Attorney-General (Tas) v Cameron - [2007] TASSC 22

[2007] TASSC 22

CITATION: Attorney-General (Tas) v Cameron [2007] TASSC 22

PARTIES: THE HONOURABLE STEVEN KONS

ATTORNEY-GENERAL FOR THE
STATE OF TASMANIA
v
CAMERON, Allan Banks
CAMERON, Wendy Elizabeth

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 70/2006
DELIVERED ON:  20 April 2007
DELIVERED AT:  Hobart
HEARING DATE:  5, 6 March 2007
JUDGMENT OF:  Crawford, Slicer and Blow JJ

CATCHWORDS:

Administrative Law – Judicial review – Grounds of review – Error of law – Inferences from reasons of non-lawyer decision-makers.

Judicial Review Act 2000 (Tas), s17(2)(f).
Collector of Customs v Pozzolanic (1993) 43 FCR 280; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, referred to.
Aust Dig Administrative Law [1030]

Administrative Law – Judicial review – Grounds of review – Procedural fairness – Duty of decision-maker to bring crucial issue to person's attention.

Judicial Review Act 2000 (Tas), s17(2)(a).
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; SZBEL v Minister for Education and Multicultural and Indigenous Affairs (2006) 81 ALJR 515, referred to.
Aust Dig Administrative Law [1063]

Environment and Planning – Environmental planning – Development control – Control of particular matters – Foreshore and coastal development – Tasmanian State Coastal Policy 1996 - "Urban development" – "Ribbon development".

Aust Dig Environment and Planning [150]

REPRESENTATION:

Counsel:
             Appellant:  P Turner
             Respondents:  A C R Spence
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondents:  Page Seager

Judgment Number: [2007] TASSC 22
Number of paragraphs: 107

Serial No 22/2007
File No FCA 70/2006

THE HONOURABLE STEVEN KONS ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA v ALLAN BANKS CAMERON
and WENDY ELIZABETH CAMERON

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J
SLICER J
BLOW J
20 April 2007

Orders of the Court:

Appeal allowed.
Orders appealed from quashed.
Originating application dismissed.

Serial No 22/2007
File No FCA 70/2006

THE HONOURABLE STEVEN KONS ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA v ALLAN BANKS CAMERON
and WENDY ELIZABETH CAMERON

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD J
  20 April 2007

I agree with the reasons for judgment of Blow J and the orders he proposes.
File No FCA 70/2006

THE HONOURABLE STEVEN KONS ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA v ALLAN BANKS CAMERON
and WENDY ELIZABETH CAMERON

REASONS FOR JUDGMENT FULL COURT

SLICER J
20 April 2007

The respondents had requested the Glamorgan Spring Bay Council ("the council") to initiate a draft amendment to the Glamorgan Spring Bay Planning Scheme 1994 ("the planning scheme") and, assuming amendment, issue a permit which would allow them to develop their land for use as an accommodation and restaurant centre.

The council resolved to initiate the amendment and, as required by the Land Use Planning and Approvals Act 1993 ("LUPA Act"), s39(2), referred the initiation and necessary documentation to the Resource Planning and Development Commission ("the RPDC"). The RPDC rejected the requested amendment and a further amendment, suggested at the hearing. The respondents sought judicial review and the Attorney-General, given the appropriate decisions by the council and the RPDC not to oppose the application, intervened as contradictor, as provided for by the Judicial Review Act 2000, s39.

The respondents were successful in their application for judicial review (Cameron v Resource Planning and Development Commission [2006] TASSC 66), but not on every contention advanced. The Attorney-General has appealed, raising questions of statutory interpretation and application of policy statements as distinct from mandatory requirements which might have future implications on the general workings of the planning process. The respondents, in turn, have filed "notices of contention" which they say would warrant the dismissal of the appeal, even if the Attorney-General was to succeed in his primary arguments. Both parties request this Court to determine the question of procedural fairness, an issue which did not require resolution by the learned primary judge given her determination of the primary contentions.

Grounds of appeal

The Attorney-General concedes that in order for the appeal to be upheld by this Court and the orders made by the learned primary judge disturbed, it is necessary for each of the grounds to succeed. Those grounds state:

"1Her Honour erred in law in determining that the proper construction of the State Coastal Policy required the Resource Planning and Development Commission ('the RPDC') to disregard clause 2.4.2 of that Policy, when the proper construction of the Policy permitted the RPDC to have regard to that clause.
2Her Honour erred in law and in fact in finding that the RPDC had approached clause 2.1.6 of the State Coastal Policy on the basis that it prescribed a threshold test for the amendment and permit application before it, when the proper construction of the reasons of the RPDC show that it did not approach that clause in that way.
3Her Honour erred in law and in fact in finding that the RPDC posed for itself the wrong question when it referred to 'visitor accommodation and restaurant' rather than to the totality of the proposal, when the proper construction of the reasons of the RPDC show that it was referring to the totality of the proposal."

The concession of the Attorney-General is properly made. The three grounds are interdependent. If the RPDC had simply misdirected itself on the question of "visitor accommodation and restaurant" or if the learned primary judge had incorrectly assumed that such was the question posed, then either the original error or that in her Honour's approach might not require appellate intervention, either at first instance or by this Court.

The decision of the RPDC and its treatment by the learned primary judge must be considered in the light of what the RPDC had been asked to do. The respondents were seeking an amendment to a planning scheme, not a right or protection afforded by existing law or entitlement. The council initiated the amendment and in doing so was entitled to take into consideration a wide range of matters which included policy considerations and the future direction which councillors, collectively, believed to be in the future best interests of their municipality. The RPDC was required to consider the requested or initiated amendment in the context of existing and relevant legislation, the existing planning scheme, and the implications of change. The RPDC was neither a rubber stamp nor a judicial body protecting rights, entitlements or responsibilities already possessed. It was not engaged in an artificial exercise or construct but required to consider real existing and future outcomes which might result from amendment.

