Acton View Pty Ltd v Resource Management and Planning Appeal Tribunal - [2021] TASSC 30

[2021] TASSC 30

COURT: SUPREME COURT OF TASMANIA

CITATION: Acton View Pty Ltd v Resource Management

and Planning Appeal Tribunal [2021] TASSC 30

PARTIES:  ACTON VIEW PTY LTD
  DELTA PI PI PTY LTD
  MAYFAIR GROUP HOLDINGS PTY LTD
  v
  RESOURCE MANAGEMENT
  AND PLANNING APPEAL TRIBUNAL

FILE NO:  3011/2020
DELIVERED ON:  19 July 2021
DELIVERED AT:  Hobart
HEARING DATE:  1 July 2021
JUDGMENT OF:  Blow CJ
CATCHWORDS:

Appeal and New Trial – Appeal – Practice and procedure – Tasmania – Time for appeal – Extension of time – Appeal from statutory tribunal – Originating process.
Supreme Court Rules 2000, r 90(1)(ze).
Aust Dig Appeal and New Trial [387]

Environment and planning – Courts and tribunals with environment jurisdiction – Tasmania – Supreme Court – Appeal from Resource Management and Planning Appeal Tribunal – Application for extension of time.

Resource Management and Planning Tribunal Act 1993 (Tas), s 25(3).
Aust Dig Environment and Planning [601]

REPRESENTATION:

Counsel:
             Applicants:  B R McTaggart SC and G O'Rafferty
             Hazell Bros Group Pty Ltd:        S B McElwaine SC
             State of Tasmania:   P Turner SC
             Clarence City Council  N Street
Solicitors:
             Applicants:  L Fernandez
             Hazell Bros Group Pty Ltd:        Billett Legal
             State of Tasmania:   Solicitor-General
             Clarence City Council:                   Simmons Wolfhagen

Judgment Number: [2021] TASSC 30
Number of paragraphs: 64

Serial No 30/2021
File No 3011/2020

ACTON VIEW PTY LTD, DELTA PI PI PTY LTD, and
MAYFAIR GROUP HOLDINGS PTY LTD v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL

