Section 35 of LUPAA provides Council the ability to modify an amendment.

The proposed rezoning is considered appropriate however, as the existing landscape buffer of Passive Recreation along the Highway will be removed it is appropriate that suitable controls be introduced through the subdivision to achieve appropriate visual amenity.

5.1 This development is not inconsistent with adopted strategies and will not prejudice the new planning scheme.

* The draft scheme has reached a late stage in its preparation.

* The relevant controls under the draft scheme are as follows:

- The land is proposed to be zoned Rural Residential under the draft scheme.

- The zoning of the land was on the basis of requests from neighbouring landowners rather than part of a larger strategy and the current proposal is considered to be the highest and best use of the land.

* Therefore although the proposal is inconsistent with the draft scheme it is considered that it will have no strategic implications that would prejudice implementation."

11 The date of Council's meeting was advertised. On 9 March 2006 a ring binder was placed at Council's reception area, the contents of which could be inspected by members of the public. In that binder was the agenda for the meeting and a copy of the full report referred to in the previous paragraph. Mrs Sylvia Morris and Mr Phil Butler applied on 10 March 2006 to make a statement to the Council at its meeting about the rezoning application for the land. Mrs Morris brought to the Council, whether or not it was prior to or at the Council meeting is not known, a petition signed by 132 people relating to the applicant's proposed development in Kennedy Drive. By that petition, the petitioners sought that the mayor and alderman of the City of Clarence "refuse to approve the proposed rezoning to Service Industrial and subdivision into five industrial lots. ... We strongly feel the proposed development is not an appropriate use of the land concerned as it unites the Acton Corridor green belt with the Backhouse Lane and Coal River Valley agricultural areas."

12 The letters referred to in the report were not attached to it. A copy of that report was not made available to the applicant, although no doubt it could have accessed it had it inspected what was in the ring binder.

13 The minutes of the Council's meeting on 14 March 2006 record:

(a) At item 6 that Alderman Traynor tabled a petition from 132 signatories requesting that the Council refuse the proposed rezoning and development sought by the applicant. It was resolved the petition be received.

(b) At item 8 that Mrs Sylvia Morris and Mr Phil Butler addressed the meeting in relation to the applicant's application. There is no record of what they said.

(c) At item 11.3.10, the first three pages of the report prepared as referred to in par10 above appear. That part of the report headed "Associated report" where the writer of the report referred to the letters and addressed issues does not. There follows a record of Council's decision as follows:

"A That Council resolves, under Section 34(1) of the Land Use Planning and Approvals Act 1993, not to initiate draft Amendment 2006/2 for the following reasons:

1 There are alternative industrial sites available.

2 The amendment will adversely affect the amenity of neighbours.

3 The Rural Residential zone proposed under the Draft Clarence Planning Scheme 2002 is to protect the rural amenity.

B That the applications for a 4 lot subdivision, at 2 Kennedy Drive, Cambridge (C1 Ref SD-2006/2) and the marine saleyard and showroom, at 2 Kennedy Drive, Cambridge (C1 Ref SD-2006/2) be refused for the following reason:

1 The applications are prohibited under the Eastern Shore Planning Scheme 1986."

14 The applicant did not attend the meeting (being of the understanding there was no reason it should) and was not told before the meeting:

(b) that Mr Butler and Mrs Morris had sought to be heard at the meeting about the development;

(c) that letters had been received by the Council from Mrs Morris and two others, adverse to its application; and

(d) that a copy of Mr Stewart's letter was with the Council.

15 A new planning scheme had been "on the table" for the area at least since 2002. That was the Draft Clarence Planning Scheme 2002. On 22 August 2005, the Commission resolved to direct the Council to "do again" parts of the scheme (LUPA, s28). That new scheme is not finalised.

16 The issue of the impact, if any, of the new, as yet unimplemented, scheme on developments was considered by the Commission in July 2005. It was considering an application for an amendment to the Scheme and a permit to allow a Homemaker Centre at 66 Kennedy Drive, the same street in which the land stands. The application was granted. The Commission said at page 3 of its decision:

"Some of the written evidence sought to demonstrate consistency with the draft Clarence planning scheme 2002 that is currently subject to the statutory approvals processes. The obligation to consider the draft planning scheme was a matter of preliminary ruling by the Delegates to the effect that there was no such obligation. However to the extent that the Coty principle (Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA) is applicable, the Delegates are satisfied that the commercial use of the subject land at Cambridge will not frustrate the planning strategy of the draft planning scheme as certified."

17 On 4 May 2006, the Commission made a decision on another draft amendment to the Scheme. This was an application to amend the zone relating to another property in Kennedy Drive from Reserved Controlled Industry to Controlled Industry and to alter the density rating (the same as that sought in the present case). The Commission approved the amendment. Mrs Sylvia Morris was a representor on that application.

