• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

COUNSEL: G Gibson QC with M Williamson for the applicant / R Litster SC with J Houston for the first respondent

SOLICITORS: Hopgood Ganim for the applicant / McDonald Balanda & Associates for the respondent

1. McMURDO P: This application for leave to appeal from an order of the Planning & Environment Court must be refused with costs. That is because, as Fryberg J convincingly demonstrates in his reasons, the applicant has not made out any of its contentions that the primary judge erred in law: see s 4.1.56(1) (a) and (2) Integrated Planning Act 1997 (Qld) (repealed) and s 822 Sustainable Planning Act 2009 (Qld).

2. FRYBERG J: The applicant (“WBQH”) wants to build a 15 level apartment building at Palm Beach¹ on the Gold Coast. The site for the proposed building lies at the southern end of the coastal corridor of development between Tallebudgera Creek and Currumbin Creek, and between the Palm Beach Parklands to the south and a three to four storey complex of 125 apartments to the north and east. There are two, but only two, tall buildings nearby, one of 26 storeys and another of 18 storeys. Both are of some age and were built before development approval for such buildings was required. WBQH applied to the Gold Coast City Council for a development permit, but the Council refused its application. It appealed from that decision to the Planning and Environment Court. That court dismissed the appeal, finding that approval would conflict with the planning scheme for the Gold Coast and that there were not sufficient grounds to justify the decision despite the conflict. WBQH now seeks leave to appeal from that dismissal because, it submits, the first of those findings was wrong.²

3. WBQH submits that the finding that approval would conflict with the planning scheme for the Gold Coast resulted from two errors of law. They were first, that on its proper construction the planning scheme intended to preserve the distinct low rise residential character for the suburb of Palm Beach as a whole; and second, that on its proper construction the Overlay Map series OM6 reinforced a planning intent to preserve the character of Palm Beach as a low rise residential development.

4. To assess these submissions it is necessary to have regard to the planning scheme in some detail.

THE PLANNING SCHEME

5. The Scheme is divided into a number of parts. Those which contain provisions relevant to the present application are Parts 1, 2, 3, 4, 5 and 7.³

The aims of the Planning Scheme

6. At the foundation and core of the Planning Scheme are Ecological Sustainability and Desired Environmental Outcomes (DEOs).⁴ The latter:

“provide the fundamental context (derived from the foundation research discussed in Part 1, Division 2) for the Planning Strategies that follow in Part 3, and subsequently, for the development assessment codes and other measures contained in the remaining parts of the Planning Scheme. They therefore provide a primary focus or direction for the entire Planning Scheme.”

The Planning Strategy

7. The Planning Strategy (Part 3) “is the broad citywide strategy adopted by the Planning Scheme to achieve ecological sustainability.” It “provides the context and policy foundation for the specific development requirements contained in the remaining parts of the Planning Scheme.” It:

“will be used to assist in assessing applications for impact assessment by providing the assessment manager with a broad context within which to determine whether there are sufficient planning grounds to justify a decision. The Planning Strategy will be particularly useful for impact assessable applications that conflict with the detailed assessment codes. In many other cases, it is envisaged that compliance with the detailed assessment codes will reflect compliance with the broader strategies upon which they have been based.”

Planning Strategy components

8. The Planning Strategy has two major components: Key Strategies that apply across the entire city and Land Use Themes that apply to particular parts of the city. The former

“individually consider the most important aspects of life of Gold Coast City, from a land use perspective. They directly address basic needs for housing and transport and the protection of important natural resources and environmental values. There is special attention given to the location of employment areas and the facilitation of Gold Coast City’s tourism industry, and a major emphasis on the rapid urban growth of Gold Coast City, as is the City’s urban heritage and character. These principal strategies apply to the whole City. They are used to inform the selection and arrangement of Land Use Themes, described later in this Part of the Planning Scheme.”

The latter

“indicate, for major areas of the city, the generalised mix of land uses that is considered to be desirable to implement the DEOs and Key Strategies. As such, they provide a broad spatial expression to the Planning Strategy and, taken together, account for the total area of the City.”

