Administrative Law - Judicial review - Grounds of review - Procedural fairness - Existence of obligation - Particular cases - Application for rezoning - Matters raised in decision-maker's officer's report - Duty to give applicant opportunity to comment and provide further material.

Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472; Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, referred to.

Environment and Planning - Environmental planning - Planning schemes and instruments - Tasmania - Amendments to planning schemes - Procedural fairness - Resource Planning and Development Commission - Comments in report of officer of Commission - Duty to give applicant opportunity to respond.

Land Use Planning and Approvals Act 1993 (Tas), s41.

Attorney-General: Director of Public Prosecutions

Judgment Number: [2007] TASSC 83

1 This is an application under the Judicial Review Act 2000 in respect of a decision by the Resource Planning and Development Commission ("the RPDC") rejecting a draft amendment to a planning scheme, and refusing a permit for a subdivision. The applicant contends that the RPDC denied him natural justice during the final stages of the decision-making process. The critical question is whether, before deciding whether to reject the draft amendment, the RPDC was obliged to give the applicant an opportunity to comment on a report that it had received from one of its officers.

2 The applicant owns some land at White Beach. He wants to subdivide that land. Under the Tasman Planning Scheme 1979, the land is zoned "Rural A". As a result of that zoning, the subdivision of the land is prohibited. If the land were rezoned as "Village Infill", the Tasman Council would have a discretion to permit the subdivision.

3 The applicant made a combined application for the rezoning of the land and a permit for the subdivision pursuant to the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s43A. An officer of the council wrote a report recommending that the council initiate an amendment to the planning scheme pursuant to the LUPA Act, s34, and that it grant a permit for the proposed subdivision. The council accepted that recommendation and unanimously resolved to initiate the amendment and grant the permit. The decision-making process proceeded in accordance with the LUPA Act. The council prepared a draft amendment, determined that it met the requirements specified in s32, and certified that it so did under s35(1). It gave the RPDC a copy of the draft amendment and the instrument containing its certification, pursuant to s35(4). It placed a copy of the draft amendment on public exhibition and advertised the exhibition of the draft amendment, pursuant to s38. Although members of the public had the right to make representations to the council during the exhibition period pursuant to s39(1), no such representations were made. The council continued to favour the draft amendment. It sent the RPDC the report required by s39(2). Its report was favourable to the applicant.

4 The RPDC did not hold a hearing pursuant to the LUPA Act, s40. It was not required to do so, since no representations had been made in relation to the draft amendment. A planning officer of the RPDC submitted a report to it, recommending that it reject the draft amendment pursuant to s41(b), and refuse the requested permit pursuant to s43H(1)(d). The RPDC did not contact the applicant, anyone representing him, or the Tasman Council in relation to that report. Without reference to them, it made the decision recommended by its planning officer. The manager of the RPDC wrote to the council the next day advising of its decision and its reasons for that decision. It appears that the RPDC wholly adopted its planning officer's reasoning.

5 The applicant has applied for the review of the decision of the RPDC to reject the draft amendment and refuse the permit. It contends that the RPDC was obliged by the common law rules of natural justice to give him an opportunity to comment on its planning officer's report, and that it denied him natural justice by making its decision without giving him such an opportunity. The RPDC chose not to take any part in these proceedings. The Attorney-General intervened in the proceedings pursuant to the Judicial Review Act, s39, so as to act as a contradictor, and was represented by counsel at the hearing.

6 When the RPDC holds a hearing, it is obliged to observe the rules of natural justice: Resource Planning and Development Commission Act 1997, s10(1)(b)(v). Since it did not have to hold a hearing in relation to this draft amendment, it did not have a statutory obligation to afford procedural fairness to anyone. However the applicant contends that it had a common law obligation to afford him procedural fairness in the respect suggested. The Attorney-General contends that it had no such obligation.

7 At the outset, the applicant had no legal right to subdivide his land. The purpose of his application under s43A was to obtain a new right to do so. His application was unopposed. The RPDC was the ultimate decision-making authority. There have been many reported cases concerning the question whether a decision-maker is bound by the rules of natural justice when an individual makes an unopposed application for some sort of fresh right or privilege. The principal cases, which I need not catalogue here, were analysed by Merkel J in Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 at 548 - 551. The principle that they establish was succinctly stated by him as follows at 551:

"... where a person applies for a fresh right or privilege, in certain circumstances that person's financial and/or professional interests may be affected so as to amount to a sufficient interest for the rules of natural justice to be attracted to the making of the decision."