The review conducted by the learned primary judge was that of an administrative decision-maker required to consider future implications and potential consequences not confined to application of an existing and well understood standard. The RPDC:

"… was primarily engaged in making a judgment in accordance with general statements of principle applicable to the appellant's development of land. It was not required, apart from jurisdictional questions or the determination of land status, to interpret the meaning of particular words or the specific effect of a particular phrase. It was dealing with the effect of development on a natural resource and its impact on the surrounds. It was required to effect a balance between competing interests and statements of principle. It did so within the ambit of legislative provisions and planning principles. Identification and isolation of a particular statement of general principle which might differ in precise language if another statement is selected does not, of itself, demonstrate error in the exercise of judgment or the decision-making process."

(Allan v Kingborough Council [2002] TASSC 98.)

In approaching the review, it is appropriate to first consider the principle referred to by Kirby J in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, when he said at 272:

"1The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286-287.
2This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others Rimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368; cf Collector of Customs v Pozzolanic (1993) 43 FCR 280; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616f and cases there cited esp Politis v Federal Commissioner of Taxation (1988) 88 ATC 5, 029 at 5, 032. This is not to condone double standards between the reasons and decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the lawmaker."

In addition, any approach to the reasons for decision, language, stated preference for one policy principle rather than another, and the like, must be considered in the context of "proposed change" as a discretionary exercise of judgment.

The draft amendment, as initiated by the council, was for the respondents' property to be zoned "resort residential" since the existing zone was for "coastal rural" use. That amendment was not pursued at the hearing of the RPDC on 29 September 2005. Instead, counsel for the respondents, with the support of the council, sought to have the proposed development permitted as a "specific use development" within the provisions of the planning scheme, cl 8.9.4. The effect of the change was to seek "de facto" alteration to the planning scheme by way of specific exemption for an identified project. It is one thing to say at the hearing that the council did not oppose the amendment, but it is another to say that the original decision made by councillors was honoured in the agreement to the further amendment. The council voted to initiate an amendment to the planning scheme and, for convenience, approved the permit for the development of the complex. But a councillor, entitled to take into account a wide range of matters in a general amendment to a scheme might take a different decision and be subject to more constraints in the making of a value judgment if asked to vote on whether a particular proposal should be exempted from an existing planning scheme. Yet this was the role that the RPDC was required to undertake. It was asked to consider whether the particular development proposed by the respondents was appropriate to the coastal rural zone and whether, even if such was the case, a specific departure from the requirements associated with that zone should be permitted.

There has been an elevation of those two questions and the functions of the RPDC into claimed rigid breaches of law in the respondents' reformulation of the issues as set out in their application for judicial review, which stated as its grounds:

"BThere was an error of law within the meaning of s17(e)(f) of the JRA in that the Commission treated clause 2.1.6 of the State Coastal Policy as an absolute requirement.
CThere was an error of law within the meaning of s17(e)(f) of the JRA in that the Commission treated clause 2.4.2 of the State Coastal Policy as an absolute requirement.
DThere was an error of law within the meaning of s17(2)(f) of the JRA in that in making an assessment under clause 2.1.6 of the State Coastal Policy the Commission posed a wrong question and proceeded upon the basis that it must be shown that all visitor accommodation and restaurant was coastal dependent whereas the proper test was whether the particular proposal was coastal dependent.
EThere was an error of law within the meaning of s17(2)(f) of the JRA in that the Commission proceeded upon the basis that the proposal was urban.
FThere was an error of law within the meaning of s17(2)(f) of the JRA in that the Commission proceeded upon the basis 'In addition it is likewise not accepted that, in the context of the State Coastal Policy, policies relating to tourism can be isolated from the policies applying to urban and residential development' when on a proper construction of the State Coastal Policy the Policy does in fact isolate, inter alia, tourism and urban and residential development.
GThere was an error of law within the meaning of s17(2)(f) of the JRA in that the Commission determined that tourism development could only occur within, or within proximity of a town.
HThere was an error of law within the meaning of s17(2)(f) of the JRA in that the Commission determined that the proposal would constitute and/or contribute to 'ribbon development' despite the fact that the proposal was surrounded by visitor units, a wildlife park and a golf course which were all subject to specified departures within the Glamorgan Spring Bay Planning Scheme clause 8.9.4."

The RPDC did not engage in deciding "absolute requirements", "urban proposals" or that a "tourism development could only occur within, or within proximity of a town". It was engaged in an evaluation of an exception or permitted departure from the planning scheme and required in that evaluation to weigh up differing planning principles and policies in reaching a decision.

State Coastal Policy

The State Policies and Projects Act 1993, states that its purpose is:

"… to provide for Tasmanian Sustainable Development Policies, to provide for the integrated assessment of projects of State significance, to provide for State of the Environment Reporting and for related purposes."