9. Two of the 16 Key Strategies have particular relevance in the present application. They are described below.

Land Use Themes

10. The Land Use Themes are geographically defined in Planning Strategy Map PS1. That is a large scale map with indicative rather than definitive content. Their utility is described in the planning scheme:

“The Land Use Themes are not domains or Local Area Plans (LAPs). Rather, they are indicative of the type of domains or LAPs that could be expected in the areas described. Implementation of the stated planning intent will occur through the provisions of the applicable domains or LAPs and any other relevant development code. However, Council will also have regard to the Land Use Themes as expressions of broad planning policy when considering proposals for impact assessable development that do not fully accord with applicable codes.”⁵

11. The site of the proposed building is in the area of the Residential/Tourism - Pacific Coast Land Use Theme. Predominantly that area lies between the Gold Coast Highway and the ocean for the distance from Labrador to Coolangatta. It is therefore much narrower in the Palm Beach area than it is further north.⁶ The Planning Scheme states:

“A diversity of high quality architectural styles and urban design is envisaged, reflecting local character and townscape considerations …. Overlay Maps OM4 - Residential Density and OM6 - Maximum Building Height will be used to clearly articulate the desired outcome of density and built form for the various parts of the coastal strip.”

It will be necessary to refer to the OM6 series of maps in more detail later.

12. The planning intent of this Theme area is distinct from that of the Urban Residential Land Use Theme area to the west of the highway “in that it recognises the need for both permanent residential accommodation and tourist accommodation”. “However,” the Scheme warns, “the intended mix of permanent and tourist accommodation/facilities varies within this Land Use Theme.” In contrast to Surfers Paradise, Palm Beach is said to “appeal more to family holiday makers and those wishing to stay in a less intensive tourist environment”. The Scheme continues:

“Not all the coastal strip is therefore suitable or acceptable for high intensity tourist accommodation and entertainment facilities. The intensive tourist accommodation and facilities should generally be concentrated in close proximity to the large coastal activity centres, commensurate with intended densities and holiday expectations. In other areas, it is intended that residential amenity be given predominant consideration to reflect the strong wishes of the existing communities. It is therefore intended that the special character of the various parts of the coastal strip be respected in future development in order to retain distinctive urban areas that offer diverse lifestyle and leisure opportunities. Planning for new developments should be strongly informed by the Urban Heritage and Character Strategy and the City Image and Townscape Strategy of this Planning Scheme.”

Those are the two strategies already mentioned. I turn to them in a little more detail.

Key strategies: the Urban Heritage and Character Strategy

13. One of the principal aims of the Urban Heritage and Character Strategy is “to ensure that as the city grows and develops, local character is recognised and conserved.” The importance of areas of local character is said to be fundamental to this strategy. The strategy is given content by two policies, the relevant one of which is “The conservation and enhancement of urban character.” That policy explains, “New development should respect and enhance the urban character, and aim to strengthen the sense of identity and community in the local area.” It suggests that on a broad assessment at least nine major character areas exist. These are broadly defined on a map. The subject land lies in the Beach Strip Area. Significantly, this area extends some distance west of the Gold Coast Highway, to the Canal Estates Area.⁷ It thus includes most if not all of the land to the west of the highway in the Residential Choice Domain.

Key strategies: the City Image and Townscape Strategy

14. The principal aim of the City Image and Townscape Strategy is to retain and enhance Gold Coast City’s physical features and its distinctive built form. A diagram illustrates the distinctive profile of the city; going west from the beach it identifies a high-rise spine followed immediately by canal estates.⁸ That spine is also identified in a Planning Strategy Map identifying urban form, PS11. It depicts a non-continuous strip of high-rise development from Main Beach to Coolangatta with varying levels of concentration.⁹ The subject site appears in a section of minor concentration. The strategy declares, “All development should respect, promote and strengthen the intended character for each area.” One of the three policies which support the strategy is presently relevant: “Achieving a built form in the urban areas which highlights the basic structural elements of the city’s development pattern, maintains the clarity of the city image, and enhances the attractiveness of the urban landscape.” The first planning objective in support of that policy is:

“to emphasise the spine of tall buildings, parallel to the coast. Further, to relate the heights and concentrations of tall buildings to individual nodes and precincts, reflecting different levels of activity along the coastline, while maintaining a degree of variation in heights along the coastline itself.”

Implementing the strategy: domains

15. The Planning Scheme explains the nature of domains:

“The purpose of the domains is to signal that the City is divided into land units with common characteristics, for the purposes of land use and development control. The term ‘domain’ is introduced to identify those areas of the City with a particular use mix or development character (or that have potential in this context) that will benefit from the application of consistent planning guidance and development control.

