Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14

Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14 | Case summary | Zoe

[35]

Sultan Holdings Pty Ltd (Sultan) applied to the Hobart City Council (the Council) for approval in relation to a "mixed use development" on the corner of Montpelier Retreat and Kirksway Place, Hobart. The proposed development was of a building with underground car parking. The proposal included at least 72 residential apartments, 29 serviced apartments, parking for 604 vehicles, at least 11 commercial tenancies together with two tenancies potentially operating as restaurants or bars, and some public open space. The applicable planning scheme is the Sullivans Cove Planning Scheme 1997 (the Scheme).
The Council granted a permit with conditions, one of which set out the requirements for a construction management plan (CMP). Appeals to the Resource Management and Planning Appeal Tribunal (the Tribunal) were lodged by various opponents of the development, two of whom were Fuglsang Developments Pty Ltd and Salamanca Inn Holdings Pty Ltd. Their interests are identical and have common representation. It is convenient to refer to them as "Fuglsang". Sultan also appealed in relation to the permit conditions, but that appeal was resolved without a hearing. The Tribunal ultimately determined that a permit should issue, but varied the condition relating to the CMP.
Fuglsang appealed to the Supreme Court against the Tribunal's decision. Blow CJ upheld the appeal on one of the 11 grounds argued, set aside the Tribunal's decision and remitted the matter for reconsideration by a differently constituted Tribunal: John Fuglsang Developments Pty Ltd v Sultan Holdings Pty Ltd [2017] TASSC 1. His Honour also ordered that Sultan and the Council pay Fuglsang's costs of the appeal "excluding those costs referable" to the ground that succeeded, and ordered that Fuglsang pay the costs of Sultan and the Council in relation to the unsuccessful grounds of appeal.
Sultan has appealed to this Court in relation to the one ground that succeeded. Fuglsang has filed a notice of contention seeking to affirm the primary judge's decision on the basis of three issues that were contained in three separate grounds of the appeal before his Honour. Fuglsang has also filed a cross-appeal in relation to one issue which was the subject of a ground of appeal that was dismissed by the primary judge. Fuglsang has also filed a notice of appeal against the costs orders. The court has heard from the parties in relation to all of these matters. As it was before the Tribunal, and at first instance, the Council was an active respondent, seeking to uphold the Tribunal's decision. In these proceedings it expressly adopted Sultan's submissions, and added some of its own. Unless otherwise made clear, my references to Sultan's position are references to both Sultan and the Council.
The focus of the appeal to the Tribunal, the appeal to the primary judge, and to these proceedings is the issue of the excavation works proposed for the development of underground car parking on the site. It was those works which were the subject of the revised condition in the permit granted by the Tribunal. Adopting the words of the primary judge, the proposed excavation is substantial. At one end of the development, it is proposed that there will be five levels of car parking wholly below the natural ground level. Between 40,000 and 50,000 cubic metres of dolerite will have to be removed by blasting. Dolerite is a hard rock. Noise and vibration arising from the excavation are at the heart of the dispute.

[40]

Sultan's appeal and one of the grounds of contention relate to the construction of parts of the Scheme. The planning area is divided into "Activity Areas". Clause 16 of Part D relates to use and development in the relevant Area: Sullivans Cove. Schedule 8 of Part E is entitled "ENVIRONMENTAL MANAGEMENT". The debate concerns cl 16.2, 16.(2)(j) in particular, and cl 29.5 which is contained in Sch 8. It is necessary to set out these provisions and a number of others that are relevant to their interpretation.
The Scheme is, by its own terms, "based in part on a 'performance' approach to development control": cl 3.3. That clause says performance criteria are established to provide "a means by which the objectives of the scheme may be satisfactorily met". Somewhat inconsistently, according to the definition section, the term "Performance criteria" means "General statements of the means by which a use or development achieves 'Objectives'". "Objectives" are defined as "General statements of intention for use or development to attain as a means of satisfying the 'Principles' of the Scheme".
The Scheme uses the conceptual division between "use" and "development". "Development" is defined in the same way as it is in s 3 of the LUPA Act, and includes the construction of a building, and the construction or carrying out of works. Clause 10 requires the planning authority, before determining any application to use or develop land, to consider, among other things, the strategic policies of the Scheme and the objectives for the Activity Area.
Part D of the Scheme deals with "ACTIVITY AREA CONTROLS". Clause 13.1(b) provides that applicants for use or development in an Activity Area must demonstrate that it is able to be performed in accordance with the standards applicable in that Activity Area. Clause 13.2 notes that the provisions of each Activity Area include a description of its purpose, and the requirements that apply relating to the use of the land. It states that provisions relating to the development of land are "generally contained" in the schedules to the Scheme. (The schedules are in Part E.) Clause 13.3 makes provision for the use categories of "exempt", "permitted (s 58 of the [LUPA Act])", "discretionary (s 57)" and "prohibited". There is a note to cl 13.3 which states that development of land is dealt with separately, and in cases where the use is permitted, associated development may still be discretionary.
As noted, the relevant Activity Area is Area 2.0 - Sullivans Cove which is dealt with in cl 16. Clause 16.2 sets out objectives and performance criteria that "apply to all use and development in this Activity Area". Clause 16.2(j) is of significance. It provides as follows:

[68]

In these proceedings, there has been much discussion about the detail of the primary judge's reasons. I will attempt to summarise his Honour's approach in dealing with ground 4 of the appeal to him. First, his Honour said that by virtue of cl 16.3.2 Sultan's proposed use of the land was discretionary. The Tribunal, standing in the shoes of the Council had a discretion to refuse the application, subject to the condition imposed by cl 16.3.2. The condition identified by his Honour was the one that related to "Hotel", other specified uses, and "all other uses not specified in Clauses 16.3.1 or 16.3.3". The condition reads, "Must meet the objectives and performance criteria of the Activity Area to the satisfaction of the Planning Authority. Otherwise 'prohibited' and must be refused."
His Honour noted that cl 16.2 lists objectives applicable to "all use and development" in Activity Area 2.0, and in respect of each objective, specifies "Performance Criteria". He noted that cl 29.5 lists "Environmental Objectives" that are applicable to the whole of the Sullivans Cove Planning Area, and said it seemed clear "that the environmental objectives set out in cl 29.5 were separate and distinct from 'the objectives and performance criteria of the Activity Area' referred to in cl 16.3.2 [sic]." See par [35] of the reasons. In the passages that follow, his Honour said:
- The Tribunal was required first to determine whether the proposed development met the objectives and performance criteria as listed in cl 16.2, to its satisfaction. Then, if satisfied, it was required to make a discretionary decision as to whether to grant or refuse a permit. "The decision-making process was therefore a two stage process." - [36].
- It appeared that the Tribunal paid practically no attention to the second stage of the decision-making process. Clause 16.2 related to the minimisation of environmental risks and effects, and selection of the most appropriate measures to be taken to mitigate and minimise noise emissions if a permit were granted. "But there remained a fundamental question as to whether, even with the best possible permit conditions relating to noise and vibration, it would be better to refuse a permit altogether, or to impose a permit condition permitting an excavation only to a much shallower depth. The Tribunal did not address that question." - [37].
- Fuglsang did not argue that if it was open to the Tribunal to make a discretionary decision, then the Tribunal should decide to refuse a permit or drastically reduce the depth of the excavation, but the Tribunal was not, as a result, absolved from considering how to exercise its discretion if the objectives and performance criteria of cl 16.2 were satisfied. - [38].
- The combined effect of cls 16.3.2 and 16.2(j) was that the Tribunal was first obliged to determine whether the proposed use and development would minimise "environmental risks or effects". If it was satisfied that those things would be minimised, it was required to make a discretionary decision as to whether to grant or refuse a permit. "However the Tribunal proceeded as if reaching a state of satisfaction as to the minimisation of environmental risks or effects would result in a decision that a permit should be granted." - [40].
His Honour referred to [55] and [88] of the Tribunal's reasons, set out above, and noted that the Tribunal determined that the environmental risks and effects could be appropriately minimised by changing the CMP condition of the permit: [41]. His Honour said the findings made by the Tribunal as to the minimisation of "environmental risk or effects" should have led it to conclude that cl 16.2 did not prohibit the proposed development, but required the making of a discretionary decision. The Tribunal did not address how its discretion should be exercised and overlooked the second stage of the required decision-making process; it thereby erred in law: [43]. His Honour pointed out that ground 4 was directed, however, to a much narrower question; whether the Tribunal erred in law by treating cl 29.5 as not providing a basis for the refusal of the proposal: [43].
At par [44], the primary judge made a number of observations about cl 29.5. Essentially, his Honour said that, although the clause uses the expression "environmental objectives", the first sentence of the clause says that those so-called objectives "must be satisfied." If a so-called objective is a requirement that must be satisfied, then it is not an objective in the literal sense, but is a mandatory requirement. Further, his Honour said that Noise [1] - relating to the siting and design of proposed buildings - required the Tribunal to consider current noise levels and the impact of the underground part of the building on those noise levels in deciding how to exercise its discretion pursuant to cl 16.3.2, and that other provisions such as cl 16.4.2 supported this conclusion: [45]-[46]. He observed that the terms of the Scheme were such that the schedules should be regarded as guidelines, but noted the word "guidelines" was sometimes misused: [48]-[49].
His Honour then set out cl 29.1 and 29.2, and concluded:

[83]