REASONS FOR JUDGMENT BLOW CJ

19 July 2021

This is an application for an extension of time for an appeal against a decision of the Resource Management and Planning Appeal Tribunal. For the reasons set out below, I have decided to refuse the application.
These proceedings concern an interchange construction project at the site of the Hobart Airport roundabout. In the beginning Hazell Bros Group Pty Ltd made an application for planning approval under s 57 of the Land Use Planning and Approvals Act 1993 ("the LUPA Act") to the Clarence City Council in respect of the proposed development. On 13 July 2020 the Council approved the application and issued a planning permit, subject to conditions. Three companies, the applicants in the present proceedings, were aggrieved by that decision. They appealed to the Tribunal. The Tribunal conducted a hearing in October 2020. On 13 November 2020 it delivered a decision affirming the decision of the Council: Acton View Tas [sic] Pty Ltd and Ors v Clarence City Council and Ors [2020] TASRMPAT 29.
The applicants were not happy with the Tribunal's decision. They instructed their solicitor, Mr Fernandez, to challenge it. On 11 December 2020, the 28th day after the Tribunal's decision, he filed an originating application seeking review of the decision under the Judicial Review Act 2000. It would have been more appropriate for him to have filed a notice of appeal, instituting an appeal pursuant to s 25(1) of the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), but that is not what he did. By virtue of s 25(2)(a) of that Act such an appeal "must be made ... within 28 days after the making of the decision". That limitation period expired without such an appeal having been instituted.
Mr Fernandez subsequently sought to rectify that situation. Over 30 years ago a judge of this Court made a pertinent observation: "When something gets cocked up, and somebody tries to fix it, it does not get fixed. It gets more cocked up." This litigation provides an unfortunate example of the phenomenon that his Honour was describing.
On Monday, 14 December 2020, Mr Fernandez made an attempt to transmogrify the originating application into an appeal pursuant to s 25 of the RMPAT Act. He filed a document entitled "Amended Originating Application Intended to be Served". The original originating application set out five grounds of review, each of which asserted that the Tribunal had made an error of law. In the amended version of that document, the grounds were amended by removing most of the references to the Judicial Review Act and by including in four of the five grounds an assertion that the Tribunal's decision involved an error of law within the meaning of s 25 of the RMPAT Act. The prayer for relief was amended as well. In the original document Mr Fernandez had, quite inappropriately, sought an interlocutory order that "the determination be suspended or stayed pursuant to s 26 of the Judicial Review Act 2000". In the amended document, the reference to s 26 of the Judicial Review Act was replaced by a reference to s 25 of the RMPAT Act. If the applicants wanted a judge to make an order that construction work was to stop, the only appropriate course was to file an interlocutory application seeking an interlocutory injunction. That was not done. To the best of my knowledge no further steps were taken to preserve the status quo.
Mr Fernandez had no right to file the amended originating application. Rule 427 of the Supreme Court Rules 2000 empowers the Court or a judge, at any time before judgment, to "grant leave to a party to amend any process ... in such a manner and on such terms as may be just". Leave under that provision had not been granted or even sought. There is no provision authorising a unilateral amendment of any originating process without leave.
An originating application is not the appropriate type of document for the institution of an appeal. Under r 707 of the Supreme Court Rules, an appeal is to be instituted by filing and serving a notice of appeal.
It seems that the first edition of the application was promptly sent to the Tribunal. On 14 December 2020 its Registrar filed a notice of submission, saying that the Tribunal submitted to such orders as the Court may make.
In the originating application, Mr Fernandez identified the Clarence City Council, Hazell Bros and the Attorney-General as persons who might be affected by the relief sought. However he appears to have done nothing with a view to effecting prompt service on any of those entities, or even telling them informally of the proceedings, despite having sought an order for work to be stopped on a multi-million dollar public works project.
On Wednesday, 16 December 2020 Mr Fernandez made another attempt to institute an appeal under s 25 of the RMPAT Act. He filed a notice of appeal. It contained the same five grounds as the amended originating application. It was defective in two major respects. It was out of time, and it named the Tribunal as the sole respondent to the appeal.
Before Mr Fernandez got around to serving any documents on the Attorney-General, staff of the Tribunal emailed the originating application, and later the amended originating application, to the Assistant Solicitor-General (Litigation), Mr Turner SC. He made some enquiries and found out about the filing of the notice of appeal. On 5 January 2021 he sent an email to Mr Fernandez pointing out the following things:
·     Leave to amend had not been granted under r 427(1).
· An appeal under s 25 must be made within 28 days after the decision, but that time had expired.
·     The Tribunal was wrongly named as the respondent to the purported appeal.
·     The amended originating application was really neither an amended originating application nor a notice of appeal.
Mr Turner sent copies of his email to the solicitors for the other interested parties. Ten days went by without anything happening. On 15 January the solicitor for Hazell Bros sent Mr Fernandez an email asking how he intended to proceed.
The following week, on Wednesday, 20 January, Mr Fernandez sent an email to the solicitors for each of the interested parties attaching the originating application and the so-called amended originating application. He asked whether they would waive any irregularity, consent to treating the application as though it were a notice to appeal under s 25 of the RMPAT Act, and consent to amendments to the title to the proceedings. He also asked whether the parties would consent to an order adjourning the proceeding pending the determination of an action that had been instituted by a Mr Casimaty, a director of one of the appellant companies, seeking a declaration and an injunction on the asserted basis that the Public Works Committee Act 1912 had not been complied with.
None of that was agreed to. At a directions hearing on 1 February, senior counsel for the applicants advised that the originating application would not be pursued, but that the appeal would be pursued.
On the morning of 16 February Mr Fernandez made an application by letter to the Registrar seeking leave to amend the notice of appeal and seeking an extension of time for the institution of the appeal. He lodged a proposed amended notice of appeal which named the Council, Hazell Bros and the State as respondents instead of the Tribunal. Some insignificant changes were made to the wording of the five grounds of appeal. No other changes to the original purported notice of appeal were made. The extension of time was sought pursuant to s 25(3) of the RMPAT Act, which empowers this Court to "extend the time for instituting the appeal". That is the application that is now before me.
Later that day there was a directions hearing in this matter before Holt AsJ. There was a discussion about the possibility that the only proper way to seek the desired extension of time was to file a further originating application. The directions hearing was adjourned sine die.
On 17 March Mr Fernandez swore two affidavits in support of the present application. There was a further directions hearing before Holt AsJ on 13 April, at which a timetable was fixed for the filing of further affidavits, the exchange of written submissions, and the listing of the application for hearing.
Only one further affidavit was filed, on 28 April. It was a day late, but no complaint has been made about that. Mr Fernandez was due to file written submissions 14 days before the allocated hearing date for the application, but in fact filed them four working days before the allocated date.
At the hearing of the application, counsel for Hazell Bros and the State each submitted that (a) I did not have jurisdiction to grant the extension of time because the notice of appeal was a nullity; and (b) alternatively, if I did have jurisdiction to grant an extension of time, that an extension should be refused on discretionary grounds.

