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

Environment and Planning - Courts and Tribunals with environment jurisdiction - Tasmania - Resource Management and Planning Appeal Tribunal and its predecessors - Powers and duties on appeal - Approval of development - Different form from original proposal - Extent of difference - Relevant considerations.

Carr v Minister for Land and Water Conservation [2000] NSWLEC 89; Addicoat v Fox (No 2) [1979] VicRp 37; [1979] VR 347; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Bernard Rothschild Pty Ltd v City of Melbourne & Ors (1982) 52 LGRA 442; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, referred to.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas).

State Policies and Projects Act 1993 (Tas), s15.

Land Use Planning and Approvals Act 1993 (Tas), s63(2).

Second named Respondent: S P Estcourt QC & G Barns

Judgment Number: [2005] TASSC 135

v BREAK O'DAY COUNCIL and SMARTGROWTH INTEGRATED ARCHITECTURE & URBAN DESIGN (NO 2)

1 The appellant has appealed against the whole of a determination made on 8 February 2005 by the Resource Management and Planning Appeal Tribunal ("the Tribunal"). By the determination, a development of a large area at Scamander for eco tourism was approved in a particular form. That form was different from the original development proposal put to the local council. It was also different from a revised proposal actually put to the Tribunal as that which the developer wanted. The appellant argues the Tribunal erred in law in approving that revised proposal as it did. The Break O'Day Council ("the Council") submitted to the jurisdiction of the Court and took no part in the appeal.

2 The grounds set out in the notice of appeal were as follows:

"1 The Tribunal erred in law in that the Tribunal amended the permit appealed against so as to grant a permit for a development and/or use that was substantially different to that:

(a) which the proponent applied for and in respect of which a permit was granted by the Planning Authority in the first instance; and

(b) which the proponent pursued before the Tribunal in an amended form as the Scamander Sanctuary Vegetation Management Plan - July 2004

2 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 s 63(2).

3 The Tribunal erred in law in that the Tribunal failed to determine the appeal by reference to the Break O'Day Planning Scheme 1996 as required by the Land Use Planning and Approvals Act, 1993 s 51(3), in that the Tribunal failed to have regard to cl 2.7.1 of the Planning Scheme which required the Tribunal to refuse an application for use or development that could not demonstrate compliance with every scheme standard applicable to it."

3 The second named respondent, who for convenience I will call "Smartgrowth", lodged an application with the Council on behalf of certain clients to develop an area of land at Scamander. The land was situated between the Tasman Highway and the water. On 11 March 2004 the Council approved the development of a 101 lot subdivision, 78 tourist cabins, an office, a caravan park, camping ground and ancilliary works on the site subject to numerous conditions. The appellant and others objected to the development and took their objections to the Tribunal. Prior to the hearing of those objections before the Tribunal, there were mediation sessions and discussions between the parties and as a consequence the developer had prepared a document entitled "Scamander Sanctuary Vegetation Management Plan - July 2004". There were plans attached to that document, one of which was a stage plan identified as Drawing 3 - revision 1 ("the stage plan"). In September 2004, some three months before the eventual hearing before the Tribunal, the Tribunal made an order pursuant to the Resource Management and Planning Appeal Tribunal Act 1993 ("the Act"), s22(3), allowing the development application to be amended in accordance with those plans. The stage plan appeared at page 717 of the appeal book.

4 At the commencement of the hearing before the Tribunal, counsel for Smartgrowth tendered the Vegetation Management Plan referred to above and said:

"As you'll recall, Mr Chairman, the plans in the back of that document were accepted by the Tribunal as substituted plans of the layout of the proposed development. And that is the proposal effectively that we wish to proceed with in this appeal."

Counsel then tendered another plan, Plan P23, which became exhibit G1 before the Tribunal, and said:

"There's a further plan that has since been prepared, Mr Chairman, which shows in a clearer form the subdivision layout."

Later on the same day of the hearing, counsel for Smartgrowth tendered a plan, Plan 23 Revision 1, which became exhibit G2, and told the Tribunal:

"The next matter, sir, was the question of the subdivision and the intermediate subdivision that I referred to earlier. I can indicate that after discussions, we have abandoned that concept simply because it was confusing and I hand up now four copies of plan P23. This is now Revision 1 and I can indicate. The changes are shown with the curly line around them, if you like. What has happened is, an additional lot has been added to the plan, a lot of 11,582 square metres which incorporates the surf camp and the cabins that were associated with that and the boundary of that coincides with the boundaries shown on the staging plan, that is drawing no 3, revision 1."

