Turner v Horsfall [2002] VSC 195

"The Tribunal declares that the Responsible Authority's resolution carried 14 November 2000 extending `the time of Planning Permit 82/95-063 until 18 December 2002 for which the construction and operation of a two foot gauge tourist steam tramway may be commenced pursuant to Section 69(2) of the Planning and Environment Act 1987' is void and of no effect."

6. The appeal from the Tribunal's order proceeded before me unopposed. It seems that the plaintiff and the defendants came to an accommodation which involved on the one hand the appeal proceeding unopposed and on the other hand the plaintiff agreeing not to seek a costs order against the defendants. Be that as it may, the plaintiff must show error of law on the part of the Tribunal in order to obtain a favourable outcome to the appeal. The plaintiff, I should say, is not the Echuca Steam Railway, which is not a legal entity, but rather Mr Warwick Turner. He is apparently the physical manifestation of the Echuca Steam Railway.

9. The material adduced in support of the appeal consisted, in essence, of the reasons for decision delivered and the order made by the Tribunal. Plaintiff's counsel told me that the appeal turned exclusively on the material revealed by the reasons; the appeal was entirely confined within the four corners of those reasons[1]. He was content to argue the appeal upon that material and none other.

12. The factual background of the appeal, as revealed by the reasons, is simple enough. In 1995 Mr Turner applied for a permit to construct a small gauge tourist steam railway a distance of some 2.8 kms along the Murray River in the vicinity of Echuca. The application was refused. Appeal to the then Administrative Appeals Tribunal succeeded. The Tribunal directed that a permit issue, but subject to many conditions. One condition was that the permit would expire if the use or development was not commenced within a two year period of its issue. The permit issued on 18 December 1996.

15. In November 1998 Mr Turner successfully sought an extension of time for commencement. The Shire extended the permit to a final date for commencement of 18 December 2000.

18. Mr Turner made a further request for extension of time by letter dated 3 October 2000. The Council resolved on 14 November 2000 to extend the commencement date to 18 December 2002. A permit in the amended form did not, however, issue.

21. Extensions of time for commencement aside, Mr Turner sought and obtained from the Tribunal, by orders made in January 2001, a substantive amendment to the original permit. An amended permit issued in February 2001 in accordance with the Tribunal's determination. Nothing turns, as I understand it, upon that transaction.

24. The order of the Tribunal now under challenge was, as I said earlier, made on 28 August 2001. I asked counsel for the plaintiff what had in fact occurred since that time concerning the permit. He told me he was instructed that his client had applied for a new permit subsequent to the Tribunal's order and that the application had been rejected by the Council, there being a number of objectors. It is not clear to me, from what counsel said, whether the Council's consideration and rejection of the fresh permit application occurred whilst this proceeding was on foot. None of the circumstances recited in this paragraph of my reasons were, obviously enough, disclosed to me in acceptable form. Nor, for that matter, was the significance, if any, of those circumstances the subject of discrete submissions.

27. The present defendants' case before the Tribunal focussed upon alleged inordinate delay in commencement by the plaintiff, and upon the fact that there had been a change to the applicable planning scheme after the permit had first been granted. Pertinently, in respect of some at least of the land upon which the railway was to be constructed and operated, use as a tourist railway had become a prohibited use. This was, it appears, the consequence of adoption by the Council of a new planning scheme, which was gazetted on 1 October 1998. Concerning the second main limb of the defendants' case, paragraphs two and three of the application were in these terms:

"2. Since the original issue of the permit there has been a substantial shift in planning policy resulting in the proposal now being a prohibited use in the relevant zone; and 3. Having regard to the above, it is considered that no Responsible Authority could have reasonably come to the decision that the Campaspe Shire Council did in granting a further extension of the subject permit."

31. According to the Tribunal's Reasons, the material before it showed, I note, that the 1998 Planning Scheme contained a clause protecting existing use rights; and that in respect of some of the land the proposed development arguably would not constitute a prohibited use.