Domains provide for the distribution, mixing and segregation of different types of development. Each domain is intended to provide for compatible development within identified parts of the City and to segregate incompatible development. Importantly, each domain is intended to include planning measures to achieve the Planning Scheme’s Desired Environmental Outcomes (DEOs).”

A particular domain may occur in many locations throughout the city or it may be isolated to just a few locations.

16. The function of domains is to implement through effective planning measures the purpose of each Land Use Theme. They are said to be the key to the assessment status of individual development proposals within their subject areas. Each domain provides specific information on development provisions for any development proposed within that domain. The provisions of the relevant domain must be carefully examined for definitive information on development within that domain.¹⁰

17. Each domain contains four planning measures used to carry out its function. The first is an intent statement which sets out the primary objectives of the scheme for the land in that domain. The statement is informed by the relevant themes and DEOs. Second, each includes a table of development which identifies whether a particular development falls into a class which requires self, code or impact assessment. Each table contains seven sections dealing with different aspects of development. Development which involves a material change of use and building work may require a reference to be made to various overlay maps, the purpose of which “is to demonstrate possible site constraints affecting particular areas or properties. They would normally relate to Constraint Codes or other Planning Scheme provisions requiring further investigation and resolution of land use issues.” Third, each includes tables identifying the Specific Development Codes and Constraint Codes which apply to the class of development.

18. Finally, each domain includes what is called a Place Code in tabular form. The provisions of place codes apply to all development in the domain. They relate to the scale, character and density of development desired for the domain. Under a series of headings referable to these qualities, they set out Performance Criteria for the heading and corresponding Acceptable Solutions. The function of the latter is explained thus:

“Development that is consistent with the Acceptable Solutions of the code is considered to have complied with the code’s requirements. Development that does not comply with an Acceptable Solution may present an alternative solution to demonstrate compliance with the relevant Performance Criteria, in order to satisfy the requirements of the code.”

19. The site for the proposed building is in the Tourist and Residential domain. With two immaterial exceptions, so is all of the land east of the Gold Coast Highway from Tallebudgera Creek in the north to Currumbin Creek in the south. To the immediate west of the highway the land between the two creeks is in the Residential Choice domain. The two themes referred to above¹¹ are stated to be directly relevant to the former domain. Its intent is stated to be to provide for a combination of tourist accommodation and permanent residential activity in those coastal parts of the city that have good access to transport and services. The domain “seeks to promote residential development with strong amenity values in this part of the City, and to concentrate high quality tourist resorts and hotels in major clusters along the coast.” Key objectives include enhancing the existing built form character of the coastal strip and recognising and reflecting the individual character of the various tourism clusters and residential neighbourhoods along that strip.

20. The table of development indicates that the proposed building is impact assessable if it exceeds the maximum number of storeys indicated for the site on Overlay Map OM6. OM6 comprises eight detailed maps depicting individual allotments in most if not all of the city outside areas covered by Local Area Plans. Colour coding prescribes the number of storeys for each allotment. The site for the proposed building appears on OM6-7 which prescribes seven storeys in respect of it. Consequently the development was impact assessable.

21. A number of Specific Development Codes and Constraint Codes apply to the subject site, but it is unnecessary to refer to them in detail.

22. The purpose of the Place Code in this domain is:

“to ensure that buildings are designed to reflect the individual character of the various tourism clusters and residential neighbourhoods along the coastal strip. It also seeks to regulate new development to ensure that it contributes to the amenity of the local area and complements the scale and design of adjoining properties.”

The Performance Criterion relating to building height and the Acceptable Solution set against it are as follows:

PERFORMANCE CRITERIA ACCEPTABLE SOLUTIONS

DEVELOPMENT THAT IS SELF ASSESSABLE, CODE ASSESSABLE OR IMPACT ASSESSABLE

BUILDING HEIGHT

PC1 All buildings must be constructed to a height which complements the distinctive local character of the coastal parts of the City and either: / contributes to the clustering of high rise structures; / or / introduces transitional building heights between these high rise clusters. AS1 The building does not exceed the maximum height as identified on Overlay Map OM6 – Maximum Building Height.

It was common ground that other provisions of the Code, while relevant, were of marginal importance.

23. Because the proposed building exceeded the maximum height on OM6-7, it failed to comply with Acceptable Solution 1. Consequently it was required to comply with Performance Criterion 1. In this Court it was common ground that the proposed building contributed to the clustering of high rise structures and did not introduce transitional building heights between clusters. The issue was whether its height would complement the distinctive local character of the coastal parts of the city.