Counsel went on to say in response to a question from a Tribunal member:

"No, that doesn't have a number allocated. Neither does the one immediately below that to the west. That's the caravan park site. So, rather than having an intermediate subdivision, we're proposing that this now be the layout and that it be developed in accordance with the staging - set out on that staging plan."

5 The subdivisional plans, which were P23 and P23 Revision 1, did not contain any reference to stage numbers. The ultimate orders of the Tribunal, par50 of its reasons, actually referred to both the stage plan and the final subdivisional plan, P23 - Revision 1. It is clear from the Tribunal's orders, however, in particular orders 1.1 and 1.5, that what the Tribunal approved or not, as the case may be, was the development by reference to the stage plan. By reference to that, the Tribunal approved stages 2, 3, 4 (that part which was adjacent to stages 2, 5 and 7), 5, 7 and 8 and refused approval for stages 1, 4 (those parts east of stage 3) and 6. The parts not approved related to 27 beach retreats (stage 4), a 4 lot Dune St subdivision (stage 1), and 21 eco retreats (stage 6). What remained were the Surf Camp, the 17 cabin Cabin Park, the 42 site caravan park, and the 75 lot eco hamlet. If regard is had to the stage plan, it is apparent that the bulk of what the Tribunal did not approve was areas closest to the water and the adjacent sand dunes.

6 There is no dispute the Tribunal approved a development different from that which was contained in the stage plan. The issue for determination in this appeal is the extent of the differences and whether the Tribunal acted beyond its authority in approving what it did because the difference was too great and because it did not have regard to certain requirements.

"25 (1) A party to an appeal before the Appeal Tribunal may appeal to the Supreme Court, on a question of law, from any decision of the Appeal Tribunal in the appeal.

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

(6) Without limiting subsection (5), the orders that may be made by the Supreme Court on an appeal include -

(a) an order affirming a decision of the Appeal Tribunal; and

(b) an order setting aside a decision of the Appeal Tribunal and -

(i) making a decision in substitution for the decision set aside; or

(ii) remitting the matter for reconsideration in accordance with any directions of the Supreme Court."

"23 (1) For the purpose of determining an appeal, the Appeal Tribunal may exercise all the powers that are conferred by the relevant legislation on the person who made the decision that gave rise to the appeal.

(2) The Appeal Tribunal must make a decision in writing -

(c) setting aside the decision appealed against and -

(i) making a decision in substitution for the decision appealed against; or

(ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Appeal Tribunal.

(3) The Appeal Tribunal must notify each party to the appeal of its decision as soon as practicable after making its decision.

(4) A decision of the Appeal Tribunal comes into effect at the expiration of the period of 10 days after the day on which the decision is made or, if a later day is specified in the decision, that day.

(5) The Appeal Tribunal may correct a clerical mistake or an error arising from any accidental slip or omission or an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in its decision.

(6) The Appeal Tribunal may amend its decision on an appeal if it is satisfied that the amendment -

(a) does not change the effect of any condition required by the Appeal Tribunal; and

(b) will not cause an increase in detriment to any person.

(7) The Appeal Tribunal's decision in relation to an appeal must be given effect to by the person who is responsible for giving effect to the decision that gave rise to the appeal."

"22 (3) Where a person appeals to the Appeal Tribunal and it appears to the Appeal Tribunal that -

(a) the appeal relates to an application made by one party to the appeal to another party to the appeal; and

(b) the appeal could be resolved in a manner that is fair to all parties if certain modifications to the application were made; and

(c) it would be conducive to the expeditious administration of justice if the powers conferred by this subsection were exercised -

the Appeal Tribunal may, by order, amend the application accordingly."

10 The complaint made is that the Tribunal erred in law in amending the permit appealed against so as to permit a development which was substantially different from that applied for and granted by the Council. While counsel for the appellant did not formally abandon this ground at the hearing of the appeal, he made no submissions in relation to it.