34. The Tribunal considered, and the plaintiff did not contend before me that it was wrong in doing so, that it had jurisdiction under s. 149B(1)(b) of the Act[2] to make a declaration concerning the Council's decision on 14 November 2000 to extend time - the Council having been authorised to make that decision under s. 69 of that Act. Section 149B was inserted into the Act, I should add, subsequent to my decision in Kantor and Anor v Murrindindi Shire Council and Anor[3].

37. The Tribunal noted that its role was not to conduct a merits review[4] but rather to decide whether the Council's decision "was invalid or contrary to law". The Tribunal set itself the task of discerning the presence or absence of an error of law. It does no harm to the plaintiff's position to assume that this approach was correct; and having regard to the Tribunal's decision I do not see that to make the assumption disadvantages the defendants. I will treat the assumption as rightly made.

41. The Tribunal concluded that the Council had been bound to take the rezoning effected by the 1998 Planning Scheme into effect when considering the plaintiff's extension application. According to the plaintiff, this was an error of law. The rezoning was said for the plaintiff to be a relevant consideration, but not one that the Tribunal was bound to take into account.

44. The Tribunal concluded that the Council had not taken the rezoning into account in arriving at its decision. According to the plaintiff, it did so by an impermissible route, in substance making use of judicial notice which was unavailable to it.

47. The Tribunal, having reached the two conclusions just specified, declared that the Council's resolution to extend time was void and of no effect. According to the plaintiff, the Tribunal did not consider whether the matter not taken into account was "so insignificant that the failure to take it into account could not have materially affected the decision"[5].

Was the Council bound to take the 1998 rezoning into account on the extension application?

51. The Tribunal, in considering whether the Council had been bound to take the 1998 rezoning into account, referred to my decision in Kantor. There, when dealing with an extension application, I said that a responsible authority could rightly consider the fact that there had been no change in planning policy. I did not deal with the converse situation; but I consider that it equally applies.

54. The Tribunal then said that a responsible authority when considering an application to extend time under s. 69 "has a very wide discretion indeed and is entitled to take account of a wide number of matters".[6] I quite agree. The key word for present purposes is the verb "entitled".

57. The Tribunal thereafter referred to the review jurisdiction considered by the High Court in Peko-Wallsend. It correctly noted the judgment of Mason J to the effect that complaint of failure to take a relevant consideration into account can only be made out if the decision-maker fails to take into account a matter which he is bound to take into account. [7]

60. In the absence of an express statement of matters that must be considered by a decision-maker, they are to be determined by implication from the subject-matter, scope and purpose of the legislation.

63. Section 69 of the Act does not expressly state matters that a responsible authority must consider when dealing with an extension application. That makes relevant consideration of the subject-matter, scope and purpose of the Act.

66. In considering those matters the Tribunal referred in some detail to my discussion of pertinent considerations in Kantor. There I analysed both the legislation and a number of earlier decisions.

69. The Tribunal expressed its conclusion at several points in its Reasons. Thus:

"It is implicit in the formulation of Ashley J that the present state of the Planning Scheme is a highly relevant consideration. An absence of change from the date of grant of a permit to the date when extension is considered was described by His Honour as being a significant positive consideration in favour of granting the extension, implicitly the material alteration, such as the proposed use becoming prohibited. It is a very significant negative factor."[8]

"As Sir Anthony Mason's analysis in the Peko Walsend case shows what is a necessary consideration may appear not only from the express provisions of the statute granting a discretion but also implicitly from the subject matter. The analysis undertaken in the Tribunal authorities referred to by Ashley J and in his own judgment indicates to my mind that the question as to whether the planning controls in force at the time of the extension would have permitted the grant of this permit anew was a vital issue."[9]

75. Whilst its use of language was not always precise, there is no doubt in my mind that the Tribunal did conclude that the Council had been bound to take the 1998 rezoning into account on the extension application made in late 2000.

78. In Kantor I did not go so far as to say that a responsible authority was bound to take the current planning regime into account when considering an extension application. But I am persuaded that it was correct for the Tribunal to reach the conclusion which it did. The subject-matter, scope and purpose of the legislation, which I discussed in Kantor, and the decisions I there analysed, justify such a conclusion.

