Supreme Court of Tasmania|2007-03-26|Before: Blow JJ, Crawford J, Evans J

St Helen's Area Landcare and Coastcare Group Inc v Break O'Day Council [2007] TASSC 15 (26 March 2007)

PARTIES: ST HELEN'S AREA LANDCARE AND COASTCARE GROUP INC

BREAK O'DAY COUNCIL AND SMARTGROWTH INTEGRATED ARCHITECTURE AND URBAN DESIGN

TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Environment and Planning - Environmental planning - Development control - Matters for consideration of consent authority - Generally - Consideration of policies - State policy (Tas) - Whether binding or relevant.

Environment and Planning - Environmental planning - Development control - Consents, approvals and permits - Modification - Generally - Whether substantially different development.

Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347; Carr v Minister for Land and Water Conservation [2000] NSWLEC 89; (2000) 109 LGERA 175; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277, referred to.

Environment and Planning - Courts and tribunals with environmental jurisdiction - Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors - Powers and duties on appeal - State policy - Whether binding or relevant.

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, followed.

Environment and Planning - Courts and tribunals with environmental jurisdiction - Tasmania - Supreme Court - Question of law - What constitutes - Illogical and irrational reasoning.

Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992, distinguished.

Judgment Number: [2007] TASSC 15

ST HELEN'S AREA LANDCARE AND COASTCARE GROUP INC

v BREAK O'DAY COUNCIL AND SMARTGROWTH INTEGRATED ARCHITECTURE AND URBAN DESIGN

ST HELEN'S AREA LANDCARE AND COASTCARE GROUP INC

v BREAK O'DAY COUNCIL AND SMARTGROWTH INTEGRATED ARCHITECTURE AND URBAN DESIGN

1 The second respondent ("Smartgrowth") applied to the first respondent ("the Council") for a planning permit under the Break O'Day Planning Scheme 1996 ("the planning scheme") to develop an area of land at Scamander. On 11 March 2004, the Council approved the application subject to many conditions. The permit referred to the approved application being for a 101 lot subdivision, 78 tourist cabins, office, caravan park, camping ground and ancillary works.

2 Appeals were instituted by the appellant and others to the Resource Management and Planning Appeal Tribunal ("the Tribunal"). Prior to the hearing of those appeals, mediation sessions and discussions between the parties took place and as a consequence, Smartgrowth prepared a document entitled "Scamander Sanctuary Vegetation Management Plan - July 2004", to which were attached a number of plans. In September 2004, some three months before the hearing of the appeal, the Tribunal made an order pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s22(3), allowing the development application to be amended in accordance with those plans. Accordingly, it was that amended application that was the subject of the appeals at the hearing before the Tribunal. No issue concerning that was raised by the present appeal.

3 The land is contained in Certificate of Title Volume 244660 Folio 1 and is located immediately south of the Scamander town centre. The land occupies a position between coastal dunes to the east and the Tasman Highway, or rural residential development bounding the highway, to the west. Its area is 52.1 hectares and it is roughly rectangular in shape, its north-south axis being longer than its east-west axis. It is mostly bordered to the west by rural residential lots that face onto the Tasman Highway, but the north-western corner of the land itself bounds the highway. It is bordered to the east by Steels Beach and the ocean. To the south it is bordered by the Winifred Curtis Scamander Reserve.

4 Plans supporting the development application make it much easier to understand what was proposed than mere words. Nevertheless, I will do the best I can with words. It was proposed that most of the approximately western half of the land would be intensely developed with at the northern end, a 42 site caravan park, a 17 site cabin park and a camping ground (described as a surf camp), and in the centre and south by a subdivision into 83 residential lots and associated streets and services. (The precise numbers of sites, cabins and lots might be slightly at variance with the figures I have stated.) A small part of the western half of the land, at the south-western corner, was not to be developed, but instead was reserved for a sanctuary to protect Acacia ulicifolia, a rare plant. The eastern half of the land was not sought to be as intensely developed, it being proposed that over half of it would be reserved as irregularly shaped sanctuaries to protect existing wetlands and vegetation. Apart from associated roads, paths and services, the development of the eastern half was to be confined to four separate areas. One was to be a small subdivision of four residential lots on a short extension of Dune Street, in the town of Scamander, from the north. The other three areas were to contain what were variously labelled as "eco retreats" or "beach retreats" containing what were described as small buildings/cosy accommodation. One such area was a narrow strip of land extending the full length of the eastern boundary, at the rear of the sand dunes on Steels Beach, and containing 27 such retreats. A second and smaller area, about 100 metres further west, was a narrow shorter strip of land containing a reception and 13 such retreats. The third such area was to be at the southern end of the land and bordering the 83 residential lot subdivision in the western half of the land. It was a narrow strip of land containing about 21 such retreats.

5 The Tribunal refused to permit any of the development proposed for the eastern half of the land. In brief, it rejected the proposed eco retreats because of the risk of wind erosion in the sand dunes area and because of the removal of vegetation and the carrying out of works in or within 30 metres of wetland areas. In those regards the proposal did not satisfy the planning scheme. A further reason for determining those parts of the development to be inappropriate concerned the removal of Eucalyptus ovata. The Tribunal refused to permit the small subdivision of four residential lots on the extension of Dune Street because it would require works within 30 metres of wetlands and waterways which would be likely to interfere with the provision of flushing flows from the Scamander River, to the north, to Henderson Lagoon, to the south, and because the subdivision land was susceptible to flooding from water backing up from that lagoon. In those regards, the proposal did not satisfy the planning scheme. Once again, a further reason for determining that the subdivision was inappropriate concerned the removal of Eucalyptus ovata.

6 The Tribunal determined to permit all of what was proposed for the western half of the land. It would not involve vegetation removal in or within 30 metres of any wetland and no direct discharge into any wetland, and acceptable solutions in the planning scheme were met.

7 The appellants before the Tribunal raised many issues, mainly environmental. It is unnecessary to refer in detail at this point to how the Tribunal dealt with them all. They included concerns about the impact and effects of vegetation clearance; the disposal of effluent and stormwater; the flushing of nutrient loads due to fertilization of gardens and lawns; the impact of the development on the adjoining Scamander Conservation Area and Winifred Curtis Reserve; the disturbance of shore birds in the beach area; and threats to the habitat of the New Holland mouse.

8 The Tribunal ordered that each of the appeals was allowed to the extent that the permit appealed against was varied in accordance with its determinations. The effect of the variations was that the development on the western half of the land was permitted, but not the development on the eastern half. Variation of the Council's permit was authorised by the Resource Management and Planning Appeal Tribunal Act, s23(2)(b).

9 Under s25, the appellant appealed from the Tribunal's decision to the Supreme Court. By subs(1), such an appeal may only be brought on a question of law. There were three grounds of appeal but the third ground was abandoned. It was determined by a judge that the first two grounds failed and the appeal was dismissed. The appellant appealed to this Court on two grounds that in essence were that the learned judge erred in law by finding that those two grounds failed.

"The learned primary Judge erred in law in failing to find that the Resource Management and Planning Appeal Tribunal ('the Tribunal') erred in law by failing to refuse a permit for a development and/or use that was substantially different to the which the proponent pursued before the Tribunal in an amended form as the Scamander Sanctuary Vegetation Management Plan - July 2004."