A court, tribunal or person acting judicially must take judicial notice without formal proof of the contents of the State Policies and Projects Act, (s45). Schedule 1 of the legislation states the objective of the Resource Management and Planning System of Tasmania to be:
"(a)   to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity; and
(b) to provide for the fair, orderly and sustainable use and development of air, land and water; and
(c) to encourage public involvement in resource management and planning; and
(d) to facilitate economic development in accordance with the objectives set out in paragraphs (a), (b) and (c); and
(e) to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State.
2 ¾ In clause 1(a), 'sustainable development' means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural well-being and for their health and safety while ¾
(a)     sustaining the potential of natural and physical resources to meet the reasonably foreseeable needs of future generations; and
(b)    safeguarding the life-supporting capacity of air, water, soil and ecosystems; and
(c)     avoiding, remedying or mitigating any adverse effects of activities on the environment."
The State Policies and Projects Act, s14, makes liable for a statutory offence "A person who contravenes or fails to comply with a provision of a State Policy or a requirement or obligation imposed under a State Policy", and further provides:
"13 ¾ (1)    Where there is an inconsistency between a provision of a State Policy and a provision of a planning scheme or an interim order in force at the time when the State Policy comes into operation, the provision of the planning scheme or interim order is void to the extent of the inconsistency."

The State Coastal Policy has been the subject of judicial interpretation (R v Resource Planning and Development Commission; ex parte Aquatas 82/1998; Coles Bay Marina Association v Hawkins [1999] TASSC 75; Tasman Quest Pty Ltd v Nolan; R v Kim Evans; Ex parte Tasman Quest Pty Ltd [2002] TASSC 117; Allen v Kingborough Council (supra); Richard G Bejah Insurance & Financial Services Pty Ltd v Maning (2002) 123 LGERA 349; Tasman Quest v Evans (2003) 13 Tas R 16; St Helen's Area Landcare and Coastcare Group Inc v Break O'Day Council [2005] TASSC 46; Lark v Nolan [2006] TASSC 12.)

The RPDC was conscious that the legislation provided for policy objectives rather than a series of specific prohibitions.

The State Coastal Policy relevantly provides:

"2.1.4.Competing demands for use and development in the coastal zone will be resolved by relevant statutory bodies and processes, in particular the Land Use Planning Review Panel, the Resource Management and Planning Appeal Tribunal and the Marine Farming Planning Review Panel. Planning schemes, marine farming development plans and other statutory plans will provide guidance for resource allocation and development in accordance with this Policy.
2.1.5.The precautionary principle will be applied to development which may pose serious or irreversible environmental damage to ensure that environmental degradation can be avoided, remedied or mitigated. Development proposals shall include strategies to avoid or mitigate potential adverse environmental effects.
2.1.6.In determining decisions on use and development in the coastal zone, priority will be given to those which are dependent on a coastal location for spatial, social, economic, cultural or environmental reasons."

It addresses the impact of tourist development in the terms:

"2.3.1.Tourism use and development in the coastal zone, including visitor accommodation and other facilities, will be directed to suitable locations based on the objectives, principles and outcomes of this Policy and subject to planning controls.
2.3.2.Tourism development proposals in the coastal zone will be subject to environmental impact assessment as required by State legislation including a water safety assessment to indicate the level and type of lifesaving facilities and personnel required to protect people.
2.3.3.Opportunities for tourism development will be identified wherever strategic planning occurs for the coastal zone or any part of it.
2.3.4.Tourism development will be located where there is environmental capacity and where it does not significantly conflict with the natural and aesthetic qualities of the coastal zone."

Here the RPDC was required to consider residential, accommodation, restaurant and general land use. It was required to consider the recommendation of its planning assessment report presented to council and the terms of the State Coastal Policy, much of which formed parts of the planning scheme. It considered the terms of the planning scheme relevant to the components of urban development as stated in that scheme. It considered both the draft amendment as initiated by council and the modified draft amendment seeking particular use or exemption and in considering the particular proposed development, concluded that:

"… the permit application has merit but the policy settings of the planning scheme and Coastal Policy should not be limited in favour of the application."

In relation to the policy itself, the RPDC stated:

"… the State Coastal Policy 1996 together with the policy of the coastal rural zone as stated in the planning scheme has determining weight in the assessment that the draft amendment should be rejected."

It regarded "coastal dependency" and "ribbon development" as matters relevant to that policy, concluding:

"In consideration of the Planning Scheme provisions for scenic corridor and coastal protection in Schedules 8 and 9 two matters remain to be satisfied, coastal dependency and ribbon development. These matters are relevant to the State Coastal Policy 1996.
…
The assessment is that clause 2.1.6 of the Policy is not satisfied … The assessment is that clause 2.4.2 of the Policy is not satisfied."

In relation to the criteria stated in the planning scheme, cl 6.5, the RPDC found at 6:

"The proposal satisfies the above criteria to a high degree except in respect to it being demonstrated that the use or development is dependent upon a coastal location."

The learned primary judge dealt with these conclusions as if the wording of the policy and scheme used by the RPDC contained wording which was rigid and binding. She dealt with the words "is not satisfied", "being demonstrated", and "dependent" in the following terms (pars53 – 59):

"The Commission said at 6 of its reasons that 'The assessment is that clause 2.1.6 of the policy is not satisfied.' That finding was preceded by certain factual findings. There were two grounds of review relating to this issue. The first, (B), was that by the above finding the Commission had treated cl 2.1.6 as an absolute requirement. It made certain factual findings and determined that as a consequence of those factual findings the clause was not satisfied.
The second, (D), was that, if it were accepted that cl 2.1.6 was an absolute requirement to be satisfied, the Commission had posed the wrong question in any event in dealing with this question in that it had proceeded on the basis that it had to be shown that the use and development for visitor accommodation and restaurant depended on the coast. The applicants say the correct question should have been, was the particular proposal overall coastal dependent?
As to ground B, nowhere in cl 2.1.6 or, indeed, anywhere in the SCP does it say that a use and development proposal will only be approved if it is 'dependent on a coastal location for spatial, social, economic cultural or environmental reasons.' The clause simply provides as an outcome that use and development proposals that do, will be given priority. For the Commission to have found the clause 'is not satisfied' makes it clear it approached the clause as laying down a threshold test that a use and development application had to pass. Leaving aside any question of what the impact of the SCP should be generally, that is, whether it provides for absolute tests or is simply a guide, the clause could not be interpreted in the manner the Commission has done.
Ground B should succeed.
As to Ground D, counsel for the applicants identified what he said was the correct test the Commission should have applied on this issue if indeed it were able to treat cl 2.1.6 as providing for an absolute test that a development had to be coastal dependent. I have set that out, in par15. However, what the Commission said at 6 was:
'Whilst the development is responsive to the site and there are attributes of the site that makes the development dependent on the particular coastal location, this does not make the use or development for visitor accommodation and restaurant dependent on the coast.'

