and Willar Pty Ltd and Anor [2020] TASRMPAT 5

Procedure - Judgments and orders - Amending, varying and setting aside judgments and orders - Effect of entering or recording judgment or order - Particular cases - Order not perfected - Order dismissing appeal from Resource Management and Planning Appeal Tribunal - Appellants granted leave to add new ground of appeal.

Texas Company (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382; State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd [1982] HCA 51; (1982) 150 CLR 29; Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256; Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; DJL v Central Authority [2000] HCA 15, 201 CLR 226; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, referred to.

Judgment Number: [2021] TASSC 15

v HOBART CITY COUNCIL and WILLAR PTY LTD (No 2)

1. This appeal concerns the granting of a permit to the second respondent, Willar Pty Ltd ("the developer"), to develop and use a site in Battery Point for visitor accommodation. The appellants have applied, at the latest possible stage in the proceedings, for leave to add a new ground of appeal, and to present further submissions to me. I heard this appeal in September 2020. On 5 October 2020 I delivered judgment and ordered, orally, that the appeal be dismissed. Four days later, on 9 October 2020, the solicitors for the appellants made the application that is now before me. A formal order for the dismissal of the appeal had not been prepared, signed and sealed, and that remains the position.
2. The background to the present application can be summarised as follows:
   • In late June 2018 the developer lodged with the first respondent, the Hobart City Council, an application for a permit pursuant to s 57 of the Land Use Planning and Approvals Act 1993 ("the LUPA Act").
   • On 1 July 2018 Interim Planning Directive No 2 ("IPD2") was replaced by Planning Directive No 6. The result was that an application for a permit for visitor accommodation at the relevant site could only be granted if the application had been made before that date.
   • In late August 2018 the Council advertised the permit application, notified the owners and occupiers of adjoining properties, and made documents available for inspection in accordance with s 57(3) of the LUPA Act and the applicable regulations.
   • On 17 April 2019 the developer lodged revised plans with the Council.
   • In early May 2019 the Council repeated the process of advertising, sending out notices, and making documents available for inspection, believing that s 57(3) and the regulations authorised it to take that course.
   • On 24 May 2019 a delegate of the Council granted the permit, with a condition requiring compliance with the revised plans.
   • The appellants appealed to the Resource Management and Planning Appeal Tribunal. They contended that the lodgement of the revised plans amounted to a new permit application, and that the Council had no power to grant it because it was made after 1 July 2018. That contention was rejected: P Tomaszewski and R Heath v Hobart City Council and Willar Pty Ltd and Anor [2020] TASRMPAT 5.
   • The appellants appealed. At the hearing before me in September 2020 they again contended that the lodgement of revised plans in April 2019 amounted to a new application for a permit that could not be granted because of the planning directive that took effect on 1 July 2018. I rejected that contention. The appellants also contended that a permit application could never be amended by the submission of revised plans after the statutory advertising and notification processes had been completed. I rejected that contention too. I held that that could be done provided there had been a modification of the original proposal, as distinct from a proposal for a substantially different development. Both respondents contended that, on a proper construction of s 57 of the LUPA Act, the processes of advertising, notification and public inspection were authorised by the legislation to be repeated in respect of a pending application. I rejected that contention too. However I held that it was open to the Council, and to the Tribunal standing in its shoes, to grant a permit with a condition requiring compliance with revised plans, provided the revision resulted in a modified proposal as distinct from a proposal for a substantially different development. At [6] I observed that the appellants did not "contend that the developer's revised plans differed from its original plans to such an extent that the original development proposal was transformed into a substantially different one". I rejected each ground of appeal and concluded that the appeal must be dismissed: Tomaszewski v Hobart City Council [2020] TASSC 48.
3. The appellants now wish to argue that the Tribunal erred in law by failing to address the question whether the revised plans differed from the original plans to such an extent that the original development proposal was transformed into a substantially different one.
4. The Tribunal adverted to that question in its reasons at [29] and [30]. Those paragraphs read as follows:

"29 The amendments asserted by the Appellants to constitute a new application comprised further materials submitted to Council, in part in response to a request for further information made by the Council pursuant to s 54. The Second Respondent and the Council say that that further information did not alter the nature of the application, which remained an application for a permit for the partial demolition and development of an existing building and change of use to visitor accommodation at the site. They say therefore that the provision of the revised plans did not constitute a new application for a permit pursuant to s 51(1A) and the proposal constituted by the application made during the currency of IPD2 is required to be assessed in accordance with IPD2. The Tribunal agrees.