The jurisdictional issue

As I have said, the notice of appeal was defective in that it was filed out of time, and inappropriately named the Tribunal as the only respondent. Counsel for both Hazell Bros and the State submitted that the notice of appeal was therefore invalid, or a nullity. Their submissions relied heavily on the wording of provisions in s 25 of the RMPAT Act. The relevant subsections read as follows:
"(1)   A party to an appeal before the Appeal Tribunal may appeal to the Supreme Court, on a question of law, from any decision of the Appeal Tribunal in the appeal.
(2)   An appeal from a decision of the Appeal Tribunal must be made to the Supreme Court –
(a) within 28 days after the making of the decision; and
(b) in accordance with any applicable Rules of Court made by the Supreme Court and any regulations made for the purposes of this section.
(3)   The Supreme Court may extend the time for instituting the appeal.
(4)   The time for instituting the appeal may be extended even though the time has ended."
It is significant that s 25(2) uses mandatory language in providing that an appeal from the Tribunal "must be made" within 28 days after the making of the decision. Section 10A of the Acts Interpretation Act 1931, which deals with the meaning of "must", applies only to legislative provisions passed after 14 November 2000. That provision does not apply since s 25 was enacted in 1993. However counsel referred me to a number of authorities concerning the use of mandatory language in association with time limits.
The filing of the notice of appeal out of time was an act done in breach of a condition regulating the exercise of a statutory right. Whether such an act is valid or invalid depends on whether it was a purpose of the legislation to invalidate any act done in breach of the condition, and that must be ascertained by considering the language of the relevant provision and the scope and object of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [41] and [93].
In Hocine v Minister for Immigration and Multicultural Affairs [2000] FCA 778, 99 FCR 269, French J (as he then was) considered the provisions of s 478 of the Migration Act 1958 (Cth). Section 478(1)(b) provided that an application for the review of a particular type of decision "must" be lodged within 28 days of the applicant being notified of the decision. Section 478(2) provided that the Federal Court "must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)". The case concerned the validity of three applications that had been filed out of time. His Honour held that the applications were not competent, saying this at [45]-[46]:
"45 It has long been recognised that statutory time limits may be imposed upon the enforcement of rights independently existing or may be annexed by a statute to rights newly created by it. In the second case the limitation is part of the definition of the new right – 'a condition which is of the essence of a new right' – Australian Iron & Steel Limited v Hoogland (1962) 108 CLR 471 at 488 (Windeyer J), see also at 476 (Dixon CJ) and 480 (Kitto J). By way of example of the second category, an application under the Corporations Law for an order setting aside a statutory demand 'may only' be made within a specified twenty one day period. The term 'may only' defines the jurisdiction of the Court by making the requirement as to time an essential condition of the new rights created by the statute: 'An integer or element of the right created ... is its exercise by application made within the time specified.' – David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 at 277 (Gummow J, Brennan CJ, Dawson Gaudron and McHugh JJ agreeing).
See also Rudolphy v Lightfoot (1999) 167 ALR 105 at 107 where the same character was given to the forty day requirement for the filing of a petition under the Commonwealth Electoral Act 1918 in the Court of Disputed Returns. It is to be noted that the characterisation of a time limitation as defining a right, rather than barring its enjoyment, is not necessarily dependent upon the presence or absence of a power to extend time. According to its character the extension may be a lifting of the bar or an enlargement of the right otherwise limited.
46 The present case is one which, as a matter of the construction of s 478(1), and on the authority of decisions of this Court, requires that this Court treat the filing of an application within the time limited as a condition of its jurisdiction. The imperative language of s 478(1) allows no other interpretation."
The right of appeal created by s 25(1) of the RMPAT Act is, in the language used by French J, a right newly created. An example of a right independently existing is a right to bring an action for damages in tort or contract. A statutory time limit imposed upon the enforcement of that sort of right does not destroy a plaintiff's right of action but provides a defence that may be relied on by a defendant, subject to waiver or estoppel: Commonwealth v Verwayen (1990) 170 CLR 395.
The Full Court of the Federal Court of Australia took the same view of s 478(2) in Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672, Rahman v Minister for Immigration and Multicultural Affairs [2002] FCAFC 5, Sahak v Minister for Immigration and Multicultural Affairs [2002] FCAFC 215, 123 FCR 524 and WAFE of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 254, 70 ALD 57.
In Rail Corporation of New South Wales v Brown [2012] NSWCA 296, 82 NSWLR 318, the New South Wales Court of Appeal held that that State's Transport Appeals Board did not have the power to extend a statutory time limit. The relevant provision read, "An appeal shall be lodged with the secretary within 21 days after notice in writing of the decision to be appealed against is given to the appellant." There was no express statutory power to extend time. At [42] Bathurst CJ, with whom Beazley and Basten JJA agreed, concluded that compliance with the time limit was a pre-condition to a valid appeal. The Court rejected a submission to the effect that the Board had an implied power to extend time.
Counsel for the applicants referred me to a number of authorities containing comments as to the reluctance of courts in recent times to treat as invalid actions taken pursuant to statutory provisions without fully complying with those provisions, including Jadwan Pty Ltd v Middletons [2007] TASSC 74 at [11]-[15] and West Tamar Council v Leonard [2012] TASSC 68 at [48].
This case does not raise a difficult question of statutory interpretation. Section 25(2) requires that an appeal "must be made ... within 28 days after the making of the decision". That provision uses imperative language. Since s 25(3) confers a power to extend time, there is no reason to interpret s 25(2)(a) as imposing a time limit that need not be complied with. There would be no purpose in imposing a time limit that need not be complied with. It follows that a notice of appeal filed after the expiry of the time limit is not valid. It follows that the so-called notice of appeal filed on 16 December 2020 is invalid. There is no pending appeal.
Since there is not, and never has been, a pending s 25 appeal, an application for an extension of time under s 25(3) should be made by the appropriate form of originating process. Under r 90(1)(ze) of the Supreme Court Rules, an application for "extension of time in any matter or in respect of any contemplated proceeding" is required to be commenced by an application to a judge in chambers. The prescribed form is that of an originating application intended to be served: Supreme Court Forms Rules 2000, r 3(1) and Form 3.
The application now before me was made in a letter from Mr Fernandez to the Registrar. When a party to a pending proceeding wishes to apply to a judge for directions, r 552(2) of the Supreme Court Rules requires the application to be made by a letter to the Registrar and to the other parties, stating the particulars and grounds of the application. It was inappropriate for Mr Fernandez to apply for the extension of time in a letter to the Registrar since there was no appeal pending.
Rule 15 of the Supreme Court Rules applies. It reads as follows:
"A proceeding or the originating process by which it was commenced is not void solely on the ground that the proceeding was commenced by the wrong process."
The application for an extension of time is therefore not void, even though it was commenced by the wrong process.
That application was fully argued on 1 July. Affidavits were read. Mr Fernandez and another witness gave oral evidence. If I considered that the application had merit, I would not refuse it on the ground that r 90(1)(ze) was not complied with.
I need not express an opinion as to whether a judge granting an extension of time has the power to make an order that transforms an invalid notice of appeal into a valid one. I am attracted to the idea that, when a notice of appeal is out of time but not otherwise defective, a judge has, or should have, the power to validate it by granting an extension of time up to the date of its filing. That course is routinely taken when time is extended for appeals to the Court of Criminal Appeal and motions to review under the Justices Act 1959.