11 In the New South Wales Court of Appeal in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737, Priestley JA was of the view that "if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application". At 741, Meagher JA agreed and said that there could be little dispute that such was a test to be applied. A differently constituted Court of Appeal in Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 was of the same view. Priestley JA in Mison, at 737, explained that the introduction of the word "significantly" into the test imports into the decision-making process of the consent authority a judgmental factor incapable of precise statement. In some cases the answer will be clear, in others it will not. An evaluative judgment needs to be made. See Kindimindi at par54.

12 The present case is not one of a condition of a permit significantly altering the development for which application was made. It is a case of a permit being granted by the Tribunal for a development which, on the appellant's argument, is significantly different from the development which was the subject of the amended development application. As was explained by Pearlman J in Carr v Minister for Land and Water Conservation [2000] NSWLEC 89; (2000) 109 LGERA 175 at 186, "the consent authority is not empowered to grant consent to a development which is significantly different from the development which was sought because, as is self-evident, that would not amount to a grant of consent to 'the development application'", which was the power of the consent authority in that case under the Environmental Planning and Assessment Act 1979 (NSW), s80(1).

13 There was no dispute between the parties that the test of significant difference was to be applied in this case and in the circumstances, I am content to apply it. However, the point must be made that it is not the function of this Court, nor was it the function of the learned judge on the first appeal, to simply determine whether it would have granted the permit in the light of the test that is to be applied. An appeal from the Tribunal may only be based on an error of law by the Tribunal, and if the Tribunal's view that the differences between the development granted by it and the development for which application was made were not sufficient to prohibit the granting of the permit, the decision was not an error of law unless, at the very least, it can be concluded that as a matter of law, and not merely judgment, the decision was not one that was reasonably open to the Tribunal.

14 At the end of his closing submissions to the Tribunal, counsel for Smartgrowth raised the possibility that the Tribunal might consider permitting parts of the development for which application had been made and rejecting other parts, in the following terms:

"And finally, Mr Chairman, if the Tribunal is to find that a part or parts of the development are inappropriate in its view I ask that the Tribunal sever those parts rather than reject the whole development. The Tribunal, of course, has a duty to achieve a proper merits outcome in the ultimate scheme of things and a rejection of the entirety of the development on the basis of a small part being inappropriate would not be the right approach, I submit."

15 At the conclusion of the Tribunal's reasons for its decision and immediately before it made its orders, it made the following statement about the matter:

"Refusal of the proposal in respect of the eastern portion of the site and allowing only the proposed development upon the western portion of the site might be thought to be substantially different from what was proposed, and therefore essentially a refusal. The Tribunal would ordinarily have refused the whole proposal upon that basis. The Tribunal was however invited by Counsel for the applicant, in the event that part of the development was excluded, to nevertheless permit the remainder. Against the event that the Tribunal's conclusion falls within that invitation, the Tribunal will allow those aspects which it has not stated above that it excludes. If counsel's invitation did not extend to so doing, and the Tribunal was required to express a decision in those terms, the Tribunal would refuse the total development."

16 In effect, what the Tribunal was indicating was that if the developer wanted what the Tribunal was prepared to permit by way of development, the differences between what would be permitted and what the developer had sought by way of its amended application were not so significant as to require the refusal of the application for the permit, whereas, on the other hand, if the developer did not want what the Tribunal was prepared to permit, the differences were significant and the application should be refused.

17 Whether differences are significant will depend on the circumstances of the particular case. Differences may be significant for several reasons. One concerns the interests of the developer, a second concerns the interests of the appellant or of some other party and a third concerns the interests of the public. No other basis comes to my mind for this case and it was not raised by the parties.

18 The interests of the developer did not give significance to the differences between what was sought and what was permitted, so as to warrant a refusal of the application. This was not a case, as it was in Carr v Minister for Land and Water Conservation (supra), where the developer did not want what the relevant authority was prepared to permit because of the differences between that and what the developer had sought. If what the Tribunal was prepared to permit out of all that was sought by Smartgrowth was acceptable to Smartgrowth, then so far as concerned the interests of Smartgrowth, the differences were not so significant as to warrant refusal of a permit. It was not suggested by the appellant's counsel that the differences were significant having regard to the interests of the appellant, for example because of some form of prejudice, nor was it suggested that the interests of the Council made the differences significant to the extent that the permit should have been refused.

19 The interests of the public had to be considered and it was upon those interests that the appellant relied. Its counsel submitted that the public in general had not been given an opportunity, through public notification of what was proposed, to make representations about what the Tribunal permitted. He submitted that the statutory scheme of resource management and planning has as one of its central objectives the encouragement of public involvement. Whenever an application is made for a permit for a use or development which the planning authority has a discretion to refuse or permit, it must be publicly notified. Under the Land Use Planning and Approvals Act 1993, s57(5), members of the public may make representations relating to an application and under s61(5), any person who has made a representation may appeal to the Tribunal against the granting of a permit. It was submitted for the appellant that the central objective of public notification and representations would be undermined if approval was to be given for a development that was significantly different from that which had been publicly notified. No doubt the submission is sound, but it is the significance of the difference, in the light of that central objective, which is the issue. A significant difference will not be one that is merely a substantial difference. It will be a difference which, in light of the provisions for public notification and representations, and as a matter of judgment, is of such substance, consequence or significance as to call for fresh notification. That is the criterion that is applied in Queensland. See Mt Marrow Blue Metal Quarries Pty Ltd v Moreton Shire Council [1996] 1 Qd R 347 at 355. Significance is not an abstract concept. It is a matter for judgment in the context of circumstances.

20 It was submitted by the appellant's counsel that it is not possible to say that persons who were not minded to make a representation in relation to Smartgrowth's application for a permit, as publicly notified, might not have taken a different view of the development if it had been advertised in the form in which the Tribunal approved it. He submitted that a member of the public might have been happy with the integrated whole of the development as originally proposed, but would have objected to what was permitted by the Tribunal.

21 I find that submission an unrealistic one and agree with counsel for Smartgrowth that there is no reason to think that there might be a person or body who did not object to the original proposal but who would have done so if aware that the development was not to include the eco retreats and the four lot Dune Street subdivision. The proposed areas of eco retreats were entirely different to the rest of what was proposed, both in nature and position. The Dune Street subdivision extension was extremely minor in the overall scheme of what was proposed. The integrity and merits of what was permitted on the western half of the land in no way depended on the areas of eco retreats and the Dune Street extension being permitted as well. The Tribunal's permit had the effect of reducing the size of what was proposed and its impact on the environment. In no sense could it be argued that by permitting what it did and refusing to permit the balance of what was proposed, greater harm to the environment was likely or that in some other way, the result was more objectionable to members of the public than the entirety of what had been sought. In any event, the decision of the Tribunal to grant the permit in its present form, without those parts of the development as originally proposed, has not been shown to be an unreasonable one in the context I have been discussing and one that amounted to an error or law.