81. It does not follow, of course, that a change in the planning scheme as here occurred will necessarily be determinative of an extension application. As I pointed out in Kantor, a wide range of matters may be pertinent to the exercise of the discretion in the particular case. So, all other things apart, the fact that in the present case there was a saving of existing use rights was a matter proper for consideration.

84. It might be said, in opposition to the conclusion which I have reached, that it is possible to envisage a case in which a change in the planning regime between grant of permit and consideration of an extension application will be insignificant in determining the fate of the application. I do not say that this might not be so. But the judgment of Mason J in Peko-Wallsend[10] shows that a factor may be one which the decision-maker is bound to take into account notwithstanding that, in a particular case, the factor might be so insignificant that failure to take it into account could not have affected the decision.

Did the Council fail to take the 1998 rezoning into account when considering the extension applications?

88. The Tribunal gave extensive consideration to the question whether the Council took the 1998 rezoning into account when considering the extension application made in 2000. The way in which it did so was said by counsel for the plaintiff to have involved error.

91. The Tribunal first gave the issue attention at paragraphs 36 and 37 of its Reasons. This is what it said:

"36. ... The minutes record Council's resolution and they also record the officer's report and a recommendation. That report described the history of the matter and sets out the text of Mr Turner's letter to Council explaining the difficulties which he has encountered. The officer's report recommends the grant of another two year extension of time, noting `Whilst the applicant has already received a two year extension of time, it is acknowledged that the permit has very onerous conditions that require compliance with before the use and development can commence. The applicant appears to have undertaken a degree of work towards compliance with these conditions. As well, the pending VCAT hearing in December 2000 to resolve the request confirming the amendment of plans has delayed the process.' 37. If the minutes represent an exhaustive description of the issues which were considered by Council it appears to have given no consideration at all to the fact that since the permit was granted the Planning Scheme renders the proposed use prohibited on at least part and possibly the whole of the subject land. For present purposes how does one conclude what matters were considered by the Councillors? Is it possible to conclude that in the absence of some express and direct evidence that they considered all relevant factors? Or on the other hand could I conclude that they considered no matters other than those set out in the officer's report? Kantor's case gives me no guidance because all five extensions were granted by individual officers exercising delegated power. Ashley J had the advantage of evidence from those officers as to what they had done and what considerations had moved them. If there was any debate at the time that Council resolved to make its extension, I was given no summary of it. Even if I had been it must be a matter of speculation as to what matters acted upon the minds of the Councillors."

95. The Tribunal then considered the problem which arises where no reasons are given for a decision, which is simply recorded as a resolution; and the permissible means of resolving the problem: see at paragraphs 41-43 of its Reasons.

98. Thus far, in my opinion, the Tribunal's approach is not open to criticism.

101. That takes me to paragraph 44 of the Reasons, which was much criticised by counsel for the plaintiff. The Tribunal said this:

"What, then is the evidence in the present proceeding? The only material as to what was before Council when it made its determination is the extract from its minutes constituting the resolution to extend and the officer's report. Neither of those documents says anything to indicate that the fact that the tramway would be a prohibited use on some or perhaps all of the subject land was considered by the Councillors at all. Section 98 of the Victorian Civil and Administrative Appeals Tribunal Act 1998 authorises me to inform myself as I see fit. I am not bound by Rules of Evidence but I am bound by the Rules of Natural Justice. I believe it is so notorious that the mode of proceeding adopted by councils is for the councillors to be provided with a set of papers for each meeting including reports from the relevant departments which are affected by the various items of business for consideration at the meeting. These papers in themselves provide a very large bundle of `homework' for councillors who in Victoria are still largely honorary rather than professional. In these circumstances it is, in the absence of evidence of anything more, simply fanciful to consider that one or more of the councillors might, without any suggestion in the officer's report that it was necessary or appropriate, have gone to the zoning maps to establish the zoning of the subject land (which does not appear in the Officer's report) and then considered the text of the Scheme to see whether under the then current planning arrangements it would be possible to grant a permit for the proposed use and development. The obvious inference is that this matter ..... was ignored completely."