However it is unnecessary to decide that point in this case for a number of reasons. The original notice was defective, in that it named the Tribunal as a respondent, instead of naming the parties interested in upholding the Tribunal's decision: Fernando v Medical Complaints Tribunal [2007] TASSC 44, 16 Tas R 237 at [28]; Boland v Clarence City Council [2018] TASSC 43 at [2]. The original notice has been superseded by a new edition that accompanied the letter to the Registrar on 16 February. Most significantly, no question of validating the original notice arises because I have decided that it is not in the interests of justice to extend time.

Discretionary considerations

As is usual in applications of this nature, I will consider the delay in commencing the appeal and the reasons for it, the merits of the proposed grounds of appeal, and issues of hardship and prejudice.

The delay and the reasons for it

If I were to grant an extension of time, it can be assumed that a valid notice of appeal would be filed in the very near future. This litigation would then be at the point that it should have reached no later than 11 December 2020, the 28th day after the Tribunal's decision. A valid notice of appeal should have been filed some seven months ago. The delay has resulted from Mr Fernandez instituting the wrong type of proceeding, making unsuccessful attempts to rectify his mistake, delaying in notifying his opponents of the steps that he took, and moving slowly in the prosecution of the application for an extension of time.
There are really only two points that can be made in the applicant's favour in relation to the delay. Firstly, there was a delay of only three working days between the expiry of the time limit and the late filing of a notice of appeal. Secondly, the delay appears to have been entirely attributable to Mr Fernandez, not his clients. However there was a delay of over two months between the expiry of the time limit on 11 December and the making of an application for an extension of time on 16 February. The delay in making and prosecuting that application has been inordinate.