"The learned primary Judge erred in law in failing to find that the Tribunal erred in law in that the Tribunal failed to consider the provisions of the State Coastal Policy as required by the State Policies and Projects Act 1993, s15 and the Land Use Planning and Approvals Act, 1993 s63(2)."

23 For the purposes of the State Coastal Policy ("the policy"), the "coastal zone", to which the policy refers, consists of State waters and all land to a distance of one kilometre inland from the high-water mark. State Coastal Policy Validation Act 2003, s5. All of the land the subject of Smartgrowth's application for a permit fell within the coastal zone.

24 Ground 2 of the appeal to the learned judge made the same assertion concerning error by the Tribunal as is made in ground 2 of the appeal to this Court. That both grounds did so was inappropriate, because neither the State Policies and Projects Act, s15, or the Land Use Planning and Approvals Act, s63(2), required the Tribunal to consider the provisions of the policy. The learned judge pointed that out in her reasons for judgment. Section 15 requires the responsible Minister to review each State Policy at least once every five years and s63(2) creates offences by persons who use land in certain ways or undertake development and do any other act, that is contrary to a State Policy, planning scheme or special planning order. Neither statutory provision imposes any duties on a local council or the Tribunal. However, the argument before the learned judge and before this Court ignored that the ground must fail because of its terms. Instead, the appellant's counsel argued that for other reasons, the Tribunal erred in law by failing to consider the provisions of the policy and in particular, by failing to apply certain of its provisions to the development application before it.

25 It was submitted to this Court by counsel for the Council that the policy is not an instrument which determines the outcome of individual development applications. It was submitted that it is a policy which operates at local and State government level but it is not a regulatory instrument that applies to individual proposals for development and use. The determination of the validity of the submissions require in particular, a consideration of the State Policies and Projects Act and the policy itself.

26 The policy was prepared under that Act and its effect depends, at least in part, on the Act. The Act, s5, requires that a State Policy must seek to further the objectives of the Resource Management and Planning System of the State that are contained in Sch1; may only be made where there is, in the opinion of the Minister, a matter of State significance to be dealt with in the State Policy; must seek to ensure that a consistent and coordinated approach is maintained throughout the State with respect to the matters contained in the State Policy; and must incorporate the minimum amount of regulation necessary to obtain its objectives. By virtue of s5A, a State Policy may contain matters relating to one or more of sustainable development of natural and physical resources, land use planning, land management, environmental management and environment protection.

27 The making of State Policies is governed by ss6 - 11. A draft State Policy is first prepared and if satisfied with it, the Minister may direct the Resource Planning and Development Commission ("the Commission") to prepare a report on it. Section 6(1). Before it does so, the Commission publicly exhibits and advertises the draft and receives representations. Sections 6(2) and 8. The Commission considers the representations and may hold a hearing in relation to one or more of them. Section 9. It may then modify the draft State Policy (s10) and it then submits a report on the draft to the Minister and makes its report publicly available. Section 11(1) and (2). On receipt of the report, the Minister may recommend to the Governor the making of the policy (s11(3)) which is formally known as a Tasmanian Sustainable Development Policy. The Governor may make the policy in accordance with the Minister's recommendation. Section 11(4). However, a State Policy is of no effect until it has been tabled and approved, or taken to be approved, by both Houses of Parliament. Section 11(7) and (8).

28 The effect of State Policies is provided by a number of sections. Where there is an inconsistency between a provision of a State Policy and a provision of a planning scheme in existence at the time when the State Policy comes into operation, the provision of the planning scheme is void to the extent of the inconsistency. Section 13(1). As soon as practicable after a State Policy comes into operation, the Commission must amend existing planning schemes to incorporate all those parts of the State Policy which are relevant to them and to remove any inconsistency between them and the State Policy. Section 13(3). Any amendments thereby made are deemed to have come into operation on the date on which the State Policy came into operation. Section 13(5)(a). A State Policy binds the Crown and municipal councils. Section 13C.

29 A person who contravenes or fails to comply with a provision of a State Policy, or a requirement or obligation imposed under a State Policy, is guilty of a summary offence punishable by a fine not exceeding $50,000, with an additional fine not exceeding $5,000 for each day during which the contravention or failure to comply continues and a further additional daily penalty of $5,000 for each such day occurring after the person has been convicted. Section 14. Following a review of the State Coastal Policy, I expressed the view in Richard G Bejah Insurance & Financial Services Pty Ltd v Maning [2002] TASSC 36 that the policy only imposes duties and obligations on Government bodies at State and local level, including local councils, for contravention or failure to comply with which the penalty provisions of s14 operate. I also concluded that the policy does not impose duties or obligations on the general public. Whether those views were correct is not of consequence to the outcome of this case.

30 Of particular significance among the statutory provisions to which I have referred is s13(1), which makes void any provision of a planning scheme, that is in force at the time when a State Policy comes into operation, and which is inconsistent with the State Policy. It should be inferred that a provision of a planning scheme that is made after a State Policy comes into operation, which is the situation with the planning scheme in this case, is not void for inconsistency with the State Policy but remains valid. If all planning schemes, whenever made, were to be void to the extent that they were inconsistent with a State Policy, the Act would have said so. Parliament obviously expected that planning schemes made after the commencement of a State Policy would not be inconsistent with it. To that end, the Land Use Planning and Approvals Act, s20(1)(b), requires planning schemes to be prepared in accordance with State Policies and s24(2) and (3) require that before a planning scheme is made, the Commission satisfies itself that it was so prepared. Similar provisions apply to amendments to planning schemes.

31 If the inference to which I have referred should be drawn, it may be available to defeat arguments raised by the appellant. For example, it seeks to rely on cl 2.4.2 of the policy, which provides that urban and residential development in the coastal zone will be based on existing towns and townships and that compact and contained planned urban and residential development will be encouraged in order to avoid ribbon development and unrelated cluster developments along the coast. It is the appellant's case that the proposed development was prohibited by the policy because it was not based on an existing town or township and amounted to ribbon development. However, the planning scheme gave the Council a discretion whether to permit what was proposed in this case provided that it conformed with the planning scheme's requirements of performance criteria and compliance with certain standards. If the appellant's case is a sound one, the creation of that discretion by the planning scheme was ineffectual. A consequence would be that notwithstanding that the Commission has satisfied itself that a planning scheme accords with State Policies, that conclusion may be challenged before a council or the Tribunal when a development application is being considered. Provisions of a duly made scheme, approved by the Commission, could be overruled. Such a result seems unlikely to have been intended by Parliament.

32 The two Acts, along with the Resource Management and Planning Appeal Tribunal Act, supported each other and were passed by Parliament at the same time for the purpose of establishing an integrated resource management system for Tasmania. It is to be noted that the Land Use Planning and Approvals Act, s48, requires when a planning scheme is in force, that the planning authority observes and enforces it in respect of all use or development undertaken within the area to which the planning scheme relates and s51(3) requires that on an application for a permit in respect of the proposed use or development, the planning authority is to make its decision by reference to the provisions of the planning scheme that is in force. There is no requirement that reference must also be had to State Policies. Further, s58 provides for applications for a permit in respect of a use or development for which, under the provisions of a planning scheme, a planning authority is bound to grant a permit unconditionally or conditionally, and in such event, by virtue of subs(2), it is mandatory that the planning authority grant such an application unconditionally or conditionally. It is difficult to accept that Parliament intended that the provisions of a State Policy could require a planning authority not to comply with that mandatory requirement in the absence of a clear statutory expression of that intention.