18 The grounds of review of the Council's decision were as follows:

"A There was an error of law within the meaning of s17(2)(a) of the JRA in that the Council by its delegates breached the rules of natural justice in respect of making the decision by:

(a) considering the contents of a public petition against the proposed amendment and development application without disclosing to the applicant that it had received that material and without affording the applicant its right to be heard about the contents and effect of the petition;

(b) considering the contents of letters written by the applicant to neighbours of 2 Kennedy Drive offering a cash payment for their support without disclosing to the applicant that it had received that material and without affording the applicant its right to be heard about the contents and effect of those letters;

(c) considering the contents of 3 letters from neighbouring property owners raising concerns with the proposed amendment and development application relating to impact on residential amenity without disclosing to the applicant that it had received that material and without affording the applicant its right to be heard on the content and effect of those letters.

(d) hearing two deputations at the Council meeting of the 14 March 2006 made by Mr Phil Butler and M/s Sylvia Morris addressing the proposed amendment and development application without disclosing to the applicant that it would be hearing deputations in respect of the amendment and development application and without affording the applicant its right to be heard on those deputations.

B There was an improper exercise of power and an error of law as the decision was manifestly unreasonable and was wrong within the meaning of s17(e) and s17(f) of the JRA in that:

(a) it was made contrary to the advice and recommendation of its own planning expert Ross Lovell, and the detailed expert opinion of the applicant's planner Mark Iles set out in his report of January 2006;

(b) the requested amendment was consistent with the relevant mandatory requirements of s32 LUPAA in that it was in conformity with the Objectives set out in Schedule 1 of that Act and with the relevant State Policies made under the State Policies and Projects Act 1993. Had the Council taken those relevant considerations into account as mandated by S322(2B) of the Act it would have initiated the amendment.

C There was an improper exercise of power and an error of law as irrelevant matters where [sic] considered within the meaning of s17(e) and s17(f) of the JRA in that:

(a) Council took into account an irrelevant consideration, namely the availability of alternative industrial sites was considered;

(b) Council took into account the residential amenity of neighbours and rural amenity when the residences concerned enjoy only pre-existing non-conforming use rights in the Reserved Controlled Industrial zone and when the circumstances of the residential enclave concerned have changed by virtue of planning decisions made in the area since the Council's arbitrary, non strategic and as yet not finally implemented, decision to zone the land Rural Residential in the draft Clarence Planning Scheme 2002.

D There was an improper exercise of power and an error of law as relevant matters where [sic] not taken into account within the meaning of s17(e) and s17(f) of the JRA in that:

(a) the requested amendment was consistent with the relevant mandatory requirements of s3**3(2B)**2 LUPAA in that it was in conformity with the Objectives set out in Schedule 1 of that Act and with the relevant State Policies made under the State Policies and Projects Act 1993. Had the Council taken those relevant considerations into account as mandated by s332(2B) of the Act it would have initiated the amendment;

(b) the Council failed to take into account the relevant consideration that the Commission has previously held that prima facie such an amendment in this area 'to provide for commercial use at Cambridge is consistent with the Planning Scheme generally and the description and principles for the district';

(c) the Council failed to take into account the relevant consideration that the Commission has previously held that the Council has no obligation to consider the provisions of the draft Clarence Planning Scheme 2002 which is currently subject to the statutory approval process.

E There was an improper exercise of power and an error of law within the meaning of s17(2)(a), (e) and (f) of the JRA in that the Council by its delegates breached the rules of natural justice in respect of making the decision and failed to follow the proper procedure for initiating an amendment in that:

(a) it permitted a one sided and limited public involvement in the decision making process it 'undertook when the question before it was only whether to implement the requested amendment, the decision to do so itself being the trigger which leads to the public involvement of all interested persons by public exhibition and, the receipt of representations and deputations.

(b) the requested amendment was consistent with the relevant mandatory requirements of s3**3(2B)**2 LUPAA in that it was in conformity with the Objectives set out in Schedule 1 of that Act and with the relevant State Policies made under the State Policies and Projects Act 1993. Had the Council taken those relevant considerations into account as mandated by s332(2B) of the Act it would have initiated the amendment."

Legislative framework for amendments to existing planning schemes

19 LUPA, Pt3, deals with planning schemes. Division 1 provides for the creation of new planning schemes, Div2 for amendments to planning schemes, and Div2A for the combined permit and amendment process. By definition, the Council is a planning authority.

20 The role of a council and the Commission is different, depending on whether a planning scheme is being created or simply amended.

21 Where one is being created, it may be prepared by a council, or a council may be directed to prepare a scheme by the Commission. A planning scheme must seek to further the objectives set out in Sch1, (s20(1)(a)), must be prepared in accordance with state policies (s20(1)(b)) and must have regard to the council's strategic plan and safety requirements set out under the Gas Pipelines Act 2000 (s20 (1)(d) and (e)). Section 20(2) also makes provision for the matters that a planning scheme can provide for. Subject to s20(1), a planning scheme must, as far as practicable, be consistent with and co-ordinated with schemes for adjacent areas and the use and development of the area in environmental, economic and social terms.