Merits of the proposed grounds of appeal

The issues in the Tribunal proceedings concerned the design of the interchange, particularly in relation to road safety, and stormwater drainage. In the course of the Tribunal proceedings, Hazell Bros made changes to the proposed design of the interchange and its stormwater drainage plans in consequence of the arguments advanced by the applicants. Grounds 1 and 2 of the proposed grounds of appeal relate to those changes. In evaluating the merits of the proposed grounds of appeal, I will consider the latest version of them as set out in the so-called notice of appeal that was submitted by Mr Fernandez with his letter of 16 February.

Proposed ground 1

This ground reads as follows:
"Ground 1
The determination made 13 November 2020 involved an error of law within the meaning of section 25 of the Resource Management and Planning Appeal Tribunal Act 1993 in that the Tribunal received, considered, and gave weight to revised plans drawings and sketches provided at the hearing within the respondents' expert proofs which differed from the original plans to such an extent that the original proposal was transformed into a substantially different to the one [sic] that was the subject of development application PDPLANPMTD-2020/0009430."
It is open to a planning authority, or the Tribunal standing in the shoes of a planning authority, to grant a permit for a use or development which differs from the use or development originally proposed, provided the difference is not so great that the proponent is seeking a permit for something significantly or substantially different from what was originally proposed: Addicoat v Fox (No 2) [1979] VR 347; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Brighton Council v Compost Tasmania Pty Ltd [2000] TASSC 49, 109 LGERA 190 at [46]; St Helen's Area Landcare & Coastcare Group Inc v Break O'Day Council [2007] TASSC 15, 16 Tas R 169 at [19]; Sultan Holdings Pty Ltd v John Fuglslang Developments Pty Ltd [2017] TASFC 14, 27 Tas R 405 at [97]; Tomaszewski v Hobart City Council [2020] TASSC 48. In this case, the Tribunal held that the changes to the designs of the interchange and the stormwater drainage system were not so great as to transform the proposed development into something significantly or substantially different from what was originally proposed.
The question whether there had been such a transformation was a question of fact. Under s 25(1) of the RMPAT Act, the right of appeal from the Tribunal to this Court is limited to questions of law. "There is no error of law simply in making a wrong finding of fact": Waterford v Commonwealth (1987) 163 CLR 54 per Brennan J at 77. Thus, when a tribunal makes a finding of fact that is reasonably open on the evidence before it, it does not err in law if that finding happens to be incorrect: Nicolia v Commissioner for Railways (NSW) (1971) 45 ALJR 465; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Tanase v Acme Engineering (Tas) Pty Ltd [2020] TASSC 100 at [25]; X v Guardianship and Administration Board [2020] TASSC 11 at [17]. It is only when a finding is made, or an inference is drawn, in absence of any supporting evidence that there is an error of law: Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 481, 483; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 355-356.
Without scrutinising all of the evidence as to changes to the design of the interchange and the stormwater drainage plans, I cannot absolutely rule out the possibility that this ground might succeed. However I am in a position to make a rudimentary assessment of its merits. It seems unlikely that substantial changes to the stormwater drainage system could, of themselves, be considered to result in the transformation of the highway interchange originally proposed into a substantially different development. Both the original plans and the revised plans provided for the Tasman Highway to pass through the interchange above ground level as a multi-lane highway, with a peanut-shaped double roundabout below, connecting to Holyman Avenue and Cranston Parade on the airport side of the highway, and to Kennedy Drive on the other side of the highway.
The Tribunal rejected a submission that the design changes would result in an impermissible transformation of the development in its reasons at [37]. That paragraph reads as follows:
"It was apparent from the evidence that the traffic and drainage components of the development application will advance through an iterative process of design refinement, and that this was common in such projects. Mr Prodanovic [a traffic engineer called by the appellants] considered that the changes to the plans, when taken together, constituted significant changes. The expert witnesses have commented on a number of changes which individually may be fairly modest, but which collectively make a more considerable difference to the development in respect to drainage and traffic safety and efficiency, for example in respect to pedestrian safety, avoiding collisions, facilitating the safe passage of B-Double trucks and the appropriate location of stormwater discharge. However, none of those changes individually, or taken together, constitute a difference that would transform the originally proposed development into something significantly different to that which was applied for within the meaning of that term applied by Crawford J in St Helens Area Landcare and Coastal Group Inc v Break O'Day Council and Porter J in Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd; or something substantially different within the meaning identified by Blow CJ in Tomaszewski v Hobart City Council. Conditioning requiring compliance with the amendments would not result in the grant of a different permit to that applied for as discussed by Brooking J in Addicoat v Fox (No 2). The substance, footprint, appearance and function of the development with the amendments will not be so different to that described in the plans submitted with the development application as to make them impermissible. It is appropriate to have regard to the plan changes in assessing the development and in respect to the Tribunal's conditioning powers. The material before the Tribunal includes conditions applied by the Council to the permit and conditions proposed by parties, none of which would result in a substantially different development to that which was applied for. Conditioning is a normal part of the granting of permits." [Footnotes omitted.]
Having regard to the nature and extent of the design changes as summarised by the Tribunal, I consider that the chances of this ground succeeding are remote.