33 Another provision to be mentioned is s63A(1), which makes it an offence if a municipal council does not take all reasonable steps to ensure compliance with a planning scheme in respect of an area within its municipal district. There is no requirement that it must also do so to ensure compliance with a State Policy.

34 The State Coastal Policy appears to be a statement of policies. It is unlike a regulatory instrument. In its preamble it describes itself as a policy and as being "intermediate between the provisions of an Act and the lesser policies and provisions of planning schemes". It refers to the provisions of the State Policies and Projects Act, ss13 and 14, as being of major importance with regard to implementation and enforcement of a State Policy. As I have pointed out, section 13 only makes void the provisions of planning schemes in force at the time a State Policy comes into operation to the extent that the provisions are inconsistent with the policy, and it requires the Commission to amend such planning schemes to remove any such inconsistencies. The preamble of the policy states that "to avoid any inconsistencies the State's peak planning body [the Commission] ... is required to remove inconsistencies between a State Policy and planning schemes". The policy goes on to explain that "all new schemes, of course, are required to be consistent with any State Policy that is in effect when the scheme is prepared". Nowhere in the policy is a statement that when considering an application for a permit for development or use, municipal councils must apply the provisions of the policy when making their determinations. There are statements that the policy "specifically requires planning authorities to implement it" and that planning authorities are "required to give effect to this Policy", but there is no explanation of what is meant.

35 The policy contains statements of general principle that are said to guide its desired outcomes and statements of those outcomes. Many of them are expressed as policies in general terms. Some are not expressed as applying directly to anyone or to any particular process. A great many could have no application to applications for planning permits. None of them are expressed in terms that do have such an application.

36 The preamble of the policy states that in order to be effective a State Policy has to be "implemented fully" and that "a number of statutory and non-statutory implementation tools exist for use by State and local government". It goes on to explain that "statutory tools include provisions under statutes comprising the Resource Management and Planning System and discretionary and other actions provided for in existing statutes" and that "non-statutory tools include Ministerial advice, Cabinet directives, Codes of Practice review and development, guidelines and educational initiatives, the budgetary process, and a range of economic instruments". Once again, there is no mention of decision-making on applications for planning permits.

37 Having regard to the severe penalty provisions of the State Policies and Projects Act, s14, it is to be expected that if local councils and the Tribunal were required to apply the provisions of the policy to individual planning applications or suffer the prescribed penalties if they failed to do so, the policy would have made clear, in precise terms, what their duties were. There is so much vagueness and uncertainty about the terms of the policy that it is unlikely that such obligations were intended.

38 For all these reasons I conclude that neither the Council nor the Tribunal were under any obligation to consider the provisions of the State Coastal Policy when determining Smartgrowth's application for a permit. Ground 2 fails.

39 I would dismiss the appeal.

ST HELEN'S AREA LANDCARE AND COASTCARE GROUP INC

v BREAK O'DAY COUNCIL and SMARTGROWTH INTEGRATED ARCHITECTURE AND URBAN DESIGN

40 I have had the benefit of reading the reasons for judgment prepared by each of Crawford J and Blow J and agree with them that the appeal should be dismissed.

41 Ground 2 raises the issue of whether the Council, and in turn the Tribunal, should have considered the provisions of the State Coastal Policy when dealing with Smartgrowth's application for a planning permit. Whilst I accept that there is considerable force in the reasons Crawford J has identified for concluding that neither the Council nor the Tribunal were under any obligation to consider the provisions of the State Coastal Policy when determining Smartgrowth's application, I am not satisfied that those reasons prevail over the State Policies and Projects Act 1993, s13C, which provides that: "A State Policy binds ... a council."

42 In the face of this clear and unambiguous provision, I share Blow J's view that councils, exercising the power to make discretionary decisions under the Land Use Planning and Approvals Act 1993 are obliged to apply relevant parts of relevant State policies. To my mind it is axiomatic that if councils are obliged to apply State policies, then a Tribunal considering an appeal from a council in circumstances where the council was obliged to apply a State policy must similarly pay regard to the State policy.

43 As to the clauses in the State Coastal Policy that the applicant contends the Tribunal failed to consider, I agree with the reasons given by Blow J for concluding that it has not been shown that the Tribunal erred.

44 I would dismiss the appeal.

ST HELEN'S AREA LANDCARE AND COASTCARE GROUP INC

v BREAK O'DAY COUNCIL and SMARTGROWTH INTEGRATED ARCHITECTURE AND URBAN DESIGN

45 The facts, the history of this litigation, and the legislative framework have been carefully and thoroughly set out by Crawford J in his reasons for judgment, and do not need to be repeated.

46 The Tribunal made a finding to the effect that the development that it decided to permit was not something "substantially different from what was proposed". That was a finding of fact. In making that finding, the Tribunal took into account the submission from counsel for Smartgrowth that, if the Tribunal were to find that parts of the development were inappropriate, the Tribunal should sever those parts rather than rejecting the whole development. The appellant contends that the making of that submission was irrelevant to the question of fact that the Tribunal decided; that it was illogical or irrational for the Tribunal to take that submission into account in deciding that question; and that its illogical or irrational reasoning amounted to an error of law.

47 There is no shortage of authority for the proposition that making a finding of fact on the basis of illogical reasoning does not amount to an error of law. In R v District Court; ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654, Menzies J said:

"Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (eg illogical) inference of fact would not disclose an error of law."

48 Mason CJ cited that passage with approval in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356, and continued:

"Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."

49 In Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165, it was argued that irrational or illogical reasoning on the part of the Refugee Review Tribunal amounted to jurisdictional error entitling an appellant to relief under s75(v) of the Constitution. It has been suggested that that decision "gave its blessing to review for irrationality or illogicality, a ground which has been in the developmental stages for some considerable time": Aronson, Dyer and Groves_, Judicial Review of Administrative Action_ (3 ed, 2004). Courts of appeal in two other States have accepted that, in the light of S20, a new or different approach is required in cases involving challenges to decisions on the grounds of irrational or illogical reasoning: Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388 per Santow JA at par58; Carcione Nominees Pty Ltd v Western Australian Planning Commission [2005] WASCA 56; (2005) 30 WAR 97 at 117 - 118.

50 However the judges who formed the majority in S20 rejected the arguments to the effect that the decision in question in that case had been illogical or irrational. The appellant in that case relied on Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 656 - 657, and submitted that there had been jurisdictional error because the decision in question "was irrational, illogical and not based upon findings or inferences of fact supported by logical grounds": par34. McHugh and Gummow JJ, who delivered the principal judgment, said at par37:

"... the formulation of the criterion which is relied upon by the appellant may be accepted for present purposes ... In this case, the determination by the Tribunal was not irrational or illogical as the appellant contends."