The scope of the grounds is wide. They cover what the primary judge held in order to determine the appeal, as well as comments and observations made in the reasoning process. The terms of some of the grounds, and of the arguments put by Sultan, raise questions about what his Honour actually held, what he actually said, and what he can reasonably be taken as having said. Questions of interpretation are involved. Additionally, as will be seen, it is common ground that, with respect, his Honour seems to have misunderstood the identity of the provisions relied on by the parties as significant. It follows from all of this that there are some matters that need to be addressed in order to isolate the real issues.
First, ground 1(b) of Sultan's appeal alleges error in determining that the Scheme required the Tribunal to engage in a "two-stage decision-making process". His Honour uses that term in pars [36] and [37], and alludes to the concept in par [40]. Sultan argues that his Honour's reasoning process separates consideration of the objectives and the performance criteria of cl 16.2(j) from the discretionary decision to grant or refuse a permit under s 57 of the LUPA Act. It says that this approach also separates the objectives and performance criteria of cl 16.2 from "the complementary considerations at cl 29". In support of ground 2, Sultan argues that his Honour, "informed by the two-stage process, reasoned, and concluded, that the Tribunal overlooked the second stage". It argues that the "two-stage process" finding led to further error on the part of the primary judge in relation to the construction of cl 29.5 as providing for mandatory requirements: ground 3(a).
Relying on Meander Valley Council v Resource Management and Planning Appeal Tribunal [2013] TASSC 42, 23 Tas R 14 at [10], Sultan submits that the exercise of the s 57 discretion is an integrated process. In that case, the Tribunal decided that a permit should issue, but left it to the parties to prepare a schedule of conditions to be attached to the permit for its consideration. Estcourt J said that the permit and the conditions were not two separate things, but components of a single process; his Honour was unable to see how a decision to grant a permit could be made without consideration of specific conditions to be imposed on that permit as being necessary to justify the exercise of the discretion.
Fuglsang accepts that it is wrong to suggest that a two-stage decision-making process is entrenched in in the legislative scheme. It accepts there are no true two stages, although it does point to authority for the proposition that where a planning scheme requires a planning authority to form the opinion that a development is consistent with a specified objective, the power to grant consent is not enlivened until that opinion is formed: Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69, 167 LGERA 52. Fuglsang submits that if the primary judge actually intended to delineate two stages as suggested, it is not a material error in relation to the ultimate conclusion as to cl 29.5. However, it says that his Honour was merely using a shorthand description for the proper approach to the application of the Scheme in the discretionary process, and did not intend to endorse a statutory two-stage process.
I do not think that the primary judge can reasonably be taken to have suggested that, as a matter of law, there were two stages in the discretionary process under s 57. What his Honour said amounted to a two-stage process, was that the Tribunal was required to first determine whether the development satisfied cl 16.2, and if so satisfied, to then make a decision whether to grant or refuse a permit. As to that, I think there are number of things to be undertaken in dealing with an application. Speaking in practical terms, these may well be done in a logical sequence. In reality, the first step would be to examine the application in light of the provisions of the planning scheme to establish it is whether it is s 57 or s 58 that applies. If it is s 57 that applies, the next step would be assess the proposal for compliance with the provisions of the Scheme, and to measure it against the Scheme's objectives. That process would inform the exercise of the discretion.
As matter of law, the exercise of the s 57 discretion does involve an integrated process of synthesis. But I am not at all persuaded that his Honour's reference to a two stage process was to something other than the practical approach that might ordinarily be expected. I think it unlikely that his Honour misunderstood the process under s 57, as is alleged. Even if I am wrong about what the primary judge intended by the reference to a two-stage process, I do not think that the success of the appeal immediately follows. The central issue is the correctness of what his Honour said about the status of the environmental objectives in cl 29.5. My use of the word "status" is intended to encompass the issues of whether cl 29.5 is to be treated as separate and distinct from cl 16.2, and whether its provisions are mandatory requirements. As will be seen, there is also a live issue as to whether the Tribunal, as his Honour suggested, in fact proceeded as if reaching a state of satisfaction about the minimisation of environmental risk or effects would result in a decision that a permit should be granted. That remains an issue, however the decision-making process is viewed.
The second issue relates to ground 3(c). Sultan complains that the primary judge wrongly directed his attention to Noise [1] in cl 29.5 which relates to the siting and design of buildings. Sultan says that his Honour "impermissibly strayed beyond the framing of the issues", and that this must be taken to have influenced the "ultimately erroneous conclusions". This is presumably a reference to [52] and [53] of his Honour's reasons, set out above. It is true that the issue of the siting and design of the building under Noise [1] in cl 29.5 was not argued in the first instance appeal. All parties to the present appeal agree that the issue was not, and is not, relevant. They agree that it is Noise [2] that is the relevant part. (This Court therefore does not have to decide any issue relating to Noise [1].)
Again, I am just not able to see how his Honour's discussion affected the construction he gave to cl 29.5. It is true that his Honour referred to cl 29.5 as at least requiring current noise levels and the noise consequences of the proposed excavation to be taken into account. It is true that the quoted phrase comes from Noise [1]. However, the principle upon which his Honour was proceeding is clear. It was that cl 29.5 contains matters which must be taken into account in making a discretionary decision. His Honour was plainly referring to that part of the Tribunal's reasons in which it said objectives such as contained in cl 29.5 did not, per se, provide a basis for refusing a proposal.
The next matter relates to ground 4(b). This alleges error in misconstruing cl 29.5 as providing for "a stand-alone power" to refuse the development application. Sultan says this is not what Fuglsang advanced in ground 4 of the first instance appeal. Although ground 4 of the first instance appeal is not happily drafted, it is true that Fuglsang did not, and does not, endorse the proposition of a stand-alone power. Sultan's argument again seems to be based on what the primary judge said in [52] and [53]. Sultan's point is that while cl 29.5 sets out relevant matters to be considered in the exercise of the discretion, it does not of itself "set up" a s 57 discretion in the sense that it is not a provision that makes a development discretionary. In the case of an application to which s 58 applies, a planning authority could only use cl 29.5 as a basis for imposing conditions. Senior counsel for Sultan went to great lengths in these proceedings to point out that Sch 8, unlike seven of the other nine schedules contained in Pt E, does not have any controlling role to play in establishing whether development is exempt, permitted, discretionary or prohibited.
Sultan's point is incontrovertible. The application was made discretionary under s 57 because of the operation of Sch 1 - Conservation of Cultural Heritage Values, Sch 2 - Urban Form, and Sch 7 - Demolition. None of those provisions relate to the proposed excavation. But Sultan accepts the proposition that where there is an application to which s 57 applies, it is to be measured for compliance with all applicable provisions of a planning scheme. And more importantly as to this case, Sultan expressly accepts that cl 29.5 is a matter relevant to the exercise of the discretion, and may in an appropriate case, form a basis for a refusal. That is, although Sultan submits that Sch 8 is a management tool only, it accepts that considerations of cl 29.5 issues could lead to a refusal.
The argument seems to depend on an interpretation of what his Honour said in [53]. It is there where his Honour referred to the making of a discretionary decision. It will be recalled that his Honour said that in making such a decision it would have been open for the Tribunal to decide that the excavation would have such adverse effects, that for that reason alone, a permit should be refused. Even taking into account the whole of the relevant passages, I have great difficulty in seeing how his Honour can be taken to have construed cl 29 as creating the basis for an application to be treated as discretionary. It seems to me that his Honour was simply saying no more than, in the context of making a discretionary decision, a consideration of cl 29.5 could have led to a refusal. As a matter of principle, so much is expressly conceded by Sultan. Even if his Honour did make that mistake, which I strongly doubt, given the concessions made by Sultan, it does not seem to have any consequences. The real point is how the Tribunal treated cl 29.5, and the approach it took. However, I can see that the point made about the significance of cl 29 in relation to s 57 would be relevant to the issue of the status of cl 29.5.
That leads to further mention of ground 4 of the first instance appeal. It alleges error on the part of the Tribunal in determining that cl 29.5 "did not provide matter [sic] relevant to, and hence bases for," a refusal. [My emphasis.] Fuglsang contends that the ground should not be interpreted in the confined way as it was by the primary judge. The ground is said to cover both the narrow interpretation issue as to the role of cl 29.5, as well as a broader issue relating to noise minimisation and the exercise of the s 57 discretion. On the "narrow" view of the ground, Fuglsang says that the Tribunal was wrong in not treating cl 29.5 as having a separate and discrete operation from cl 16.2(j), and by saying that the objectives contained in cl 29.5 do not, per se, provide a basis for refusing a proposal. It says that the Tribunal was wrong to say that a development which satisfied the performance criterion at cl 16.2(j) "will at once meet the objective [sic] articulated at Clause 29".
As to the broader view of the ground, the argument is that the Tribunal essentially proceeded as suggested by the primary judge at [40] and [53]. That is, it proceeded as if reaching a state of satisfaction as to the minimisation of environmental risks or effects, particularly noise, would result in a decision that a permit should be granted, and failed to consider whether the ultimate situation was such that the permit should be refused. As is evidenced by ground 2 of the appeal, Sultan does not argue that the broad view is not open. That ground challenges the primary judge's comments about the way in which the Tribunal proceeded. Sultan argues that the Tribunal was demonstrably conscious of the discretionary options open to it, but exercised its discretion in favour of a grant subject to conditions.
There is one further matter. It was also argued under ground 4 of the appeal to this Court. It relates to the primary judge's references to cl 16.3.2 in pars [34], [35] and [45]. From the words quoted by his Honour, it is quite clear the references were intentional. As noted above, cl 16.3.2 prescribes discretionary uses. With respect to the primary judge, it is common ground that cl 16.3.2 is of little direct relevance to the issues in these proceedings. It is the provisions relating to development that are important. In cl 16, it is cls 16.2 and 16.4.2 that are more critical. Sultan seems to accept that if his Honour's references were to cl 16.4.2 instead, no real difficulty arises, but it says that the mistaken reference led to other errors. I am afraid that I am not able to see how that is so.
The "catch all" use class in cl 16.3.2 referred to by his Honour, has as a condition, that the use must meet the objectives and performance criteria of the Activity Area to the satisfaction of the planning authority. Clause 16.4.2 stipulates that all development must satisfy the relevant provisions contained within the Schedule. Although expressed differently, the intention behind each clause is basically the same. If references to cl 16.4.2 are substituted in his Honour's reasons for the references to cl 16.3.2, his reasoning is left unaffected.

[84]

As I have noted, Sultan expressly conceded that in relation to a discretionary development, a planning authority is required to take into account considerations under cl 29.5. In counsel's words, "They may be so extreme that they would compel the exercise of the discretion to refuse the permit. We accept that." At least on a strict view of ground 4 in the first instance appeal, it follows from the concession that the ground was made out, and that the primary judge was correct to that extent; cl 29.5 can provide matter relevant to and hence a basis for refusal.
However, the critical debate is about whether the Tribunal was correct in its interpretation of the role of cl 29. The Tribunal's approach was to say that the cl 29.5 objectives did not, as such, provide a basis for refusal but should be given some weight in assessing the application; that it was the cl 16.2(j) performance criteria that needed to be satisfied, and if satisfied, the development was in harmony with the cl 29.5 objectives. Sultan's appeal involves the question whether the cl 29.5 objectives are simply matters to be taken into account, or whether they are prescriptive controls that must be satisfied.
By way of an overview, insofar as an application relates to development, the Scheme's provisions are as follows.
- An applicant "must demonstrate" that the proposed development "is able to be performed in accordance with the standards" applicable in the Activity Area: cl 13.1(b).
- For the particular Activity Area, there is an objective of ensuring sound environmental planning and management: cl 16.2(j).
- To achieve that objective, the development "must minimise direct and indirect environmental risks or effects": cl 16.2(j).
- The development "must satisfy" the provisions of Sch 8, as "relevant provisions contained within the schedules": cl 16.4.2.
- Schedule 8 contains matters that "must be considered": cl 29.1.
- An objective of Sch 8 is to "ensure that activities are managed in a way which will not cause environmental nuisance, or material or serious environmental harm" as defined in the EMPC Act: cl 29.2.
- Because (at least) a permissible Level 1 activity is involved, the objectives of cl 29.5 are relevant and "must be satisfied".
- Accordingly, the environmental objectives in relation to Noise "must be satisfied": cl 29.5.
The status of cl 29.5 is a matter of statutory interpretation. That task begins with the ordinary grammatical meaning of the text to be interpreted having regard to its context. The words used in the text are the surest guide; context includes having regard to the general purpose and policy of the provision: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [4] and [47]. Statutory purpose resides in the statute's text and structure, and may appear by inference: Lacey v Attorney-General for Queensland [2011] HCA 10; (2011) 242 CLR 573 at 592 [44].
It is useful to compare the essential features of cl 16.2 and cl 29. Clause 16.2 applies the stated objectives and performance criteria to all use and development in the Sullivans Cove Activity Area. Clause 16.2(j) can be described as general in that sense. The objective in cl 16.2(j) might be described as "cursory"; a general statement of purpose without detail: L A Stein, Principles of Planning Law, (2008), at 45. That objective is to "ensure sound environmental planning and management". Those terms are not defined in the Scheme, nor in the EMPC Act, and it may be assumed the words have their ordinary meaning. Sultan suggests a definition of environmental planning as "a form of planning that seeks to integrate development of land and other natural resources for their economic and social benefits with the sustainable use of those resources and protection of environmental values".[1] Sultan also suggests it is useful to have regard to the definition of "best practice environmental management" contained in the EMPC Act.[2] The submission is that these definitions confirm the similarity in content between cl 16.2(j) and cl 29.5.
As to cl 16.2(j), the word "ensure" is usually given its ordinary meaning of "to make sure or certain" or "to warrant or guarantee": Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343, 67 NSWLR 402 at [65]-[66]; Wilton v Cole & Allied Operations Pty Ltd [2007] FCA 725, 161 FCR 300 at [145]. The objective is achieved by the performance criteria being met. According to the Scheme, those criteria are "general statements" of the means by which the objective may be met. The performance criterion in cl 16.2(j) relevantly requires the minimisation of direct and indirect risk or effects. None of the operative words is defined. Again, it can be assumed that they have their ordinary meaning.
The position under cl 16.2(j) can be contrasted with that of cl 29. By virtue of cl 16.4.2, cl 29 contains provisions that the development must satisfy". Clause 29.2 has as an objective, one of ensuring that activities are managed in a way which will not cause environmental nuisance or material or serious environmental harm. Although the objective is in general terms, it is a matter "which must be considered": cl 29(1). As I have noted, "environmental harm" is defined, and it is defined by reference to the EMPC Act. That definition extends to what is "material" and "serious" environmental harm. Oddly, cl 29 does not contain a definition of "environmental nuisance", but there is good reason to apply the concept embodied in the EMPC Act definition. Further, again as noted above, "best practice environmental management" is defined by reference to s 4 of the EMPC Act. It is a term that is found in the "Air Quality" and "Water Quality" provisions in cl 29.5.
Further, cl 29.5 states that its environmental objectives must be satisfied. The clause specifically relates to Permissible Level 1 and Level 2 activities, as defined by the EMPC Act. The "Noise" section in cl 29.5 has very particular application. It applies where activities with the potential to generate significant noise are proposed in proximity to residential accommodation and other noise sensitive activities.
The primary judge said that the environmental objectives set out in cl 29.5 were separate and distinct from the objectives and performance criteria of the Activity Area. By ground 1(a), Sultan challenges this and argues that cl 16.2(j) and cl 29.5 operate on the same subject matter, and in a complementary way. The Council submits that the reference in cl 29.3 to the controls applying to the "assessment" of permissible activities assists the argument. This is because cl 16.2 applies to use and development as such.
For the following reasons, this aspect of ground 1 also fails. In my view, although there is some overlap in operation, the two provisions are separate and distinct in their operation. That is almost self-evidently so, and simply arises from the structure of the Scheme. Clause 16.2 relates to use and development in the specific Activity Area. Because of cl 16.4.2, cl 29 applies to all development. It applies to all development that involves potentially harmful activities defined by specific reference to the EMPC Act. It applies to the whole of the planning area, and as the above analysis shows, in its context, it is much more focussed and precise in its application.
It is of some significance that of the six other Activity Areas, all six have the precise equivalents of cl 16.4.2. In contrast, three have the precise equivalents of cl 16.2(j), but three are different, and different from each other. As to the other three areas, for one, there are area objectives in the relevant clause, but none of those is an environmental objective, and there are no performance criteria: cl 15.2. (All use and development is to be in accordance with a local area plan.) For another, there is a differently worded objective, arguably broader than cl 16.2(j), but the performance criteria are identical: cl 18.2(d). For the third, there is yet another differently worded objective relating to the "physical environment" with completely different performance criteria: cl 19.2(d).
That tends to suggest an independent operation for cl 29. If it were intended that the various objective/performance criteria clauses along with the cl 29 provisions operate as a single standard, the Scheme could have much more clearly provided for such an approach. If the Scheme's environmental objectives are satisfied by reference to cl 16.2(j) and its exact or similar equivalents, there is no real need for cl 29. If anything further should be required as to this issue, I point out that the phrase "sound environmental planning and management" in cl 16.2(j) is not mentioned or alluded to in the statements of "Preferred Future for the Cove": cl 6 of the Scheme. Nor is it mentioned or alluded to in the section "Planning Principles for Management Activities": cl 7. On the other hand, the phrase "ecologically sustainable development" is used in the introduction in cl 29.1. The phrase is alluded to in cl 6.3, but in cl 7.3.3 it is specifically used under the principle "Natural Resource Values" where it is said to be an integral part of management of human activities within the Cove.
The next question to be decided is related to the previous one. It is raised by ground 3(a) and is whether the requirements of cl 29.5 are mandatory. It will be recalled that the primary judge said that if a so-called objective is a requirement that must be satisfied, then it is not an objective in the literal sense, but is a mandatory requirement. I should note that ultimately his Honour, although apparently in the context of Noise [1], said that cl 29.5 at least required the specified matters "to be taken into account in the making of a discretionary decision". (By ground 4(a), Sultan complains that the primary judge misconstrued cl 29 as providing for prerequisite requirements that must be met before a permit is granted. The primary judge did not use those words, and it seems Sultan suggests they are to be inferred from his Honour's reasons at [48]-[53]. However, this ground is more closely aligned with the asserted "two stage" error that I have already dealt with.)
Sultan relies on what it says is the distinction drawn in cl 3.3 between performance criteria, which Sultan says are qualitative in measures, and prescriptive development controls which it says are quantitative in nature. Sultan points to the scope of cl 29 as revealed in cl 29.3, that is, the clause applies to the assessment of certain activities. It submits that the cl 29.5 objectives are not expressed by reference to corresponding performance criteria, and contain no prescriptive controls, but focus on management. Sultan says a "key textual and contextual consideration is that cl 29 operates only on ss 57 and 58 applications [but] this is not to say that the objectives do not, in an appropriate case, provide a proper basis for the refusal of a discretionary application".
Fuglsang submits that as matter of principle, the terms of a scheme may be such that a provision which on its face is aspirational, is made a specific standard. It says the cl 29.5 objectives are made specific standards by the wording of the various provisions, and submits that general statements of principles and objectives in a planning scheme should not prevail over specific provisions: Von Witt v Hobart City Council (1995) 86 LGERA 134 at 139. Further, it says cl 29.5 has to be read in light of cl 29.2, so that when determining whether cl 29.5 is satisfied, regard must be had to the cl 29.2 objectives.
As guiding principles, the Scheme has to be viewed as a whole. Interpretations that promote internal consistency, and consistency within provisions should be preferred. Meaning and effect have to be given to all expressions and words. The intention behind the Scheme is to be derived from the language actually used. In my view, the present issue is resolved by reference to the ordinary meaning of the operative words in the relevant provisions.
It is very difficult to avoid the plain meaning of the imperative words in cls 16.4.2 and 29.5; respectively "must satisfy", and "must be satisfied". Achieving a state of satisfaction about a particular state of affairs is a vastly different thing from taking into account the issue generally. Although the cl 29.5 objectives are expressed as such, text and context can give such words a different meaning. As the primary judge observed, the word "guidelines" can be misused. The case his Honour referred to, Smoker v Pharmacy Restructuring Authority [1994] FCA 1487; (1994) 125 ALR 577 demonstrates that so-called guidelines can be mandatory.
I do not see that the need for a judgment to be exercised in relation to the satisfaction of cl 29.5 objectives, and the absence of any precise quantification, is of any real consequence. I say this particularly in light of the imperative words used. Clause 3.3 does speak of prescriptive controls, being a "more rigid set of controls". This presumably means more rigid than performance criteria. But cl 3.3 does not confine those prescriptive controls to mere quantitative controls. The law is quite familiar with the notion of a specific criterion as a prequalification being dependent upon a state of satisfaction on the part of an administrative decision-maker. Additionally, the Tribunal took the view that the performance criteria in cl 16.2(j) must be complied with if the application was to be approved. Sultan does not argue with that proposition. The satisfaction of that performance criterion involves the making of a judgment.
I also accept the submission that cl 29.5 has to be read in conjunction with the cl 29.2 objective. In a sense, cl 29.2 provides objectives, while cl 29.5 contains a form of performance criteria. In any event, I do not think that to give the two sub-clauses quite separate operation is a sensible and harmonious construction of the Schedule as a whole. That means that when an assessment is being made of whether "appropriate measures to mitigate and minimise noise emission" are to be undertaken, the objective of not causing environmental nuisance, or material or serious environmental harm, has to be factored in. Of course, where the development is permitted, and the application is being considered under s 58, it is the imposition of conditions that will be the relevant exercise. In that sense, Sch 8 is a management tool, but it otherwise operates prescriptively in relation to discretionary development.
It follows that I hold that the approach of the Tribunal was erroneous. For the reasons I have given, grounds 1, 3 and 4 are not made out. The remaining questions are whether the erroneous approach of the Tribunal identified thus far amounts to a material error vitiating the decision (ground 5), and whether the approach of the Tribunal was erroneous on the wider view of ground 4 in the first instance appeal: ground 2 of this appeal.

