and Teen Challenge Inc [2019] TASRMPAT 12

Environment and Planning - Environmental planning - Planning schemes and instruments - Tasmania - Other matters - Validity of provision in planning scheme - Uncertainty.

King Gee Clothing Co Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184; Richard Bejah Insurance and Financial Services Pty Ltd v Maning [2002] TASSC 36, 123 LGERA 349, distinguished.

Judgment Number: [2020] TASSC 27

1. This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal concerning a proposal by an association named Teen Challenge Inc to establish a rehabilitation centre on the site of a former primary school in the village of Meander. The Meander Valley Council approved a development application and granted a permit for the proposal. Timber World Pty Ltd, the appellant in the present proceedings, appealed to the Tribunal but was unsuccessful. The appellant pursued only one ground of appeal, contending that the proposal did not comply with standards in the Meander Valley Interim Planning Scheme 2013 relating to bushfire-prone areas. The Tribunal, constituted by its Chairperson, Ms M Duvnjak and two other members, Mr M Ball and Mr M Kitchell, concluded that the critical provision in the planning scheme was ultra vires, and dismissed the appeal: Timber World Pty Ltd v Meander Valley Council and Teen Challenge Inc [2019] TASRMPAT 12.
2. Timber World has appealed to this Court pursuant to s 25 of the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"). An appeal under that section is limited to questions of law. The appellant contends that the Tribunal made errors of law in relation to the ultra vires issue, and further errors of law relating to the way it disposed of the appeal. Teen Challenge Inc chose not to participate in these proceedings. Its solicitors filed a notice of submission.
3. On 17 February 2015 the Minister for Planning and Local Government, Mr P C Gutwein, issued a legislative instrument named "Interim Planning Directive No 1 - Bushfire-Prone Areas Code". The Bushfire-Prone Areas Code contained in that directive became part of the planning scheme. That Code suspended and replaced the provisions of an earlier instrument called "Planning Directive No 5 - Bushfire-Prone Areas Code" which had previously been part of the planning scheme. I need not explain the legislative basis for either of those directives, nor the legislative mechanisms which led to the earlier one, and then the later one, being part of the planning scheme.
4. For the purposes of the Bushfire-Prone Areas Code of 17 February 2015 ("the Code"), the proposed rehabilitation centre fell within a use class called "Hospital Services". By virtue of Table E1 of the Code, hospital services constituted a "vulnerable use". Under the provisions of the Code and the planning scheme, a permit for the rehabilitation centre could be granted only if it complied with cl E1.5.1.1 of the planning scheme, which was entitled "Standards for vulnerable use".
5. In the beginning, the Council took the view that that clause was satisfied, and granted the permit. In the Tribunal proceedings, the appellant initially advanced several grounds of appeal, but it abandoned all but one of them. At the hearing, it relied only on a ground of appeal that asserted that cl E1.5.1.1 was not satisfied. That clause read as follows:

Objective: Only in exceptional circumstances should vulnerable uses be located on land which is within a bushfire-prone area. If a vulnerable use is proposed to be located on land which is in a bushfire-prone area, bushfire protection measures must reduce the risk to firefighters, and must reflect the risk arising from the bushfire-prone vegetation and the characteristics, nature and scale of the use taking into consideration the specific circumstances of the occupants including their ability to:

- protect themselves and defend property from bushfire attack

- understand and respond to instructions in the event of a bushfire.

P1 Where a vulnerable use is proposed to be located in a bushfire-prone area it must be demonstrated that:

1. there is an overriding benefit to the community;
2. there is no suitable alternative lower-risk site; and

1. the bushfire risk can be managed to an acceptable level having regard to any advice from the TFS.

A2.1 A bushfire hazard management plan that contains appropriate bushfire protection measures that:

1. addresses the characteristics, nature and scale of the vulnerable use;
2. addresses the characteristics of its occupants of the vulnerable use;

1. addresses the nature and extent of the surrounding bushfire-prone vegetation; and

1. is certified by the TFS or an accredited person.