51 At 1175 - 1176 (pars53 - 60) their Honours made it clear that the concept of jurisdictional error was not synonymous with error of law. At 1194, Callinan J agreed with their Honours' conclusions, without expressly agreeing with their reasons. The other member of the majority, Gleeson CJ, said at 1168 (par9):

"... where there is a duty to act judicially, a power must be exercised 'according to law, and not humour' [Sharp v Wakefield [1891] AC 173 at 179 per Lord Halsbury LC], and irrationality of the kind described by Deane J in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 367 may involve non-compliance with the duty."

52 Subsequently, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 at 998 (par38), Gummow and Hayne JJ cited S20 as authority for the following proposition:

"The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds."

53 S20 and SGLB were cases about the existence or otherwise of jurisdictional error entitling appellants to relief pursuant to s75(v) of the Constitution. In S20, at 1175 - 1176, McHugh and Gummow JJ referred to a number of different areas of the law where distinctions are drawn between factual and legal matters. At 1176 (par58), they said:

"The critical nature of the line drawn in the above areas of the law between factual and legal matters varies with the purposes it serves. The distinction between the functions of judges and juries is one thing, the limitation placed by legislatures upon statutory 'appeals' from specialist tribunals and decision-makers, and the scope of judicial review procedures created by statutes, are others."

54 In the light of that comment, I do not think one should regard S20 and SGLB as establishing that illogical reasoning in fact-finding always amounts to an error of law for the purpose of a statutory appeal from a specialist tribunal. It is necessary to consider the language and purpose of the section creating the right of appeal in any particular case. We are concerned with the Resource Management and Planning Tribunal Act 1993 ("the RMPAT Act"), s25(1), which confers a right of appeal from a decision of the Tribunal "on a question of law". Plainly that provision was not intended to permit anyone to appeal on the ground that the Tribunal had made a wrong finding of fact. Illogical or irrational reasoning can have a number of undesirable outcomes: (i) a wrong finding of fact; (ii) a correct finding of fact, without the support of impeccable reasoning; or (iii) a failure to make a finding of fact as to an issue, despite the presence of sufficient evidence for a finding to be soundly made. I do not think one could sensibly ascribe to Parliament an intention that there was to be a right of appeal in any of those circumstances when Parliament did not intend there to be a right of appeal if the Tribunal made a wrong finding of fact. The intention of Parliament was that fact-finding was to be a matter for the Tribunal, and that there was to be a right of appeal for the purpose of enforcing the Tribunal's obligation to conduct its proceedings and its decision-making in accordance with the law: Kempster v Manning [2006] TASSC 31 at par41. For these reasons, I conclude that the assertion that the Tribunal's impugned reasoning was illogical or irrational does not raise a question of law within the scope of s25(1).

55 Counsel for the appellant submitted that, in taking into account the submission of counsel that I have referred to, the Tribunal took into account an irrelevant consideration. There is ample authority for the proposition that an error of law occurs when a decision-maker exercising statutory power takes into account an irrelevant consideration in making a discretionary decision. See, for example, R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 at 243, and Australian Broadcasting Tribunal v Bond (supra) per Deane J at 367. However, it is necessary to draw a distinction between fact-finding and discretionary decision-making. The reasoning that was impugned in this case was the reasoning that led to a finding of fact. Taking into account irrelevant information when making a finding of fact is very different from giving weight to an irrelevant factor when making a discretionary decision. The authorities as to the taking into account of irrelevant considerations amounting to an error of law relate to discretionary decision-making, not fact-finding, and must therefore be distinguished.

56 During the hearing of the appeal, counsel for the appellant referred to Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, and made a submission to the effect that it was not reasonably open to the Tribunal to conclude that the parts of the development that it allowed were not "substantially different from what was proposed". I reject that submission on two bases. First of all, Wednesbury relates to discretionary decision-making, not fact-finding. See Greyhound Racing Authority (NSW) v Bragg, (supra), at par58. Secondly, after comparing what was applied for and what the Tribunal allowed, I believe it was reasonably open to the Tribunal to make a finding of fact that what it permitted was not "substantially different from what was proposed". The Tribunal allowed some, but not all, of what had been proposed, without the introduction of any new feature so significant as to compel a different finding of fact.

57 For these reasons, I think ground 1 should fail.

58 Counsel for the council made a bold submission to the effect that the State Coastal Policy is not directly relevant to the outcome of individual development applications. He submitted that it is a policy which operates at government level. As I understand his argument, it would follow that the policy may be ignored at council level or Tribunal level in the determination of development applications and appeals arising therefrom.

59 Councils determine development applications pursuant to provisions in the Land Use Planning and Approvals Act 1993 ("the LUPA Act"). The Tribunal hears appeals from councils' planning decisions pursuant to the LUPA Act, ss61 and 62, and the RMPAT Act. Those Acts and the State Policies and Projects Act 1993 ("the SPP Act") form part of a suite of legislation that governs the resource management and planning system of Tasmania. In each Act that forms part of that suite of legislation, there is a requirement for the furtherance of the "objectives of the resource management and planning system of Tasmania". Those objectives are set out in Sch1 to each Act. Thus the LUPA Act, s5, imposes an obligation on every person performing a function or exercising a power under that Act to do so in such a manner as to further those objectives. The RMPAT Act, s5(3), provides that the Tribunal is part of the State's resource management and planning system, the objectives of which are set out in Sch1 to that Act. The SPP Act, s5(1)(a), requires each State policy to seek to further the same objectives. Obviously the Parliament intended Tasmania to have an integrated system of resource management and planning in which State policies, councils and the Tribunal all had roles.

60 The procedure by which State policies are made is relevant to their status. The SPP Act is silent as to who should undertake the preparation of a draft State policy. Once a draft policy has been prepared, the Act provides for the following steps to be taken:

(i) The Minister satisfies himself or herself that the draft State policy deals with a subject requiring a State policy: s6(1).

(ii) The Minister gives a written direction to the Resource Planning and Development Commission ("the RPDC") to prepare a report on the draft State policy: s6(1).

(iii) The RPDC causes a copy of the draft State policy to be placed on public exhibition at its office for eight weeks: s6(2)(a).

(iv) The RPDC advertises the exhibition of the draft State policy: s6(2)(b).

(v) Representations may be submitted to the RPDC by any person before the eight week period expires: s8.

(vi) The RPDC considers the representations: s9(1).

(vii) For the purpose of considering them, the RPDC may hold one or more hearings in relation to them: s9(2) and (3).

(viii) The RPDC prepares a report in accordance with the Minister's direction: s6(1).

(ix) The RPDC submits that report to the Minister: s11(1).

(x) The RPDC publishes notice of its report in the Gazette and makes the report publicly available: s11(2).

(xi) The Minister, no doubt after considering the RPDC's report, recommends to the Governor that a State policy be made: s11(3).

(xii) The Governor makes the policy, and fixes a day on which it will come into operation, allowing time for the following steps to be taken: s11(4).

(xiii) The State policy is notified in the Gazette: s11(5).

(xiv) The Minister causes the State policy to be laid before each House of Parliament within the first ten sitting days after the notification in the Gazette: s11(6).