It focused by that finding on the visitor accommodation and restaurant and not the totality of the proposal inclusive of all the facilities it was to offer. In doing so it posed the wrong question to be considered. Counsel for the applicants submits that in doing so the Commission erred.
Counsel for the respondent submitted that the findings of the Commission about the issue of coastal dependence were findings of fact and as such simply not reviewable by this application. With respect, that does not answer this particular ground. The submission is that the findings were in response to the wrong question. It is submitted the Commission did not approach its task correctly when considering the issue. I accept that, even if cl 2.1.6 posed a threshold test to be met by the developer, the test as used by the Commission was the wrong one.
Ground D would, in the circumstances, succeed if ground B failed."

With respect, I do not share that approach or methodology. The RPDC had not adopted a "threshold" test as suggested by the respondents. The language might have been imprecise or the reasoning more fully explained, but the meaning when looked at in context remains clear. The respondents were proposing either an amendment to an existing scheme (the council initiative) or seeking an exception which would permit a different use. There was a need, irrespective of the identity of the proponent, to show that the proposal fitted into the scheme or at least warranted exemption.

The RPDC did not pose the wrong question in relation to the component "visitor accommodation and restaurant" as if they were discrete matters. It dealt with the totality of the proposal and neither used a threshold test nor one which was formed only on components.

Grounds 2 and 3 of the appeal ought be sustained.

Urban development

The proposed development comprised 34 hectares of coastal plain and was situated some six kilometres north of Bicheno. It possessed an ocean frontage of some 900 metres, bounded on its southern boundary by a lagoon and extended for approximately one kilometre along the Tasman Highway. In the words of the respondents' written submission to this Court, the proposed development's central operation was:

"…to encourage tourists and visitors to the east coast while offering a 4 star plus accommodation experience nestled amongst native east coast flora with views across the dunes to the ocean."

Some 14 hectares of the land were proposed to be subject to a conservation covenant. Central to the proposal were the restaurant, 15 accommodation units, and a permanent residence, over some 34 hectares. Density, use and length of beach and road front were matters relevant to both change of scheme, exemption or permitted special use. The application involved the combination of amendment to a scheme and developmental approval as permitted by the LUPA Act, s43A, which, in turn, made relevant the State Coast Policy.

The State Coastal Policy cl 2.4 provides:

"2.4. urban and residential development
2.4.1.Care will be taken to minimise, or where possible totally avoid, any impact on environmentally sensitive areas from the expansion of urban and residential areas, including the provision of infrastructure for urban and residential areas.
2.4.2.Urban and residential development in the coastal zone will be based on existing towns and townships. Compact and contained planned urban and residential development will be encouraged in order to avoid ribbon development and unrelated cluster developments along the coast.
2.4.3.Any urban and residential development in the coastal zone, future and existing, will be identified through designation of areas in planning schemes consistent with the objectives, principles and outcomes of this Policy."

Those general statements are made relevant in both a positive and negative sense by the planning scheme. Matters such as effect on a scenic corridor, existing coastline or coastal area, beach access and the like, can be considered as negative factors in the consideration of any development. The municipality might have a consistent policy or strategy for the whole of its area (planning scheme cl 7.1), the orderly and effective use of resources (cl 7.1(a)), use and payment for infrastructure and/or density (cl 7.2.2(a) and (b)) which require adjustment or a balancing of competing interests and desired outcomes or goals. The planning scheme also states positive factors referable to the use of existing towns or settlements. Here the development was to be some six kilometres north of the town of Bicheno. The planning scheme states, relevant to the township and this appeal:

"a) Settlement Areas
Bicheno is predominantly a holiday town with a number of permanent occupants. Fishing provides the primary activity outside the tourism industry. The town is geared toward tourism, with numerous natural attractions including the blowhole, gulch, and the nearby Douglas Apsley National Park as well as attractions such as the Sea Life Centre. It has an attractive location that is ideally situated about half-way between Hobart and Launceston, therefore providing an ideal location for an overnight stay when travelling the east coast. As with all the major settlements within the planning area, the town’s proximity to the coast is its principal attraction. This (along with the temperate climate), some unique natural features and casual lifestyle are the strengths of Bicheno. Its location on the coast creates one of the weaknesses of the town: its linear, or elongated nature. This makes servicing more difficult.

b) Non-settlement areas
Like the other settlements there is a diversity of land use outside the main settlement. Rural residential development is more predominant than with the other centres occurring both to the north and south of the town. The access to the coast and the visual impact of the coast is similar to that around Swansea and the close proximity of the hills provides a strong backdrop to the town. The area to the north provides vistas of the coast whilst the area to the south exhibits a rural character. All contribute to the scenic value of the areas surrounding Bicheno."