11 There was no doubt that what the Tribunal did was approve a development which was different from that originally proposed to the Council and approved by it. However, by the time the hearing before the Tribunal occurred, the development application as approved by Council and the subject of the objections had already been amended. The Tribunal had made an order in September 2004 allowing the development application to be amended in accordance with the stage plan. That decision is not the subject of any appeal as far as I am aware.

12 The decision of the Tribunal was to permit a development which was different from the one amended by order in September 2004 and it is that decision which is under appeal.

14 Counsel for the appellant argued that what the Tribunal did was to approve a development which was substantially different from that which had been applied for in the form of the stage plan. In doing so, he argued it had approved a development so different that it was not the development applied for. Since it had no power do that, it had erred in law in so doing.

15 Counsel for the respondent argued that the question of whether what was approved was substantially different from that applied for was a question of fact and degree and, as such, if there were an error, it was an error of fact and not of law. Since the Act, s25, permitted an appeal on a question of law only, this ground must fail.

16 Counsel for the appellant conceded that the question of whether what was approved was substantially different from what was asked for was a matter of degree and hence a question of fact. However, his argument was there had to be a point where it could be said the Tribunal went too far and that, once it did, an error of law occurred. In this case he argued the Tribunal did go too far.

17 Counsel for the appellant referred to a decision of Pearlman J of the New South Wales Land and Environment Court in Carr v Minister for Land and Water Conservation [2000] NSWLEC 89 to illustrate his argument. That case dealt with an appeal by a landowner against a decision of the relevant Minister to grant a development consent to clear native vegetation subject to conditions. The landowner had sought a consent, but the consent ultimately given was significantly different from what he sought. The court there found that the Minister had no power to do what he had done.

18 Pearlman J commented that no doubt the landowner considered the areas he applied about were the most suitable and appropriate, and the areas approved were no doubt those the Minister considered the most suitable and appropriate. She then concluded, at par47:

"But those notions of suitability and appropriateness do not coincide, and the inevitable consequence has been that the development as sought is significantly different from the development as approved."

19 Pearlman J noted that the Minister's powers were limited to his being able to grant consent to, or refuse, the application for development consent. He had no power to vary the application of his own motion and the landowner had not sought a consent in terms of that granted. Pearlman J concluded in par49:

"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'."

20 While that case is illustrative of circumstances where an authority was found to have gone "too far" and hence made an appealable error, it does not assist in determining where that line in the sand should be drawn.

21 Counsel for the appellant, relying on Addicoat v Fox (No 2) [1979] VicRp 37; [1979] VR 347, argued that the Tribunal could not issue a permit for a development that was "altogether different" from that applied for. He referred specifically to a passage in the judgment of Brooking J at 363. The phrase just set out does not appear there. What was said, and the passage is summarised in the headnote at point 3, was:

"A responsible authority has power to determine to grant a permit allowing a use or development which is not identical with the use and development (as the case requires) the subject of the application for the permit provided that the difference is not so radical that to grant the permit would be not to grant, with modifications, the permit applied for, but to grant a different permit."

22 Counsel for the respondent submitted that pursuant to the Act, s23(2), the Tribunal had the power to vary the decision of the Council. The decision of the Council was in the form of the permit, subject to conditions it issued in March 2004. It was submitted that the choice open to the Tribunal in the present case was to reduce the size and content of the development or refuse it altogether. Their choice in this regard was one of fact and degree. As such, any error suggested was not an appealable error.

23 Counsel further submitted that the dominant general rule was that a decision of fact that is wrong or even perverse did not on that account involve an error of law. He referred to Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 and passages from the judgment of Glass JA at 155 and 156. The same statements can be seen in the headnote at 139 in point 1, where the court held:

"Since the Workers' Compensation Act 1926 does not allow the Court of Appeal to correct errors of fact, an argument that a finding of fact is perverse, contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way, that no reasonable person could have made it or that the reasoning by which the Court arrived at the finding was demonstrably unsound, does not disclose a valid ground of appeal as it discloses no error of law."

24 Counsel went on to argue that there was an exception to that rule. He referred to Vetter v Lake Macquarie City Council (2001) 202 CLR 439. In that case the court was determining an appeal in respect of a decision about whether a worker was entitled to compensation for injury which occurred on her way home from work. She had detoured to visit a relative and the accident occurred after the detour, but when she was going home. The court had been required to determine the facts and if they fitted within the definitions in the relevant Act. Gleeson CJ, Gummow and Callinan JJ said at par24:

"Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138:

'[I]f the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law.'"