105. Thereafter in its Reasons the Tribunal considered whether, on discretionary grounds, it should grant a declaration. Its Reasons show that it regarded the substantive matters for its determination as having been resolved. Thus it referred in paragraph 46 to its "having found that the basic requirement for a declaration of validity has been made out"; and later it referred to "the point of invalidity which (it) had identified in the Council's determination".

108. In fact, however, the Tribunal did revisit the substantive issue. This is what it said:

"52. ... In my view in raising and stressing the significance of the change in zoning control introduced by the new format Scheme, the Horsfalls in the circumstances should be regarded as having sufficiently raised the issue as to whether Council properly considered that element in the matrix of fact which confronted it when it determined to extend the date for the commencement of the development. For the avoidance of doubt however and to avoid any failure to comply with the Rules of Natural Justice I caused the Registrar to send facsimile transmissions to each of the parties the next business day following the hearing before me, giving them a week and a half to make any written submissions as to: (a) whether the absence from the officer's report of any reference to the change in planning controls meant that Council had not considered the significance of the change in planning controls; and (b) whether if this was correct, Council's determination was invalid for that reason. 53. I adopted the course of seeking written submissions because all of the parties are based in Echuca and it would have seemed oppressive to require them to attend a further hearing in Melbourne. Mr Horsfall merely reiterated reliance upon the lapse of time since original grant of the permit. He said what the Councillors knew about the changed planning controls was a matter of speculation. Mr Brennan initially elected to make no submission on behalf of the Shire as to the effect of the contents of the officer's report. Later in a further written submission he suggested the Councillors would have decided to extend the permit even if they were aware of the new planning controls based upon the permit holder's existing use rights. Mr Turner said `Whatever knowledge the officers should have provided with regard to the new zone status of part of the tramway route would Council have come to the same conclusion, ie. to extend the time of the permit. No doubt Council may wish to consider this, particularly, as I understand it, that the previous permit provided pre-emptive rights.'"[11]

112. Having recited these events the Tribunal observed that:

"None of those submissions takes the matter any further. The change in planning controls is a most significant change of circumstances. Although Council may still elect to extend this permit (see Section 69(3) of the Planning and Environment Act) it is far from inevitable that a properly instructed Council would reach that decision."

116. I am not at entirely clear what the Tribunal meant by its observation in paragraph 54 that "(n)one of these submissions takes the matter any further". It is a matter to which I will shortly return. But first I must address paragraph 44 of the Reasons.

119. The Tribunal was on perfectly safe ground in referring to the contents of the officer's report and the Council's resolution; likewise in its reference to s. 98 of the Victorian Civil and Administrative Appeals Tribunal Act 1998. It was next the case that, evidently, the extension application itself involved the provision to councillors of a report. Again, I should be prepared to treat either as notorious or as a matter within the purview of the Tribunal as a specialist body the circumstance that councillors in Victoria are still largely honorary rather than professional. Inferentially the Tribunal was saying that this was certainly or very probably the situation in the case of the Campaspe Shire Council; and I do not think that this was impermissible.

122. At the heart of the plaintiff's criticism of the Tribunal's reasoning in paragraph 44 is, however, the assertion - implicit so far as it is not explicit - that before the meeting of the Council held on 14 November 2000 the councillors were provided with "a very large bundle of `homework' by way of a set of papers including reports from relevant (council) departments"; and that it was fanciful to consider, in the absence of anything addressing their attention to it in the report concerning the extension application, that one or more of the councillors might have established the zoning of the subject land and the fact that in 1998 there had been a pertinent change in the planning regime.

125. It was by recourse to the reasoning criticised by plaintiff's counsel that the Tribunal drew the inference that councillors had not appreciated there was a rezoning issue, let alone considered it when determining the extension application. That reasoning was a necessary step leading to the conclusion. It is not to the point that the Tribunal might possibly have reached the same conclusion had it considered only the report and the resolution.