The RPDC was entitled to pay regard to the objectives of the scheme in the development of the nearby town. A desired positive aim, expressed in the planning scheme and stated in the State Coastal Policy and, in particular, cl 2.4.2, is the development of infrastructure within the township. The finding that the proposal was urban in nature was a finding of fact open on the evidence. It related to the concentration of building and use. The RPDC was entitled as a matter of law and planning principle to find that policies relating to tourism cannot be isolated from the policies applying to urban and residential development. The learned primary judge, having considered the definition of "urban development", dealt with the applicability or otherwise of the State Coastal Policy, cl 2, in the following terms at pars50 – 52:

"The logical interpretation of cl 2 is that in considering an application for a tourism development, the provisions of the SCP to which the Commission should have had regard were cls 2.1 and 2.3, and not 2.4. In construing the policy in a way that had both cl 2.3 and cl 2.4 applying to the same development in the way it did, I am of the view the Commission made an error.
The consequence of that finding is that the applicants should succeed on ground F. It must follow that the Commission made an error in proceeding on the basis the proposal was urban (because it should not have even considered the application of that term) and erred in treating cl 2.4.2 as imposing any relevant requirement, let alone an absolute one. As a consequence, grounds C and E must also succeed.
As to ground G, the Commission made a correct finding of fact at 7 of its reasons:
'The proposal is not within the town of Bicheno and not based on that town except by proximity.'

It can only be inferred it made that finding because it was proceeding on the basis this particular tourism development had to be either in, or somehow connected to, that town for it to be considered. As a consequence of the findings relating to ground F, this basis must have been wrong and therefore ground G must also succeed."

I do not share the conclusion. I would uphold ground 1 of the notice of appeal.

Notice of contention

The respondents have filed a notice of contention, claiming that if the grounds of appeal were to be upheld, that the orders made by the learned primary judge ought not be quashed on the bases that:

"1That Her Honour erred in not determining that the Resource Planning and Development Commission erred in determining that the proposal would contribute to 'ribbon development'.
2That Her Honour erred in not determining that the Commission fell into jurisdictional error in that it did not ask the right question or pose the correct test as to what constituted ribbon development.
3That Her Honour erred in not determining that the Commission had erred in proceeding upon the basis that adjoining developments existed by way of pre-existing use rights under s20(3) of the Land Use Planning and Approvals Act 1993 when in fact they were subject to site specific departures under clause 8.9.4 of the Glamorgan Spring Bay Planning Scheme."

I have read, in draft form, the reasons for judgment of Blow J and agree with both his reasoning and conclusion in respect of the matters raised by the notice. Even if any of the claimed errors were to be sustained, it would not require this matter to be remitted to the RPDC for rehearing. They were peripheral to the decision of the RPDC to refuse the applications.

Procedural fairness

The respondents' application for judicial review claimed that:

"AThere was an error of law within the meaning of s17(2)(a) of the JRA in that the Commission by its delegates breached the rules of natural justice in respect of making the decision:
(i) In that the chairman Mr Robin Nolan did not seek submissions in respect of the application of the State Coastal Policy but rather only sought submissions in respect of the terms of the permit and whether the draft amendment could be modified as proposed by the applicants."

The application of the State Coastal Policy had been fully discussed during the course of the hearing, in particular during the evidence of Mr Neil Shepherd, a qualified town planner called on behalf of the respondents. The transcript of proceedings shows that the matters were fully canvassed in his report, evidence-in-chief in answer to questions put by counsel for the respondents and exchanges between Mr Shepherd and the Commissioner. Counsel for the respondents made opening and closing submissions which dealt with the issues which are the subject of this appeal.

The matters identified by the RPDC were well known to the parties. They had been referred to in the evidence of the witness central to the respondents' case. There was no new argument advanced. See Addicoat v Fox (No 2) [1979] VR 347; R v Land Use Planning Review Panel ex parte M F Cas Pty Ltd 131/1998; R v Resource Planning and Development Commission; ex parte Aquatas 82/1998. The RPDC had a discretion to adjourn to enable the respondents to consider a particular approach but was not required to do so. It had given the respondents a reasonable opportunity to present their case. This is not a case where documents were not disclosed Brighton Council v Compost Tasmania Pty Ltd [2000] TASSC 49 or where particular knowledge derived from the expertise of a specialist tribunal is used in the decision-making process without opportunity for the parties to test or respond to it (Keller v Drainage Tribunal [1980] VR 449). This was not a case of denial of natural justice.

There is no merit in this ground.

Conclusion

I would uphold the appeal, quash the orders of the learned primary judge and dismiss the originating application.
File No FCA 70/2006

THE HONOURABLE STEVEN KONS ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA v ALLAN BANKS CAMERON
and WENDY ELIZABETH CAMERON

REASONS FOR JUDGMENT FULL COURT

BLOW J
20 April 2007

This appeal concerns a decision by two delegates of the Resource Planning and Development Commission ("the RPDC") to reject a draft amendment to the Glamorgan Spring Bay Planning Scheme 1994 ("the planning scheme") in respect of land owned by the respondents near Bicheno. In particular, the appeal concerns the approach that the delegates took in relation to the Tasmanian State Coastal Policy 1996 ("the State Coastal Policy").

The respondents' land comprises some 34 hectares and is about six kilometres north of Bicheno. It is bounded by the ocean on the east and the Tasman Highway on the west. The respondents wish to develop it by building 15 visitor accommodation units, a manager's residence, a 60-seat café and wine bar, a maintenance/laundry building, a car park with at least 25 spaces, and related paths and driveways.

The zoning under the planning scheme does not allow the Glamorgan Spring Bay Council ("the council") to permit that development. The respondents therefore applied to the council pursuant to the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), ss33(1) and 43A(1), for both an amendment to the planning scheme and a permit for the proposed development. The council initiated the requested draft amendment, did various things required by the LUPA Act, and forwarded to the RPDC the documentation required by s39(2). The two delegates of the RPDC conducted a hearing pursuant to s40 and made a decision rejecting the draft amendment pursuant to s41(b).