[85]

Sultan's position is that if the Tribunal was wrong about the status of cl 29.5, then it made no difference to the outcome. By ground 5, it complains that the primary judge erred in "failing to address" whether the Tribunal made material legal errors. The real point is whether the errors were of that nature. Sultan's argument is that the Tribunal, by "conflating" (to use its own word) cl 16.2(j) and cl 29.5, effectively treated cl 29.5 as providing a basis for refusal, and the two provisions cover the same ground.
To a large extent this issue cannot easily be separated from the broader question of the Tribunal's approach to the exercise of the discretion, but I will immediately say something about the "covering the same ground" point.
Sultan's submissions are as follows. Minimising environmental risk or effects (cl 16.2(j)) is no different from the concept of mitigating and minimising noise emissions (cl 29.5). An environmental effect would be noise. The word "minimise" means to reduce something (especially something undesirable) to the smallest possible degree or amount. "Mitigate" means making something less severe or serious, although in cl 29.5 there is a conjoined obligation with minimisation. But as far as noise is concerned, the obligation does not differ from the performance criteria in cl 16.2(j).
Fuglsang accepts that the two provisions are similar, but says they are not the same. It says it is one thing to minimise risk or effect; it is another thing to manage activity so that it will not cause environmental harm.
There is some attraction in Sultan's argument, but I think the attraction is superficial. Clause 16.2(j) requires the minimisation of environmental risk or effects, in the abstract, for the sake of achieving sound environmental management. Clause 29.5 applies to certain activities where those activities have the potential to generate significant noise, and are to be in proximity to residential accommodation and other noise sensitive activities. "Appropriate measures" to mitigate and minimise noise must be undertaken. Given those matters, an application for a permit would require consideration of what it is that the activity will be in proximity to, and an assessment of what is appropriate in relation to such noise as might be generated by the activity, although minimised. The management, by mitigation and minimisation, must be such as to ensure that environmental nuisance or environmental harm are not caused. All of that is a much more specific and focused exercise than that contained in cl 16.2(j). Measures to minimise noise within the scope of cl 16.2(j) may still not be appropriate given the potential significance of the noise, and the proximity to residential accommodation and noise sensitive activity. The outcomes of the two exercises may the same in many cases, but in some cases they may not.
The answer to the question of materiality lies in whether the outcome could or might have been different absent the legal error: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 353 per Mason CJ, at 384 per Toohey and Gaudron JJ; Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340, 141 FCR 346 at [64] per Sackville J (Black CJ agreeing); House v Defence Force Retirement and Death Benefits Authority [2011] FCAFC 72, 193 FCR 112 at [31] per Greenwood J (with whom Logan J agreed), at [133] per Gilmour J. I am inclined to the view that in the absence of the identified error the outcome might have been different, but it is at this point that the broader aspect of the Tribunal's approach becomes relevant. It is artificial to answer the materiality question without deciding the nature and full extent of any legal error. That brings me to ground 5 of Sultan's appeal, and to Fuglsang's contention about its ground 4 in the first instance appeal.

[86]

As I have noted, ground 5 asserts that the primary judge overlooked or misunderstood the decision-making engaged in by the Tribunal. The ground sets out 11 instances of what Sultan says the Tribunal did. The essence is as follows. The Tribunal:
- accepted that the development proposal was discretionary;
- acknowledged that if the environmental risk or effects of the proposed development were not capable of being managed in accordance with the Scheme's requirements, the permit must be refused;
- understood that cl 29 operated as an overarching statement of objectives, and correctly determined that cl 16.2(j) imposed standards that were required to be met in order for it to grant a permit - the minimisation of direct and indirect environmental risk;
- satisfied itself on the evidence that the provisions of the Scheme relating to the management of environmental risk or effects were met, in the sense that the adoption of relevant environmental standards and guidelines would result in the minimisation of direct or indirect environmental risk or effect;
- "understood that ... it was entitled to make findings of fact ... that the grant of a permit with specified conditions would or would likely address achieve the Scheme requirements as to direct and indirect environmental risk".
It is true that, to one degree or another, these things are reasonably clear from the Tribunal's reasons. In particular, the Tribunal acknowledged that the exercise was a discretionary one, and that the provisions of the Scheme had to be satisfied before approval could be given. However, the assertions in the ground of appeal simply highlight the problem identified by Fuglsang and by the primary judge. The point is whether the Tribunal proceeded as if reaching a state of satisfaction as to the minimisation of the environmental risk or effects would result in the grant of a permit. That is, whether the Tribunal directed its attention to the proposition that even though minimisation might be achieved, a permit should still be refused, given the risk or effects even when minimised. As to this point, in an early part of its reasons, the Tribunal referred to Fuglsang's argument that the proposal involved more excavation than was required, and that this resulted from Sultan's desire to overdevelop the area for underground parking. The Tribunal noted Fuglsang's case "that a more modest proposal would reduce the quantity of rock required to be removed, shorten the excavation phase, and reduce the noise and blasting associated with it".
I have already revealed the structure and content of the Tribunal's reasons up to a particular point: see [18]-[22] above. Having decided, at [88], that it considered conflating the two elements of the Scheme appropriately captured the requirement for minimisation of risk through management of it, the Tribunal went on to discuss the outcome of the conference of competing experts. The stated objective of the conference was to identify the matters upon which the experts agreed, and the matters upon which they disagreed. A memorandum of the conference was prepared, and was attached to the Tribunal's reasons. As the Tribunal noted, environmental impacts were segmented into three categories; dust, noise and vibration. The Tribunal noted that there was overlap between those matters, "but as the result of the conference of experts, the conclusions appearing as an attachment to this decision were reached. The Tribunal has had regard to those matters".
In relation to dust, "Statement 1" appearing in the memorandum says that the CMP is the appropriate vehicle to deal with dust management, mitigation and monitoring. Statement 2 notes a point of difference about how the CMP manages different types of dust; silica being a concern of one expert. The Tribunal noted the unanimity of view that dust issues arising from an excavation process can be adequately managed, and said: "Accordingly, it is open to the Tribunal to find the risk of environmental harm or effect is minimised through a CMP which identifies appropriate risk management strategies": [93]. After briefly outlining a monitoring regime with which the Tribunal said it agreed, the Tribunal declared its satisfaction that through this methodology issues relating to dust "are addressed". "A CMP must reflect this conclusion": [94] As to silica dust, the Tribunal said that in view of the weight of the evidence, it was satisfied silica dust did not need to be separately dealt with in the CMP. There was no discussion about the bases or the merits of the competing views.
In relation to noise, Statement 1 in the memorandum says that the experts agree that CMP and a construction noise management plan are appropriate vehicles to manage this issue. It says the experts all agree that two standards were appropriate and applicable; Australian Standard 2463-2010 (AS 2436) and the 2009 New South Wales Interim Guidelines. There are seven other statements which indicate a level of disagreement about such things as monitoring, measurement, ground-borne noise limits and the proper interpretation and application of the guidelines. The Tribunal first dealt with noise and vibration as one subject. It identified three preliminary propositions which were said not to be contentious. First, noise is divided into two types: airborne noise, and ground-borne noise. Second, ground-borne noise cannot be mitigated. Third, there are applicable standards and guidelines. The Tribunal said that the evidence supported the conclusion that a CMP which was compiled by reference to AS 2346 and the NSW Guidelines should include specified elements. It stated that the adoption of the standards minimises direct or indirect environmental risk or effect. "A CMP must incorporate them within a noise management plan, and include the [specified] elements ...": [101].
The Tribunal then turned its attention to vibration. The conference memorandum deals with this under the heading "Vibration and Blasting". Statement 1 says that all experts agree that in relation to blast vibration, vibration criteria should be set before the CMP is prepared. It should be nominated as part of the terms of reference for the CMP preparations. There is a note of disagreement about the criteria being based on human comfort or cosmetic damage. There are other statements concerning a regime for "the dilapidation survey" and vibration monitoring. This, under the heading "Vibration", excited the greatest amount of discussion by the Tribunal. It noted that blasting would occur in close proximity to the Salamanca Inn and the offices of the Retirement Benefits Board, while Salamanca Square was visible and proximate. It is noted that there will be environmental impacts upon the structures, and in differing degrees, upon the occupants of them. "Since the evidence shows that dolerite beneath the surface extends from the subject site to the Salamanca Square site, the vibration impacts are likely to extend that far and they will need to be monitored": [105]. [Emphasis added].
The Tribunal's reasons continue:

[92]

The Tribunal has adopted an approach which ensures that such work is undertaken in as short a period of time as is reasonable whilst ensuring that activities are controlled by reference to days of the week and hours of the day and subject to continuous monitoring. That is why it has limited the hours of work for excavation (drilling, blasting, and removal of materials). It cannot be more prescriptive. Implicitly, in the making of the requirement for these conditions it is intended that the excavation will proceed at such pace as is necessary to ensure the minimisation of impacts whilst assuring reasonable rates of progress and the overall development of the site. It is incumbent upon the Developer to carry out that work with appropriate regard to the interests of its neighbours and not with ambivalence towards them. Neighbours will be required to tolerate some inconvenience in the interests of the long term benefits which will flow from development of this site."
I have set out all of this in some detail in order to fairly demonstrate the Tribunal's approach. In my view, the primary judge's observation about that approach is clearly correct. At no point in the reasons is there any discussion of whether or not, even with minimisation of risk or effects being achieved, the proposal was an appropriate one for the site. Once the Tribunal dealt with the cl 29.5 point, and moved to a consideration of the outcome of the experts' conference, its sole focus was on the means by which minimisation of dust noise and vibration could be achieved. Minimisation does not mean reduce to nothing or to something negligible, nor in this context is it to be examined in the abstract. The concept is relative to the situation. Assessments need to be made about the environs; and whether proposed measures for minimisation are appropriate given the situation. The Tribunal quite clearly failed to give any consideration to the likely residual risk, or effects or harm, and the consequences in terms of the grant or refusal of the permit. Its focus was only on minimisation as such, and not on the likely impact of the end result of that minimisation process.
I accept that there is some allusion to the possibility of the refusal of a permit in [108], when the Tribunal referred to Mr Moore's "preliminary conclusion". Rather curiously, all that was said was that the evidence did not of itself require a conclusion that the development must not be allowed to proceed, and that Mr Moore did not express the view that the excavation plan could not be carried out at all. Otherwise, the question of whether or not, even with minimisation, the risks or effects would be such that a permit should be refused, was not addressed.
Section 24(1) of the RMPAT Act, requires the Tribunal to give written reasons for its determination of an appeal. By s 24(2), those reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. (The adequacy of the reasons is the subject of a separate ground of contention, to be dealt with later.) The obligation to give reasons is relevant to the present discussion. In Waterways Authority v Fitzgibbon [2005] HCA 57, 79 ALJR 1816, Hayne J (with whom McHugh and Gummow JJ agreed) said at [130] that because (in that case) the primary judge was bound to state the reasons for arriving at the decision reached, "the reasons actually stated are to be taken as recording the steps that were in fact taken in arriving at that result". In my view, that observation should be applied to the Tribunal's reasons.
As the primary judge said at [38] of his reasons, the Tribunal was not absolved from considering how to exercise its discretion if the objectives and performance criteria of cl 16.2 were satisfied. The issue was raised by Fuglsang and noted by the Tribunal. Even assuming it was correct in its approach to cl 29.5 and its focus on cl 16.2(j), the Tribunal simply failed to deal with the matter as it should. Assuming that the error is confined to the status of cl 29.5, I would hold that error to be a material one. If it had taken what I have said to be the correct view of cl 29.5, then the question of the proper exercise of the discretion in the circumstances of the case, would have been put in a much starker light. However, my view is that the erroneous approach was broader than that. The combination of the legal error in respect of cl 29, and that which I have just identified, clearly amounts to a material vitiating error.
For all of those reasons the appeal should be dismissed.