128. In my opinion, none of the Tribunal's powers under s. 98(1) of the Tribunal Act, application of the doctrine of judicial notice, or the respect which one gives to the decisions of specialist Tribunals within the area of their expertise enable the Tribunal's reasoning to be supported. I consider that the Reasons disclose an error of law. I do so with some reluctance because, although it provides no answer to the presence of the error, it might be the case that the Tribunal could and would have arrived at the same conclusion without resort to the impugned reasoning.

131. Concerning s. 98(i)(a), (b) and (c), the matter which the Tribunal was considering was what information the councillors possessed at the meeting on 14 November 2000; and specifically whether that information, whatever its source, included information concerning the 1998 rezoning and its application to the subject land. If the Tribunal had concluded that the Council or one or more of its members had been seised of that information, then a question would have arisen whether that information had been brought to account. The gist of the Tribunal's Reasons at paragraph 44, confirmed elsewhere, is, however, that the Council had no such information. When the Tribunal said that "the obvious inference" was that the matter had been "ignored completely", it was saying that the Council had no pertinent information; not that it had information but ignored it in reaching its decision.

134. The Tribunal did not "inform itself" upon the matter in question as it saw fit. Rather, it reached a conclusion concerning that matter by a process of reasoning which took what it said to be a notorious mode of proceeding, applied it to the particular case, and from that drew a particular inference. Its reasoning was not validated simply because it was not bound by the rules of evidence. Even if it was open to the Tribunal to rely upon a notorious general practice, s. 98(i)(b) and/or (c) could not justify a process of reasoning whereby, without more, the general was applied to the particular.

137. That takes me to what the Tribunal described as "so notorious". Assuming that it was open to the Tribunal, as distinct from a court, to take judicial notice of a notorious adjudicative fact, I do not consider that the matter which the Tribunal considered to be notorious satisfied the criteria for notoriety established by the common law. In this connection see Holland and Anor v Jones[12]; the judgments, conflicting in one respect, of McHugh and Callinan JJ in Woods v Multi-Sport Holdings Pty Ltd[13] and the discussion in Cross on Evidence, Australian edition[14]. I do not accept that the mode of proceeding described by the Tribunal was "so generally known"[15], or was known "to educated men,"[16] or was such that "every well-informed person in Australia" was aware of it,[17] at the pertinent time.

140. What, then, of the Tribunal's status as a specialist body? Was the Tribunal, in describing the "so notorious" mode of proceeding, making use of personal knowledge of which it was seised by its experience in the planning field? If so, should the Court defer to that knowledge?

143. It is accepted that a specialist tribunal should not be prevented from using its acquired technical expertise in the resolution of a dispute before it. See, for example, R v Milk Board; ex parte Tomkins[18]; Spurling v Development Underwriting (Vic) Pty Ltd [19], Buckley and anor v Bennett Design & Constructions Pty Ltd and anor[20]; and Corporation of the City of Enfield v Development Assessment Commission[21].

146. In the present case, however, it is not apparent to me from a reading of paragraph 44 that the Tribunal was purporting to state and rely upon a matter of which it had special knowledge as a specialist tribunal. It is a matter of record that Deputy President Macnamara was, as at August 2001, a member of the Tribunal of some years standing, and very experienced in planning matters. No doubt he had entertained many appeals from decisions of responsible authorities. But it seems to me a considerable step from those circumstances to conclude that he had some specialist acquired knowledge of the mode of proceeding which he described; or that he was purporting to rely upon such knowledge in what he wrote.

149. Concerning the issue of specialist knowledge this should be said: if the Tribunal had particular specialist knowledge upon which it proposed to rely, it was knowledge of which the parties should have been apprised before a decision was made in reliance upon it.

152. Concerning the issues of judicial notice and specialist knowledge I should add this: if by either route the Tribunal was able to rely upon the notorious fact which it identified, it would not solve the problem of extrapolating the general to the particular, a problem to which I earlier adverted.