25 Counsel submitted that the appeal in the present case did not involve any statutory definition or criterion. He submitted that the question of whether to allow the alteration to the permit or to refuse it altogether was a question of fact and degree and was within the exclusive province of the Tribunal.

26 With respect, I am not convinced that Azzopardi (supra) and Addicoat v Fox (supra) and other cases referred to are necessarily at odds. The court in Azzopardi found that the learned trial judge had resolved a disputed area of facts in one way and decided the case accordingly. At 143 the court set out an argument raised on appeal. The court said:

"It was suggested that a point is reached in the evaluation of factual material where perversity in the assessment of the facts and in the inferences and conclusions drawn therefrom will amount to such a grievance 'in point of law' as to authorise the intervention of this Court."

The court was of the view that argument was not correct.

27 In Bernard Rothschild Pty Ltd v City of Melbourne & Ors (1982) 52 LGRA 442, the Supreme Court of Victoria dealt with an appeal from a Town Planning Appeals Tribunal. At issue was whether a permit granted was a modification or an approval of something completely different. Anderson J declined to interfere with the decision of the Tribunal but said at 447:

"On the question of whether to grant a permit with modifications, or to grant what is a different permit, Brooking J said in Addicoat v Fox (No 2) (supra):

'This is plainly a matter of degree, and indeed it is almost one of impression. In my view, the changes made may be considerable without bringing it about that the permit granted is a different as opposed to a modified permit.'

That case illustrated that this Court may quash a determination of a tribunal where the alteration is too great; but it is reasonable to say that, where it is a matter of degree, the tribunal is well placed to determine the limit beyond which the alteration should not fairly go. Each case, of course, depends on its own facts, and reference to other cases merely reveal the laments of others because of the problems presented and illustrates how in the particular case the problem was resolved.

In the present case the tribunal was, in my opinion, clearly of the view that in the circumstances of this case there was not such an alteration of the conditions prescribed by cl 25(2)(aa) as to constitute anything more than a modification, and one may reasonably suppose that the tribunal brought to its consideration its expertise in town planning principles. To what extent a departure from a particular standard may go before it ceases to be a modification and becomes a different standard must depend upon the particular circumstances, as Addicoat's case illustrates."

28 In my view that is the very issue we have here. Did the Tribunal step over that invisible line? If, on the facts as accepted by the Tribunal, it could be said it did, then there may be an error on a question of law.

29 The Act, s22(3), permitted the Tribunal by order to amend an application by modifying it. This they did prior to the hearing upon an application by Smartgrowth. The result was that what was pursued before the Tribunal was a development in accordance with the stage plan.

30 The Tribunal had the power pursuant to the Act, s22(3), to amend the application in the form of the stage plan by modifying that. It also had the power pursuant to the Act, s23(2), to vary the decision of the Council. It could not however grant a permit for a development which was so different from what was sought as to be a grant of a permit in respect of a different development application.

31 There is no doubt that what the Tribunal approved was a development different from that in the stage plan. Therefore the questions are:

* What application was ultimately that which the Tribunal was dealing with. Was it

(a) the development application encompassed by the stage plan, or

(b) an amended version of that ordered pursuant to the Act, s22(3).

* If it were that in the stage plan, were the differences between that and what was approved so great as to represent an approval of an application other than that applied for.

* If it were the stage plan as amended can this ground even be pursued. The answer has to be it cannot.

32 Just prior to the end of the hearing in the Tribunal, there was an exchange between counsel for the respondent, Mr Armstrong, and the Tribunal members. What Mr Armstrong said appeared at page 358 of the transcript of Tribunal proceedings commencing at line 44:

"Any permit should, of course, include all of the conditions that normally apply to a development of this nature. 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. Thank you, sir."

The Chairman then did no more than thank Mr Armstrong. Neither he nor any member of the Tribunal explored either just what Smartgrowth would accept or what the Tribunal might have been considering. Counsel for the appellant was not asked for any view of the comments. There is no indication she sought to be heard about the matter. There was nothing in the exchange about an amendment. The Tribunal members for example did not say to Mr Armstrong, "does that mean that if we were minded to say you can't have x, y and z, you would amend your application to sever those?" All the Tribunal had was an "invitation" to sever any parts thought to be inappropriate.