1. is consistent with TFS Bushfire Emergency Planning Guidelines;
2. complies with AS 3745-2010 Planning for emergencies in facilities;

1. if applicable, complies with AS 4083-2010 Planning for emergencies - Health care facilities; and

1. For reasons that I need not explain, cl E1.5.1.1 was satisfied only if performance criterion P1 was satisfied and one of the two "acceptable solutions", either A2.1 or A2.2, was satisfied. Witnesses gave evidence at the Tribunal hearing in relation to the issue of whether there was "no suitable alternative lower-risk site" within the meaning of performance criterion P1(b). Until the final day of the hearing, there was no suggestion that any of the relevant provisions in the planning scheme were ultra vires.
2. That changed. It appears that counsel for the Council had a "light bulb moment" on the morning of the fourth day of the hearing. After the hearing had resumed, he sent an email at 10.08 am advising his opponent that he would contend that P1(b) was ultra vires. By the time his opponent saw that email, he had made his closing submissions to the Tribunal. The Tribunal allowed the parties to make written submissions as to the ultra vires issue.
3. In its decision, the Tribunal held, at [32], that performance criterion P1(b) was so uncertain that it was "incapable of application in an objective sense", and therefore "beyond the power to make delegated legislation". It went on to conclude, at [45], that P1(b) could not be severed and that, as a result, the whole of performance criterion P1 was ultra vires.
4. Planning schemes are a type of delegated legislation. As a general rule, an ambiguity or uncertainty about the meaning of a provision in a piece of delegated legislation will not result in invalidity. Thus in Cann's Pty Ltd v Commonwealth [1946] HCA 5; (1946) 71 CLR 210, Dixon J (as he then was) said, at 227-228:

"But to resolve ambiguities and uncertainties about the meaning of any writing is a function of interpretation and, unless the power under which a legislative or administrative order is made is read as requiring certainty of expression as a condition of its valid exercise, as the by-law-making powers of certain corporations have been understood to do, the meaning of the order must be ascertained according to the rules of construction and the principles of interpretation as with any other document."

1. However, there have been cases when legislative instruments have been so uncertain or unintelligible that applying the rules of construction and the principles of interpretation has been to no avail. King Gee Clothing Co Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184 was such a case. That case concerned the validity of an administrative order fixing the maximum prices of certain types of clothing. Dixon J said, at 197:

"It needs no imagination to see that in drafting an order for the fixing of prices for an important trade many difficulties must be encountered and it would be impossible to avoid ambiguities and uncertainties which are bound to arise both from forms of expression and from the intricacies of the subject. But it is not to matters of that sort that I refer. They depend upon the meaning of the instrument and they must be resolved by construction and interpretation as in the case of other documents. They do not go to power. But it is another matter when the basis of the price, however clearly described, involves some matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation, or apportionment, resulting in the attribution of an amount or figure as a matter of judgment. When that is done no certain objective standard is prescribed; it is not a calculation and the result is not a price fixed or a fixed price. That, I think, means that the power has not been pursued and is not well exercised."

1. In Richard Bejah Insurance and Financial Services Pty Ltd v Maning [2002] TASSC 36, 123 LGERA 349, Crawford J (as he then was) held that an instrument called the State Coastal Policy was ultra vires because most of its provisions related to something called the "coastal zone", and it was not possible to understand objectively what was encompassed by that expression.
2. Under cl E1.5.1.1 of the planning scheme, when it was proposed that a vulnerable use be located in a bushfire-prone area, performance criterion P1(b) required the decision-maker to determine whether it had been demonstrated that there was "no suitable alternative lower-risk site".
3. In its reasons, at [30], the Tribunal took the view that one could only objectively form the view that there was no suitable lower-risk site if an analysis of every potential lower-risk site was undertaken. It went on to reason, at [30]-[32], as follows:

"[30] ... Such an analysis in the Tribunal's view would require:

(a) An analysis of the zoning and its compatibility with the proposal;

(b) An assessment of whether the development standards applicable to the proposal could be met at the alternative site. If the alternative site was in a bushfire prone area such an assessment would require an assessment of bushfire risk which would need to identify a lower-risk than the risk identified for the proposed location;

(c) It may also be that a lower-risk alternative site identified may require compliance with different development standards in a different planning scheme that could not be met by the proposal and suitability therefore is not able to be established. It may require a Planning Application to be lodged with the relevant planning authority to ascertain whether the alternative site was an appropriate site for the proposal.