Proposed ground 2

This ground also concerns the changes to the design of the interchange and the stormwater drainage plans. It is based on s 22(3) of the RMPAT Act. The ground reads as follows:
"Ground 2
The determination made 13 November 2020 involved an error of law within the meaning of section 25 of the Resource Management and Planning Appeal Tribunal Act 1993 in that the Tribunal received, considered, and gave weight to revised plans drawings and sketches provided at the hearing within the respondents' expert proofs which differed substantially from the original plans in circumstances where there was no application made under section 22(3) of the Resource Management and Planning Appeal Tribunal Act 1993, and no exercise of the powers contained in section 22(3)."
Section 22(3) of the RMPAT Act reads as follows:
"(3) Where a person appeals to the Appeal Tribunal and it appears to the Appeal Tribunal that –
(a) the appeal relates to an application made by one party to the appeal to another party to the appeal; and
(b) the appeal could be resolved in a manner that is fair to all parties if certain modifications to the application were made; and
(c) it would be conducive to the expeditious administration of justice if the powers conferred by this subsection were exercised –
the Appeal Tribunal may, by order, amend the application accordingly."
At the hearing before the Tribunal, it was submitted on behalf of the applicants that a decision permitting the development with conditions requiring compliance with the revised plans could not be made because no application had been made under s 22(3). The Tribunal dealt with that application in its reasons at [38] and [39], saying the following:
"38 The Appellants say that they did not have notice of the changes. This raises the issue of procedural fairness. The s22(3) power together with Practice Direction 3 will normally provide sufficient notice and appropriate interlocutory process to ensure that other parties are afforded natural justice. Dealing with material changes that might, for example, narrow areas of dispute or require contemplative expert deliberation by application prior to hearing will promote expedition and efficiency. A failure to use the s22(3) process might result in the exclusion of evidence or the adjournment of a hearing. In this case the Appellants had notice of the proposed changes by their incorporation in proofs of the other parties' experts. None of the individual changes were significant enough to warrant lengthy consideration, inquiry, modelling or research by the Appellants' experts or to take them by surprise or to materially alter the matters for consideration in the appeal. They reflect the iterative process of design already referred to. In this instance the changes were such that it was not necessary to have recourse to the s22(3) process to afford the Appellants procedural fairness.
39 It may be useful to make some general observations about the use of s22(3). The existence of the s22(3) application process will not, in and of itself, mandate parties to make such an application whenever modifications to a proposal may be advanced at a full hearing. It should not act as a barrier to the exercise of the general power to impose conditions to modify a development proposal in the course of a hearing, if a party has not availed themselves of the s22 process prior to the hearing. There are conceivable instances of matters arising in the course of a hearing which will require the Tribunal to modify a proposal by way of conditions to address those matters. Such changes may be relatively minor and not give rise to any objection. Some however, may be significant and the exercise of such conditioning power must be in accordance with the requirements of procedural fairness. Each case will turn on its own facts as to whether the scope of changes proposed might be of such significance that their late notification by way of their appearance in primary proofs of evidence, or even in the course of a hearing, gives rise to a denial of procedural fairness. The questions that arise when a party is aware of the need for changes to a proposal and is contemplating inviting the Tribunal to consider variation to a development application by way of s22(3) or at a full hearing of the Tribunal might, for example, include:
·     whether the variations contemplated constitute the real and preferred outcome the proponent seeks to advance and now wishes to alter the original development application to reflect;
·     how significant are the changes proposed such that other parties who are preparing primary evidence based on the existing proposal would be disadvantaged by their late introduction as a result of the changes appearing in the filing of statements of evidence without prior notice;
·     whether the changes are substantial enough to present a risk that they would constitute a significantly different proposal and be an impermissible variation;
·     would making a s22 application to seek permission to vary the proposal under consideration by the Tribunal be an effective, fair and efficient mechanism to:
ogive the other parties sufficient notice of the preferred proposal;
oallow consideration and determination of whether the scope of change could be entertained by the Tribunal;
oavoid the cost and expense to all parties of commencing a new development application process with the planning authority, if the changes are considered within power in an appeal context; and
·     whether making such an application might reduce the expenditure of costs and resources by all parties in progressing to a hearing."
I do not know whether the applicants wish to contend that the Tribunal should never allow any sort of design changes without first making an order under s 22(3). Such a contention would probably be rejected because s 16(1)(b) of the RMPAT Act requires an appeal to the Tribunal "to be conducted with as little formality and technicality, and with as much expedition, as a proper consideration of the matters before the Appeal Tribunal permits". Under s 16(1)(a), the procedure of the Tribunal is within its discretion. To establish an error of law in proceeding as it did without a s 22(3) order, the applicants would need to establish that they were denied procedural fairness, or that the course the Tribunal took was somehow "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505. As far as I am aware, there is no suggestion that the applicants were denied procedural fairness in relation to the changes to the design. I cannot see any merit in this proposed ground.