30 For the reasons advanced by the Council, the Tribunal accepts that LUPA contemplates changes to the particulars of a proposed development after the application is made. It appears to the Tribunal that requiring a planning authority to formulate a view as to whether additional information or changes to the initial proposal constitute acceptable variations or unacceptable amendments constituting a new application, as opposed to making a judgment as to whether fresh notification is required, is fraught with difficulty for the reasons referred to earlier. The Second Respondent and the Council proceeded on the basis that there was one application made on 26 June 2018 and that the Council expressly determined that application by granting a permit subject to conditions. Indeed, it would have been open to the Council to grant the permit subject to a condition requiring compliance with the original plans. The revised plans did not vary the use sought. The changes to the plans were made in response to heritage concerns raised by the Council - not to extend or enlarge the development. If they amounted to a significant difference from the original plans, the Council included a condition in the permit requiring substantial compliance with the revised plans after advertising and giving notice of the revisions, conforming with the approach to a significant difference identified in St Helens Area Landcare and Coastcare Group Inc v Break O'Day Council [[2007] TASSC 15[2007] TASSC 15; , 16 Tas R 169]. The application subject to the appeal before the Tribunal is the application made 26 June 2018. It therefore is to be considered in accordance IPD2 [sic]."

1. The appellants now wish to amend their grounds of appeal by adding a new Ground 3 in the following terms:

"The Tribunal misunderstood that the planning authority had validly given notice of the revised plans pursuant to ss 57(3) and (4) of the Act which then caused it to:

(i) wrongly assume that the revised plans had been notified as required by the Act;

(ii) wrongly speculate that if the revised plans amounted to a significant difference from the original plans, that it was open to the planning authority and to it to grant a permit with a condition requiring the amendments as specified in the revised plans on the basis that those plans had been notified as required by the Act;

(iii) failed to determine for itself whether the revised plans did or did not amount to substantial amendments to the original application; and

(iv) then failed to turn its mind to the question in the appeal before it namely whether it was open to the Tribunal to grant a planning permit with a condition requiring the amendments set out in the revised plans which were not notified in accordance with the Act."

1. That application is opposed by both respondents. I excused counsel for the Council from attending the hearing of the application. He was content to rely on the submissions made on behalf of the developer.
2. Part 33 of the Supreme Court Rules 2000 deals with the entry of judgments and orders. Rule 813 provides as follows:

"A judgment or order is entered when a form of judgment, drawn up and settled in accordance with this Part, is sealed by the registrar with the office seal."

1. Until a formal order has been entered in accordance with r 813, the Court has a discretionary power to allow a case to be re-opened: Texas Company (Australasia) Ltd v Federal Commissioner of Taxation [1940] HCA 9; (1940) 63 CLR 382 per Starke J at 457; State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd [1982] HCA 51; (1982) 150 CLR 29 at 38; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 265; Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300; DJL v Central Authority [2000] HCA 15, 201 CLR 226 at [34].
2. The public interest in maintaining the finality of litigation is a powerful factor that weighs against the re-opening of a case when a judgment has been pronounced, but not formally perfected as contemplated by r 813: Wentworth v Woollahra Municipal Council [1982] HCA 41; (1982) 149 CLR 672 at 684. The purpose of the discretion to allow the re-opening at this stage "is not to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases": Autodesk (above) per Mason CJ at 303.
3. In Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22, Kenny J said the following as to four categories of cases where the power to re-open might be exercised, at [24]:

"[24] The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence ... (2) inadvertent error ... (3) mistaken apprehension of the facts ... and (4) mistaken apprehension of the law .... In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open". [Case references omitted.]