The respondents applied for the review of that decision pursuant to the Judicial Review Act 2000, s17(2)(a) and (f), contending that the delegates had denied them natural justice, and that they had made a number of errors of law. The council and the RPDC decided not to defend the proceedings, but to submit to whatever order the Court might make, and filed notices accordingly. The Attorney-General intervened in the proceedings pursuant to the Judicial Review Act, s39(1), and took on the role of a contradictor. The learned primary judge concluded that some of the grounds of review relating to errors of law were made out, that others were not, and that it was not necessary to consider the ground relating to natural justice. She ordered that the decision of the RPDC (ie, the delegates' decision) be quashed and that the matter be referred to the RPDC for rehearing in accordance with law.

This is an appeal by the Attorney-General from that decision. He contends that the learned primary judge was wrong to conclude that the delegates had made errors of law. The respondents contend that the learned primary judge was right in concluding that the delegates had made errors of law. Further, the respondents contend that the learned primary judge should have found each of the original grounds of review relating to errors of law and natural justice established. They contend that the orders appealed from should not be disturbed, even if all of the grounds of this appeal are made out.

The State Coastal Policy

In and since 1993, the Tasmanian Parliament has enacted a series of Acts relating to "the resource management and planning system of Tasmania". They include the LUPA Act, the State Policies and Projects Act 1993 ("the SPP Act"), and the Resource Planning and Development Commission Act 1997 ("the RPDC Act"). Each of those Acts contains, in a schedule thereto, a list of the "objectives of the resource management and planning system of Tasmania". Under the LUPA Act, s5, it is the obligation of any person who performs a function imposed by that Act, or exercises a power conferred by that Act, to do so in such a manner as to further those objectives. The SPP Act contains provisions for the making of State policies and, in s5(1)(a), provides that a State policy must seek to further those objectives. The State Coastal Policy has the status of a State policy made under that Act: State Coastal Policy Validation Act 2003. The land in question is in the "coastal zone" to which the State Coastal Policy applies. Under the LUPA Act, s32(1)(b), an amendment of a planning scheme "must be prepared in accordance with State Policies" made under the SPP Act.

The State Coastal Policy consists of a table of contents, a preamble, some paragraphs headed "Application of the State Coastal Policy", some definitions, the list of objectives that I have just referred to, a list of three policy principles with comments relating to each, and, finally, a series of numbered paragraphs setting out some 85 "outcomes". As Crawford J pointed out in Richard G Bejah Insurance & Financial Services Pty Ltd v Maning (2002) 123 LGERA 349 at 357, most of the "outcomes" amount only to statements of policy, but a small number of them appear to impose requirements.

The word "policy" suggests something that is not legislative in character. One would not always expect something called a policy to contain inflexible prohibitions and requirements. However the SPP Act contains provisions which enable a State policy to impose strict obligations. Under s13(1), a State policy can include a provision that, in effect, supersedes a planning scheme. Under s13B(1), a State policy can require a statutory authority or a statutory office holder to undertake specified activities, to perform specified functions, or to exercise specified powers. Under s13C, a State policy binds the Crown and councils. Under s14(1), it is an offence for a person to contravene or fail to comply with a provision of a State policy or a requirement or obligation imposed under a State policy. Only a small number of the "outcomes" in the State Coastal Policy are worded in such a way that anyone could contravene them, or fail to comply with them, and thereby commit an offence.

Apart from the respondents' contention that the delegates breached the rules of natural justice, all of their contentions in the proceedings before the learned primary judge and on this appeal involved contentions that the delegates' decision involved errors of law within the meaning of the Judicial Review Act, s17(2)(f). The respondents contend that a misinterpretation of any provision of the State Coastal Policy, even a provision that goes no further than stating a policy objective, amounts to an error of law. Their counsel referred us to cases that support that view: Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 602 – 603; Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306 at 334 – 336, 342 – 343. There are other decisions that suggest that an error in the interpretation of a policy document does not amount to an error of law for the purpose of judicial review legislation, but could result in a relevant consideration not being taken into account, eg, Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 208. In my view it is not necessary to consider the authorities in relation to this point, since I have concluded that the delegates did not make any of the various errors of law that the respondents contend that they made.

Grounds 2 and 3 ¾ cl 2.1.6 of the State Coastal Policy

Grounds 2 and 3 both relate to cl 2.1.6 of the State Coastal Policy. It reads as follows:

"2.1.6In determining decisions on use and development in the coastal zone, priority will be given to those which are dependent on a coastal location for spatial, social, economic, cultural or environmental reasons."

In their reasons for their decision, the delegates said the following about that clause:

"Clause 2.1.6 of the policy requires priority to be given to use or development which is dependent on a coastal location. Mr Shephard [sic] submitted that the development was dependent on the site being a coastal location. That is the particular attributes of the site and the response of the development to the site satisfied the principle embodied in clause 2.1.6. Whilst the development is responsive to the site and there are attributes of the site that makes the development dependent on the particular coastal location, this does not make the use or development for visitor accommodation and restaurant dependent on the coast. The assessment is that clause 2.1.6 of the policy is not satisfied."

It is quite clear from the wording of cl 2.1.6 that it does not purport to impose any sort of prohibition, or any sort of essential prerequisite to development. It requires some developments to be more readily approved than others, the sole criterion being whether a development is "dependent on a coastal location for spatial, social, economic, cultural or environmental reasons".