[97]

Clearly enough, a constructive failure to exercise jurisdiction is alleged, but the basis of that allegation is difficult to discern. The asserted failure is a failure to do that which is set out in cl 29.2 as an objective. In dealing with this ground, the primary judge said that the only error of law that could be identified in the Tribunal's reasoning in relation to cls 29.2 and 29.5 was by failing to make a discretionary decision. He said that ground 5 "appears to be directed to the merits of the Tribunal's findings of fact in relation to the noise and vibration": [59]. On that basis, the ground failed. The notice of contention alleges error on the part of the primary judge in:
- Not finding that the constructive failure to exercise jurisdiction was what his Honour had identified as the "second stage" of the required decision-making process.
- Construing ground 5 as being directed to the merits of the decision.
What Fuglsang intended to convey by ground 5 has been put in various ways. Before the primary judge, grounds 4 and 5 were argued together. A constructive failure to exercise jurisdiction was raised in the context of the Tribunal's approach to ground-borne noise.[3] In essence, the submission was that there had been no determination of whether ground-borne noise did not constitute environmental harm, and that it was an error to proceed on the basis that because the effect was minimised, the performance criterion allowed approval of a use or development that would cause an environmental effect. This culminated in a submission that it was insufficient to reason that because the duration of the effect could be minimised, the development should be approved without considering whether the effect is appropriate in terms of environmental harm.
In this Court, in its written submissions Fuglsang suggested that the ground "sought to assert that the Tribunal was required to assess the excavation proposed in accordance with the scheme and the LUPA Act, and that it failed to do so". In oral submissions, senior counsel for Fuglsang seemed to accept that the reference in the ground to cl 16.2(j) was not of great consequence, and highlighted the reference to cl 29.5. In further explanation, counsel said that the point of ground 5 actually followed on from its ground 4. That is, by failing to afford cl 29.5 its proper status, and by conflating the two provisions in its approach, the Tribunal was guilty of a constructive failure to exercise its jurisdiction. As I understand it, senior counsel for Fuglsang also embraced the proposition that if the broader view of ground 4 was established, a broader constructive failure was made out accordingly.
The very oblique terms of ground 5 are self-evident. In appeals such as those before the primary judge, it is of great importance that the question or questions of law should be stated with precision: Haritos v Commissioner of Taxation [2015] FCAFC 92, 233 FCR 315 at [91]. Whether a ground of appeal properly identifies a question of law is to be approached as a matter of substance rather than form, and in cases of doubt a court can consider the notice of appeal, the alleged question of law, the grounds raised, the statutory context, and the tribunal's reasons: Haritos at [62], [94]. If, on a fair reading of the notice of appeal, in context, a question of law is tolerably clear, that is sufficient to establish jurisdiction: Haritos at [100]-[105]. Moreover, if a judge at first instance is not satisfied there was a question of law raised by a notice of appeal and deals with it on that basis, it is open for an appellate court to satisfy itself that a question of law was raised: Haritos at [107].
In its written submissions at first instance, Sultan made an umbrella complaint about Fuglsang's notice of appeal containing grounds more directed to the merits than identifying questions of law. Specifically as to ground 5, Sultan and the Council complained about the use of the words "and/or" in ground 5 as being unhelpful, that a reference to "constructive failure" should not be used to veil an attack on factual findings, and that Fuglsang's written submissions failed to clearly articulate what the nature of the constructive failure was.[4] However, ultimately ground 5 was dealt with on the basis that it suggested the application of a wrong test. The then respondents made submissions about the construction of cl 16.2(j) in response to Fuglsang's written submissions that it imposed a standard of sufficient, adequate or acceptable minimisation of risk or effect.
There is a constructive failure to exercise jurisdiction when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is to form: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323, per Gaudron J at [41]; R v Toohey; ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170 per Aickin J at 267-269.
In all of this, albeit with some hesitation, I am prepared to accept that a question of law is fairly and reasonably discernible, when ground 5 is put in the context of ground 4 and in the context of the arguments put to the primary judge. In essence, the suggested erroneous approach of the Tribunal was in approving the development simply on the basis that the environmental risk or effect could be minimised. That is the very error identified by the primary judge at [40] of his reasons. That is part of the broader aspect of ground 4 which I have dealt with above. Proceeding as if reaching a state of satisfaction as to the minimisation of risk or effects would result in a decision that a permit should be granted, involves a misunderstanding of the nature of the jurisdiction, and a misconception of the duty. In my respectful view, the primary judge was wrong to treat this ground as complaining only about the merits of findings of fact in relation to noise and vibration. (A failure to properly construe and apply cl 29.5 does not seem to have been put to the primary judge as a basis for holding that there was a constructive failure to exercise jurisdiction, but it would seem to amount to one.) In my view the ground of contention should succeed.

[119]

The finality issue was argued before the Tribunal. As will be seen, the essential principle is that a condition imposed must not significantly alter the development for which the application was made, or leave open the possibility that development carried out in accordance with the approval will be significantly different from the proposed development; otherwise there is no valid consent to the application. It is the second limb of that principle which is relevant in this case. By reference to one of its earlier decisions, the Tribunal observed that where methodology is directly relevant to the form of the development, there will be no finality if the methodology is vague and uncertain. It decided that its proposed CMP "identified how something will be done, but does not leave unresolved what will be done", and there was thus no uncertainty: [137]-[138]. [Original emphasis.] It went on to say that there is no uncertainty if a CMP settles the details: "What will be done is known: there will be an excavation of land for the purpose of the construction of the development presented in the application. The minutiae of aspects of construction phase methodology do not impact those matters" [sic]: [139]. [Original emphasis.]
The primary judge said that the amended condition left open for later decision, questions as to the manner of excavation, as well as imposing requirements to be observed in addressing those questions. But his Honour held that the amended condition did not leave open the possibility that the excavation would be significantly different from the excavation for which planning permission had been sought and given: [77]. He held that the ground should fail. The ground of contention complains of error in determining the question of finality by reference to the fact of excavation, as distinct from the manner in which it might be carried out.
Both the Tribunal and the primary judge referred to the much cited Mison v Randwick Municipal Council (1991) 23 NSWLR 734, and to Winn v Director-General of National Parks and Wildlife [2001] NSWCCA 17, 130 LGERA 508. Mison concerned an approval given for the construction of a building where the height of it had been left to be determined by a council officer. At 740, Clarke JA (Meagher JA agreeing) said that where a consent leaves for later decision an important aspect of the development, and the decision on that aspect could alter the proposed development in a fundamental respect it is difficult to see how that consent could be regarded as final. Priestley JA (with whom Meagher JA also agreed), said at 737, 739:

[124]

In Winn, Spigelman CJ at [17]-[18] noted that Mison did not stand for the proposition that any retention of flexibility or any delegation to a third party of the function of supervising the later stage of a development is prohibited. His Honour accepted that such provisions are inevitable since it cannot be supposed that a development application can contain ultimate details, or that consent can finally resolve all aspects of the proposal with absolute precision.
In Buzzacott at [179], the court stated that the authorities (which included Mison, Winn and Kindimindi) confirmed that, as a general principle, the approval or a condition will not necessarily be considered invalid because a condition retains in the decision-maker some ongoing flexibility in relation to the implementation of an approved activity, or because it delegates some authority in relation to the implementation of the decision to some other person or agency.
There are two aspects of Fuglsang's submissions. Although not expressly raised in the grounds, the first aspect underpins the complaint. It is whether, as a matter of principle, it is correct to approach the finality issue on the basis of a distinction between how something is to be done, and what that something is. Fuglsang argues that both the Tribunal and the primary judge wrongly distinguished "between the how and the what". It says that the proposed excavation of 40,000 to 50,000 cubic metres is devoid of meaning without consideration of how it is to be undertaken.
The second aspect is the argument that the condition allows for the duration, form and management of the excavation to be determined at a later time; what is left to be determined is sufficiently material so as to offend the finality principle. The argument is not with the delegation to the Council's manager of the approval of the CMP, but with the proposed content of the CMP.
It seems clear that both the Tribunal and the primary judge focused on what the development was, rather than how it was to be carried out. The Tribunal seemed to treat methodology as important only if it was part of the form of the development itself. The primary judge distinguished the manner of the excavation from the fact of it. In my respectful view, as a matter of principle the distinction is not a valid one to draw in the context of finality considerations. There is nothing in the Mison line of authority to support the proposition that the principle is confined to what is sought to be developed, as distinct from the manner in which it is done.
The use of the word "development" in the passages from Mison, and from the other cases I have cited, is clearly meant in the dual sense, encompassing use and development. In relation to the use of land, there are examples of conditions attaching to approvals when environmental considerations were important, and where the conditions were said to postpone or defer determination of essential environmental controls, making the consent invalid. See Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79 - noise and odour from an abattoir by-product treatment plant; Malcolm v Newcastle City Council (1991) 73 LGRA 356 - impacts from landfill waste management site; Leichardt Municipal Council v Minister (1992) 77 LGRA 64 - noise impacts on neighbouring properties from reception centre. The "what" in these cases would be the use, while the "how" would be the manner in which the activities are conducted.
The principal concern in this case is the environmental impacts of the excavation as part of building construction giving rise to the ultimate use. Construction of a building, and works on land, of course, amount to "development" within the meaning of the LUPA Act, and within the meaning of the Scheme. The "what" is a large hole in the ground created by excavation. How the hole in the ground is created gives rise to noise, vibration, dust and traffic management issues. There is no reason to suppose that development, so defined, is immune from the application of the finality principle. To that extent, the ground of contention is made out, but that is not the end of the matter.
Primarily, Fuglsang quarrels with the failure of the Tribunal to make a determination about the duration of the excavation, and its asserted inability to set prescriptive controls rather than just identifying the standards to be applied. Fuglsang says that significant components of the development include the extent and duration of drilling, the magnitude and number of explosions required, and the size and frequency of truck movements. It also suggests, with some justification, that some of the provisions of AS 2436-2010, and the NSW Noise Guidelines are merely aspirational rather than prescriptive, and are difficult to apply and enforce.
I have given the matter careful consideration. It must be borne in mind that retention of a degree of flexibility is permissible. The test is whether there is a possibility that what is actually done will be significantly different from that which is approved. In effect, what has been approved is the excavation of a very large hole in the ground, involving the removal of something in the order of 40,000 to 50,000 cubic metres of rock by drilling, blasting, breaking, loading and carting away by trucks. The development details are in the application documents and drawings. The estimated time for all of this is up to one year. The condition imposed requires an approved CMP to control and regulate that activity, with the aim of minimising environmental risk or effects. The excavation may take longer than anticipated; the other activities may be more or less frequent than has been suggested in the evidence. In the end, the activities involved in the excavation remain the same.
I accept that the Tribunal may reasonably have attempted to make a finding about the most likely duration of the excavation. It did not, but the use of such a finding would be much broader and would relate to the ultimate exercise of the discretion. It could not reasonably have been prescriptive about it. Similarly, I think it is unreasonable to expect the Tribunal to have been prescriptive about all of the constituent parts of the excavation. The evidence suggests an approach based on adjustments according to established effects, and to progress and outcomes. As a matter of principle, I do not think the condition makes the consent invalid. I think the complaints made by Fuglsang fall much more on the line of amounting to a challenge to the merits.

