Administrative Law - Appeals from administrative authorities - Statutory appeals from administrative authorities to courts - Appeals from particular authorities - Resource Management and Planning Appeal Tribunal - Meaning of "decision" of tribunal - Whether appeal competent.

Land Use Planning and Approvals Act 1993 (Tas), ss64 and 65.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas_)_, s25.

Milner v Prima Construction & Development Pty Ltd (1992) 75 LGRA 25, referred to.

Statutes - Acts of Parliament - Interpretation - Inconsistent statutes - Generalia specialibus non derogant - Whether Land Use Planning and Approvals Act 1993, s65 is exhaustive as to appeals or residual right to appeal is available under Resource Management and Planning Appeal Tribunal Act 1993, s25.

Judgment Number: [1999] TASSC 148

1 Application was made under the Land Use Planning and Approvals Act 1993 ("the Land Use Act"), s64 for an order that the appellant be restrained from using 7 Croesus Court, Lindisfarne as a Family Group Home. The respondent claimed that the premises in question were being used as a "welfare institution" within the meaning of the Eastern Shore Planning Scheme 1963, that use of premises within that classification was not authorised without a permit from the local council, that no such permit had been sought or granted, and that accordingly the appellant was in breach of the Land Use Act, s51. By virtue of the Land Use Act, s64(11), an application of this kind is deemed to be an appeal for the purposes of the Resource Management and Planning Appeal Tribunal Act 1993 ("the Planning Appeal Act").

2 After hearing the parties before it, the Appeal Tribunal, established by the lastmentioned Act, delivered a written "Decision" dated 27 June 1999 stating that the Tribunal considered that the premises came within the definition of a welfare institution and that the appellant's use of them without a permit constituted a breach of the Land Use Act, s51. Proceedings were then adjourned to enable the parties to make written submissions as to the appropriate order to be made. On 6 July 1999, the Appeal Tribunal handed down a further "Decision" in which it was stated that the Tribunal considered that an appropriate time should be allowed to the appellant "to make an application for planning approval and have that application determined; and that if at the end of that time no permit has been granted then it will be appropriate for the Tribunal to make an order that the use cease". The further hearing of the application was then adjourned until 30 September 1999. This appeal was instituted on 15 July 1999. At the hearing, when argument was confined to the competency of the appeal, I was informed that the appellant had sought the necessary permit and had been granted one, subject to certain conditions it found unacceptable and which were then the subject of an appeal. No order has been made by the Tribunal since it adjourned the matter in July 1999.

(ii) any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings -

the Appeal Tribunal is satisfied, on the balance of probabilities, that the respondent to the application has contravened or failed to comply with a provision of this Part; or

(b) the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard -

(c) require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the contravention of, or failure to comply with, this Part; and

(d) preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates; and

(e) require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal.

(9) The Appeal Tribunal may, if it thinks fit, adjourn proceedings under this section in order to permit the respondent to make an application for a permit that should have been but was not made, or to remedy any other default."

Section 65 gives a right of appeal to the Supreme Court in the following terms:

"65 (1) Subject to the Rules of the Supreme Court, an appeal lies to the Supreme Court against -

(a) an order of the Appeal Tribunal made in the exercise of the jurisdiction conferred by section 64; or

(b) a decision by the Appeal Tribunal not to make an order under that section.

(2) An appeal under this section must be instituted within 30 days of the date of the decision or order subject to appeal or such longer period as may be allowed by the Supreme Court."

4 The Tribunal has made no orders in the exercise of the jurisdiction conferred upon it by s64, nor has it decided not to make such an order. Essentially, that section contemplates the making "by order" of what amounts to an injunction, interim (subs(5)) or permanent (subs(3)) and orders for costs (subs(12)). The exercise of the power to adjourn proceedings under subs(9) is not an order within the contemplation of s65. The Land Use Act as such does not grant a right of appeal to the Supreme Court from any "Decision" in respect of which the appellant is complaining. If it declined to seek the permit or failed to obtain it on acceptable terms, an order under s64(3) in the terms foreshadowed by the Tribunal no doubt would result and the right of appeal under s65 would thereupon accrue. But the appellant seeks to avail itself of the general appeal provision in the Planning Appeal Act, s25 which provides that a party to an appeal before the Appeal Tribunal may appeal to the Supreme Court, on a question of law, "from any decision of the Appeal Tribunal in the appeal". To avail itself of this right of appeal, the appellant calls in aid the Land Use Act, s64(11), to which I have already referred, and which is in these terms:

(11) For the purposes of the Resource Management and Planning Appeal Tribunal Act 1993, an application under this section is deemed to be an appeal."