(xv) In each House of Parliament, either (a) the State policy is approved by the House, or (b) ten sitting days elapse after the policy was laid on the table without any notice being given of a motion to disallow it, or (c) any such notice is withdrawn or the motion lost: s11(7) and (8).

Thus, before any State policy can be made, there is a need for ministerial scrutiny, scrutiny by the independent experts of the RPDC, consideration of any public representations, and opportunities for consideration by both Houses of Parliament.

61 The State Coastal Policy consists of the following:

• A table of contents.

• A preamble.

• Some paragraphs headed "APPLICATION OF THE STATE COASTAL POLICY".

• Some definitions (not in alphabetical order or any other apparent order).

• A list of objectives, identical with the list appearing in Sch1 to each of the Acts I have referred to.

• Under the heading "PRINCIPLES", a series of policy principles, and comments in relation to them.

• Under the heading "OUTCOMES", a series of numbered paragraphs setting out a large number of goals as to what should or should not happen in the "coastal zone". (For example, cl 1.1.1 states, "The coastal zone will be managed to ensure sustainability of major ecosystems and natural processes.")

62 The part of the policy headed "PRINCIPLES" contains a list of only three principles:

"Natural and cultural values of the coast shall be protected.

The coast shall be used and developed in a sustainable manner.

Integrated management and protection of the coastal zone is a shared responsibility."

63 It is written that the purpose of those principles is "to guide the outcomes of the Tasmanian State Coastal Policy".

64 There is nothing in the SPP Act as to the status of anything called an "outcome". The SPP Act makes provision for a State policy to contain provisions that impose strict obligations. Under s13(1), a State policy can include a provision that, in effect, supersedes a planning scheme. Under s13B(1), a State policy can require a statutory authority or a statutory office holder to undertake specified activities, to perform specified functions, or to exercise specified powers. Under s14(1), it is an offence for a person to contravene or fail to comply with a provision of a State policy or a requirement or obligation imposed under a State policy. Under s13C(b), a State policy binds a council.

65 No doubt the State Coastal Policy could have been worded so as to impose very precise restrictions and obligations in relation to land use and development in the coastal zone. But that was not done. Instead, the makers of the policy formulated an elaborate list of "outcomes" - a list of goals that is not accompanied by any requirement or comment as to what should or must be done, or by whom, for the achievement of those goals. As Crawford J pointed out in Richard G Bejah Insurance & Financial Services Pty Ltd v Maning [2002] TASSC 36; (2002) 123 LGERA 349 at 357, most of the outcomes amount only to statements of policy, but a small number of them appear to impose requirements, with the result that a contravention or a failure to comply with such a requirement would amount to an offence contrary to s14(1).

66 The State Coastal Policy does not expressly impose any obligation on councils. Perhaps this is consistent with the SPP Act, s5(1)(d), which provides that a State policy "must incorporate the minimum amount of regulation necessary to obtain its objectives." However "local government" is mentioned in the preamble, which includes the following paragraphs:

"In order to be effective a State Policy has to be implemented fully. A number of statutory and non-statutory implementation tools exist for use by State and local government. It is likely that each State Policy will require a different combination of implementation mechanisms, dependent on its subject matter.

Statutory tools include provisions under statutes comprising the Resource Management and Planning System and discretionary and other actions provided for in existing statutes."

67 Under the LUPA Act, s51(3A), a council that grants a permit for a development may impose conditions or restrictions. In my view that power constitutes the sort of "statutory tool" that the quoted paragraphs refer to. The power to refuse a permit, which is conferred by s57(2) does not fit the description "statutory tool" so clearly, but I think it must also be the sort of statutory power that the authors of the policy intended to refer to. I might have taken a different view if the language of the policy, as a whole, had been more careful and precise.

68 Under the heading "APPLICATION OF THE STATE COASTAL POLICY", the following appears:

"This Policy applies to the Crown in all its capacities ... . Subject to contrary statutory provision, it also applies to statutory authorities.

Planning authorities are also required to give effect to this Policy."

69 Under the LUPA Act, s3(1), "planning authority" means a council. By virtue of the SPP Act, s5(2), that expression, which is also used in that Act, has the same meaning as in the LUPA Act. It should therefore be given the same meaning in the State Coastal Policy.

70 Counsel for the appellant relied on the SPP Act, s13C(b), which provides that a State policy binds a council. In accordance with the Acts Interpretation Act 1931, s8A, an interpretation of that provision that promotes the purpose or object of the SPP Act is to be preferred to one that does not. The word "policy" suggests something that is not legislative in character. The Macquarie Dictionary defines "policy" as "a programme of actions adopted by a person, group or government, or set of principles on which they are based." One of the objectives of the resource management and planning system of Tasmania is "to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the state": SPP Act, Sch1, cl 1(e). Local government is no doubt one of the "spheres of Government" referred to. In my view s13C(b) should be interpreted as imposing an obligation upon councils to apply, in their discretionary decision-making under the LUPA Act, the relevant parts of relevant State policies. Bearing in mind the references to local government and planning authorities in the State Coastal Policy, it must follow that s13C(b) imposes on every council considering a planning application in respect of land in the coastal zone an obligation to seek to achieve the "outcomes" enumerated in that policy.

71 It does not simply follow that the Tribunal is in the same position. Section 13C makes every State policy binding not just on councils, but also on "the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities". However s13C does not mention statutory tribunals that are independent of the Crown. Under the RMPAT Act, s23(2), when there is an appeal to the Tribunal, the Tribunal may either affirm the decision appealed against, vary it, set it aside and make a decision in substitution for it, or set it aside and remit the matter for reconsideration. Its decision-making powers are very similar to those of the Administrative Appeals Tribunal ("the AAT") under the Administrative Appeals Tribunal Act 1975 (Cth), s43(1). It has been held that the function of the AAT is to exercise a discretion according to its own view of the merits of the case, and to give what it considers to be the correct or preferable decision: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589; Denn v Midland Brick Co Pty Ltd [1985] HCA 26; (1985) 157 CLR 398 at 419; Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1 at 18.

72 In Drake at 590, Bowen CJ and Deane J said:

"If the original decision-maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision."

73 Because of s13C(b) a council must always pay regard to the State Coastal Policy in reaching a decision on a planning application in respect of land in the coastal zone. Applying Drake, it follows that that policy must always be a relevant consideration for the Tribunal to take into account in reviewing such a decision. Because of the mechanism for the making of a State policy, involving ministerial scrutiny, public representations, the RPDC, and Parliament, and because of the relationships between the SPP Act, the LUPA Act, and the RMPAT Act, I think that the provisions of State policies, when relevant, should be taken into account by the Tribunal in its discretionary decision-making as relevant considerations. However, since there is nothing in the SPP Act that expressly makes State policies binding on the Tribunal, it may be that it has the power to make decisions that are inconsistent with State policies, just as the AAT has the duty to decide upon applications independently of any instruction, advice or wish of the Executive Government. See Wilson, (supra), at 18; Drake, (supra), at 590.

74 In this case, it follows that the Tribunal had a duty to take the relevant provisions of the State Coastal Policy into account, but it does not follow that it was obliged to refer to every relevant "outcome" in the State Coastal Policy. The appellant contends that the Tribunal erred in failing to consider six clauses in the "outcomes" part of the State Coastal Policy. I think it is necessary to consider each of those clauses, and those parts of the Tribunal's reasons, if any, that relate to the same subject matter.