22 When a council prepares a draft new planning scheme, it submits it to the Commission for certification as to whether it is suitable for exhibition. If the Commission so certifies then the draft scheme is exhibited to the public. During the period of public exhibition any person may make a representation to the council about the draft scheme. The council then sends a copy of each representation and a report containing its opinion as to the merit of such representations to the Commission. The Commission then holds a hearing at which it considers the scheme and the representations made. It then makes a decision to modify or reject the scheme or approve it with or without modifications.

23 When a member of the public seeks an amendment to an existing planning scheme, the process is as follows:

- the planning authority considers the request. In doing so it must consider whether the amendment "is consistent with the requirements of section 32";

- a decision is made by the planning authority whether to initiate draft amendment or not;

- if a decision to initiate is made, then the draft amendment will be prepared;

- there will then need to be a decision by the planning authority as to whether draft amendment "meets the requirements specified in section 32 ...". If so, the draft amendment will be certified;

- the draft amendment is then sent to the Commission;

- the draft amendment is then exhibited to public by planning authority (details advertised);

- there is a specified period during which any person may make representations to the planning authority;

- at the end of the representation period, the planning authority will provide to the Commission copies of all representations and a report as to their merit, and the amendment generally, with its recommendations;

- the Commission holds a public hearing in relation to the representations; and

- the Commission decides whether to accept, reject or modify the amendment.

24 It is apparent that in the creation of a scheme it is the Commission which certifies a draft planning scheme as suitable for public exhibition while, for an amendment, it is the council. However once the certification occurs, anyone can make a representation and then there will be a hearing to consider them. There is no provision allowing for representations from the public to be received and considered by either a council or the Commission until after the public exhibition phase.

25 There is another major difference in the process between the creation of a new scheme and the amendment of an existing one. That is the council, for example if it is directed to prepare a new scheme, cannot refuse to initiate such a scheme whereas a council may refuse to initiate an amendment sought by a member of the public to an existing scheme. The scope of a council's role in the process of amendment of an existing scheme is relevant in the present case.

26 LUPA, s32, provides:

"32 - Requirements for preparation of amendments

(a) must seek to further the objectives set out in Schedule 1; and

(b) must be prepared in accordance with State Policies made under section 11 of the State Policies and Projects Act 1993; and

(c) may make any provision which relates to the use, development, protection or conservation of any land; and

(d) must have regard to the safety requirements set out in the standards prescribed under the Gas Pipelines Act 2000.

(2) The provisions of section 20(2), (3), (4), (5), (6), (7), (8) and (9) apply to the amendment of a planning scheme in the same manner as they apply to planning schemes."

27 LUPA, s33, then relevantly provides:

(1) A person may request a planning authority to amend a planning scheme administered by it.

(2B) Before making a decision as to whether or not to initiate an amendment of the planning scheme, the planning authority must consider -

(a) whether the requested amendment is consistent with the requirements of section 32; and

(b) any advice referred to in section 65 of the Local Government Act 1993 received by it.

(3) A planning authority must, within 42 days of the receipt of a request, make a decision as to whether or not to initiate an amendment of the planning scheme and serve on the person who made the request notice of its decision within 7 days of making the decision.

(3A) Where a planning authority decides not to initiate an amendment of the planning scheme, the person who requested the amendment may, within 14 days of being notified of that decision, request the Commission to review the process by which the planning authority reached its decision.

(3B) Where the Commission has been requested to review the process by which the planning authority reached its decision, the Commission may request the planning authority to provide it with any material relevant to that process.

(3D) The Commission must, not later than 28 days after receiving the material requested by it or such longer period as the Minister may allow -

(a) direct the planning authority to reconsider the amendment; or

(b) confirm that in reaching its decision the planning authority took into account the matters specified in subsection (2B).

(4) Where a planning authority decides not to initiate an amendment of the planning scheme, a person may not request the authority to initiate an amendment which is substantially the same as the first-mentioned amendment within a period of 2 years from the date on which the planning authority made its decision."

28 LUPA, s34, then gives a discretion to a council to initiate an amendment or not, following a request. However, before making such a decision, it must consider the matters set out in s33(2B). What, however, s33(2B)(a) requires to be considered is different from what a council must do, after it has initiated an amendment and prepared a draft amendment. Section 33(2B)(a) requires a council to consider "whether the requested amendment is consistent with the requirements of section 32". On the other hand, once a council has decided to initiate an amendment and has prepared a draft amendment, it must then "determine whether the draft amendment meets the requirements specified in section 32" (s35).

29 Once the draft amendment is so certified, it is publicly exhibited and representations may be made in relation to it by members of the public. Once the period for exhibition and receipt of any representations ends, s39(2) requires a council to provide to the Commission a copy of each representation and "a statement of its opinion as to the merit of each such representation, including, in particular, its views as to ... the need for modification of the draft amendment in light of that representation ... and the impact of that representation on the draft amendment as a whole ... and such recommendations in relation to the draft amendment as the authority considers necessary".

30 Thereafter a public hearing will be heard at which representors' issues will be considered and it is then for the Commission to determine the fate of the draft amendment after that public consultation process.