The learned primary judge held that the delegates had erred in law in two respects:

·She held that the delegates had erroneously "approached the clause as laying down a threshold test that a use and development application had to pass".
·She held that the delegates had erred in law in considering whether the proposed visitor accommodation and restaurant were dependent on the coast, rather than considering whether the totality of the proposal, inclusive of all the facilities it was to offer, was dependent on the coast.

By ground 2, the appellant contends that, contrary to the conclusion of the learned primary judge, a proper construction of the delegates' reasons shows that they did not approach cl 2.1.6 as if it laid down a threshold test.

In scrutinising and analysing the delegates' reasons, it is important to bear in mind that neither the LUPA Act nor the RPDC Act obliged them to furnish reasons. A statement of reasons could have been sought under the Judicial Review Act, but apparently was not. The result is that the reasons voluntarily furnished by the delegates were not required to meet any standard of thoroughness. It is not necessarily the case that their statement of reasons sets out the totality of their reasoning. Secondly, it should be borne in mind that they were doing the work of a specialist non-legal statutory authority.

There are many reported cases as to the approach that should be taken by a court reviewing the reasons of an administrative decision-maker. One such case was Collector of Customs v Pozzolanic (1993) 43 FCR 280, in which the Full Court of the Federal Court collected a number of the relevant authorities. At 287, the Court (Neaves, French and Cooper JJ) said (omitting case references):

"The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts … The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error …".

That passage was cited with approval by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. In that case at 291 – 293, Kirby J set out a number of principles to guide review and appellate courts, beginning with the following:

"1The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law …
2This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others. This is not to condone double standards between the reasons and decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the lawmaker."

At various places in their reasons, the delegates spoke of provisions in the planning scheme and the State Coastal Policy as being satisfied or not satisfied. First of all, they considered the provisions of cl 6.5.2 of the planning scheme, which lists 11 criteria in relation to applications for development in the coastal zone. One of those criteria referred to "demonstration that the use or development is dependent upon a coastal location". The delegates set out the criteria and said that the proposal satisfied the criteria "to a high degree except in respect to it being demonstrated that the use or development is dependent upon a coastal location". It appears that the delegates considered that satisfaction was not an absolute thing, but that there were degrees of satisfaction. On a number of other occasions, the delegates said that certain provisions in the planning scheme and the State Coastal Policy were satisfied or not satisfied, but each of the provisions in question can be interpreted as laying down requirements, rather than merely specifying factors to be taken into account when making a value judgment or exercising a discretion.

It is worth noting that, when commenting on the provisions of the planning scheme in relation to a scenic corridor extending 100 metres to either side of the centre line of the Tasman Highway, the delegates said that the scenic corridor ¾by which they no doubt meant the schedule relating to the scenic corridor ¾"does not set a prohibition but a policy position". Plainly they were aware of the distinction between a prohibition and a policy objective.

There is an element of ambiguity in the delegates' conclusion that cl 2.1.6 was "not satisfied". That ambiguity arises because cl 2.1.6 is of such a nature that, literally, it is impossible for it to be either satisfied or not satisfied. The respondents contend that, despite the plain wording of the clause, the delegates must have taken it to mean that developments not dependent on a coastal location were prohibited in the coastal zone. The appellant contends that the delegates must have been using imprecise language, and that they must have meant that the development did not derive support from cl 2.1.6 because it was not dependent on a coastal location.

Having regard to the status of the delegates, their awareness of the distinction between a prohibition and a policy provision, and the imprecision of their language in their reasons as a whole, I do not think their statement that cl 2.1.6 was "not satisfied" warrants the conclusion that they erroneously interpreted the clause. I think they must have meant that cl 2.1.6 did not help the respondents. Ground 2 must succeed.

By ground 3, the appellant contends that the fact that the delegates said, "… this does not make the use or development for visitor accommodation and restaurant dependent on the coast", does not warrant an inference that the delegates made an error of law by considering only two aspects of the proposal rather than its totality.

The delegates were well aware that the proposed development involved not just some visitor accommodation units and a café and wine bar (or restaurant). At one point in their reasons they referred to "the car park manager's residence and other minor development integral and subservient to the principal uses." At another point, they referred to the proposal that some 14 hectares of the site would be dedicated "to a private conservation area protected by covenant". It was reasonably open to the delegates to conclude that the proposed "visitor accommodation and restaurant" were not dependent on the coast, at least in the sense that visitor accommodation and restaurants can be located anywhere. It was reasonably open to them to regard the "visitor accommodation and restaurant" as the main features of the proposed development, especially since the development was described in the development application as "construction of 15 holiday villas, manager's residence & 60-seat café/wine bar". It was reasonably open to them to concentrate on the visitor accommodation units and the café and wine bar in determining whether the development as a whole should be regarded as "dependent on a coastal location for spatial, social, economic, cultural or environmental reasons" within the meaning of cl 2.1.6. In my view their concentration on the "visitor accommodation and restaurant" in addressing this clause does not indicate any error of law. Ground 3 must also succeed.

Ground 1 ¾ applicability of cl 2.4.2 of the State Coastal Policy

This ground concerns cl 2.4.2 of the State Coastal Policy. It reads as follows:

"2.4.2Urban and residential development in the coastal zone will be based on existing towns and townships. Compact and contained planned urban and residential development will be encouraged in order to avoid ribbon development and unrelated cluster developments along the coast."

The decision by the delegates to reject the draft amendment was based in part on an assessment by them that cl 2.4.2 was "not satisfied" because the proposed development amounted to "urban development", and would constitute and contribute to ribbon development. The learned primary judge took the view that that clause did not apply to the proposed development, and that the delegates should have disregarded it. By ground 1, the appellant contends that she thereby erred in law.