75 I have already referred to this clause. It reads as follows:

"The coastal zone will be managed to ensure sustainability of major ecosystems and natural processes."

In my view a distinction needs to be drawn between developments resulting in the unsustainability of major ecosystems and developments resulting in adverse impacts falling short of unsustainability. The clause appears to relate to risks of major ecosystems and natural processes becoming unsustainable, and not to risks of them suffering adverse impacts that are not so extreme as to cause them to become unsustainable.

76 In his submissions about this clause, counsel for the appellant relied on certain evidence given by a Mr Dudley to the effect that the greatest value of the site was that it was an intact whole functioning ecosystem, but that significant fragmentation and degradation of the integrity of that ecosystem would result from the proposed development and would impact on the site and the adjoining Scamander Conservation Area and Winifred Curtis Reserve. The Tribunal rejected an argument based on that evidence. Its reasoning appears in the following sentence:

"The concept of a 'whole functioning ecosystem' is not however one which is made a relevant criteria [sic] by the provisions of the planning scheme."

77 Regardless of whether the planning scheme contained any criterion related to the concept of a "whole functioning ecosystem", the Tribunal was obliged to take the relevant provisions of the State Coastal Policy into account. However it does not follow that the rejection of the argument based on Mr Dudley's evidence about the ecosystem could involve an error concerning cl 1.1.1 unless there was evidence that the ecosystem in question would or might become unsustainable if the Tribunal allowed the western part of the development to proceed.

78 In relation to cl 1.1.1, counsel for the appellant referred us to a number of other passages in the evidence before the Tribunal. He referred us to evidence concerning Eucalyptus sieberi woodland, but the evidence was that that vegetation type was neither rare nor vulnerable nor endangered. He referred us to evidence as to the risk of soil erosion, evidence as to there being some risk that some element of biodiversity in the native vegetation might be lost in or about the area of the subject land, evidence that the green and gold frog needs areas adjacent to wetland where it can retreat to, and an assertion by one witness that the area had a high conservation value. Taken at its highest, and together with the evidence of Mr Dudley, I do not think that evidence could warrant a finding that the sustainability of an ecosystem, major or otherwise, would be placed at risk by the development that the Tribunal decided to allow. I think it follows that cl 1.1.1 was of no relevance to the proceedings before the Tribunal.

"1.1.7 Representative ecosystems and areas of special conservation value or special aesthetic quality will be identified and protected as appropriate.

...

1.1.9 Important coastal wetlands will be identified, protected, repaired and managed so that their full potential for nature conservation and public benefit is realised. Some wetlands will be managed for multiple use, such as recreation and aquaculture, provided conservation values are not compromised."

80 I do not think the references in cl 1.1.7 to "representative ecosystems" and areas of "special aesthetic quality" are of significance in this case. Counsel for the appellant did not refer us to any evidence as to any of the subject land having any "special aesthetic quality". In my view the provision in cl 1.1.7 as to "representative ecosystems" means that, when a number of ecosystems of a particular type exist, one or more of them should be preserved and protected as representatives of that type of ecosystem. There was no evidence that any ecosystem on the subject land was unique, nor that there was any particular reason to preserve any such ecosystem as a representative ecosystem. However, I think it would have been reasonably open to the Tribunal on the evidence to have concluded that the provisions of cl 1.1.7 as to areas of special conservation value and the provisions of cl 1.1.9 as to important coastal wetlands were applicable.

81 In relation to these two clauses, counsel for the appellant referred us to only three passages in the evidence before the Tribunal. The first related to improvements in the mapping of Eucalyptus sieberi. However, the evidence suggested that there was no need to protect or preserve any of the Eucalyptus sieberi woodland on the subject land. Next, he referred us to evidence from an ornithologist to the effect that the eastern part of the subject land together with the adjacent Winifred Curtis Reserve would provide a sufficient area for a viable population of bird species. The Tribunal addressed this evidence. It made a finding to the effect that the development of the western part of the site would not potentially interfere with shorebirds of species vulnerable to disturbance by humans. Thirdly, he referred us to evidence from an ecologist to the effect that the subject land contained an ensemble of habitat types or interacting ecosystems that was of conservation value because no similar sites had been reserved in north east Tasmania.

82 The Tribunal's decision to prohibit the development proposed for the eastern part of the site was clearly motivated by a recognition by the Tribunal of the special conservation values of that part of the site, and of the significance of the coastal wetlands to which the proceedings related. In substance, it made a decision to provide the protection it considered appropriate having regard to the special conservation values of the site and the importance of the coastal wetlands. Although it did not explicitly refer to cls 1.1.7 and 1.1.9, it clearly acted consistently with the State Coastal Policy in seeking to achieve the outcomes mentioned in those clauses.

"2.1.5 The precautionary principle will be applied to development which may pose serious or irreversible environmental damage to ensure that environmental degradation can be avoided, remedied or mitigated. Development proposals shall include strategies to avoid or mitigate potential adverse environmental effects."

84 The definitions in the State Coastal Policy include the following:

"Precautionary principle

(Intergovernmental Agreement on the Environment, 1992)

'precautionary principle' means where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

In the application of the precautionary principle, public and private decisions should be guided by:

i careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and

ii an assessment of the risk-weighted consequences of various options."

85 The appellant's contentions as to this clause can be summarised as follows:

• The evidence before the Tribunal suggested that there were threats of serious or irreversible environmental damage.

• The Tribunal made no reference to cl 2.1.5 or the precautionary principle.

• There is no indication that the Tribunal took the requirements of the clause into account.

86 It is true that the Tribunal's decision does not include any reference to cl 2.1.5 or the precautionary principle. However the Tribunal made findings which tend to suggest that it did not consider there to be any significant risk of serious environmental damage if only the western part of the development proceeded. In particular, it made the following findings:

• The only likely source of additional nutrient in Henderson Lagoon would be from fertiliser applied to gardens.

• The time when the leaching of nutrient from gardens was likely to take place was when very heavy rainfall occurs, and that is when the flushing of the lagoon occurs.

• Because of an extensive unaffected area being preserved, it was unlikely that there would be any significant threats to the New Holland mouse.

• The evidence as to the various species of forest vegetation did not provide any basis for the variation of the development proposal.

• The one threatened plant species on the land, Acacia ulicifolia, would not suffer any undue impact.

• There would be no significant impact in relation to saline wetlands Juncus krausii.

• The development of the western part of the site would not potentially interfere with shorebirds of species vulnerable to disturbance by humans.

