The parties requested that in this event I hear them further before any consequential order is made and this I will do.