[131]

The arguments put to the primary judge (and to this Court) extended to assertions that the Tribunal had failed to make findings of fact concerning certain issues. Those issues included the extent of drilling, the number of anticipated blasts, the level of anticipated vibration, the level and distribution of noise to be generated by drilling, and the level of noise that would be acceptable or not amount to environmental harm. Additionally, Fuglsang argued that the Tribunal failed to analyse a number of things, including its own finding that the ground-borne noise could not be mitigated within its applied framework of minimisation, the difference between noise and vibration caused by drilling as compared to blasting, and the effect of the evidence of Dr White and Mr Moore on the proposed blasting regime. The question about the blasting regime was the ability to use the proposed charge weights, with the consequence of needing more detonations with lower charge weights, and consequently more drilling.
The primary judge followed Hobart City Council v Resource Management and Planning Appeal Tribunal [2007] TASSC 99, 17 Tas R 137 at [13], and said that s 24 requires the Tribunal only to set out the findings that it actually makes, as distinct from requiring it to make and then set out any findings additional to those which it has actually made. He referred to Fuglsang's assertion that the Tribunal made little mention of one of their expert witnesses, Dr White. His Honour said it was not an error of law for the Tribunal not to refer to every piece of evidence put before it, and observed that it reached conclusions as to the subject matter of Dr White's evidence without referring to him: "Although he was not mentioned, there is no reason to think that the Tribunal failed adequately to deal with the reasoning that led it to revise Condition 9 in the way it did in relation to dust, noise and vibration": [82]. The ground failed.
Fuglsang contends that the primary judge erred:
- In failing to determine the ground on the basis that it was directed to material questions of fact, as particularised.
- In determining the ground on the erroneous basis that it was concerned with a failure to refer to every piece of evidence.
- In determining the ground by reference to whether the Tribunal failed adequately to reveal the reasoning that led it to revise condition 9.
Generally speaking, where there is a requirement for reasons, the standard is determined by implication from the statute. Of significance are the nature of the function performed and the objective, within the scheme of the legislation, of requiring a written statement of reasons: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, 252 CLR 480 at [46]. The standard is therefore set by the nature of the tribunal, its statutory role, and the context in which it operates. The nature of the particular matter will also have a bearing on the required standard: Public Service Association v Secretary of the Treasury [2014] NSWCA 112 at [46]; Hobart City Council v Resource Management and Planning Appeal Tribunal (above) per Slicer J at [62]; Long v Kmart Australia Ltd [2016] TASSC 6 at [95]. Of course, s 24(2) of the RMPAT Act is an express provision relating to a standard.
The content of the duty imposed by s 24 was considered in Hobart City Council v RMPAT (above). The Full Court applied the High Court's decision in Minister for Immigration and Multicultural Affairs v Yusuf (above), and held that the expression in s 24(2) "material questions of fact" means questions of fact that the Tribunal considered material, and not questions of fact that a party or the parties considered to be material. It further held that the statutory provisions only required a recording of what was found, and did not impose any duty to make findings of fact. Fuglsang did not ask this Court to re-consider that Full Court decision.
An additional factor relevant to the content of the duty under s 24 is the restriction to appeals on questions of law. The limitation has an impact on the extent to which the reasons need to deal with factual matters, but there is still the broader aspect of the exposure of how it was that the decision was reached. That aspect is underpinned by open justice and procedural fairness considerations. The issue was addressed by the Full Court in Caccavo v Collins [2014] TASFC 7, 23 Tas R 384. At [39], Pearce J (with whom Blow CJ and I agreed) applied to a motion to review on a question of law, the statement of McHugh J in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281:

[133]

Bearing those things in mind - and I do not intend this to be an exhaustive list - minimum standards of adequacy in the present context can generally be described as follows. Reasons given must have explanatory value so as to enable an understanding of why the case was decided in the way it was. The path of reasoning needs to be explained in an intelligible way. This is also to enable an appellate court to properly carry out its functions. Reasons have to be adequate for the purpose, not optimal or persuasive. In an appropriate case contested issues have to be resolved; for instance, favouring one body of expert evidence over another needs to be explained. Some of the authorities from which these propositions are drawn deal with courts as distinct from statutory tribunals, but see Wingfoot (above) at [55]; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]- [66]; Robinson v Chatters [2010] TASSC 66 at [73]- [78]; Caruso v Kite [2008] VSC 207 at [32]; ACN 087 528 774 Pty Ltd v Chetcuti [2008] VSCA 274, 21 VR 559 at [20].
At this point, I pause to observe that an assertion of inadequate reasons is often used as a basis for demonstrating a suggested failure to exercise the jurisdiction, or other reviewable error. This approach is well recognised: see for example Soulemezis (above) per Kirby P at 259; Yusuf (above) per Gleeson CJ at [10], McHugh, Gummow and Hayne JJ at [75]; Re Minister; ex parte Palme [2003] HCA 56, 216 CLR 212 at [48]. It is often the case that inadequate reasons are a symptom of underlying errors in approach. There is a clear conceptual distinction between an error of law in the decision-making process and an error of law relating to the provision of reasons for the decision: Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49, 253 ALR 263 at [31]- [34]. The relief may be different in each instance. An error of the latter type might lead to a direction that the decision-maker provide further reasons, although courts may be reluctant to make such an order because of the risk of reasons being crafted to remedy what has been shown as defective, instead of revealing what genuinely led to the decision: Body Corporate Strata Plan No 4166 v Stirling Properties Ltd (No 2) [1984] VicRp 73; [1984] VR 903 at 912.
I will deal with the arguments that relate to the failure to refer to the evidence of Dr White, and to the suggested failure to "assess" the evidence of one set of witnesses against that of another set. Dr White's written statement of evidence involved a comprehensive analysis of the proposed excavation. He specifically addresses dust, noise and vibration. He says his opinion was not that the issues associated with the excavation prevented any development on the site. He says it was the extent of excavation that was proposed, and the lack of detailed analysis of how this was to be carried out, that was the issue. "The easiest way to mitigate the effects of the excavation would be to reduce the scale of the excavation." In his summary, Dr White says:
- the current investigations do not provide information on the potential effects of noise and vibration, and whether those effects could be kept within the limits specified in appropriate standards;
- the primary effects on neighbouring properties from noise, vibration and dust, should have been considered before issuing the permit, as they may affect the feasibility of the project;
- the planning permit itself should provide detailed specifications for the maximum "Target and Exceedance Levels for Dust, Noise and Vibration", and other matters he particularised.
Dr White's oral evidence before the Tribunal to which specific reference was made in argument concerned "blast design". Dr White stressed that it was absolutely critical to the issue of the debate about limits being set by "human comfort" or "cosmetic damage" criteria. Although the subject of discussion, and an application to the Tribunal, a complete and meaningful blast design, or blast management plan, was not produced. Mr Moore's evidence was to the effect that construction activities on the site were limited due to its nature and proximity to other buildings. He said the planning authority needed to specify vibration limits because the proposed standards did not directly give meaningful and unambiguous limits for the control of blast and construction vibration and impact. Mr George is a project manager with the proposed excavation contractor. He outlined a plan, criticised by Mr Moore, which detailed 24 blasts in 20 weeks, based on adopting the "cosmetic damage" limits. Mr Osterman was an independent consultant who supported this plan. In essence, a major part of the debate revolved around the relationship between charge weights and vibration limits, the number and depth of holes to be drilled, the number of blasts required, and hence the duration of the project.
In strict terms, it is not completely accurate to say that Dr White's evidence was not referred to in the Tribunal's reasons. It is true that there is no reference to his evidence in the body of the reasons, but the Tribunal expressly took account of the statements produced by the conference of the experts. Dr White's agreement and points of difference are noted in the statements set out in the conference outcome document. By that means and to that extent at least, the Tribunal has made reference to his evidence. However, I think the intent behind the first particular - a failure to refer to Dr White's evidence - is that it be coupled with the second particular - the failure to assess one body of expert opinion favourable to Fuglsang against a body of adverse expert opinion. At the heart of Fuglsang's complaints is that the Tribunal acknowledged that the extent of drilling, the number of blasts, the level of vibration and the noise to be generated were material matters relating to its decision, but failed to make any findings about those matters. Fuglsang complains of a "simple acceptance that the environmental impacts could be minimised, without making findings of fact on the extent and duration of those impacts."
That raises the interpretation of s 24 decided in Hobart City Council v RMPAT (above). In a particular case, a failure to explain why one expert view was preferred to another may well amount to an error of law in the form of inadequate reasons; for example, TCN Channel Nine Pty Ltd v Anning [2002] NSWCA 82 at [150]-[151]. I think it has to be accepted that the Tribunal saw as material, issues relating to dust, noise and vibration. The drilling regime was incorporated into the discussion about these things. At the same time, I think it must be accepted that the perceived materiality was such that the Tribunal saw no reason to make findings about the nature and duration of the excavation in terms of comparative residual risk or effects. It was focussed on whether, and the means by which, minimisation could be achieved as such.
All experts agreed that AS-2436 and the NSW Guidelines were appropriate management tools, although three (including Dr White) thought that details of the interpretation and application of documents should be made the subject of a condition. The Tribunal adopted the agreed position about the use of the Standard and Guidelines.[5] The issue that the Tribunal did resolve within its reasons was a prominent source of contention among the experts; setting the appropriate criteria for vibration limits. This approach may explain the absence of consideration of where the experts might have differed as to the desirability or appropriateness of the scale of excavation. Having regard to the general standards by which adequacy is measured, as earlier noted, the Tribunal's reasons were not inadequate when looked at in the light of what it actually did. The reasons might reveal an error of law, but are not inadequate in the sense raised by the ground in the first instance appeal.
In my view, Fuglsang's complaints fall much more readily into the category of demonstrating an erroneous approach by reference to the reasons. I think the failure to deal more specifically with the issues framed by reference to the expert evidence seems to stem more from the approach the Tribunal adopted. As I earlier stated, that approach can be seen as one exclusively focused on the issue of minimisation as such, and not on the broader discretionary question, that of considering whether even with minimisation of risk or effects, the proposal was an appropriate one for the site given the residual risk or effects. That would have required a more detailed explanation of the Tribunal's views about duration - which involves looking at charge weights, drilling regimes etc - and the residual environmental impacts given minimisation strategies. If I am wrong about what I said in relation to the Tribunal's approach in the context of Sultan's appeal, this ground of contention should be upheld to that extent.
For the sake of completeness, I will deal with the particular complaints about a failure to explain the statements made in the paragraphs identified in pars (c) and (d) of the particulars. The first matter is that in par [87] the Tribunal said it could reach no concluded view about the duration of the excavation, but later said that it adopted an approach which ensured that the work was undertaken in the shorter period of time as was reasonable, whilst ensuring that activities are controlled; for instance, by limiting the hours of work for excavation. I do not think that the reasons given by the Tribunal are inadequate. On a fair reading, the Tribunal can be seen to have adopted the "cosmetic damage" vibration limit with a view to minimising excavation time, but at the same time adopted measures which it said would minimise the environmental effects.
The second point relates to par [132] in which the Tribunal said it was satisfied that through the adoption of enumerated steps, best practice outcomes could be achieved, along with the requisite minimisation of environmental risk or effects. Again, I do not think the reasons are relevantly inadequate. The statement has to be put in context of the enumerated steps and what it was that the Tribunal had done in relation to vibration limits and adopting minimisation strategies. It is also arguable that these complaints are more directed to the merits of what the Tribunal did, and not about the sufficiency of the reasons themselves.
Lastly, in relation to the ground of contention in this appeal, I accept that there does not appear to be any valid reason the primary judge might have confined his considerations to the Tribunal's reasoning that led it to revise the CMP condition. But it seems to me that his Honour may well have been referring to the confined minimisation exercise he saw as having been carried out, as distinct from the broader issue of whether, in any event, it was appropriate to grant the permit. Either way, the issue is of no consequence in relation to the outcome of this ground.

[134]

The cross-appeal relates to an issue that Fuglsang unsuccessfully argued before the Tribunal, and unsuccessfully argued on appeal. It involves the provisions of the EMPC Act; specifically, s 25 and cl 5 of Sch 2. Section 25(1)(b) of the EMPC Act provides that where an application has been made to a planning authority under the LUPA Act "for a permit in respect of a use or development of land that is a permissible Level 2 Activity", the authority must refer the application to the Board of the Environment Protection Authority (the Board). Section 3(1) of the EMPC Act defines a "Level 2 Activity" to mean "an activity specified in Schedule 2". Schedule 2 contains seven clauses with multiple sub-clauses. Clause 5 is headed "Extractive Industries". Clause 5(a) reads "Quarries: the extraction of any rock or gravel and producing 5 000 cubic metres or more of rock or gravel per year". Sultan's application was not referred to the Board. The debate is about whether it should have been.
Before dealing with the issue, there is a preliminary point raised by Sultan that needs to be addressed. It argues that an issue estoppel precludes Fuglsang from arguing the matter. This is because in 2009 a permit was issued to Sultan for a development quite similar to the present proposal. There was an appeal to the Tribunal. Before the Tribunal, then differently constituted (the first tribunal), Fuglsang argued the same point about s 25 and Sch 2 of the EMPC Act, but was not successful: The Owners of Salamanca Square Body Corporate (No 129225) v Sullivans Cove Waterfront Authority [2009] TASRMPAT 22. The permit was granted with a variation of conditions, but Sultan did not act on the permit granted, a point to which I will return.
There is a preliminary point to Sultan's preliminary point, in that Fuglsang says that although issue estoppel had been flagged as an issue in discussions between counsel and the Tribunal, Sultan abandoned it, or at least did not pursue it, in final submissions Further, Sultan did not raise it at all before the primary judge. On that basis, Fuglsang says Sultan should not now be allowed to raise it in this Court. I will deal with this last point first.
Fuglsang relies on the principle that a party to an appeal will not be allowed to raise a point not taken at first instance where all the evidence bearing on that point was not given, and had such evidence been given, the point sought to be raised might have been defeated at first instance. Fuglsang referred to Asia Pacific Resources Pty Ltd v Forestry Tasmania [1997] TASSC 104, citing Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 at 438. However, it accepts that the point would not have required the calling of any evidence, but says it is prejudiced in that had it been raised, the appeal would have been conducted differently. Just how that was so was not explained at all.
Fuglsang's objection should be overruled. Although raising the existence of an estoppel at this stage is not a satisfactory state of affairs, it is clearly established that where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point: Water Board v Moustakas (1988) 180 CLR 491 at 497, 501. It is also well established that a respondent to an appeal is entitled to rely on any ground to support the decision of the court appealed against. That is, a respondent may, without filing any process, support the judgment on a different ground to that relied on by the court below, even if that court has not adverted to the alternative basis for its decision: NRMA Insurance Ltd v B & B Shipping and Marine Salvage Co Pty Ltd (1947) 47 (SR) NSW 273 at 282; David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 per Kirby P at 420-421, Hope JA at 427. On those bases, and in the circumstances, the issue estoppel point should be entertained.