155. I should return to paragraphs 52 and 53 of the Tribunal's Reasons. It might be said that the submissions made for the Council implicitly accepted that the councillors had not been provided with information concerning the 1998 rezoning and its application to the subject land. Thus the reference to "(w)hatever knowledge the officers should have provided...". On the other hand, that might have been no more than a reference to the officer's report, of which the Tribunal already knew. Set in context, the Tribunal's observation that "(n)one of those submissions takes the matter any further" is ambiguous. If it was open to the Tribunal to say that the conclusion expressed by it in paragraph 44 of its Reasons was now confirmed by the Council's admission, it did not say it. It is not for me to decide that matter.

158. In the event, the plaintiff has made out the second error of law upon which he relied.

Did the Tribunal fail to consider whether the matter assumedly not taken into account by the Council was so insignificant that the failure to take it into account could not have materially affected the decision?

162. My conclusion concerning the second error of law upon which the plaintiff relied makes it unnecessary to consider the third alleged error on the part of the Tribunal. I should shortly say, however, that upon the Tribunal's approach there was nothing to the point. The Tribunal stressed what it considered to be the Council's failure to consider "a very significant negative factor", a "highly relevant" matter, "a vital issue", "an important relevant factor", "a most significant change of circumstances". In those descriptions it was not saying only that the Council had been bound to consider the 1998 rezoning and its impact upon the subject land; it was also expressing an opinion upon the importance of that matter in the particular case. Its Reasons make it very clear that in its opinion the Council's assumed failure to consider the rezoning issue had not been insignificant - that is, such as could not have affected the outcome of the extension application.

165. I should add this: the Tribunal referred in its Reasons at paragraph 53 to a submission for the Council that councillors "would have decided to extend the permit even if they were aware of the new planning controls". I do not think that the Tribunal accepted this assumed submission. Beyond that, however, there is no evidence that such a submission was in fact made. The written submission for the Council was in the form of a question: that is, assuming the Council had possessed particular knowledge, would it have come to the same conclusion? True it is that the apparent question did not end with a question mark. But the next sentence of the submission was as follows: "No doubt Council may wish to consider this". It seems to me inescapable that the written submission did not suggest what the Tribunal took it to suggest.

169. The Tribunal's order must be set aside. The matter should be remitted to the Tribunal, constituted by Deputy President McNamara, for further hearing and determination in accordance with these Reasons. The parties before the Tribunal should be at liberty to adduce further evidence concerning the information of which councillors were seised when considering the extension application. Further, the parties should not be precluded from adducing evidence that the rezoning issue was or was not taken into account by particular councillors in deciding the application. The reliability of any evidence of the last-mentioned kind, given long after the event, would obviously be a matter for careful consideration by the Tribunal. Further again, the parties should not be precluded from adducing evidence that in the event that the rezoning issue was unknown to the Council, it would nonetheless have determined the application in the same way. But here again, as would be very obvious to the Tribunal, the usefulness of such evidence would require very careful evaluation. Finally I should reserve liberty to apply, in case Deputy President McNamara cannot, for some reason, hear the matter; or in case there is some other problem.

172. I will hear the plaintiff as to the precise form of the orders.

[2] By a typographical error, the Tribunal's Reasons refer to a non-existent s. 149B(1)(d).

[3] (1997) AATR 285.

[5] Minister for Aboriginal Affairs and Anor v Peko-Wallsend Limited and Ors [1986] HCA 40; (1986) 162 CLR 24. At 40.

[12] [1917] HCA 26; (1923) 23 CLR 149 at 153 per Isaacs J.

[13] [2002] HCA 9; (2002) 186 ALR 145 at 157-159 and 183-187.

[14] Paragraphs 3010-3015, 3130-3135 and 3155.

[16] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 196 per Dixon CJ.

[17] Deputy Commissioner of Taxation (NSW) v WR Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735 at 806, per Evatt J.

[18] [1944] VicLawRp 38; [1944] VLR 187 at 197.

[19] [1973] VicRp 1; [1973] VR 1 at 10-11.

[20] [1978] HCA 20; (1978) 140 CLR 1 at 10-11 per Barwick CJ, who dissented in the result.

[21] [2000] HCA 5; (2000) 74 ALJR 490 particularly at paragraph 46.