THE ALLEGED ERRORS OF LAW

24. There is no doubt that the trial judge, Kingham DCJ, correctly identified the issue. Neither party suggested otherwise. She also correctly analysed the issue as requiring findings about what was the relevant coastal part of the city and what was the distinctive local character of that part:

“[11] The parties do not agree what is the relevant coastal part of the city for this application or what is its distinctive local character. Those questions are necessarily inter-related. To some extent the area will be revealed by characteristics which identify a distinctive local character. Yet what is an area’s distinctive local character may differ depending on how broadly or narrowly its boundaries are drawn. The conundrum is acute in this location in which low rise predominates, save for Royal Palm and Princess Palm. The boundaries of the area proposed by the parties reflect their contentions about what is its distinctive character. WBQH argued the case for a narrowly defined area in which those buildings establish a distinctive character and Council for a larger plane upon which they present as aberrations.”¹²

Her reasons for judgment addressed these interrelated questions.

25. The issue between the parties was, at best for the applicant, one of mixed fact and law. Her Honour’s careful analysis of the factual matters involved in the issue is not, of course, subject to appeal.¹³ WBQH contends that her conclusion of the issue adversely to it was critically affected by the two alleged errors of law identified above.¹⁴ It identifies the errors in the judgment as the following:

“[27] …. In my view, the indications given by higher order elements of the scheme are that provisions of the scheme are intended to preserve a distinct low rise residential character for the suburb of Palm Beach as a whole.”

and

“[38] …. Overlay Map 6 reinforces a planning intent to preserve that character, low rise residential development.”

The first alleged error

26. WBQH’s first submission was that the provisions of the Scheme did not demonstrate an intention to preserve a distinct low rise residential character for Palm Beach as a whole because such an intention was inconsistent with OM6. Palm Beach is covered by OM6-6 and OM6-7. Those maps show that apart from the area covered by the Local Area Plan, all of Palm Beach east of the Gold Coast Highway and most of it for one block west of the highway was designated as having the building height of seven storeys. “Low rise building” is defined by the Scheme to mean “any building with a height not exceeding four storeys above mean ground level”. Buildings with a height of five storeys or more above mean ground level were defined as high rise buildings. Therefore, it was submitted, buildings of five, six or seven storeys, i.e. high rise buildings, were an acceptable solution in this area and did not need impact assessment.

27. That submission assumes that the reference to the number of storeys in the overlay maps is a reference to the number of storeys above mean ground level. That is not an easy assumption to make when regard is had to the definition of storey in the scheme. It also assumes that her Honour used the words “low rise” in reference to the character of an area with the same meaning those words implied in the definition of “low rise building”. I am not prepared to make that assumption. It is more likely that her Honour was using the expression in a colloquial sense. She was aware of the definition of high rise building and referred to it later in her reasons for judgment. In a relatively short judgment, it is unlikely that she overlooked it in the present context. Finally, and most importantly, the submission is built on the proposition that an intention to preserve a distinct low rise (four storeys or fewer) residential character for Palm Beach as a whole is inconsistent with permitting some bottom of the range high rise development in a small part of the suburb. There is no such inconsistency. The overlay maps show that most of the suburb is designated two storeys or three storeys. Only the area described above is designated seven storeys. Consequently, the submission fails. (It will be necessary to return to the OM6 maps in relation to the second alleged error.)

28. Next, WBQH submitted that her Honour’s conclusions were directly contrary to Planning Strategy Map PS 11. The relevant section of that map is here reproduced:

WBQH submitted that it shows the eastern area of Palm Beach as part of a high rise spine extending from Coolangatta to Southport. With respect, that is a half truth. The map is diagrammatic. It shows that the high rise spine is non-continuous and that at Palm Beach it is designated for minor concentration of high rise rather than major concentration. Moreover the map supports the City Image and Townscape Strategy described above.¹⁵ The submission ignores the policy connected to that strategy of relating “the heights and concentrations of tall buildings to individual nodes and precincts, reflecting different levels of activity along the coastline, while maintaining a degree of variation in heights along the coastline itself.” In my judgment her Honour’s conclusions are not contrary to the map PS11.

29. Third WBQH submitted that Performance Criterion 1 in turn reflects an intention that high rise buildings be developed in the Tourist and Residential domain. I reject that submission. PC1 does not reflect an intention that high rise buildings be developed anywhere in that domain. It implies only that buildings of eight storeys or more may be erected on some sites in that domain.