[139]

Where the statute has created a specific jurisdiction for the determination of any issue which determines the existence of a legal right, the principle of res judicata applies to give finality to that determination unless an intention to exclude that principle can properly be inferred as a matter of construction of the relevant statutory provisions: Thrasyvoulou v Secretary of State for Environment [1992] 2 AC 273 at 289 per Lord Bridge.
The Tribunal hears appeals from decisions of planning authorities instituted by virtue of s 61 of the LUPA Act. Its powers of "determination" of appeals are set by s 62 of that Act and (much more broadly) by s 23 of the Resource Management and Planning Appeal Tribunal Act 1993 (the RMPAT Act).[6] In this case, there is no argument Sultan and Fuglsang were not parties to the 2009 Tribunal proceedings, and that the issue unsuccessfully argued by Fuglsang in those proceedings is not identical to the one sought to be agitated in the cross-appeal. Sultan simply relies on the proposition that the Tribunal is bound to act judicially, and on the common identity of the parties and the issue, in both appeals. The questions to be decided are whether determinations under s 62 of the LUPA Act are judicial determinations or purely administrative ones not involving issues between the parties, and whether the relevant decision was final in nature.
In hearing appeals under s 61, the Tribunal stands in the shoes of the original decision-maker and is required to make what it considers to be the correct or preferable decision on the material before it: Kain v Glamorgan/Spring Bay Council [1996] TASSC 28; (1996) 90 LGERA 326 at 335; St Helen's Area Landcare & Coastcare Group Inc v Break O'Day Council [2007] TASSC 15, 16 Tas R 169 per Blow J at [71] (Evans J agreeing). Generally, its procedures and decision-making powers are very similar to those of the Commonwealth Administrative Appeals Tribunal: St Helen's Area Landcare at [71]. In relation to that tribunal, the predominant view is that because of its role and the provisions governing it functions, it acts in an administrative capacity, and on that basis its decisions are not capable of giving rise to any form of estoppel: see the discussion of the authorities by Weinberg JA in Morris v Riverwild Management Pty Ltd [2011] VSCA 283 at [65]- [73].[7]
I will come back to this point about the position of the Tribunal in making determinations under the s 62 of the LUPA Act. In the meantime, I note that in addition to its jurisdiction to deal with matters and appeals under quite a few other statutes,[8] the Tribunal also has an enforcement jurisdiction under the LUPA Act. It would seem that irrespective of what may be made of the character of the Tribunal's determinations under s 62 of the LUPA Act, the doctrine of estoppel would apply to enforcement proceedings: Thrasyvoulou v Secretary of State (above). And see Morris v Riverwild (above) at [84] where Weinberg J was speaking about decisions of the Victorian Civil and Administrative Tribunal made in the exercise of what is defined as its "original jurisdiction"; that is, its jurisdiction other than its review jurisdiction. That leads to consideration of the nature of a decision under s 25 of the EMPC Act, and its role in the ultimate determination under s 62 of the LUPA Act.
When considering an application for a permit, a planning authority must decide whether the application for a permit in respect of use or development of land is a permissible level 2 activity. If it is not, it can deal with the application; if it is, it must refer the application to the Board. The Board has 14 days after referral in which to determine whether it needs to assess the activity, and that 14 day period is disregarded for the purposes of calculating the time in which a planning authority must deal with the application: s 25(1D), (1DA). Of significance is that if the activity is to be assessed, it is the Board's assessment that may determine the outcome of the application. Under s 25(5), on completion of assessment, the Board must notify the planning authority of any condition to be imposed, or must direct the planning authority to refuse to grant the permit. Sultan does not argue that a s 25(1) decision is separate and independent from the planning determination.
In my view, whether or not a referral is to be made under s 25(1) of the EMPC Act, is purely an administrative decision, and issue estoppel would seem not to apply. But irrespective of whether it is such a decision, the "rights" of the parties in the overall process are not resolved in any relevant sense. Further, and perhaps most importantly, it is not a decision about an issue that has the required characteristics in relation to the making of a determination under s 62 of the LUPA Act. It is not a decision that is a fundamental part of or indispensable to the determination itself. Such a decision does not form a necessary part of the ultimate decision under s 62 of the LUPA Act, in any relevant sense. Accordingly, the decision of the first tribunal under s 25(1) of the EMPC Act cannot give rise to an issue estoppel.
That would be sufficient to dispose of the issue estoppel point, but I am prepared to assume for the moment that the decision of the first tribunal on the question of referral under s 25(1) of the EMPCA Act, is one fundamental and indispensable to the making of its determination under s 62. Although not specifically addressed, that is the assumption on which Sultan's argument rests. That leads to the question whether a determination under s 62 creates an estoppel.
The question of whether determinations to grant planning permits are purely administrative in nature, not attracting principles of estoppel has been considered in a number of cases. In each case, the general point was not the subject of the actual decision; the cases were ultimately decided on other bases. However, there are strongly worded observations on the point. In Cook v Faithland Inc (1993) 79 LGERA 308, a decision of the Full Court of the Supreme Court of Victoria, Fullagar J said at 309:

[143]

I also refer to Russo v Kogarah Municipal Council [1999] NSWCA 303, 105 LGERA 290 per Davies AJA at [13], Jack Sims & Son Pty Ltd v Minister for Environment and Conservation [2006] SAERDC 92; (2006) 152 LGERA 312 at [26] and Minister for Environment and Conservation v Jack Sims & Son Pty Ltd [2007] SASC 88, 97 SASR 147. In these cases, the availability of a remedy based on an abuse of process was recognised. In that respect, in Tasmanian Water and Sewerage Corporation Pty Ltd v Resource Management and Planning Appeal Tribunal [2013] TASSC 52 at [52]- [54], Estcourt J held that s 22(1) of the RMPAT Act gave to the Tribunal powers to control its proceedings to prevent an abuse of process.
It seems to me that the law relating to a determination of the Tribunal under s 62 is as stated in the passages cited. That would also dispose of the issue estoppel point. However, here again, I am prepared to make an assumption in Sultan's favour. What then remains to be considered is the finality of a s 62 determination. It is a matter of statutory construction but some decisions are not final if they are left "entirely floating" and subject to continuing authority to rescind or vary: Ainslie v Ainslie [1927] HCA 23; (1927) 39 CLR 381 per Isaacs J at 390. Statutes may evince an intention that a decision is final if it is effective unless and until it is rescinded, altered, or amended: Somodaj v Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285 at 297-298; Kuligowski (above) at [25].
Section 23(4) of the RMPAT Act gives effect to a decision of the Tribunal at the expiration of 10 days after the day on which it was made. Section 23(6) enables the Tribunal to amend its decision on an appeal if it is satisfied that the amendment does not change the effect of any condition required by it, and that it will not cause an increase in detriment to any person. In Purton v Jackson [2012] TASFC 2, 21 Tas R 310, the issue was whether the Tribunal had the power to reverse an earlier decision on an appeal. That decision was not strictly a determination under s 62, but a decision that it had no jurisdiction. The Court held that it did not; the Tribunal's only powers to change a decision were under either s 23(6), or s 23(5) which enabled the correction of clerical mistakes or errors from accidental slips or omissions. The scope of s 23(6) was not considered, but the decision would suggest finality. However, there is s 53(5) of the LUPA Act. It provides that if the use or development in respect of which a permit was granted is not substantially commenced, the permit lapses at the end of two years from the date on which the permit was granted, or, in the case of an appeal, the date of the determination of the appeal. That is subject to the grant of an extension of time by the planning authority.
Also of relevance is s 62(2) of the LUPA Act. That provides that where the Tribunal has determined an appeal, an application for a permit in respect of the use or development which is substantially the same as the use or development to which the appeal related, may not, without leave of the Tribunal, be made within a period of two years from the date on which the Tribunal made its decision. The two provisions are complementary. That would prevent someone who obtains a permit through the appeal process from starting again within the two year period, perhaps with the hope of a better outcome in terms of the conditions.
The effect of a type of provision such as s 53(5), in relation to issue estoppel, has been judicially considered. In Porter v Secretary of State for Transport [1996] 3 All ER 693, the Court of Appeal had to consider whether a decision on an appeal from a planning authority could give rise to an estoppel. (The decisions were based on a hypothetical scenario, as the issue of planning approval was relevant to the assessment of compensation for compulsory acquisition, but the hypothetical nature of the exercise was not relevant.) One of the reasons for holding that the appeal decision was not of a type that could give rise to an estoppel, was that it lacked the necessary element of finality. At 703, Stewart-Smith LJ (with whom Thorpe LJ agreed) said:

[146]

I turn to the second point that Sultan relies on as precluding Fuglsang from arguing the cross-appeal. Section 25(1) of the RMPAT Act enables a party to an appeal before the Tribunal to appeal to the Supreme Court on a question of law. Sultan argues that it is not open to Fuglsang, upon such an appeal, to agitate contestable questions of fact unless the conclusion reached by the Tribunal was not reasonably open to it. That was a point made by the primary judge in his concluding remarks about this issue: [29]. Sultan submits that this case involves a question of whether established facts fall within a statutory description, and as in this case that is a matter about which reasonable views might differ, it does not involve a question of law. It relies on Vetter v Lake Macquarie City Council [2001] HCA 12, 202 CLR 439 per Gleeson CJ, Gummow and Callinan JJ at [24]-[25]. I reject the submission.
There was, and is, no dispute about the facts. The argument involves issues of statutory interpretation, both in relation to the wording of s 25(1) and in relation to cl 5 of Sch 2. In short, the question is not so much whether the facts fall within the statutory description but rather, it is "what is the statutory description?" As to each provision there is a question of the construction of the words used. As to s 25(1), the issue is the effect of the phrase "use or development of land that is a permissible level 2 activity". In relation to cl 5, it is the meaning and effect of the heading "Extractive Industries", and the status, meaning and effect of the word "Quarries". These questions are clearly questions of law: see the detailed discussion of the authorities, and the conclusions, in May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93, 23 FCR 397 at [184]- [193]. Sultan's submission assumes the correctness of its argument about the construction of cl 5(a).
In any event, what their Honours said in Vetter was that whether facts as found answer a statutory description will very frequently be a question of law, but it may be a mixed one of fact and law: [24], [27]. To the extent that the question in this case involves mixed questions of fact and law, the issue is whether the facts are necessarily within the description or necessarily outside it. That is a question of law: Vetter at [24]; Haritos (above) at [196]. Moreover, Haritos establishes that an appeal on a question of law may extend to mixed questions of fact and law, and it may be more accurate to say that the right of appeal does not extend to mere questions of fact. The right of appeal does not extend to mixed questions where to answer a question of law, the court is asked to determine a fact for itself. See Haritos at [192]. That is not the case here.

[170]

His Honour went on to say that questions of fact and degree are involved: "It is conceivable, for example, that at the site of a very large development, the developer might operate the site commercially as a quarry until excavation works were completed, and then close the quarry and erect a building." He said it followed from the language used that unless there was good reason to adopt a different interpretation, cl 5(a) should not be interpreted as deeming something to be a quarry when it was not a quarry in the ordinary sense. Having observed that a quarry could be temporary, and can be part of a larger development and not lose its character as such, his Honour held that the clause applied only to quarries in the ordinary sense of that word. He said that since the proposal to extract rock was incidental to the proposal for a large mixed use development, it was reasonably open to the Tribunal to conclude that the permit sought under the LUPA Act was not in respect of a quarry, even a temporary one, in the ordinary sense of the word.
The sole ground in the cross-appeal is that the primary judge erred in failing to determine that the proposal was a Sch 2 Activity, and therefore required assessment under the EMPC Act. The consequence of upholding the cross-appeal is that in addition to an order that the matter be remitted to the Tribunal for reconsideration in accordance with the law, there would be a direction that the Tribunal refer Sultan's application to the EPA Board.
As I said when dealing with the "question of law" preliminary point, there are issues about the meaning of s 25(1), and of cl 5(a). In particular, the interpretation of cl 5(a) presents difficulty, and the task is not an easy one. The grammar used in the clause headings in the Schedule is not consistent. Some of the headings are adjectival, while others use nouns of various types. With their ordinary meanings, some of the introductory words in the text of the sub-clauses parts might be taken as referring to organised places of industry, while many others do not.
It is worthwhile looking at the history of the EMPC Act, and at provisions of it that give context to the particular provisions under consideration. Its predecessor was the Environment Protection Act 1973 (the EPA). As it stood at the time of its repeal, the EPA contained Pt IV, "Control of Scheduled Premises". Section 23 prohibited a person from operating any scheduled premises unless licenced or registered to do so under the Act's provisions. Section 22A defined "Scheduled Premises" as the premises of the kind described in Sch 1. The first schedule to the EPA was headed "Scheduled Premises", and contained 26 items. There were references to things such as "plants", "works", "refineries", "factories", "mills" and "premises", on or at which certain things were done. Examples are:

[174]

Schedule 1 of the EPA did not contain any miscellaneous or "Other" type of category. Schedule 2 of the Act has been amended since 1994 but there is nothing of any relevance to this exercise.
That provides a segue to relevant provisions of the Act. Section 3(2) provides that words and expressions used both in the Act and in the LUPA Act have, unless the contrary intention appears, the same respective meanings as they have in the LUPA Act. That is important when considering the operation of s 25(1) of the Act, and the meaning of the word "development". Other relevant definitions in, and provisions of, the Act are as follows:
- "Environmentally relevant activity" means an existing or proposed activity which may cause environmental harm, and includes a level 1, level 2 or level 3 activity and an environmental nuisance: s 3(1).[9]
- Level 1 activity means an activity which may cause environmental harm and in respect of which a permit under the LUPA Act is required: s 3(1). Level 1 activities are dealt with in s 24, the detail of which I describe below.
- Section 23A(1) requires a person to take such steps as are practicable or reasonable to prevent or minimise environmental harm or environmental nuisance caused, or likely to be caused, by an activity conducted by that person.
- Section 27 provides that where a person proposes to undertake a level 2 activity which does not require a permit under the LUPA Act, that person must refer the proposal to the Board for assessment.
- Section 27A requires the Board to make an assessment of an activity as one of Class 2A, Class 2B or Class 2C. In doing so, it is required to take into consideration the characteristics set out in Sch 5 which details the "characteristics" of each Class. Class 2A is made up of "small-scale projects with the environmental impacts" of a specified type; Class 2B is any activity that is not included in Class 2A or Class 2C; Class 2C are projects with specified characteristics that include being a project of regional significance within the meaning of the LUPA Act, and having large-scale potential for environmental impact.
- Section 44 enables the Director of the Environment Protection Authority to issue and serve environment protection notices where he or she is satisfied that in relation to an environmental activity (among other things) serious or material environmental harm or environmental nuisance is being, or is likely to be, caused.
In s 24(1) of the Act, the introductory words are identical to s 25(1) in that it relevantly reads, "Where an application has been made to a planning authority ... for a permit in respect of a use or development of land that is a permissible level 1 activity ...". Under s 24(1), where a relevant application has been made, the Director may, before a decision has been made by the planning authority, require the application to be referred to the Board. Section 24(5) is in identical terms to s 25(9) except, of course, the reference is to level 1 activity and not to level 2.
A fundamental point made by Fuglsang is that the LUPA Act is concerned with concepts of use and development, while the Act is concerned with the control and management of "activities". The word "activity" is not defined in the Act, and does not appear in any of the LUPA Act provisions that relate to applications for permits.[10] Fuglsang says that Sch 2 should be taken literally as dealing with activities as defined, and that cl 5(a) is not concerned with qualifications inherent in notions suggested by words such as "industry" or "quarry". If the excavation is one that satisfies the criteria relating to the excavation of rock, it amounts to a quarry.
In this respect, Sultan submits that the application was for a permit for (among other things) the construction of a building. That construction requires excavation. Building construction is not a specified activity: "It is a building site, not a quarry within the accepted meaning of that word." Sultan submits that Sch 2 is plainly concerned with industrial, manufacturing and processing activities which are easily recognised as likely to cause pollution or environmental harm "as continuous activities". Sultan accepts that the excavation is a permissible level 1 activity and that it would be subject to a direction under s 24, and more directly subject to the operation of ss 23A and 44 of the Act.