8 A good example of such a case is Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57. The prosecutor in that case had applied for a protection visa. The High Court held, by majority, that the common law rules of natural justice applied to a ministerial delegate who determined the application.

9 In this case, the decision of the RPDC no doubt affected the applicant's financial interests as the owner of the land. I therefore accept that he had a sufficient interest for the rules of natural justice to apply in respect of a decision of the RPDC affecting his property. However, that is not the end of the matter. Having decided that the RPDC owed the applicant a duty of procedural fairness, it is necessary to consider whether that duty required it to give him an opportunity to comment on its planning officer's report.

10 There is a line of authority in which it has been held that a decision-maker bound by the rules of natural justice is not always obliged to give an applicant an opportunity to comment before rejecting an application. Thus, in Kioa v West [1985] HCA 81; (1985) 159 CLR 550, Mason J (as he then was) said at 587:

"In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward."

11 In F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, Lord Diplock said at 369:

"... the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."

12 However, as Gummow J said in Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481, "... in a particular case fairness may demand that the applicant should have an opportunity to reply to matters raised against him." That case concerned an application for permanent resident status. In rejecting that application, a ministerial delegate had apparently treated the absence of corroboration of claims and assertions made by the applicant as very important. Gummow J held that the applicant had been denied procedural fairness because he had not been alerted to that critical factor.

13 Similarly, in Kioa v West (supra), Mason J (at 588) and Deane J (at 634) each took the view that there had been a denial of procedural fairness as a result of Mr Kioa not having been alerted to a submission by a departmental officer to the decision-making delegate that he had changed his address "without apparently notifying the Department".

14 In Somaghi v Minister for Immigration, Local Government and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100, which concerned an application for recognition as a refugee, the appellant had written a letter to the Iranian Embassy. The decision-maker had concluded that, in writing that letter, the appellant had not acted in good faith. That conclusion had not been put to the appellant. By majority (Jenkinson and Gummow JJ, Keely J dissenting), it was held that the decision-maker's duty of procedural fairness required him to tell the appellant what he judged to have been the appellant's purpose in writing the letter, and to take into consideration whatever response the appellant made. At 108, Jenkinson J said:

"... there are observations, which may be thought to constitute a gloss on the general rule, that favour a requirement that the applicant have his mind directed to the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it."

15 Miah (supra) is another case that illustrates the gloss on the general rule. The prosecutor in that case applied for a protection visa on the ground that he had a well-founded fear of prosecution if he returned to Bangladesh. There was a change of government in that country while his application was pending. The Minister's delegate formed a view that any such fear was no longer well founded following the change of government, but gave the prosecutor no opportunity to be heard in relation to that proposition. The High Court held, by majority (Gaudron, McHugh and Kirby JJ, Gleeson CJ and Hayne J dissenting) that the common law rules of natural justice required the delegate to inform the prosecutor of new material that he had relating to the change of government, and to give him an opportunity to respond to it.

16 It is therefore necessary to consider whether the RPDC's planning officer's report contained anything of such a nature as to give rise to a duty to give the applicant an opportunity to comment on it. The planning officer commented in relation to various relevant matters including, amongst others, the provisions of the planning scheme, wastewater management, the State Coastal Policy 1996, and the objectives contained in the LUPA Act, Sch1.

17 The RPDC formally resolved to reject the draft amendment and refuse the permit for the reasons stated in the report. It thereby adopted the reasons set out by the planning officer towards the end of the report, in the following paragraph:

"Therefore, the draft Amendment is recommended for rejection because:

•

the draft Amendment does not further the sustainable development of natural and physical resources as it has the potential to contribute to cumulative environmental impacts on water quality at White Beach (Objective 1(a));

•

the draft Amendment is not considered to provide for fair, orderly and sustainable use and development as it seeks to rezone unserviced rural land without any strategic context (Objective 1(b));

•

the draft Amendment perpetuates the ad hoc nature of development in White Beach and does not represent sound strategic planning (Objective 2(a));

•

the draft Amendment is likely to exacerbate the known risks associated with inadequate wastewater disposal and therefore, does not secure a pleasant and safe, living and recreational environment (Objective 2(f) and 2(h)); and

•

the draft Amendment has not been prepared in accordance with the Tasmanian State Coastal Policy 1996."

18 The first and fourth of those dot points both relate solely to the risk of wastewater, ie stormwater and sewage, from the proposed subdivision not being fully absorbed into the soil, and causing or exacerbating a water pollution problem at White Beach. The planning officer's report contained the following commentary in relation to that risk:

"Council has previously advised that White Beach is likely to suffer serious environmental and public health risks due to the failure of current wastewater disposal systems.