(d) It may also be that although an alternate site is deemed by Planning Authority to be suitable for the proposal, it may still not meet the 'lower-risk' requirements in terms of bushfire, contemplated by sub-paragraph (b).

[31] The Tribunal accepts Mr McElwaine's submission that absent an approval, the suitability of the alternative site cannot be known.

[32] It is the uncertainty with respect to the scope of the inquiry that results, in the Tribunal's view, in the provision being incapable of application in an objective sense. It must therefore, be ultra vires as it sits beyond the power to make delegated legislation. To borrow the words of Crawford J (as he then was) in Bejah - the impossibility objectively of understanding what is encompassed by the requirement to demonstrate that there is no suitable alternative lower-risk site, renders the provision ultra vires as it is not a true exercise of the delegated power. As submitted by Mr McElwaine and accepted by the Tribunal, it is not possible to address the requirements of sub-paragraph (b) because that analysis would be infinite in its scope. Objectively the requirements [sic] to demonstrate the absence of any suitable alternative lower-risk site means that the discretion with respect to P1(b) can never be exercised. This is likely to be the case regardless of the geographical scope of the inquiry."

1. The Tribunal correctly identified the King Gee and Bejah cases as the leading authorities relating to uncertainty as a ground of invalidity. However it is clear that it did not conclude that performance criterion P1(b) was ultra vires on any such basis. In fact it acknowledged, at [23], that the meaning of that provision was not ambiguous. Rather, its reasoning was to the effect that there would never be a development application whose proponent was able to demonstrate that which P1(b) required to be demonstrated. Such a conclusion does not amount to a basis recognised by the common law for a provision in a piece of delegated legislation to be held ultra vires on the basis of uncertainty. The case law as to uncertainty is thoroughly reviewed in two leading Australian texts: Pearce, D and Argument, S, Delegated Legislation in Australia, 5th ed, LexisNexis Butterworths 2017 at [22.4] to [22.20]; and Aronson, M and Groves, M Judicial Review of Administrative Action and Government Liability, 6th ed, Lawbook Co 2017 at [6.350] to [6.380].
2. The Tribunal's conclusion as to uncertainty was based upon a finding of fact that "it is not possible to address the requirements of sub-paragraph (b) because that analysis would be infinite in scope". It remains open to the Tribunal in any subsequent case about performance criterion P1(b) or a similarly worded provision to take a different view as to what will be sufficient to demonstrate that "there is no suitable alternative lower-risk site". Factors such as the nature of a proposed use, its likely "catchment area", the availability of alternative sites for sale, their prices, and the strength of the chances of planning approval being granted for alternative sites might all be considered relevant. The Tribunal, perhaps differently constituted, might take a less stringent view of the strength of the evidence that a proponent would need to adduce as to the unavailability of suitable alternative lower-risk sites. It cannot be said that the Tribunal will never take the view that P1(b) or a similarly worded performance criterion can be satisfied.
3. In Ex parte Zietsch; re Craig [1944] NSWStRp 29; (1944) 44 SR (NSW) 360 at 365-366, Jordan CJ, with whom Davidson and Street JJ concurred, stated a number of considerations relevant to the question whether a provision in delegated legislation is void for uncertainty. The third of those principles, was expressed as follows, at 365:

"(3) If the provision itself is clear, the fact that its application, generally or in particular cases, may be difficult or burdensome, is immaterial."