30. Finally in this context, WBQH submitted that in finding the suburb of Palm Beach as a whole was the relevant part of the city, the judge failed to take into account the distinction between Palm Beach west of the highway and Palm Beach east of it evident on OM6, PS11 and the domain map. That distinction is obvious when one looks at those maps and it cannot be doubted that her Honour did look at them. It is, however, only one factor to be taken into account in assessing the extent of the area relevantly to be considered for the purposes of PC1. It does not conclude that issue. Its weight is diminished when it is realised that in this suburb both domains are included in the Beach Strip area for the purposes of the Urban Heritage and Character Strategy.¹⁶ The question is, as already noted, one of mixed fact and law. It is unnecessary to expand on the factual considerations which her Honour took into account. The weight to be assigned to the maps in answering the question was a matter for her Honour.

31. It should also be remembered that in relation to the issue of the extent of the relevant area, neither party proposed the area of Palm Beach east of the highway as an answer. The Council contended for the whole suburb and WBQH for a small area in the immediate vicinity of the site. It is too late now to change the basis upon which the case was fought.

32. In its oral submissions WBQH contended that in any event, none of the higher order elements of the scheme indicated that the provisions of the Scheme were intended to have the effect stated by her Honour. It rejected the view that the provisions referred to above¹⁷ demonstrated such an intention by construing them very narrowly. For example it submitted that the statement that the OM6 maps “will be used to clearly articulate the desired outcome of density and built form for the various parts of the coastal strip” referred only to a desire, something different from an intent. I would reject these submissions. In my judgment the provisions referred to demonstrate that her Honour was correct. As to the example, if there is any conceptual difference in town planning terms between the desire of the Scheme and the intent of the Scheme, there can be little difficulty in inferring the latter from the former.

The second alleged error

33. WBQH submitted that her Honour’s finding “Overlay Map 6 reinforces a planning intent to preserve that character, low rise residential development” was wrong as a matter of law. It submitted that her Honour misconstrued the planning scheme by treating the maximum building height in that map series as mandatory. That was clear, on the submission from the following passages leading up to and including the finding:

“[30] Council emphasised the statement of planning intent for that land use theme, in particular its reference to Overlay Maps being used to clearly articulate the desired outcome of built form for the various parts of the coastal strip.

[31]The overlay map is, then, a planning measure to implement a land use theme in a domain. It is not merely a trigger for assessment. It articulates an expressed planning intent. As such, both the land use theme and overlay map assist in interpreting what is the coastal part of the city to which PC1 relates for this application.

[32]The Overlay Map 6 series of maps exhibit an indication that Palm Beach, as a suburb, is regarded as a distinct coastal part of the city. The uniformity of the height restriction applied in Palm Beach along the coastal strip, largely to the east of the Gold Coast highway, is disturbed only by a local area plan for the commercial centre of the suburb. That stands in contrast to maps in that series for other areas in which more finely grained distinctions are drawn within suburbs, as well as between them: such as the maps covering Broadbeach, Mermaid Beach, Tugun, Bilinga and Coolangatta.

…

[38] Palm Beach presents to me as a distinct coastal part of the city because of the geographical features which delineate its northern and southern extents and because of the consistency of its built form which differs from that encountered in other coastal parts of the city. Overlay Map 6 reinforces a planning intent to preserve that character, low rise residential development.”

34. WBQH submitted that her Honour failed to recognise that the reference to articulating “the desired outcome of density and built form …” in the relevant Land Use Theme was consistent with the statement in Part 7 of the Planning Scheme that “it is desirable that impact assessable development comply with the Acceptable Solutions”. It submitted that properly construed, the Planning Scheme did not require that the maximum building height in the OM6 maps be treated as prescriptive.

35. In my judgment nothing in the passage quoted suggests that her Honour treated the maximum building height as mandatory or prescriptive. On the contrary, she expressly recognised the true function near the beginning of her reasons (citations omitted):

“[7] Its failure to meet AS1 triggered impact assessment, instead of code assessment of the project. However, that does not establish a conflict with PC1. Compliance with acceptable solutions is not mandatory. If WBQH can demonstrate an alternative solution meets PC1 there is no conflict.”

What her Honour wrote was undoubtedly correct.