The applicant advises that a constraint on the development of White Beach is the capacity of the soil to absorb wastewater, without impacting on the water quality of the nearby beach. The applicant argues this issue will be addressed with Council's foreshadowed reticulated wastewater service to White Beach.

Council has not confirmed its intention to supply a reticulated sewer to White Beach.

The supplied geotechnical report has indicated that standard septic systems are a feasible option for most of the subject site; however, a more comprehensive approach to addressing wastewater issues within White Beach is required. A site-specific assessment cannot investigate the cumulative impacts of additional residential land on water quality, particularly when considered in conjunction with existing development.

In light of the known wastewater and public health risks and the uncertainty regarding the provision of reticulated sewer to White Beach, a precautionary approach is necessary. Such an approach suggests that no further land should be rezoned to facilitate the expansion of the White Beach settlement until a comprehensive assessment of all waste water management issues has been completed by Council."

19 The applicant had provided the council with a long and detailed submission by a planner. It is possible that he and his planner did not know all that the RPDC knew about what the council had previously advised concerning public health risks at White Beach. His planner's submission referred to "Councils' [sic] foreshadowed reticulated wastewater service to White Beach". He and his planner might have been surprised by the proposition that the council had not "confirmed its intention to supply a reticulated sewer to White Beach". If the applicant had known that the planning officer considered that "a more comprehensive approach to addressing wastewater issues within White Beach" was required, he might have been prepared to commission and provide a report by an appropriate expert taking a more comprehensive approach.

20 The second and third of the planning officer's dot points are concerned with the proposition that the applicant and the council had not undertaken a sufficient strategic land use assessment, and that the proposed development was therefore one of an ad hoc nature. The applicant's planner's submission contained some pages under the heading "STRATEGIC OVERVIEW" in which a strategic land use assessment was undertaken. The council's report under s39(2) contained a few paragraphs under the heading "Strategic basis for the rezoning" which undertook the same sort of assessment. The planning officer had those documents, but she evidently considered the strategic assessments in them to be inadequate. She wrote in her report:

"Council has not provided a proper strategic basis for the proposed rezoning. No assessment of the current availability of residential land, consideration of the need for additional land or comparative analysis of alternative sites to address any such demand has been completed."

21 If the applicant had been told of the perceived inadequacies of the strategic assessments relating to the rezoning, he might have been prepared to commission and provide a report by an appropriate expert addressing the matters that had not previously been addressed.

22 As to the fifth of the planning officer's dot points, it appears from her report that her adverse assessment was based solely on Outcome 2.4.2 of the State Coastal Policy, which reads as follows:

"Urban and residential development in the coastal zone will be based on existing towns and townships. Compact and contained planned urban and residential development will be encouraged in order to avoid ribbon development and unrelated cluster developments along the coast."

23 The applicant's planner's submission contained a paragraph addressing this clause. The council's s39(2) report adopted that paragraph word for word. It read:

"While this rezoning is not directly adjacent to an existing urban development, it is reflective of the infill development that is occurring around the White Beach locality, and as such would not be contributing to the growth of ribbon development along the coast. Rather, it would be consolidating the existing settlements in the area."

24 The planning officer considered that paragraph and rejected it. She wrote:

"The site is isolated from nearby residential development and therefore the current proposal does not facilitate compact and contained development. The draft Amendment would result in unrelated cluster development and therefore does not satisfy this Outcome of the Policy."

25 It was apparently on the basis of that analysis that the RPDC adopted its planning officer's reasoning in relation to the State Coastal Policy. In my view there was nothing in her report relating to the State Coastal Policy that gave rise to a duty to give the applicant an opportunity to comment. She simply rejected the analysis advanced on behalf of the applicant and the council. However I think that fairness demanded that the applicant should have had an opportunity to reply to the matters raised concerning wastewater management and the strategic basis for the proposed rezoning. I think it was unfair for the RPDC to make a decision based on the inadequacy of the material provided on behalf of him and the council, advice previously provided by the council that he may not have known about, and the RPDC's uncertainty as to the sewerage proposal that his planner had relied upon. In those respects, within the meaning of the Judicial Review Act, s17(2)(a), a breach of the rules of natural justice happened relating to the making of the RPDC's decision.

26 I therefore order that the decision referred to in the originating application be set aside and that the matter to which that decision relates be referred to the respondent for further consideration.