1. It is clear that the authors of the relevant Code intended that performance criterion P1(b) would only be satisfied in exceptional circumstances. The objective stated at the beginning of cl E1.5.1.1 begins, "Only in exceptional circumstances should vulnerable uses be located on land which is within a bushfire-prone area." Demonstrating that "there is no suitable alternative lower-risk site" was something one might expect to be difficult or burdensome, but not always impossible.
2. The Tribunal erred in law by concluding that performance criterion P1(b) was ultra vires for uncertainty on a basis unknown to the common law. It follows that this appeal must succeed. Before I consider what order I should make, I wish to address the appellant's other contentions.
3. By virtue of definitions in s 3 of the Land Use Planning and Approvals Act 1993, "use" and "development" are separate concepts. Counsel for the appellant argued that the Tribunal erred by treating performance criterion P1(b) as relating to both use and development when it applies only in relation to a proposed use, not a proposed development. I am not satisfied that the Tribunal lost sight of the distinction between the two concepts. The appellant's argument was based on the Tribunal's references to "development standards" in [30](b) and (c), which are set out above at [13]. However, reading the decision of the Tribunal as a whole, there is no reason to think that it lost sight of the distinction between the two concepts. At worst, it might be said that the Tribunal was a little careless in its language, and ideally should have said "standards", not "development standards". The reasons of administrative-makers should not "be construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
4. The appellant argued that the Tribunal erred in law in finding that P1(b) could not be severed from P1(a) and (c). I disagree. If P1(b) were ultra vires for any reason, the rest of P1 could have operated so as to promote the objective of restricting the location of vulnerable uses on land in a bushfire-prone area.
5. The appellant contended that the Tribunal should have considered whether P1(b) was severable from the Code as a whole, rather than severable from the rest of P1. If it had done so, I think it should have concluded that P1(b) was severable. Without it, the Code would not be a radically and substantially different document.
6. The appellant contended that the Tribunal had failed to comply with s 23(2) of the RMPAT Act. That subsection requires the Tribunal to make a decision in writing either affirming the decision appealed against, varying it, or setting it aside and either making a substituted decision or remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. However what the Tribunal said, at [45] was, "... the appeal must be dismissed". It should have said that the Council's decision was affirmed. Plainly that was the result that the Tribunal had in substance decided upon. Once again, the Tribunal was careless in its language. That carelessness, without more, would not warrant allowing this appeal.
7. The appellant contended that the Tribunal denied it natural justice by not affording it a further opportunity to be heard after determining that performance criterion P1(b) was ultra vires. As I said above, at [5], the appellant relied on only one ground of appeal at the hearing before the Tribunal. There had been other grounds, but all the other grounds were abandoned by the appellant at a time when there was no suggestion that the Council might argue that performance criterion P1(b) was ultra vires. When it made written submissions as to the ultra vires issue, the appellant asked the Tribunal, in the event that it held P1(b) to be ultra vires and incapable of severance, to then afford it an opportunity to be further heard. At that point the appellant could have asked for any or all of its abandoned grounds to be reinstated, but it asked only for an opportunity to think about asking to be further heard. The Tribunal did not give it the opportunity it had asked for.
8. Section 19 of the RMPAT Act requires the Tribunal to "ensure that every party ... is given a reasonable opportunity to present the party's case". As the appellant had not widened the scope of its case, but had only asked for an opportunity to think about doing that, it cannot be said that s 19 was not complied with.
9. Section 16(1)(d) of the RMPAT Act requires the Tribunal to "observe the rules of natural justice". If the appellant had applied, at any time before the making of the Tribunal's decision, for permission to reinstate any or all of its abandoned grounds of appeal, and for consequential orders as to the resumption of the hearing and/or further written submissions, the Tribunal would have been obliged by s 16(1)(d) to consider that application. But that was not what the appellant did. It asked for time to consider its course of action, and the Tribunal had no obligation to agree to that. Section 16(1)(b) of the RMPAT Act requires an appeal to be conducted "with as much expedition" as a proper consideration of the matters before the Tribunal permits. Section 16(1)(f) requires the Tribunal to hear and determine each appeal within 90 days after its institution unless the Minister grants an extension of time. Although the Tribunal had an obligation under s 16(1)(d) to afford the appellant procedural fairness, that obligation did not require it, after determining the sole ground that had been litigated, to give the appellant further time to consider applying for the reinstatement of abandoned grounds of appeal.
10. This appeal must succeed because of the Tribunal's error in concluding that performance criterion P1(b) was ultra vires. I have decided to make an order setting aside the decision of the Tribunal and remitting the case for reconsideration in accordance with a direction that the Tribunal is to be constituted by members who did not sit on the original hearing. I have decided to remit the "case" rather than the "matter" - the word used in s 25(6)(b)(ii) of the RMPAT Act - because of what was said in the Federal Court as to the meaning of "matter" in Repatriation Commission v Nation [1995] FCA 1277; (1995) 57 FCR 25. That will result in the Tribunal having the power, if asked, and if it thinks fit, to reinstate any abandoned grounds of appeal.