36. As WBQH correctly conceded, that does not mean that the content of an acceptable solution is irrelevant. It may indicate what the planning scheme desires or prefers as development in the particular area. It takes but a small inference from such a conclusion to find that the intent of the Scheme is to favour such development in that area. I reject WBQH’s submission that an express statement of desire is irrelevant in indicating a planning scheme intent. Under the heading “Planning Intent” this Planning Scheme expressly asserts that the overlay maps articulate the desired outcome. Moreover the Scheme makes a development impact assessable if it does not comply with the map. For an applicant to have to jump through the extra hoops and pay the extra fees consequent upon that classification is not an indication of favour toward applications of that class.

37. Of course the existence of such an intent does not conclude the question whether there is conflict between the proposal and the Planning Scheme. That necessarily follows from the fact that compliance with performance criteria will satisfy the provisions of the code notwithstanding non-compliance with a corresponding acceptable solution. The existence or otherwise of such a conflict must be determined on all of the evidence and on the proper construction of the Planning Scheme as a whole. The weight to be given to the intent may be small. It is the task of the judge to evaluate all relevant matters in the exercise of the judgment of a specialist court.

38. WBQH supported its submission by reference to several cases in which it was held that non-compliance with an acceptable solution did not necessarily indicate conflict between the proposal and the planning scheme.¹⁸ I do not doubt the correctness of that proposition. Sometimes, however, the emphasis will be on “necessarily”.

39. It may be conceded that the last sentence of para [38] of her Honour’s reasons is not as felicitously expressed as it might have been. The use of the word “reinforces” is a little odd, but it probably demonstrates that her Honour did not see this factor as the central consideration in the identification and characterisation of the relevant area. It would also have been more accurate had her Honour described the intent as one to favour the preservation of the character of the area rather than as one to preserve the character; but I cannot believe that this semantic discord conceals an error of law.

Other matters

40. As already noted, the identification and characterisation of the relevant area for the purposes of PC1 was a matter involving issues of both fact and law. Even if the judge erred in law as WBQH contended, her conclusion on that issue was not necessarily invalidated. However WBQH submitted that there was nothing in the factual enquiry revealed by the reasons for judgment which altered the conclusions for which it contended as to the proper construction of the relevant planning scheme provisions.

41. That submission is misconceived. Conclusions on matters of fact can affect the proper construction of the planning scheme provisions only if the relevant provisions “use words according to their common understanding and the question is whether the facts as found fall within these words.”¹⁹ But if that is what is involved in construing the provisions, the case raises only questions of fact; so no appeal can lie to this Court.

42. WBQH did not submit that there was no evidence to support the findings of fact which related to the identification and characterisation of the relevant area;²⁰ that would be a quite separate and distinct error of law. It was open to the judge to infer her conclusions on those questions from her findings of fact. That raised the question of what WBQH had to show in order to win an appeal in the event that it was successful in demonstrating that the judge’s conclusion on those questions was affected by error of law. It is not necessary to decide that question given my finding that the conclusion was not so affected. I prefer to reserve it for a case where it is necessary to the decision. I note however that the issue is not concluded by the decision of this Court in ALDI Stores (A Limited Partnership) v Redland City Council.²¹ That was a case where, like the present, the Planning and Environment Court was required to determine whether a particular site fell within the terms of the Planning Scheme. The Chief Justice (Holmes JA agreeing) wrote:

“[13] Accordingly, that was not a purely factual exercise, because it involved some construction of the Scheme but neither solely nor extensively so. The exercise was of an evaluative character. I am not in that context satisfied that the applicant has raised any substantial ground for considering that His Honour’s conclusion was not a conclusion open to him. In other words, I am not satisfied that the Judge was by law constrained to come to a different conclusion.”

The last two sentences of that passage do not constitute a considered determination of the test for the disposition of an appeal in such circumstances. They were obiter, since the Court did not hold that the judge at first instance had misconstrued the scheme. It may be that where there has been a misconstruction of a scheme which is a factor in an evaluative exercise, it is sufficient for the appellant to show that the error might have affected the conclusion at first instance; or it may be that the appellant must show that there is a real or substantial possibility that the error did affect that conclusion; or it may be, as the Chief Justice suggested, that the appellant must show that the judge at first instance was constrained by law to come to a different conclusion. There may be other possible tests. The correct one remains to be determined.

Order

43. The application for leave to appeal should be dismissed with costs.

44. ATKINSON J: I agree with Fryberg J that no error of law has been shown and the application should be dismissed with costs.