33 Paragraphs 47, 48 and 49 of the Tribunal's decision are those relevant to this issue. They are as follows:

"47 In essence, the Tribunal considers upon all the evidence that there should be no development upon the approximate eastern portion of the site, including the proposed stage 6. That eastern portion would include the areas being the eco retreats in stage 4, the reception portion of stage 4, and associated roads; stage 6; and the subdivision off the southern end of Dune Street, stage 1.

48 While the Tribunal has reservations about the density of residential subdivision in the remainder of the site, those reservations do not translate into a sufficient reason for refusal of that aspect of the proposed development. A particular reason for that conclusion is that the proposed development includes substantial areas of sanctuary, and proposes the continued protection and management of those areas by the mechanism of agreement pursuant to Part 5 of the Land Use Planning and Approvals Act 1993.

49 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."

34 Counsel for the appellant submitted that the Tribunal did not characterise the invitation by Mr Armstrong as an application to amend and made no finding that it was amending the application consequent upon Mr Armstrong's words. He further submitted that in any event it made no difference. He said that the mere fact that the developer was prepared to accept less or whatever it could get, was an utterly irrelevant consideration on the question of whether the Tribunal strayed beyond its jurisdiction.

35 Counsel for the respondent in his submissions on this appeal characterised Mr Armstrong's words as a "foreshadowed application to amend". He went on to say that "whether you characterise it as a consent to the tribunal varying the decision by the granting of something less or foreshadowed application to amend the plans to conform with what the tribunal thought was appropriate we say, it doesn't matter much.". Counsel went on to point out that unless that flexibility existed, cases before the Tribunal would routinely falter.

36 Having regard to the powers of the Tribunal and the circumstances in which the exchange occurred between Mr Armstrong and the Tribunal members, it would seem to me impossible to characterise Mr Armstrong's words as an application to amend and there was clearly no order pursuant to the Act, s22(3). I am of the view that what the Tribunal was dealing with by way of an application was that encompassed by the stage plan.

Was what was approved so different as to not constitute an approval of the development application

37 Counsel for the appellant referred to the Tribunal's decision, par49, set out in par33 above. He submitted that, by that, the Tribunal must be taken to have found as a fact that to allow the development of the western portion of the site while refusing the development of the eastern portion of the site would be to allow something substantially different from what was proposed such that its only option was to refuse the application. He further submitted that, once that finding existed, the fact that counsel for Smartgrowth may have issued a general invitation to delete inappropriate parts of the development did not confer power on the Tribunal to approve such a substantially different development.

38 There is no doubt the wording of par49 of the Tribunal's reasons is inelegant. However, the words of Anderson J in Rothschild's case (supra) par27 are useful. This Court is entitled to take the view that the Tribunal members have expertise in planning and that they brought that to bear in their consideration of this matter.

39 Keeping that in mind, it is apparent that par49 contained a reasoning process. It demonstrates the Tribunal was cognisant of relevant principles. In particular the Tribunal recognised that, if what was being put to it was the stage plan as an indivisible whole, then what it was considering was an approval of a development clearly not applied for and hence the application should be refused. But it then went further. It had regard to counsel's "invitation". What counsel's invitation represented was an acknowledgment that the development represented by the stage plan was not an indivisible whole but one capable of being modified by having parts severed and yet still being viable.

40 The Tribunal examined the proposal part by part and determined that certain parts were not appropriate development. These were essentially those parts which involved the dunes and the areas closest to the water. Paragraph 48 of the Tribunal's decision shows why it thought parts of the proposal were viable and worthwhile.

41 The Tribunal, in accepting the acknowledgment referred to in par39 and by its decision, has determined that what it was doing was modifying the proposal which it was clearly entitled to do.

42 I am satisfied in the circumstances that the Tribunal did not act beyond its powers and in so doing err in law in approving the application as it did. This ground must therefore fail.

43 The Tribunal is said to have erred in law in that it failed to consider the provisions of the State Coastal Policy as required by the State Policies and Projects Act 1993 ("the SPPA"), s15, and the Land Use Planning and Approvals Act 1993 ("LUPA"), s63(2).