Proposed ground 3

The applicants contend that during the Tribunal hearing counsel for their opponents asked leading questions when cross-examining each other's witnesses, and that this should not have been permitted. This proposed ground relates to that contention. It reads as follows:

"Ground 3
The determination made 13 November 2020 involved an error of law within the meaning of section 25 of the Resource Management and Planning Appeal Tribunal Act 1993 in that the respondents were granted the opportunity to cross-examine their witnesses without fetter in circumstances where:
(a) the witnesses had an interest consistent with an interest of the cross-examiner; and
(b) the witness was sympathetic to the party conducting the cross-examination, either generally or about a particular matter."

Under s 16(1)(c) of the RMPAT Act, the Tribunal "is not bound by the rules of evidence and may inform itself on any matter in any way that it considers appropriate". There are certainly authorities which suggest that a statutory tribunal should not depart too far or too readily from compliance with the rules of evidence: In re the Medical Act 1959 [1973] Tas SR 43 at 67; Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492. When the rules of evidence apply, a court has the power to disallow a leading question in cross-examination, or to direct the witness not to answer it: Evidence Act 2001, s 41(1). Before that legislation was enacted, courts had such a discretion at common law: Mooney v James [1949] VLR 22.
The witnesses in question were expert witnesses. If counsel were putting words into their mouths, the Tribunal was well placed to realise what was happening and to decide how much weight to give to their answers. If there was cross-examination of the type asserted, I do not consider that there is any realistic chance of a judge being persuaded that the Tribunal erred in law by permitting it.

Proposed ground 4

This ground reads as follows:
"Ground 4
The determination made 13 November 2020 involved an error of law within the meaning of section 25 of the Resource Management and Planning Appeal Tribunal Act 1993 in that the Tribunal failed to apply the proper test of satisfaction of the relevant clauses of the Clarence Interim Planning Scheme 2015 but instead applied a test of anticipated or likely or partial satisfaction or future satisfaction."
At the hearing of this application, in the course of the cross-examination of Mr Fernandez, he was asked where in the Tribunal's reasons one could find the error that this ground relates to. He referred the cross-examiner to [58]. That paragraph reads as follows:
"The minor stormwater drainage system comprises a series of pipes, open drains, grassed swales and retention basins. The design of the roadways is such as to direct water to roadside swales rather than them functioning as an overland flow path. The plans originally submitted with the development application have been revised by their author, Mr Henning Boshoff, a stormwater engineering expert relied on by the Second Respondent [Hazell Bros]. A conference was held between the relevant experts, being Mr Coates and Mr Boshoff, together with Mr Justin Boocock for the Council and Mr Warwick Bishop for the Appellants. Subject to Mr Bishop's view that the southern discharge point should be moved to the site of the existing discharge point, which would result in run off being no greater than existing run off, each of the experts expressed confidence that the requirements of the Scheme were met. Mr Bishop's level of confidence was the lowest, but was still within the order of 75-80%. Mr Boshoff and Mr Coates considered that there would be compliance. Mr Boocock was 95% confidence [sic] that there would be compliance."
It seems from the last three sentences of that paragraph that some expert witnesses gave evidence as to the chances of their opinions turning out to be correct, expressed as percentages. As I understand this ground, it is based on a premise that the Tribunal erred in law by placing reliance on expert evidence from witnesses who expressed less than 100% confidence in the correctness of their opinions. If the Tribunal did that, I cannot see how it could involve an error of law. In my view this ground has no merit.