31 The grounds were argued essentially under four headings. These were:

- applicability of natural justice principles (1A);

Ground 1E was effectively a repeat of grounds A and D and was not separately argued.

32 The first question to be answered is whether the principles of natural justice apply to the Council in making the decision that it did at its meeting on 14 March 2006. If they did, were they applied. Counsel for the applicant submitted such rules should apply. He submitted the Council denied the applicant natural justice by:

(a) receiving material adverse to the applicant's application in the form of the petition, letters written by persons from the area, and submissions from two people, without disclosing it to the applicant, and

(b) receiving a copy of letters written by Mr Stewart without affording him an opportunity to be heard as to the contents of them and his purpose in sending them.

33 Counsel for the Council submitted that the rules of natural justice did not apply to this particular legislative scheme, but if they did, the extent of the duty did not require the Council to provide the adverse material to the applicant. He further submitted that the issue of whether such rules applied was a matter to be considered in the context of the legislation.

34 In R v Resource Planning and Development Commission; ex parte Dorney (No 2) [2003] TASSC 69; (2003) 12 Tas R 69, Blow J considered this issue, starting at par39, in the context of actions of the Commission. His honour examined some provisions of LUPA and also the Resource Planning and Developments Commission Act 1997 ("the RPDC Act") and concluded, at par48, "I think Parliament's intentions as to the applicability of the common law rules of procedural fairness would have been the same both in relation to draft planning schemes and draft amendments to planning schemes. There is no reason to think otherwise".

35 At par49, Blow J then set out a passage from the judgment of Mason CJ, Deane and McHugh JJ in Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596, a case dealing with whether the parents of a deceased boy had the right to be heard by counsel by way of a closing address at the end of an inquest in Western Australia. Their Honours said as to the common law rules of natural justice or procedural fairness:

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment: The Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, at pp 395-396; Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, at pp 109-110; Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 137 CLR 487, at pp 496, 500; J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at p 456; Haoucher v Minister for Immigration and Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648, at p 680. In Tanos (1958) 98 CLR, at p 396, Dixon CJ and Webb J said that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from 'indirect references, uncertain inferences or equivocal considerations'. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v Parole Board of New South Wales (1986) 5 NSWLR 338, at pp 344-345, 347, 349. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550, at p 584, Mason J said that the law in relation to administrative decisions: 'has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.' In Haoucher (1990) 169 CLR at p 653, Deane J said that the law seemed to him 'to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making'."

36 Blow J said further at pars49 and 50 in relation to the same case:

"Their Honours went on to conclude, at 598-599, that the critical question was whether the terms of the Act 'display a legislative intention to exclude the rules of natural justice and in particular the common law right of the appellants to be heard in opposition to any potential finding which would prejudice their interests.'

In the light of that authority, I think it is quite clear that Parliament did not intend the RPDC Act to exclude the operation of the common law rules of natural justice in cases where the Commission holds a hearing."

37 Blow J took a different view when considering the impact of further provisions in LUPA and after referring to a New South Wales case of Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1989) 46 NSWLR 78, when he said, at par52:

"There are a number of differences between the LUPA Act and the legislation considered in Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1989) 46 NSWLR 78. However I do not think any of the differences warrants a conclusion that the Tasmanian Parliament did not intend to supersede the common law in relation to a council's duty of procedural fairness. Under the LUPA Act, s38(b), a council is required to 'advertise, as prescribed, the exhibition of the draft amendment'. An identical provision as to the advertising of the exhibition of draft planning schemes is made in s25(a)(ii). I think it is important to bear in mind that the processes of public exhibition and advertising do not just serve the purpose of providing notification to those whose interests might be affected by the making or amendment of a planning scheme, but also form part of the process of inviting and obtaining submissions from members of the public, some of whose interests might be theoretical, ideological or political, rather than proprietary or pecuniary. It is from representations made by members of the public that a council and the Commission can be exposed to a variety of points of view, and learn of aspects of a proposal of which they might otherwise be insufficiently or inaccurately informed. See Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 per Stephen J at 542. In view of the wording of the relevant provisions of the LUPA Act, the roles that are played by representations from members of the public, and the decision of the New South Wales Court of Appeal in Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6; (1989) 46 NSWLR 78, I believe that Parliament intended that councils were not to be subject to any duty to accord procedural fairness to any person or body who or which might be affected by the provisions of a draft planning scheme or a draft amendment to a planning scheme. Parliament made it the role of the Commission, rather than councils, to afford procedural fairness to such persons, pursuant to the RPDC Act, s10(1)(b)(v)."

38 With respect, I disagree with this view to the extent it is so broadly stated. It is predicated on an acceptance that there is a process by which draft amendments are advertised thus allowing anyone to comment, and that decisions relating to such an amendment will ultimately be made by the Commission. It does not appear to recognise that there are early steps in the process, during which the Council has to make a determination as to whether or not to initiate an amendment which are unconstrained by any legislative framework about advertising and public involvement.