44 Perhaps the first point to be made is that neither the SPPA, s15, nor the LUPA, s63(2), require the Tribunal to "consider the provisions of" the State Coastal Policy 1996 ("the policy"). The SPPA, s15, provides for 5-yearly reviews of the policy and any necessary amendments which might flow. The LUPA, s63(2), is an offence provision in that Act which provides that a person must not use land or do any other act contrary to the policy.

45 The preamble to the policy itself, however, does provide that "Planning authorities are also required to give effect to this Policy."

46 There is no dispute the policy applies to the land the subject of this development application or that the Tribunal was obliged to give effect to it. However, I do not accept that it follows that the Tribunal was obliged to refer specifically to every provision in the policy and make a finding that each had, or had not, been given effect to. As counsel for the respondent submitted, if the relevant principles are part of the Break O'Day Planning Scheme 1996 ("the Scheme") and they are given effect to, that is all that is required.

47 As I understood the oral submissions from counsel for the appellant, he was not really disputing that. What he argued was that there were principles in the policy which were not replicated or included in substance in the Scheme. Against that background, there were issues agitated by the appellant before the Tribunal which

48 Counsel for the respondent submitted that the Tribunal addressed every argument put to it on behalf of the appellant. Further, he submitted that the Tribunal was not obliged to canvass arguments or issues that were not pursued before it. Even, however, were that not so, he submitted that a failure to take into account a relevant consideration must materially affect the decision before it becomes an error of law sufficient to invalidate the decision.

49 Counsel referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, a decision of the High Court, and the words of Mason J at page 40 where he set out certain principles distilled from authorities relating to the failure of a decision-maker to take into account a relevant consideration. He said:

"(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision (see, for example, the various expressions in Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663, at p 693; Hanks v Minister of Housing and Local Government [1963] 1 QB 999, at p 1020; Reg v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227, at p 260). A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision: (Reg v Bishop of London (1889) 24 QBD 213, at pp 226-227; Reg v Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd [1982] 3 All ER 761, at pp 769-770)."

50 The appellant did not particularise what it said were the failures of the Tribunal in its notice of appeal, but referred to specific matters in its submissions. The first to which it referred was cl 1.1.1 of the policy. That provides that "The coastal zone will be managed to ensure sustainability of major ecosystems and natural processes". By reference to the evidence of Mr Dudley, the wording of par31 of the Tribunal's decision and the failure of the Tribunal to make direct reference to the policy in its decision generally, it was submitted that the Tribunal failed to take the provision into account.

51 Counsel for the appellant submitted that Mr Dudley's evidence squarely raised the issue of the "sustainability" of the site as a "whole functioning ecosystem" and referred to his evidence specifically about this. The relevant evidence appears in Mr Dudley's proof at page 3. He listed parts of the Scheme and made statements by reference to them. In relation to cl 8.4(c) of the Scheme, he said:

"The development is inconsistent with the environmental objectives stated in this clause. The site has natural processes, high environmental quality, scenic amenity, unstable and fragile landforms, unreserved vegetation communities, threatened species and threatened species habitat. It contains a number of outstanding natural values but probably its greatest value is that it is an intact whole functioning ecosystem. Significant fragmentation and degradation of the integrity of that whole is proposed which will impact on the site and on adjoining land (Scamander Conservation Area and Winifred Curtis Reserve)."

(c ) Ensure that natural processes, areas of high environmental quality or scenic amenity, unstable or fragile landforms, unreserved or unprotected native flora and fauna, and threatened species are maintained and/or protected."

53 Mr Dudley went on in his proof, at page 7, to actually deal with specific clauses in the policy. In relation to cl 1.1.1, he simply said, "The proposal will degrade natural processes and fragment the integrity of the ecosystem present." He said nothing else about that which might have assisted the Tribunal. With respect, Mr Dudley's evidence about this matter consisted largely of a recitation of what was in the policy and Scheme, with very little else. He gave no evidence that, for example, particular aspects of the proposal might have certain consequences and that because of those the sustainability of a major ecosystem could not be ensured.

54 As counsel for the respondent submitted and the Tribunal noted, there was no concept such as was propounded by Mr Dudley, namely that of a "whole functioning ecosystem". While that may seem pedantic, the reality is that the Tribunal dealt with a number of issues in the paragraphs preceding par31 and clearly considered the sustainability of the ecosystem and natural processes in the area to be affected. The fact that they did not specifically refer to cl 1.1.1 does not negate that consideration.