Proposed ground 5

This ground relates to the adequacy of the Tribunal's reasons. It reads as follows:
"Ground 5
The determination made 13 November 2020 involved an error of law within the meaning of section 25 of the Resource Management and Planning Appeal Tribunal Act 1993 in that the Tribunal did not consider, and/or give due weight to, the expert evidence of planner Ms Emma Riley and traffic engineer Milan Prodanovic and did not give adequate reasons for the rejection of that evidence contrary to section 24 of the Resource Management and Planning Appeal Tribunal Act 1993."

Section 24(1) required the Tribunal to give written reasons for its decision. Section 24(2) required those reasons to "include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based".
A provision in the relevant planning scheme – clause 5.6.2 P1(c) of the Clarence Interim Planning Scheme 2015 – required the Tribunal to consider the impact of the proposed development upon safety and efficiency having regard to the speed limit and traffic flow of each road. The Tribunal received conflicting expert evidence as to likely traffic flows. The appellants called expert evidence from the two witnesses named in ground 5, but the Tribunal preferred the evidence of experts called by other parties. It said the following in its reasons at [49] and [50]:
"49 Mr Prodanovic also applied the RTA Guide, and a more recent Roads and maritime Services Technical Direction to the Guide. However, rather than using the guide in respect to undeveloped industrial zoned land to determine future traffic generation he applied it to potential traffic generating scenarios mooted by a planning expert, Ms Emma Riley, called by the Appellants. Ms Riley hypothesised a theoretical use mix for future development contemplating a draft master plan prepared for the land (in respect of which no applications had been made to the Council or the Tasmanian Planning Commission) and by comparison to the development of similar land at Cambridge Park. She hypothesised two different mixes of seven industrial uses. Based on the two scenarios identified by Ms Riley, Mr Prodanovic formed the view that the proposed development would not cope with the traffic loads.
50 The Scheme does not require that consideration be given to future theoretical developments. P1(a) required that regard be had to the traffic generated by that use, but not by future uses of other land. However, considerations of safety and efficiency in respect to a utility with a significant life expectancy ought reasonably take into account projected demand on the utility. The scenarios identified by Ms Riley are entirely hypothetical and speculative. The State contends that Ms Riley has stepped outside her area of expertise. Her evidence related to potential future use, planning and development of land, which would be within her area of expertise. Her evidence related to potential future use, planning and development of land, which would be within her area of expertise as a planner. However, the scenarios that she has raised are entirely speculative and in terms of weight have little if any probative value. As such, Mr Prodanovic's analysis of the consequences of that speculative development in terms of traffic generation similarly have little or no weight. The opinions of Mr Mannering and Ms Fisher based on the recognised strategic planning reference material for undeveloped industrial zoned land in the RTA Guide are to be preferred."
When there is a duty to give reasons, a tedious examination of detailed evidence is not required, nor is a minute explanation of every step in the reasoning process: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259; James v Eyles [2007] TASSC 55 at [27]. As Mahoney JA said in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386, "Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it." In light of those authorities, I think it extremely unlikely that a judge would hold the reasons quoted above to have been inadequate. Further, I do not see any merit in the contention that the Tribunal erred in law by not considering and/or not giving due weight to the evidence of Ms Riley and Mr Prodanovic.

Conclusion as to merits

For these reasons, I consider that the chances of the proposed appeal succeeding are remote, at best.

Hardship and prejudice

On the basis of evidence given by Mr Fernandez, I understand that the applicants' interest in the Tribunal proceedings relates to the possible impact of the development on nearby undeveloped land with some sort of industrial zoning. Their interest in the stormwater plans may relate to a perceived risk of that land being vulnerable to flooding. Their interest in the design of the interchange may well relate to a desire for that land to have satisfactory connections to the Tasman Highway once it is developed.
It is now about 8 months since the Tribunal made its decision. No application has been made for an interlocutory injunction to delay construction of the interchange in accordance with the Tribunal's decision. A project manager employed by Hazell Bros, Mr Smith, swore an affidavit and gave oral evidence in these proceedings. His evidence was not contradicted or challenged. As at 25 June 2021, Hazell Bros had undertaken work on the project that was the subject of payment claims totalling $14, 101,003.72 plus GST. There is a contract between Hazell Bros and the State which requires completion of the works by 10 March 2023 and specifies a contract sum of over $36 million. Delay beyond the scheduled completion date is subject to a clause requiring the payment of liquidated damages at the rate of $1065 per day.
Granting an extension of time would cause prejudice to the State and to Hazell Bros, in that it would create a risk that work on the project might have to stop after some $14 million worth of work has been undertaken.

Conclusion

Having regard to the length of the delay since the time for appealing expired on 11 December, the unlikelihood of the proposed appeal succeeding, and the possible prejudice to the State and Hazell Bros, I consider that the application for an extension of time should be refused. The application is dismissed.