87 The wording of cl 2.1.5, read in conjunction with the definition of "precautionary principle", calls for the precautionary principle to be applied only when (a) there are threats of serious or irreversible environmental damage, and (b) there is a lack of full scientific certainty. The Tribunal is not required to refer to cl 2.1.5 every time an environmental issue arises in an appeal relating to coastal land. The clause need only be referred to when issues arise as to threats of serious or irreversible environmental damage, accompanied by a lack of full scientific certainty. In this case, the Tribunal decided for environmental reasons not to allow the proposed development in the eastern part of the property, and then went on to address a number of arguments relating to the environmental impact of the western part of the development. The Tribunal was entitled to select those issues or arguments that it regarded as significant or important. That seems to be what it did. It did not make a finding that there was a threat of serious or irreversible environmental damage if the western part of the development proceeded. This was not a case in which it was suggested that the likely environmental effects could not be predicted by scientific experts with reasonable certainty. At the hearing before the Tribunal, counsel for the appellants did not make any submission based upon the precautionary principle. Having regard to the material before the Tribunal and the Tribunal's findings, it cannot be said that cl 2.1.5 was relevant to the decision that the Tribunal had to make.

"2.4.1 Care will be taken to minimise, or where possible totally avoid, any impact on environmentally sensitive areas from the expansion of urban and residential areas, including the provision of infrastructure for urban and residential areas."

89 I do not think the words "where possible totally avoid" were intended to be read literally. It is always possible to totally avoid the impact of urban expansion on environmentally sensitive areas by prohibiting development. I do not think the authors of cl 2.4.1 can have intended that clause to operate as a prohibition on the expansion of urban and residential areas whenever there was likely to be some impact on environmentally sensitive areas. I think the clause should be interpreted as requiring such an impact to be totally avoided whenever total avoidance is reasonably possible. That is to say, the words "where possible" should be interpreted as meaning "where reasonably possible".

90 The Tribunal did not mention this clause. It did not make a finding as to whether the site or any part of it was environmentally sensitive. It did not expressly consider what could or should be done to minimise or avoid any impact on environmentally sensitive areas. The appellant contends that the Tribunal therefore erred in law.

91 In relation to this clause, counsel for the appellant referred us to a number of passages in the evidence before the Tribunal. He referred us to evidence from an ecologist to the effect that fire management would cause problems for the health of the vegetation over time. He referred us to evidence from an engineer as to the risks of soil erosion, and of increased nutrient runoff into Henderson Lagoon. He referred us to evidence from an ornithologist that the yellow throated honeyeater would possibly be eliminated from the area if understorey vegetation was removed to make way for houses, and as to the subject land being in better condition than the adjacent Winifred Curtis Reserve. He referred us to evidence from a botanist that the proposed development would not just result in the clearing of vegetation, but also to the deterioration of the remaining vegetation. He referred us to evidence from an ecologist as to weed invasion, increases in soil nutrients, soil erosion, dogs disturbing wildlife, and the need for fallen timber not to be removed for firewood.

92 Many of these pieces of evidence were not referred to by the Tribunal in its decision. However, I do not believe the Tribunal was obliged to mention every aspect of the evidence as to the environmental impact of the proposed development. The case the Tribunal heard was essentially one about the impact of residential expansion on environmentally sensitive areas. The Tribunal made findings of fact in relation to various significant arguments concerning the environmental impact of the western part of the development. It disallowed the development proposed for the eastern part of the site. In essence the Tribunal was taking care to minimise the environmental impact of the expansion of an urban or residential area. It made a value judgment as to the extent to which the proposed development should be limited or reduced in order to minimise its environmental impact. That was the sort of outcome that is described in cl 2.4.1. The Tribunal acted consistently with that clause without referring to it. It did not need to do more.

"2.4.2 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."

94 At the hearing before the Tribunal, counsel for Smartgrowth tendered a report by an environmental planner, Mr Boardman, which contained details of the proposals for services and infrastructure for the intended development. It was proposed that the development would be serviced by the town water supply and the town sewerage system. Plainly the proposed development was to be based on the existing town of Scamander. The provision in cl 2.4.2 as to cluster developments is irrelevant, since the proposal did not involve a development unrelated to a town or township. It follows that this clause could be relevant only if the development amounted to "ribbon development". Obviously the intention of the clause is that natural bushland and rural land should be preserved along the coast, and that ribbon development along the coast should be avoided. The Tribunal's decision permits the expansion of the town of Scamander in a southerly direction between the Tasman Highway and the coast by about 400 metres.

95 In his proofs of evidence, Mr Dudley made assertions to the following effect:

• The proposed development was not "based in an existing town".

• There was spare capacity in existing serviced areas in the urban zones of the municipality which should be fully utilised before any consideration was given to the expansion of high density development.

• The proposed development would constitute ribbon development along the coast.

96 Before the Tribunal, counsel for Smartgrowth responded to that evidence in his closing submissions. He said the following:

"I pause here to note that the site is within the town boundary. It's already been designated for many years for future growth of the town. It's not ribbon development. It's not fragmented development. It is a logical extension of the town and that's exactly the sort of thing that both the planning scheme and the strategies upon which it relies and the State Coastal Policy promote logical extensions of existing settled areas, not ribbon development, not fragmented development."

97 In her closing submission to the Tribunal, counsel for the appellant mentioned a number of provisions in the State Coastal Policy, but she did not mention cl 2.4.2 or ribbon development.

98 Counsel for Smartgrowth submitted to us that, although cl 2.4.2 was referred to in Mr Dudley's submission as one of twenty provisions in the State Coastal Policy said to be offended by the development, the issue was not further pursued. He relied on the fact that the clause was not mentioned in the appellant's final submissions to the Tribunal. He submitted that the Tribunal was therefore not obliged to consider this clause. He relied on Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1. That case concerns the amendment of pleadings, but is authority for the proposition that parties to litigation are bound by the conduct of their case at trial.

99 In Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, which concerned an application for judicial review on the ground that relevant considerations had not been taken into account, Deane J said at 375:

"In a case such as the present where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

100 That passage was referred to with approval in Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 by Gleeson CJ and McHugh J at 452, by Gaudron and Hayne JJ at 459, and by Kirby J at 480.

101 The Tribunal conducted a lengthy hearing. Thirteen witnesses gave evidence. Hundreds of pages of transcript were generated. Hundreds of pages of exhibits were tendered. Ribbon development was mentioned in one sentence of Mr Dudley's evidence and in the passage I have quoted from the developer's counsel's closing submissions. In substance, the case was one about the impact of residential and tourism development on the environment. It was not a case about the evils of ribbon development. In the circumstances, I do not think the Tribunal was bound to take into account the provisions of cl 2.4.2 as to ribbon development.

102 In my view the Tribunal was obliged to take into account the relevant provisions of the State Coastal Policy. I accept that it was obliged to take cls 1.1.7, 1.1.9 and 2.4.1 into account. The Tribunal did not refer to any of those clauses, but its reasoning is consistent with it seeking to achieve the outcomes described in those clauses. It has therefore not been shown that it erred in law by failing to take those clauses into account. This ground must fail.

103 For these reasons, I would dismiss the appeal.

Management and Planning Appeal Tribunal Act 1993

(2000) 109 LGERA 175

(2006) 143 LGERA 277

(2002) 123 LGERA 349

St Helen's Area Landcare and Coastcare Group Inc v Break O'Day Council [2007] TASSC 15

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (93 paragraphs)

St Helen's Area Landcare and Coastcare Group Inc v Break O'Day Council [2007] TASSC 15 (26 March 2007)

Parties

Legislation Cited (1)

Cases Cited (17)