39 In the present case we are dealing with that initial process. Counsel for the applicant submitted that there was nothing in LUPA, s33 or elsewhere in Pt3, Div2 of that Act which could be construed as "plain words of intendment that exclude the operation of the common law as to procedural fairness" in relation to that initial process [my emphasis]. I have already set out the relevant provisions of that Division. With respect, I agree with counsel's submission. I cannot conclude in those circumstances that, insofar as the initial process is concerned, Parliament intended that the principles of natural justice should not apply

40 That is, however, not the end of the issue. The Court also needs to consider whether it can be said the power conferred on a planning authority by LUPA, ss32 - 34, is such as to, in the words of the Court in Annett's case (supra), "destroy, defeat or prejudice a person's rights, interests or legitimate expectations". The applicant has no automatic right to develop its land as it seeks to do. It may only do so with approval. The Council's power under s34 therefore does not defeat or prejudice the applicant's rights. However an applicant such as that in this case must have a legitimate expectation, having regard to the scheme in LUPA, that, with a properly documented application supported by a supportive report from the Council's own officers, it will at least be entitled to have its application fully canvassed in an open and public forum (the Commission) in which it can take part. It has not only lost that expectation, but by virtue of LUPA, s33(4), it is prevented from renewing a substantially similar application for two years.

41 I am satisfied in all the circumstances that the principles of natural justice do apply to the preliminary process undertaken by the Council pursuant to LUPA, ss33 - 34.

42 Were those principles applied in the present case. The provisions of the LGA allowed the lodgement of the petition lodged by Mrs Morris with the Council and its tabling at an ordinary general meeting. Those same provisions then required the general manager to give to the person presenting it notice of when the Council would consider it and required the Council to consider what, if any, action to take about it within 42 days of its being tabled. Counsel for the Council submitted that, given those provisions, the Council did no more than receive the petition at its meeting on 14 March 2006, would not have considered it, and that there was no evidence councillors did.

43 As to the statements made by Mrs Morris and Mr Butler to the meeting of 14 March 2006, counsel for the Council submitted that the Local Government (Meeting Procedures) Regulations 2005 permitted the chairperson of a council meeting to invite a person to address a meeting, and hence the Council was within its powers when it heard statements from these people. I do not understand the applicant to be suggesting it was not.

44 Counsel for the Council submitted that, when a council makes a decision in a meeting, it acts on "many imponderables and a great deal of local knowledge", inquiry, advice and the recommendations of its officers, the relevant views of other aldermen and local and general knowledge. He submitted in short that the process was political and not legal and this was well illustrated in Upham v The Grand Hotel [1999] SASC 414; (1999) 74 SASR 557 at [67]. The paragraph to which counsel referred appears under a heading "Comments on the scheme of the Act and the Regulations". It clearly relates to the specific process being dealt with in that case. Indeed it did involve a consideration of a decision made by a local council. However, it was a decision made by such council pursuant to a process unlike that we are dealing with here. The opening words of the paragraph referred to in Upham's case (supra) are perhaps, however, relevant. At 567 Doyle CJ and Bleby J said:

"A relevant authority, when dealing with an application for a development consent, is not deciding an issue or dispute between the applicant for consent and persons who make representations. The authority must decide the matter for itself, after giving appropriate consideration to the provisions of the relevant Development Plan and to anything else to which its attention is directed by the Act or by the Regulations."

45 It is accepted that the process being undertaken by the Council at its meeting was not adversarial in nature. The Council was called upon to make a decision. It was entitled to hear from its advisors, its councillors in debate, and from members of the public whom it had invited to make a statement. However, its decision had to be made within the constraints of the provisions in LUPA and the facts of the matter are that:

- it had before it the petition received by Council, accepting the minutes reflect the order in which matters were chronologically dealt with at the meeting, prior to the consideration of the draft amendment;

- the petition was clearly adverse to the amendment;

- Mrs Morris and Mr Butler made statements in respect of the draft amendment, again accepting the minutes reflect the order in which things were dealt with chronologically, prior to the consideration of the draft amendment; and

- Mrs Morris's statement, it can be inferred, was adverse to the draft amendment.

46 Counsel for the Council submitted that adverse material before a council could come from many sources including potentially the mind of an alderman. To require disclosure of all such material would place an unacceptable burden on a council in carrying out its functions. He referred to LUPA, s33(3), which imposes a time limit on the process a council undertakes in deciding whether or not to initiate an amendment to a planning scheme. He submitted that the imposition of procedural fairness on the process would jeopardise the Council's chances of making its decision within the time limit set out and that it might also permit abuses of the system. In this regard he referred to Upham v The Grand Hotel (supra) where, at par95, Doyle CJ and Bleby J canvassed such possibilities in the context of the case they were there dealing with.

47 Counsel did not identify the type of abuse which might have been possible in this case and I am unable to identify it. The only possible consequence of disclosing to the applicant the existence of the adverse material and the content of what was put by Mrs Morris and Mr Butler might have been an adjournment of the consideration of the draft amendment to the next Council meeting. However, even that could have been avoided had the applicant been notified of the existence of adverse letters and the application by Mrs Morris and Mr Butler to make statements prior to the meeting.