1. That summary has been approved by the Victorian Court of Appeal and the Full Court of the Federal Court: Spotlight Pty Ltd v NCON Australia Ltd [2012] VSCA 232, 46 VR 1 at [25]- [26]; Collin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2017] FCAFC 75, 251 FCR 404 at [168]- [169].
2. The appellants' principal contentions in relation to the present application can be summarised as follows:
   • That it is open to a judge hearing an appeal from a decision of the Tribunal to make an order favourable to the appellant if he or she is satisfied that the Tribunal made an error of law that is not the subject of a ground of appeal.
   • That once I concluded that s 57(3) and (4) of the LUPA Act provided for the advertising and notification of a permit application only once, contrary to the view taken by the Tribunal, I "ought to have paused at that point, and ought to have afforded the parties an opportunity to put submissions as to what consequences flow [sic] from that finding, without being shackled by the way in which the grounds of appeal were drafted".[1]
   • That, without fault on their part, the appellants were not afforded a reasonable opportunity to be heard as to that question.
   • That, in all the circumstances, the interests of justice would be better served by allowing the application to re-open.
3. The respondents' principal contentions as to the present application can be summarised as follows:
   • That there was no fault on the part of the Court in not affording the appellants an opportunity to make further submissions as to the consequences of the conclusion that the Tribunal had erred in relation to the issue concerning the repetition of the processes of advertising and notification.
   • That the appellants have not advanced any reasons as to why they had not previously raised the argument that they now wish to rely on.
   • That it is significant that the appellants were represented by extremely experienced senior counsel, and that he initially submitted that the Court should determine the appeal on the papers, without an oral hearing.
   • That, in the Tribunal proceedings, the appellants did not contend that the Council's repetition of the advertising and notification processes was not authorised by the LUPA Act.
   • That the strength of the proposed new Ground 3 is irrelevant. Alternatively, that that ground does not enjoy reasonable prospects of success, but is very weak.
4. I am inclined to think that the appellants are right in contending that an appeal from the Tribunal to this Court can succeed on a basis that is not the subject of a ground of appeal. However I am not persuaded that that circumstance would add any strength to the present application. The right of appeal is conferred by s 25 of the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"). That Act does not require an appellant to formulate grounds of appeal. Section 25(5) empowers the Court to "make such orders as it considers appropriate". The requirement that an appellant "state the grounds of the appeal" is imposed by the Supreme Court Rules 2000, r 705. However, by virtue of rr 709(1) and 693(5)(b) and (8), a judge hearing an appeal from the Tribunal may set aside, reverse, alter or vary any decision of the Tribunal, or make any other order that he or she considers appropriate, even if any ground for the order made is not specified in the notice of appeal. Obviously such a course may not be taken unless the respondents to the appeal have been afforded procedural fairness. However the appellants did not originally seek any relief based on a ground that was not in their notice of appeal, and are now seeking to amend their notice of appeal to include a new ground. The discretion to make an order not based upon a ground of appeal has never been enlivened in this case.
5. I reject the submission that I had a duty to invite further submissions as to the consequences of the Tribunal's error as to the significance of the repetition of the advertising and notification processes. My duty was to determine whether the Tribunal had erred in law in any of the respects asserted in the grounds of appeal. It is sometimes desirable for a judge to point out to counsel, particularly inexperienced counsel, the possible existence of a meritorious argument outside the scope of the grounds of appeal. However, an appeal from the Tribunal is an adversarial proceeding in which a judge does not have a duty to make suggestions that might be helpful to one party.
6. The Tribunal is in a somewhat different position. It has a duty to make the "correct or preferable decision": Drake v Minister for Immigration (1979) 24 ALR 577 at 589; Kain v Glamorgan Spring Bay Council [1996] TASSC 28; (1996) 90 LGERA 326 at 335; St Helen's Area Land Care & Coast Care Group Inc v Break O'Day Council [2007] TASSC 15, 16 Tas R 169 at [71]. Because of that duty, it will sometimes be appropriate for the Tribunal to take on an inquisitorial role.
7. However there are a number of factors that weigh in favour of the granting of this application, as follows:
   • It was made promptly after I gave judgment dismissing the appeal. I gave judgment on a Monday, and the application was made four days later, on the Friday of the same week.
   • The proposed ground appears to have merit. It seems quite clear from the Tribunal's reasons at [30], which I have quoted above at [4], that the Tribunal did not address the question whether the revised plan resulted in a substantially different development proposal. Counsel for the second respondent has submitted that the proposed new ground does not enjoy reasonable prospects of success, and is a very weak ground, but he has not, as yet, made any submissions as to the correctness of the impugned part of the Tribunal's reasoning at [30]. My understanding is that the appellants contend that, as a matter of law, the Council did not have the power to grant the permit unless the revised plans resulted in a modified proposal as distinct from a substantially different one; that the Tribunal had a duty to determine whether that was the case; and that it erred by dismissing the appeal without making a finding as to that issue.
   • There is no suggestion that the omission of a ground of appeal based on that reasoning was other than inadvertent.
   • This is not a situation in which litigants are seeking to re-argue a point that has been decided against them.
   • The granting of the present application is not likely to result in a lengthy hearing in this Court or the Tribunal. The point that the appellants wish to argue is a narrow one. If they succeed and the matter is remitted to the Tribunal, there will be a single issue to be determined - whether the revised plans transformed the original proposal into a substantially different one. It appears from material in the amended appeal book[2] that the developer originally proposed to add two storeys to its three storey building, whereas the revised plans provided for only one additional storey, but for extensions to the two upper storeys of the existing building.
   • This is not ordinary inter partes civil litigation. There is a public interest in the Tribunal making the "correct or preferable decision". Planning and environmental legislation gives members of the public rights to make representations in relation to development applications so that planning authorities will be provided with the views of those who oppose applications, supported by relevant evidence, and "thus be relieved of the special burdens associated with decision-making when only one side of the argument is known": Scurr v Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242 at 251-252. One of the objectives of the resource management and planning system of Tasmania is "to encourage public involvement in resource management and planning": , Schedule 1, cl 1(c).
8. In my view the principal factors that weigh against the granting of this application are as follows:
   • If the Tribunal erred in law as asserted in the proposed new ground of appeal, that error could and should have been identified when the appellants' notice of appeal was prepared in May of last year.
   • It is desirable that this litigation be brought to an end. The development application was lodged in June 2018. The Tribunal conducted a four-day hearing on 16-17 October 2019 and 2-3 March 2020. The hearing that I conducted in September 2020 took a little under four hours. This litigation has been both drawn out and expensive.
   • At the hearing in September 2020, no indication was given that the appellants contended that the revised plans transformed the original proposal into a substantially different one.
   • Although I am in a position to make some assessment of the merits of the proposed Ground 3, I am not in a position to make an assessment of the appellants' chances of success if I grant this application, uphold Ground 3, and remit the matter to the Tribunal. The question of whether or not the revised plans transformed the development originally proposed into something substantially different is a question of fact and degree best answered by a decision-maker with planning expertise and/or the benefit of expert planning evidence. It is quite possible that the Tribunal, if required to determine that question, would make a decision favourable to the respondents, in which case the continuation of this litigation would have been fruitless.
9. On balance, I consider that the interests of justice require this application to be granted. The factors that I regard as most compelling are the public interest in the Tribunal making the correct or preferable decision, the promptness of the application, the fact that the appellants are not seeking to re-argue a point that was decided against them, and the likely shortness of the further hearings before this Court and possibly the Tribunal.
10. I vacate the order made on 5 October 2020. I grant leave for the appellants to amend their grounds of appeal by adding the proposed new Ground 3. I will hear counsel as to the future course of this appeal.

[1] Appellants' written submissions dated 30 October 2020, at [29].