Seablest Pty Ltd T/As Salamanca Executive Suites v V R and J J Smith, G L and W Lowman G and M Casimaty and Hobart City Council [1997] TASSC 36;

Seablest Pty Ltd T/As Salamanca Executive Suites v V R and J J Smith, G L and W Lowman G and M Casimaty and Hobart City Council [1997] TASSC 36; - TASSC 1997 case summary — Zoe

[14]

"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."

[35]

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.

[54]

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:

At a glance

Court

Decision date

Before

Source

Judgment (62 paragraphs)

Seablest Pty Ltd T/As Salamanca Executive Suites v V R and J J Smith, G L and W Lowman G and M Casimaty and Hobart City Council [1997] TASSC 36; (1997) 6 Tas R 350 (15 April 1997)

Parties

Legislation Cited (1)

Cases Cited (4)