5 The Planning Appeal Act, (Pt5) contains numerous sections dealing with the conduct of appeals before the Appeal Tribunal. They deal with the method of instituting appeals (s13), the parties (s14), representation at the hearing (s15), general procedure including rules as to evidence and natural justice (s16), compulsory conferences (s17), the conduct of hearings in public (s18), the opportunity to make submissions (s19), particular powers (to summon witnesses and take evidence on oath) (s20), power to strike out on non-appearance (s21), general powers (eg, to amend, etc) (s22), determination of appeal (s23) and the giving of reasons (s24). The provision of the Land Use Act, s64(11) that for the purposes of the Planning Appeal Act an application under s64 is deemed to be an appeal has the effect of bringing into operation all of these procedural sections; but does it go further and bring into play the Planning Appeal Act, s25, with a differently expressed right of appeal and time for appeal? It is interesting to note that in the Land Use Act, s64(12), (13), (14) and (15), specific provision is made for costs which is in identical terms to the Planning Appeal Act, s28(1), (2), (3) and (4), a quite unnecessary provision to have been duplicated in a cognate Act if s64(11) were intended to make all aspects of an application under s64(1) the same as from any appeal under the Planning Appeal Act. Whether that was necessary or not, however, the provision of a different right of appeal in the Land Use Act, s65 from that in the Planning Appeal Act, s25 suggests that Parliament intended that right at least to be governed only by the special provision in the Land Use Act and requires s64(11) to be read down accordingly. This is in accordance with the rule of construction generalia specialibus non derogant. In Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-stock Corporation [1980] FCA 38; (1980) 29 ALR 333, Deane J said at 347:

"As a matter of general construction, where there is repugnancy between the general provision of a statute and provisions dealing with a particular subject matter, the latter must prevail and, to the extent of any such repugnancy, the general provisions will be inapplicable to the subject matter of the special provisions. 'The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be taken to be operative . . .' (per Romilly M.R: Pretty v Solly [1859] EngR 249; (1859) 26 Beav 606 at p. 610; [1859] EngR 249; 53 ER 1032 at 1034). Repugnancy can be present in cases where there is no direct contradiction between the relevant legislative provisions. It is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter."

See also Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 372; Grofam Pty Ltd v ANZ Banking Group Ltd [1993] FCA 501; (1993) 117 ALR 669; Saraswati v The Queen (1990 - [1991] HCA 21; 1991) 172 CLR 1; Pearce and Geddes, Statutory Interpretation in Australia, 4th ed [par 4.24]. In my view, the provision of a specific power of appeal in relation to orders made under the Land Use Act, s64 evinced an intention by Parliament that provision should exhaustively govern the subject matter of the right to appeal and the time within which to do so. Section 65 carries the headnote "Appeal in respect of decision of Appeal Tribunal under section 64" and reinforces the view that only the decisions referred to therein are to be subject to appeal to the Supreme Court and that there is no residual right of appeal available through the Planning Appeal Act, s25 in respect of "any decision" not dealt with otherwise (Acts Interpretation Act 1931, s8B).

6 However, if I am wrong in this view and the Planning Appeal Act, s25 is available to the appellant notwithstanding the apparent limitations of the Land Use Act, s65, I am nevertheless of the view that the appellant cannot point to any decision of the Tribunal which falls within the former section.

7 It is clear from the wording of s25(1) granting a right of appeal on a question of law "from any decision of the Appeal Tribunal in the appeal" that it is not only the final decision or determination of the Tribunal which is subject to appeal. The legislation differs from that considered in Baily v South Australia Planning Commission (1986) 58 LGRA 355 where the Full Court of the Supreme Court of South Australia had to consider a statute which empowered a party within 30 days of "the determination or decision of" a Tribunal to appeal "against the determination or decision to the Land and Valuation Court". There it was held that the word "decision" was used uniformly throughout the relevant Act to describe the action of a planning authority disposing of an application for planning permission.