55 The next clauses in the policy referred to were cl 1.1.7 and cl 1.1.9. These provide:

"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."

56 Counsel for the appellant submitted that there was uncontested evidence that a substantial part of the site of the proposed development was a place listed on the Register of the National Estate. The development application contained a "Statement of Significance" about this area. The submission was that those facts "coupled with the evidence of the appellant's witnesses" raised questions about whether the site contained "representative ecosystems ..." or "important coastal wetlands" within the meaning of the above clauses. In that situation the Tribunal had made no mention of, or findings about, the matters raised by these clauses and hence it erred.

57 A reading of the closing address for the appellant before the Tribunal revealed no reference at all to these clauses in the policy and yet there was reference to a number of others. Further, unfortunately, counsel did not take me to what evidence he was asserting might lead to the raising of these questions. There was no submission that the witnesses had actually specifically identified such things and said, for example, "this needs to be protected", and there is nothing in the development application which achieves that. The submission seemed to extend to an argument that because of an unspecified possibility, the fact that the Tribunal had not made specific reference to these clauses constituted error. The Tribunal was obviously aware that the area being considered was listed on the Register of the National Estate because it referred to the issue in its summary of considerations in pars3 and 5. It made no other reference directly to the Estate.

58 I am not persuaded it needed to do so. Even should it have needed to do so, I have not been persuaded that any failure to do so was material to the ultimate decision.

59 The next policy clause referred to was 2.1.5. That provides:

"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."

60 The term "precautionary principle" is defined in the policy to mean "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". The policy says further that in the application of the principle, decisions should be guided by careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment and an assessment of the risk-weighted consequences of various options.

61 This submission seems again to be one asserting the Tribunal did not specifically refer to the policy and therefore it did not give effect to it. Counsel for the appellant submitted there was evidence concerning the potential for the development to pose serious or irreversible environmental damage and then said "much of which was expressly dealt with by the tribunal". The Tribunal made no finding that there were "threats of serious irreversible environmental damage" and it did not use a "lack of full scientific certainty" as a reason for "postponing measures to prevent environmental degradation". Counsel for the appellant before the Tribunal did not refer to this clause in the policy as being of any relevance.

62 Counsel for the respondent submitted that at best, if the factual findings about the matters the Tribunal did make findings about were wrong, that could only ever amount to an error of fact and hence not be the subject of any appeal. With respect, I agree with that submission.

63 The next clause in the policy identified was 2.4.1. That provides:

"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."

64 Counsel for the appellant before the Tribunal submitted in relation to this issue that "given the evidence relating to the biological values of the site we do not believe that the impact of the development on environmentally sensitive areas have been demonstrated to be minimised, we therefore submit that the development cannot comply with the State Coastal Policy."

65 The Tribunal did not make specific reference to this clause. It did not make any finding specifically about whether the site was environmentally sensitive and, if so, whether any impact had been minimised or avoided. However, it is quite clear from the matters the Tribunal did identify that they considered the issue of the impact of different parts of the development on the environment and determined, if not directly, then certainly by implication, that the part of the development they approved did address this issue.

66 The last clause in the policy identified was 2.4.2. That provides:

"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."

67 The submission in relation to this by counsel for the appellant was that "The Tribunal apparently failed to give any consideration to the requirements of this clause." The Tribunal did not make specific reference to it. The extent of Mr Dudley's "evidence" in respect of this clause appears at page 7 of his submission where he said "The development represents ribbon development along the coast." Counsel for the appellant also referred to Mr Dudley's evidence appearing at page 2 of his submission, although not to any particular part. I have assumed it is the references to cl 1.4.1 in the Scheme and perhaps point (a). Again, Mr Dudley has simply made bald statements with little or no material by way of actual evidence to support them.

68 Counsel for the appellant made no reference to this issue before the Tribunal and Mr Dudley's oral evidence did not expand his written material on the point. Counsel for the respondent referred to it in his submissions, but nothing was said by way of reply. This appeal process is not an opportunity for the appellant to raise issues it could have pursued in the Tribunal, but did not.

69 I am not satisfied that in respect of any of the clauses in the policy now referred to by the appellant, the Tribunal failed to give effect to them, or that if it did, such failure was likely to have had a material effect on its decision. This ground must fail.