48 Counsel for the applicant argued that the question of the time limit was not a critical factor. The issue, in a slightly different context, was considered by this court in R v Resource Management and Planning Tribunal; ex parte Gary James Wilson [2000] TASSC 101. The principles there canvassed are apposite to this argument. I do not accept that the time limits referred to by counsel for the Council would be critical in the present situation.

49 The applicant does not need to demonstrate that it was adversely affected by the failure to comply with principles of natural justice, only that it could have been.

50 In all the circumstances I am satisfied that the Council had an obligation to make the applicant aware of the existence of the petition, the letters written by Mrs Morris and others to the Council adverse to the application, the fact that the Council had in its possession a copy of Mr Stewart's letter to Mrs Morris, and the fact that Mrs Morris and Mr Butler had been given permission to make a statement to the council meeting so that if it chose, the applicant could put material to the meeting in response.

51 The nature of the petition, the nature of the letters and what must be inferred as the adverse content of Mrs Morris's statement to the Council all had the potential to affect the decision of the counsellors. This is particularly apparent when regard is had to the reasons minuted for the rejection of the request and the consequent permit application.

52 In the circumstances Ground 1A of the notice to review is made out. While it follows from that conclusion that the applicant should succeed in its application such that it should be entitled to the order it seeks, I will still deal with the remaining grounds of review.

Unreasonableness/Taking into account irrelevant considerations/Failure to take into account relevant considerations

53 These grounds of review to a degree overlapped with each other and with that relating to natural justice.

54 Counsel for the applicant submitted that the making of the decision by the Council was an improper exercise of power and an error of law because the decision was manifestly unreasonable (JR Act, s17(2)(e) and (f)) in that:

- the amendment was consistent with the mandatory requirements of LUPA, s32, and the Council failed to take the considerations there set out into account;

- the decision was made in a field of expert knowledge and contrary to the only expert evidence before it; and

- the decision was made on the basis of limited public involvement in a merit oriented decision making process where such process was not envisaged by the legislation.

55 Counsel referred to the decision of Underwood CJ in Lark v Nolan [2006] TASSC 12 where, at par43, his Honour identified the nature of the unreasonableness ground and said at pars43 and 45:

"This statutory ground of review owes its origins, of course, to the seminal authority of Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. Wednesbury unreasonableness has been discussed in many cases and it would be tedious to refer to or quote from them. However, it is perhaps worthwhile setting out the following relevant statement of principle that underpins the law and is taken from the judgment of Brennan J (as he then was) in Attorney-General for New South Wales v Quinn (1990) 170 CLR at 37:

'If it be right to say that the court's jurisdiction in judicial review goes no further than declaring and enforcing the law prescribing the limits and governing the exercise of power, the next question immediately arises: what is the law? And that question, of course, must be answered by the court itself. In giving its answer, the court needs to remember that the judicature is but one of the three co-ordinate branches of government and that the authority of the judicature is not derived from a superior capacity to balance the interests of the community against the interests of an individual. The repository of administrative power must often balance the interests of the public at large and the interests of minority groups or individuals. The courts are not equipped to evaluate the policy considerations which properly bear on such decisions, nor is the adversary system ideally suited to the doing of administrative justice: interests which are not represented as well as interests which are represented must often be considered. Moreover, if the courts were permitted to review the merits of administrative action whenever interested parties were prepared to risk the costs of litigation, the exercise of administrative power might be skewed in favour of the rich, the powerful, or the simply litigious.

Some advocates of judicial intervention would encourage the courts to expand the scope and purpose of judicial review, especially to provide some check on the Executive Government which nowadays exercises enormous powers beyond the capacity of the Parliament to supervise effectively. Such advocacy is misplaced. If the courts were to assume a jurisdiction to review administrative acts or decisions which are "unfair" in the opinion of the court - not the product of procedural unfairness, but unfair on the merits - the courts would be assuming a jurisdiction to do the very thing which is to be done by the repository of an administrative power, namely, choosing among the courses of action upon which reasonable minds might differ: see Secretary of State for Education and Science v Tameside Metropolitan BC [1976] UKHL 6; [1977] AC 1014, at p 1064, and Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at pp 414-415. The absence of adequate machinery, such as an Administrative Appeals Tribunal, to review the merits of administrative acts and decisions may be lamented in the jurisdictions where the legislature has failed to provide it, but the default cannot be made good by expanding the function of the courts.'

With respect to judicial review of discretionary administrative decisions, Gibbs J (as he then was) said in Buck v Bavone (1976) 135 CLR at 110 at 118 - 119:

'Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts'." [emphasis added]

56 The irrelevant considerations to which the Council was said to have had regard were:

- the availability of alternative industrial sites;

- the residential amenity of neighbours and the question of rural amenity; and

- the draft and as yet unimplemented Clarence Planning Scheme 2002.