[175]

From this point, it is convenient to refer to the EMPC Act, simply as "the Act". The first thing that needs to be resolved is the requirement in this section that the application be for a permit "in respect of a use or development ... that is a permissible level 2 activity". The scope of the operation of s 25(1) was raised by Fuglsang before the Tribunal, but the issue does not seem to have attracted any attention before the primary judge. Sultan argues that the proposed use or development is a permissible level 2 activity; or it is not; the section does not contemplate the latter being contained within the former. Fuglsang argues that if an activity is, or is within, something the planning authority has a discretion to approve, then it is a permissible activity. Importantly, by virtue of the various definitions, the word "development" as used in s 25(1), includes the construction of a building. On that basis, Fuglsang says the application was for a permit in respect of a development of land (building construction). That is a permissible activity.
Fuglsang accepts that on this approach it is necessary to give the word "is" in subs (1), a broader meaning extending to "includes", or that either the words "or includes" or similar have to be read into the provision after the word "is". In my view that approach must be correct. It is to be borne in mind that the present debate applies to both ss 24 and 25, but I will only refer to the latter. First, I will return to the Act's history. Section 25(1) was amended in 2000 to its present form. When first enacted in 1994, the introductory words of s 25(1) read, "Where an application has been made to a planning authority ... for a permit in respect of a proposed permissible Level 2 Activity, the planning authority must ...".
Oddly enough, the clause notes to the amending Act misquote the section as it stood. The clause notes say that the term "proposed use" was to be replaced by "use or development of land". The stated purpose was to bring about consistency with the terminology used in the LUPA Act, and to recognise that some permit applications are for ongoing activities. It follows that the amendment was made, at least in part, to reflect the fact that under the LUPA Act a person does not apply for a permit for an activity, but a permit for a use or development. However s 25(9) was not amended; nor was the equivalent s 24(5). Obviously, ss 25(1) and 25 (9) have to be read together.
Section 25(9) suggests that the construction contended for by Fuglsang is correct. It defines a permissible level 2 activity as a level 2 activity in respect of which a planning authority has a discretion to refuse a permit, or is bound to grant a permit either unconditionally or subject to conditions. Permissible activities are not defined by reference to the application for a permit, nor to the scope or characterisation of the proposed use or development, but by reference to whether the activity, as such, is one that a planning authority may approve of, or is bound to permit unconditionally or on terms. It is plain that various activities may be contained within a use or a development. It is rather obvious that many proposed uses or developments are made up of a number of physical acts or activities: see the discussion in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114, 151 LGERA 400 at [27]- [31], which concerned the proper characterisation of a proposed use.
Further, the first limb of the chapeau of s 25(1) needs to be put in its context. Both the second limb of the chapeau, and s 27 are relevant. By virtue of the former, the section operates where there is an application for a permit for a use or development of land that is on the same land as, and is not ancillary to, an existing level 2 activity. Section 27, noted above, requires a level 2 activity that does not require a permit to be referred to the Board. Both of these provisions operate where there is a level 2 activity, the existence of which is established independently of the content or subject matter of any application under the LUPA Act.
A consideration of s 8A of the Acts Interpretation Act 1931 arises at this point. That provides that in the interpretation of a provision of an Act, an interpretation that promotes the purpose or object of the Act is to be preferred to an interpretation that does not. The purpose and object of the Act are clear. The long title reflects the name of the Act; the Act is to provide for the management of the environment and control of pollution in the State. Objectives are set out in Sch 1. They are lengthy. Clause 3 contains a number of specific objectives including:

[178]

It would severely limit the operation of s 25 if it were the case that the proposed use or development had to amount to precisely the same thing as a level 2 activity. Although the word "is" seems definitive, a court should be slow to adopt an interpretation that would allow a level 2 activity - on either party's construction of cl 5(a) - to escape scrutiny because it is part of a use or development of wider scope. One example is provided by a scenario in which, in order to be self-sufficient, a proposal for a large residential building but with multiple uses, includes a wind energy facility falling within cl 7(f).[11]
It would be contrary to the intent of the legislation to hold that an activity that is specified in Sch 2 should necessarily lose that character because it only forms part of a greater development, or is not the main purpose of the development, in respect of which the application has been made. That was the view taken in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323, 149 LGERA 360 at [179] per Tobias JA (Giles JA and McClellan CJ at CL agreeing), in dealing with similar but much more widely worded legislation. Section 78A(8)(a) of the Environmental Planning and Assessment Act 1979 (NSW) provided that a development application must be accompanied by an environmental impact statement, "if the application is in respect of designated development". Schedule 3 of the Environmental Planning and Assessment Regulation 1970 (NSW) listed a number of categories under the heading "What is designated development?" One category was "Sewerage systems or works". A developer applied for consent to construct 72 dwellings. The proposal included the construction of an effluent disposal system for those dwellings that included an on-site sewerage treatment plant and a below ground irrigation system. The developer unsuccessfully argued that the sewerage treatment system was merely ancillary to the proposed residential development, and that is application was therefore not one in respect of designated development.
As to the device of "reading in" words, it is permissible if the statutory language is such that effect cannot be given to the apparent purpose of the legislation: Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, 253 CLR 531 at [37]-[39] per French CJ, Crennan and Bell JJ; generally, Pearce & Geddes, Statutory Interpretation in Australia, 8th ed (2014), LexisNexis at [2.36]-[2.39]. The construction I have held to be correct makes the relevant questions: whether Sultan's application was for a use or development that was, or included a level 2 activity, and whether the proposed excavation activity as such is a level 2 activity under cl 5(a).

[179]

I start by noting that the task of statutory interpretation is not an exercise in divining what Parliament intended, but an exercise in deciding what is meant by the words it used; the duty of the Court is to give effect to Parliament's intention, but only as expressed in the legislation: Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380 per Spigelman CJ at [16], Mason P at [159]-[161]. As earlier noted, the words used in the text are the surest guide: Alcan (NT) Alumina (above) at [47].
I will firstly deal with the debate about the status and use of the clause headings. Section 6(3) of the Acts Interpretation Act provides that every Schedule, including any heading of such Schedule, or any Part, Division or Subdivision into which a Schedule is divided, is deemed to be part of the Act. Section 6(4) states that except as provided in subs (3), a heading to a provision of an Act, is not to be taken to be part of the Act. Clearly, on that basis, the heading of Sch 2 - "Level 2 Activities" - is part of the Act.
As I have shown, each clause has a heading, the relevant one being "Extractive Industries". That equates with a heading to a provision of an Act, and not a heading to a "Part, Division or Subdivision". This is because the well known device of dividing legislation into Parts and Divisions is not used in the drafting of Sch 2. Next, the word "Quarries" appears in the text of cl 5(a), and contrary to Fuglsang's submission, it cannot properly be described as a heading. All of this means that the Schedule heading should be taken into account, while the clause heading, although it might be a poor, minor or unsure guide, may be of some assistance: Geale v Tasmania [2009] TASSC 28, 18 Tas R 338, per Evans J (with whom I agreed) at [35]; Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2008] FCAFC 142, 170 FCR 560 at [23], [43]; generally, Statutory Interpretation in Australia (above) at [4.56]. As part of the text, the word "Quarries" must prima facie be given some meaning and effect, recognising that it may be impossible to give a full and accurate meaning to every word in a provision: Statutory Interpretation in Australia at [2.26].
The Tribunal focused heavily on the heading "Extractive Industries". The primary judge said the heading supported the view that cl 5(a) referred to quarries in the ordinary sense of that word. In separate submissions on this issue, Sultan and the Council argue that regard could be had to the heading but neither party detailed what should be made of it. Although the Council argues otherwise, it is open to think that his Honour imported an element of commerciality into the concept of a quarry. There are a number of things about this heading which mean it is of little use. First, it does not describe an activity as such. Basically, it describes a concept. Second, in the context of construing a planning scheme, it has been said that "industry" is "of wide import [and] it connotes a commercial operation that manufactures and/or produces a product from materials brought to and/or found on site, by systematic work": Brighton Council v Compost Tasmania Pty Ltd [2000] TASSC 49, 109 LGERA 190 per Underwood J (as he then was) at [17], a case referred to by the Tribunal. However, his Honour was considering the phrase "general industry" which was defined as "any land used for an industry not defined elsewhere" in the particular provision. At [24], he went on to say that the phrase was intended to embrace "all operations in which labour and/or machinery is used in a systematic way to produce a product".
It seems that the ordinary meaning of the word "industry" does not necessarily carry with it a commercial or economic connotation. More particularly, there is a line of New South Wales cases that deal with provisions in planning legislation which contain the phrase "extractive industry", or the plural form, as a heading. The cases mostly deal with Sch 3 of the Environmental Planning and Assessment Regulations 1970 (NSW), referred to above. Common to the definitions considered in these cases, is that the phrase is defined as "An industry or undertaking ... which depends for its operations on the winning of extractive material from the land upon which it is carried on". The definitions do not extend to quantitative specification. Because of the statutory framework, the task was essentially one of characterisation of purpose. Accordingly, the cases are not of direct assistance, although the approach to the phrase has some relevance. In two cases, commerciality of the extractive activity as such was expressly rejected as a component of the concept of extractive industry: see Glenpatrick Pty Ltd v Maclean Shire Council (1989) 72 LGRA 205 at 208 and Byron Bay Businesses for the Future Inc v Byron Council (1994) 84 LGERA 434 at 449.
In the Byron Bay case, Pearlman J was dealing with a proposal for the construction of a tourist village, the construction of which involved the excavation and removal of about 30 cubic metres of soil, all of which would be utilised elsewhere on the site. In response to a submission that the proposal did not include a designated development, because "industry", as described in the Macquarie Dictionary, involved trade or manufacture, at 449 her Honour pointed out that the Macquarie Dictionary also defined "industry" as meaning "systematic work or labour".[12]
In other cases, it is implicit in the approaches taken that commerciality was not regarded as a component part of extractive industry: CB Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA; Malcolm v Newcastle City Council (1991) 73 LGRA 356; Penrith City Council v Waste Management Authority (1990) 71 LGRA 376. In CB Investments the question was whether large scale removal of sand and silt deposited by floods on agricultural land in order to improve the land suitability for agricultural use was extractive industry as defined. The court held that it did. At 376, Reynolds JA observed that it could not be open to doubt that what was proposed to be done fell within the definition, in that the contractor who went on the land at the invitation of the occupier will engage in an undertaking which depended on the winning of soil from the land. His Honour said that the observable activity could not be characterised in a way that would take it outside the ambit of the definition. That observation can be applied to the proposed activity in this case. The excavation contractor is no doubt involved in an extractive industry.
More generally, guidance as to the proper approach to the construction of cl 5(a), including the heading as well as, to a lesser extent, the word "Quarries", might be gained from the comments of Kirby P, Meagher and Handley JJA in Penrith City Council v Waste Management Authority (above) at 387-388. The developer argued that "designated development" was concerned not with the precise detail of the extractive industry engaged in, but in the generality of "extractive industries" falling within the defined classes. It was argued that because the proposed activity could not be said to be within the generality of extractive industries, it was irrelevant that the precise way in which the developer intended to carry on its undertaking might do so. It was enough to say that the activity, in its generality, would not be properly characterised as an extractive industry, and hence would not fit within the definition.
The argument was rejected. In essence, the court said that the statutory scheme was such that it was clear attention had to be focused on the particular development proposal, "not extractive industries" in their generality. In the present case, the point might be even clearer, given that s 25(1) refers to "activity" in the singular, and cl 5(a) is specific about types of extractive material, and prescribes a level of extraction rate.
Both the Tribunal and the primary judge took the view that "quarry" should be given its ordinary meaning, but neither the Tribunal nor his Honour ventured suggestions as to what that ordinary meaning might be. Both parties provided this Court with dictionary definitions of the word "quarry". Fuglsang offered the meaning given by the Macquarie Dictionary, 3rd ed: "An excavation or pit, usually open to the air, from which building stone, slate or the like is obtained by cutting, blasting, etc." (The Shorter Oxford English Dictionary gives a briefer explanation, but similar to that in the Macquarie Dictionary; it does not refer to a pit, nor to being open to the air.) Sultan's offering came from the Australian Legal Dictionary, 2nd ed (2016), LexisNexis: "In 19th century case law, a place where material is cut into blocks." It says that currently, quarry has a wider meaning, especially in the context of occupational health and safety laws, and some statutory definitions are provided.
Sultan submits that the ordinary meaning is: "a place which has as its primary purpose the extraction of stone, rock or gravel, usually over a prolonged period. As well as this temporal aspect, an element of commerciality might be implicit. It seems to me that on a basic level, the relevant differentiating characteristic might be simply that the purpose of a "quarry" is to provide stone or gravel for use elsewhere, and not merely to remove rock to create a hole in the ground. However, the question is whether Parliament, in the context of the prevention of environmental harm, intended that any added characteristic to the activity carried on would have significance. In other words, did Parliament mean to imply the need for qualitative overlays to the essential activity?
That again raises s 8A of the Acts Interpretation Act: an interpretation that promotes the purpose or object of the Act is to be preferred to one that does not. An interpretation that imposes additional and probably uncertain characteristics to a clearly specified activity as such, does not promote the purposes of the Act. Further, questions of consistency and harmony arise in relation to the Schedule as a whole. The task of construction has to be approached on the prima facie basis that the provisions are intended to operate consistently and in an harmonious manner: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70]. For the following reasons, I hold that cl 5(a) applies to the excavation in this instance, making it level 2 activity the subject of s 25(1).
Sultan's argument rests on the proposition that the scheme seeks to manage and control places or premises. But by way of the definition section, s 25(1) deals with specified activities, as distinct from premises or places on or at which certain activities are carried out. The Schedule's heading refers only to "activities". It is quite clear that the intent is to manage and control relevant activities. The terms of some of the clauses may create individual difficulties, but my view is that generally it is the specified activity in each subclause that is the activity to which s 25(1) relates. The relevant question is "what is the specified activity?" To one degree or other, the headings of each clause, and the introductory words to each subclause, are a guide to the type of activity being spoken of, but they do not operate by way of qualification to the precisely described activity in each subclause.
In this particular instance, in my view, the answer to the question posed must be "excavation" at the specified rate. But as part of the text, the word "Quarries" does have a role to play. It indicates excavation of a particular type. It operates in a descriptive way to make it clear that the specified activity of excavation is quarrying activity. In the ordinary sense, that conveys drilling, cutting, blasting and/or crushing. There is an alternative construction that essentially leads to same result, although it involves a degree of shift away from the concept of managing and controlling activities, as distinct from types of premises. The primary judge posed the questions whether, for the purposes of cl 5(a), any use or development involving the extraction of rock at the specified rate is deemed to be a quarry, or whether the clause only applied to "quarries" in the ordinary sense. In my view, the first question should, strictly speaking, refer to the "relevant activity" rather than to use or development. With that caveat, and with respect, I think the Act's focus on activities makes the proposition contained in the first question, the correct one. The attraction of this approach is that it makes more sense of the introductory wording of some of the other sub-clauses. Clause 5(b), "Extractive Pits: ..." is a good example.
The next matter relates to the Schedule as a whole. To the extent of their significance, the clause headings are inconsistent. The heading "Petroleum and Chemical" is adjectival. Many other headings are verbal nouns. Clause 7, "Other", can only be a reference to other activities, but at the same time, the clause contains references to activities by way of verbal nouns, and references to types of premises and plants. One subclause of cl 7 simply reads "Conduct of Certain Activities in Waters ...". More importantly, as to all clauses - ignoring the headings and introductory words that appear before a colon - in each subclause there is a very specific reference to an activity, often defined on a quantitative basis. Far greater consistency is achieved if that operative part of each subclause is primarily regarded as the specification of the activity, but viewed in the context of any introductory words in the text.
Next, I reject Sultan's submission that support for its argument is to be found in the repealed Environmental Protection Act. On the contrary, there was a clear move from regulation by way of licensing premises, to regulation by reference to particular activities. The very item under discussion provides a good example. Under the EPA, "Quarries used for the extraction" of a specified amount of material were required to be licensed. A quarry is a place of a particular kind. In cl 5(a), the words "used for" are not present. There is a simple reference to "the extraction" of a specified amount of material. The focus has clearly changed from place to activity.
In all instances of the subclauses in Sch 2, there is a clearly specified activity, and in many instances there is further specification by way of quantities and volumes. If it is the specifically defined activity that is the essential operative part, then there is much less, if any, room for argument about questions of fact and degree. Such certainty is desirable in order to achieve consistency of application and to avoid debates about characterisation.
Next, s 24(4) and (4A) are of relevance. I will set them out in their entirety:

[197]

In Howlin, at [238]-[243] Tennent J (with whom Blow CJ and I agreed) dealt with a ground of appeal against the costs order at first instance on the basis that s 44(1) applied. At [240] her Honour said that the effect of s 44 is that no appeal lay from the trial judge's order as to costs unless the appellant could bring himself within one of the exceptions. (As in this case, neither subs (1)(a) nor (b) of s 44 applied.) There were 51 grounds of appeal; the 51st concerned only the costs order. By the stage ground 51 was reached, all of the preceding 50 grounds were held to have failed. The predominant view established by the case law in Australia is that where a costs appeal is part of a wider appeal, once the substantive appeal is rejected, the costs appeal will be an appeal "as to costs only": G E Dal Pont, Law of Costs, 3rd ed (2013), LexisNexis at [20.37]-[20.38]. Accordingly, in Howlin the court was correct to have taken the approach that s 44(1) applied.
The point was not argued in Howlin, and I am quite sure the Court did not intend the statement at [240] to be a blanket proposition that applied to all cases in which there was an appeal in respect of the substantive decision itself, as well as one relating to a consequential costs order. Nor do I think it can reasonably be read that way. Fuglsang expressly acknowledged that that the costs appeal was "predicated upon the substantive decision of the primary judge being undisturbed". That is the correct position. If it was undisturbed, it faced the hurdle of s 44(1)(c).
As to the appropriate order that should now be made, there is a further matter that arose in the costs appeal, and which needs to be considered. Fuglsang submits that it should not have been ordered to pay the Council's costs. It says that there was no need for the Council to appear in the first instance appeal, as Sultan was a proper contradictor in all respects. Fuglsang relies on R v Hardiman; Ex Parte Australian Broadcasting Tribunal [1980] HCA 13; (1980) 144 CLR 13, in which the respondent tribunal had actively contested the prosecutor's case for relief. At 35-36, the High Court said:

[199]

Section 14(1)(b) of the RMPAT Act makes the decision-maker a party to an appeal to the Tribunal. Ordinarily, the planning authority is then made a party to any appeal to the Supreme Court, but it may simply submit to the court's jurisdiction. The Council defended its position by reference to Macedon Ranges Shire Council v Romsey Hotel Pty Ltd [2008] VSCA 45, 19 VR 422. In that case, the court drew a distinction between judicial review proceedings, and merits review proceedings. In merits review proceedings, it was said to be entirely proper for the primary decision-maker to appear in order to assist the review tribunal on the consideration of the merits, or even to actively support the decision under review. There is no risk of impartiality because the review tribunal stands in the shoes of the original decision-maker who is seldom called upon to start afresh. The court cited the example of municipal authorities playing an active role in defending planning decisions. The difficulty identified in Hardiman was because a successful challenge in judicial review proceedings ordinarily results in the matter being remitted to the primary decision-maker. "Hence the importance of a decision-maker preserving its impartiality": see Macedon Ranges at [28]-[38].
That approach justifies the planning authority's role in an appeal to the Tribunal, but does not relate to its participation in an appeal from the Tribunal to this Court. It follows that as a matter of principle, the Council was entitled to appear in the first instance proceedings. The Council's argument is that it was appropriate as a planning authority "to ensure that the way in which it approached a construction and decision-making process by reference to its planning scheme is effectively ... defended". On that point, it is to be noted that in the first instance appeal, Sultan and the Council divided responsibility for addressing all of Fuglsang's submissions. Each adopted the submissions of the other. In terms of impartiality it might also be noted that by the Tribunal's order, the Council's general manager was to approve the CMP.
In any event, there seems to be no principle that prevents an original decision-maker, as a party to an appeal on a question of law from a decision on appeal from one of its decisions, from adopting a partisan stance. In relation to a party in the position of the Council, the justification for that stance and any ramifications which may arise, are not questions that have to be judicially considered. In terms of costs, it follows that there are generally no consequences that arise from active participation as such, but the fact of two parties having parallel interests and being separately represented is a matter relevant to the exercise of the discretion: Law of Costs (above) at [11.52]. Here, of course, the workload was distributed.
I turn to what order should now be made. In the costs appeal, Fuglsang argued that it should have been given all its costs on the basis that it succeeded, that its success was the "event", and that costs should have followed that event. With the present exercise, there are options other than acceding to that course, and other than simply making the necessary minor adjustments to the orders that were in fact made. Of course, the event is primarily determined by reference to the outcome, and that is so even if the appellant has failed on some issues. But the event of success may be "contestable, by reference to how separate issues have been determined": Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2015] HCA 53, 90 ALJR 270 at [6]. In this respect, the "event" may refer to the event of an issue or of each separate issue: Van Essen v Lee [1971] TASStRp 31; [1971] Tas SR 324 at 326; Theiss v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 at 208.
The principles that apply to costs orders in appeals were summarised in Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304, per Beazley, Ipp and Basten JJA at [38]. The summary includes the following, omitting references:

[202]

The approach in relation to the issue by issue basis for costs was further explained by Middleton in J BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557 at [23]- [27], as follows. A successful litigant will be entitled to its costs unless some good reason is shown to the contrary. Such a reason may arise where the conduct of the successful litigant was unreasonable or inappropriate, or where nevertheless there were clearly distinct and severable issues that were lost by the successful litigant. Where the court is considering the question of costs in respect of a lost distinct or severable issue or inquiry, then to determine whether the successful party will lose some or all of its costs, it will be necessary to consider and weigh up case management principles, the significance of the issue or inquiry in proportion to the proceeding as a whole, and whether the issue or inquiry had any relative strength or merit. The lesser the strength of the point raised and the greater the proportion it bears to the whole case, the more likely it is that the successful party may be deprived of costs; if the Court comes to the view that it was unreasonable to raise the issue, then the successful party may have to pay the costs of that issue_._
Ultimately, fairness dictates how the discretion as to costs should be exercised, and if an issue by issue approach produces a result that is fairer than giving the successful party the whole of the costs notwithstanding the failure of particular issues, then the issue by issue approach should be adopted: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 per Finkelstein and Gordon JJ at [5]. As noted in Bostik Australia (above), in a case that justifies an issue by issue approach, a court may adopt a "rough and ready" assessment giving rise to an apportionment: Bowen Investments at [5]. Awarding a proportion of costs in favour of one party is the more usual approach: Law of Costs (above) at [8.5]. In some cases however, it may be appropriate to order costs for and against a party on the basis of the success or failure of each of the issues.
The merits of the two approaches are discussed in Law of Costs at [8.7]-[8.8]. The "broad brush" or impressionistic approach is favoured. There have been expressions of caution about adopting the issue won/lost approach, which was of course, the approach of the primary judge in this case. In Sanders v Snell (No 2) [2000] HCATrans 303; (2000) 174 ALR 53, Kirby J at [15] said that it is not usual for the court to specify that costs will only be payable in respect of particular issues, "unless there are good and exceptional reasons in the particular case to do so." See also Firebird (above) at [6]. It has been observed that the approach may have general adverse effects in relation to the conduct of litigation, and may present significant difficulties for the taxing officer in quantification: see for instance Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 at [6]- [7]; Cretazzo v Lombardi (1975) 13 SASR 4 at 16; Burnie Port Corporation Pty Ltd v Bank of Western Australia Ltd (No 3) [2003] TASSC 132, 12 Tas R 325 at [26].
As the primary judge noted in his reasons, the success of one or other of grounds 1 and 2 would have resulted in the Tribunal's decision being reversed, rather than the matter being remitted for redetermination. Those grounds related to an argument that the proposal amounted to the use of "General Industry", which was prohibited in the Activity Area. With the exception of one ground, success on any one of all of the other grounds would have led to an order for redetermination. The remaining ground was that relating to the application of the EMPC Act. Further, Fuglsang's submissions were marshalled so that grounds 1 and 2, ground 3, grounds 4 and 5, grounds 5A and 7, ground 6, and grounds 8, 9 and 11 were respectively dealt with under six separate headings in the written submissions.
An analysis of how things have now eventuated is as follows. Fuglsang failed before the primary judge in relation to grounds 1 and 2 and they were not raised in this Court. It has now succeeded in the cross appeal in relation to the discrete issue under the EMPC Act; ground 3. It succeeded on ground 4 and that remains the case. It has now succeeded on one ground of contention, and provisionally on a second, which were grounds that failed; grounds 5 and 7. Those grounds would have given rise to an order for redetermination. In relation to the issue of redetermination, it failed on ground 6 - raised as a matter of contention that failed in this Court, and it failed on four grounds before the primary judge that were not raised in this Court; 5A (irrationality), and 8, 9 and 11 (evidentiary issues).
I do not think that costs should follow the event, using that word in the sense of the ultimate outcome. In my view, there is sufficient reason to deal with costs on a different basis, and to take into account the issues won and lost as I have outlined them. I favour taking the 'broad brush' apportionment approach. I think the assessment should reflect that in relation to grounds 1 and 2, (success on which would have given rise to a reversal of the decision), Fuglsang is deprived of its costs and should pay the respondents' costs. The assessment should also reflect the fact that grounds 8, 9 and 11 were probably unreasonably pursued, leading to no allowance in Fuglsang's favour. I take into account the costs that would have been incurred in providing an overview of the proposal and the proceedings, and the time that would have been taken in analysing the Tribunal's reasons, the EMPC Act in relation to ground 3, and the Scheme in relation to ground 4. I would order that Sultan and the Council pay 50/% of Fuglsang's costs of the first instance appeal.

At a glance

Court

Decision date

Before

Source

Judgment (218 paragraphs)

Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14 (22 December 2017)

Parties

Legislation Cited (7)

Cases Cited (28)