8 A closer parallel exists between the Planning Appeal Act, s25 and the Administrative Appeals Tribunal Act, s52(1) (Vic) which provides that a party to a proceeding before the tribunal may appeal to the Supreme Court on a question of law from a decision of the tribunal in that proceeding. This was considered by Fullagar J in Milner v Prima Construction & Development Pty Ltd (1992) 75 LGRA 25 at 27, where he said:

"In considering the ambit of s 52 of the Administrative Appeals Tribunal Act it must I think be borne in mind that under it an appeal lies as of right to the Supreme Court of the State and, in the circumstances of this particular case under s 52(3), to the Supreme Court sitting as the Full Court. That consideration is one of a number which I think should lead the Court to the conclusion that the word 'decision' in s 52(1) cannot refer to every decision made by the tribunal in the course of a proceeding before it. For example, it cannot, in my opinion, apply to a statement by the tribunal that it will not allow a particular question to be put in examination in chief or cross-examination, or a decision that it will not allow some particular line of questioning. What I think is in substance referred to is a decision of the tribunal which is given in the course of the proceeding and is effective irrevocably to affect the legal rights of a person."

"Accordingly I am of opinion that any determination or declaration or direction that 'the permits are granted', without any of the directions in subpar (i) or subpar (ii) of s 85(1)(b), must be ineffective finally to resole anything and a declaration or direction that the appeal is allowed or refused similarly is ineffective finally to resolve anything if that is all that is said. In particular such a determination does not bind the tribunal to direct the responsible authority to issue or refuse a permit.

With respect I do not think that I could accept the proposition that s 52 has as wide an ambit as was accorded to a provision by Lockhart J in Director-General of Social Services v Hales [1983] FCA 81; (1983) 78 FLR 373 at 398-399. I note also the wide meanings attributed to the word 'decision' in Lamb v Moss [1983] FCA 254; (1983) 76 FLR 296. But I would not wish to confine the meaning of 'decision' in s 52 of the Administrative Appeals Tribunal Act to a final determination of the proceeding. Contrast s 109(1) of the Magistrates' Court Act 1989 (Vic).

Whatever else is within the ambit of the expression 'a decision of the Tribunal in that proceeding', I do not think the expression extends outside the field of effective and irrevocable resolution in the course of a proceeding, of some substantive rights of a party, using the word 'party' in a wide sense."

The "decision" in that case was one to grant a permit subject to such conditions as might be later determined. The Act empowered the tribunal in an appeal against a refusal, to grant the permit, or to grant it subject to specified conditions. At 29, Fullagar J said:

"The determination recorded in this case does not, in my view, bind the tribunal later to direct the responsible authority either to issue or not to issue a permit. Accordingly, it seems to me that what has been done, whatever it is, cannot constitute a 'decision' of the tribunal in that proceeding within the meaning of s 52(1) of the Administrative Appeals Tribunal Act."

The other member of the Court, Tadgell J, said at 29:

"I agree with the conclusion which has been expressed by Fullagar J. I would, as I gather he did upon reflection, guard against seeking to confine by this decision the meaning of the word 'decision' in subs (1) of s 52 of the Administrative Appeals Tribunal Act. It may very well be that the word extends beyond a decision which is or is equivalent to the decision of the proceeding. After all, the words of the section are that an appeal may be brought from a decision of the tribunal 'in' that proceeding."

I would add that the use of the words "any decision of the Appeal Tribunal in the appeal" in the Planning Appeal Act militates against too narrow a construction.

9 However, in the present case, despite the finding of contravention and the adjourning of the proceedings to enable the appellant to apply for a permit "that should have been but was not made" (Land Use Act, s64(11)), the appellant's rights have not been irrevocably affected. There is no certainty that the Tribunal will make any order under s64 requiring the appellant to do, or refrain from doing, anything or penalising it by way of costs or otherwise. If and when an order is made within the meaning of s65, an appeal will lie. But should the permit be granted subject to acceptable conditions, that may well be the end of the matter. It is not a function of this Court to give advisory opinions where there is no longer any real contest between the parties (see Burnie Port Corporation Pty Ltd v Burnie City Council [1999] TASSC 72, per Crawford J at [11]).

10 In my opinion, the present appeal is premature. It should be dismissed for incompetency.