57 The relevant considerations the Council was said to have failed to have regard to were:

- that the proposed amendment was consistent with mandatory requirements;

- its role by reference to the legislative framework in the process for obtaining an amendment to a planning scheme; and

- that the Commission had previously held in dealing with an application for an amendment to allow the building of a homemaker centre in land on Kennedy Drive that "Prima facie the intent of the draft amendment to provide for commercial use at Cambridge is consistent with the planning scheme generally and the description and principles for the district."

58 Counsel for the Council submitted that this Court should exercise considerable caution in dealing with these particular grounds because they appeared to invite the Court to examine the merits of the application to initiate the draft amendment. He submitted it was for the Council and not the Court to determine the merits. He relied on statements in both Nekon Pty Ltd v Hobart City Council [2004] TASSC 44, par78, and Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 - 42. While the opening words of par78 in Nekon's case do indeed contain the warning articulated by counsel, Underwood J, (as he then was), said further at 79:

"There is no statutory prescription specifying the matters the respondent can or must take into account in the formation of the opinion. ... In a case such as this where the opinion in question relates to such a wide and undefined matter as a particular benefit to a particular property ... the applicants face an onerous task in establishing that the opinion formed on 11 August 2003 was so unreasonable that no council, acting lawfully and reasonably, would have formed such an opinion."

59 The factual situation being there considered by Underwood J must be contrasted with that being considered in the present case. LUPA, s32, set out what any amendment to a planning scheme must and may provide for. The decision of the Council must be constrained by those parameters. Additionally, LUPA, s33(2B), directs the Council to consider whether the application was "consistent with" the requirements of s32 and any advice referred to under the LGA, s65. It cannot be inferred from that framework that the Council had a broad and largely unfettered discretion whether to initiate an amendment or not. This view is reinforced when the role of the Council at different stages of the process is examined.

60 At this point in the process the Council is only required to consider if the amendment proposed is "consistent with" the requirements of s32. Once however the amendment is initiated it must then determine that it "meets" the requirements. That is, the test becomes more stringent. This scheme is inconsistent with any real merits-based consideration of any request at this stage of the process when any such consideration will clearly later occur in the Commission.

61 The report for which Mr Lovell was responsible and the material in the application prepared by Mr Isles were to the effect that the proposed amendment was consistent with the mandatory requirements of LUPA. The report of Mr Lovell was a report the Council was required to consider (LUPA, s33(2B)(b)). The Council acted contrary to the recommendations implicit and explicit in those reports, being the only expert material available to it.

62 As is apparent from the minutes of the Council meeting, the Council had regard to what it said was the adverse affect on the amenity of neighbours, that the zoning proposed under the draft Clarence Planning Scheme 2002 was to protect rural amenity and the availability of alternative industrial sites. Counsel for the applicant submitted these were irrelevant considerations. On the other hand, counsel for the Council submitted the Council was entitled to consider them. He referred to LUPA, Sch1, Pt1, cl 1(b) and Pt2, cl (f). Section 32 of course provides that an amendment to a planning scheme must seek to further the objectives set out in Sch1.

63 The heading of Pt1 of Sch1 of LUPA is "Objectives of the Resource Management and Planning System of Tasmania". The objective in cl 1(b) is to "provide for the fair, orderly and sustainable use and development of air, land and water". This, counsel argued, entitled the Council to consider what other land was available for industrial purposes. He submitted that planning decisions were inherently strategic and as such immediately called into play the availability of alternative land. He also submitted that planning is for an area generally and did not just relate to this particular spot.

64 In his application at page 24, Mr Isles dealt with the issue of strategic planning. He said:

The Clarence City Council Strategic Plan 2004 provides the Council with a framework of direction for managing growth and change and provision of infrastructure, facilities and services for the City.

The Plan has 12 Programs aimed at achieving the Vision for the municipality. Program 4 City Development and the associated Goal - Identify and implement specific economic development opportunities and projects that will stimulate economic activity within Clarence is relevant to the proposal.

The Eastern Shore (Area 2) Planning Scheme 1986 identifies the land fronting the south side of Kennedy Drive for long-term light industrial and commercial use through its zoning as 'Reserved Controlled Industrial'. The 'Reserved' status under the Planning Scheme was applied to the land in question due to lack of access and provision of reticulated water and sewerage. The sewerage main has been extended with the development of the Airport Business Park. The development of this area for commercial and light industrial uses will provide a sound financial base for the upgrade of the Cambridge Wastewater Treatment Plant.

The proposed rezoning and development is consistent with Program 4 by providing an opportunity for economic growth and employment on land strategically intended for such development under the Planning Scheme."

65 He went on at page 27 to deal specifically with cl 1(b) and said:

"The proposed rezoning will provide for a viable economic and sustainable use of the land and bring it into conformity with strategic provisions of the Planning Scheme. It is consistent with this Objective in that it is considered to represent fair and orderly development."

66 In considering this aspect of the argument, it is also useful to refer back to Mr Lovell's report and that part set out in par10 in these reasons.

67 Nothing in cl 1(b) specifically requires the Council to consider the availability of alternative industrial land as a reason for refusing to initiate an amendment to a scheme. It is impossible to tell just where the consideration came from given the terms of Mr Lovell's report and Mr Isles' application, both of which dealt specifically with the cl 1(b) objective and its interrelationship with this application. While it may have been a consideration ultimately before the Commission when a true merits-based examination would be conducted, it is hard to see it is a relevant consideration in the very preliminary stage the Council was dealing with the matter.

68 The heading of Pt2 of Sch1 is "Objectives of the Planning Process Established by the Act". The objectives in Pt2 are said to be in support of those set out in Pt1. The objective in cl 2(f) is "to secure a pleasant, efficient and safe working, living and recreational environment for all Tasmanians and visitors to Tasmania". Counsel for the Council submitted this entitled the Council to consider amenity.

69 Both the report of Mr Lovell and the application of Mr Isles deal with this issue. I refer again to that part of Mr Lovell's report set out in par10 of these reasons. The impact on amenity is dealt with. He says in particular that "Recent developments and interest in future development in the Kennedy Drive area will see it developing into an important light industrial and commercial area consistent with the strategic intentions of the Planning Scheme." The report went on in point 5 to deal with the Draft Clarence Planning Scheme. The report set out:

"5.1 This development is not inconsistent with adopted strategies and will not prejudice the new planning scheme.

* The draft scheme has reached a late stage in its preparation.

* The relevant controls under the draft scheme are as follows:

- The land is proposed to be zoned Rural Residential under the draft scheme.

- The zoning of the land was on the basis of requests from neighbouring landowners rather than part of a larger strategy and the current proposal is considered to be the highest and best use of the land.

* Therefore although the proposal is inconsistent with the draft scheme it is considered that it will have no strategic implications that would prejudice implementation."

70 It should be noted that nearby residents enjoyed only pre-existing non-conforming use rights in the area and other commercial uses had already been allowed in the same area, notwithstanding the terms of the as yet unimplemented Clarence Planning Scheme 2002.

71 It must be inferred from the fact that the Council considered the matters given as its reasons for refusing to initiate the amendment that it had regard to the terms of the petition tabled at the meeting, given the petition clearly indicated objection to the development on the basis of asserted interference with the Acton Corridor green belt and a second agricultural area, ie, rural amenity. It must also be inferred that they also had regard to the terms of Mrs Morris's letter of 28 November 2005, given she specifically refers to the rural residential zoning provided for in the new unimplemented scheme.

72 It cannot be said in all the circumstances that the issues of amenity, the new scheme and the availability of alternate sites were wholly irrelevant considerations in the planning process. The issue is whether they were, at this stage of the process, given the Council's role and the requirement of LUPA, s33(2B) that the Council consider whether the amendment is "consistent with" s32.

73 As to the asserted failure to take into account relevant considerations, as counsel for the Council correctly submitted, a failure to take a relevant consideration into account amounts to an error of law only when the decision-maker fails to take into account a matter that it is bound to take account of (see Minister For Aboriginal Affairs v Peko Wallsend Ltd (supra) at 39 - 42). What it is bound to take into account will be determined by the subject matter, scope and purpose of the relevant legislation. Counsel submitted that the Council was not bound by the decisions of the Commission or indeed by previous decisions of itself.

74 The legislation does not specifically require the Council to make a determination by reference to previous Commission decisions. However, while I do not pause to set them out in full, the clear intention of the Sch1 objectives and the supportive Sch2 objectives is to create a planning framework within which there is sound strategic planning, co-ordinated action by state and local government and a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land. In other words, there is a system which produces consistency. To suggest that the Council is entitled to act effectively at large, entirely without regard to decisions of the Commission clearly of relevance to its own decision, flies in the face of those objectives.

75 There can be no argument the Council was bound to consider the matters referred to in LUPA, s32. The Council gave reasons for its decision. At no stage did Council state as one of those reasons that the proposed amendment was not consistent with the requirements of s32. It is open to infer in those circumstances that the Council did not consider that matter as a whole but instead focused on the matters to which it did refer. In doing so it embarked on a "merits-oriented" process in the words of counsel for the applicant.

76 It is in my view necessary to examine counsels' submissions in the context of the stage of the overall planning process with which the Council was dealing at its meeting of 14 March 2006. Were the Council at liberty to embark on a merits-based examination of a proposed amendment at this stage of the process, the question must be asked, why have a public exhibition process, provision for representations and provision for public hearings by the Commission? Indeed, why have the Commission at all? The only conclusion must be that the Council's role at the early stage we are dealing with here is constrained by the requirement that it consider the matters set out in LUPA, s33(2B).

77 In that context, I am satisfied that the Council took into account irrelevant considerations when making its decision and failed to have regard to relevant considerations. In so doing and generally, it reached a conclusion which no reasonable Council could have reached had it restricted its decision-making role to that constrained by LUPA.

78 In all the circumstances, the application should succeed.

79 There will be an order quashing the decision of the Council made 14 March 2006 by which it refused to initiate an amendment to the Scheme in respect of a property at 2 Kennedy Drive and to approve the consequent application for a permit.