At the hearing before the delegates, the respondents called evidence from a town planner named Shepherd. While he was giving evidence, one of the delegates, Commissioner Nolan, discussed with him the proposition that the proposed development constituted urban development for the purposes of cl 2.4.2. There was evidence that, on one's right as one heads north along the Tasman Highway out of Bicheno, after crossing the town boundary, there is first a golf course, then a development called the East Coast Bird Life and Animal Park, then the respondents' land, and, a little further north, a six-unit visitor accommodation development at Denison River. The delegate raised with Mr Shepherd the question of where Bicheno should be regarded as starting and finishing. The delegate suggested that the proposed development should be looked at as urban development, but Mr Shepherd politely differed.

The delegates said the following in their reasons:

"Clause 2.4.2 concerns urban development being based on existing towns and avoidance of ribbon development. Mr Shepherd argued that the proposal was not urban development, but if he was wrong on this, then because of the surrounding development the proposal constituted 'infill'. The argument that the proposal is not urban is not accepted. The development for 15 visitor accommodation units, manager's residence and restaurant are components of urban development. In addition, it is likewise not accepted that, in the context of the State Coastal Policy, policies relating to tourism can be isolated from the policies applying to urban and residential development. The proposal is not within the town of Bicheno and not based on that town except by proximity. The proposal would constitute and contribute to ribbon development. The surrounding development comprises visitor units tucked into the Denison River settlement, the wildlife park, and golf course. These other developments predate the planning scheme coastal rural zoning and the Coastal Policy. The current proposal might be infill in the terms expressed by Mr Shephard [sic], but it is also contributing to ribbon development for the strip of coast between the Denison River and Bicheno. The assessment is that clause 2.4.2 of the policy is not satisfied."

In relation to ground 1, the respondents' contentions are essentially as follows:

·They contend that cl 2.4.2 does not apply to tourism development, and should therefore have been disregarded by the delegates.
·They contend that the proposed development did not amount to "urban development" for the purposes of cl 2.4.2, and that the delegates erred in law in deciding that it did.

Applicability of cl 2.4.2 to tourism development

Under the heading "2.1 coastal uses and development", the State Coastal Policy sets out 19 clauses relating to land use and development in the coastal zone. None of them relates specifically to tourism. None of them relates specifically to urban or residential development. Under the heading "2.3 tourism", the State Coastal Policy sets out four clauses relating to tourism development in the coastal zone. Then, under the heading "2.4 urban and residential development", it sets out three clauses relating to urban and residential development in the coastal zone. The learned primary judge took the view that the clauses under 2.3 and those under 2.4 were mutually exclusive. She said the following:

"The SCP, cl 2.3.1, contemplates tourism development in the coastal zone to include visitor accommodation and other facilities. Nowhere in the SCP does it provide that such tourism development in the form of 'visitor accommodation and other facilities' is to be restricted to existing towns or cities. The Commission said at 7:
'The development for 15 visitor accommodation units, manager's residence and restaurant are components of urban development.'

Many tourism developments are likely to have those features as components of their proposal. If such features are determined to be 'urban' as was done in this case and then cl 2.4.2 applied, the inference is that any tourism development with those features can only be built in connection with a town or city. There is nothing in the SCP which supports that contention.
The logical interpretation of cl 2 is that in considering an application for a tourism development, the provisions of the SCP to which the Commission should have had regard were cls 2.1 and 2.3, and not 2.4. In construing the policy in a way that had both cl 2.3 and cl 2.4 applying to the same development in the way it did, I am of the view the Commission made an error."

The relevant clauses read as follows:

"2.3 tourism
2.3.1Tourism use and development in the coastal zone, including visitor accommodation and other facilities, will be directed to suitable locations based on the objectives, principles and outcomes of this Policy and subject to planning controls.
2.3.2Tourism development proposals in the coastal zone will be subject to environmental impact assessment as required by State legislation including a water safety assessment to indicate the level and type of lifesaving facilities and personnel required to protect people.
2.3.3Opportunities for tourism development will be identified wherever strategic planning occurs for the coastal zone or any part of it.
2.3.4Tourism development will be located where there is environmental capacity and where it does not significantly conflict with the natural and aesthetic qualities of the coastal zone.

2.4 urban and residential development
2.4.1Care will be taken to minimise, or where possible totally avoid, any impact on environmentally sensitive areas from the expansion of urban and residential areas, including the provision of infrastructure for urban and residential areas.
2.4.2Urban and residential development in the coastal zone will be based on existing towns and townships. Compact and contained planned urban and residential development will be encouraged in order to avoid ribbon development and unrelated cluster developments along the coast.
2.4.3Any urban and residential development in the coastal zone, future and existing, will be identified through designation of areas in planning schemes consistent with the objectives, principles and outcomes of this Policy."

Tourism developments can be located in all sorts of places inside and outside towns. They can be located in towns, on the edges of towns, a few kilometres away from towns, or nowhere near any towns. "Tourism use and development" and "urban development" are therefore not mutually exclusive. The State Coastal Policy should be interpreted in a manner that promotes or furthers the "objectives of the resource management and planning system of Tasmania". Those objectives include the promotion of the sustainable development of natural and physical resources; the maintenance of ecological processes and genetic diversity; and the fair, orderly and sustainable use and development of land: SPP Act, Sch1, cl 1(a) and (b). If cl 2.4.2 were applied or taken into account by a decision-maker considering a proposed tourism development, those objectives would be furthered. I think it follows that that clause should be applied by decision-makers required to make decisions in relation to proposed tourism developments. It follows that cl 2.4.2 should not be regarded as inapplicable to tourism developments. As to that point, I think that the delegates did not err in law, but that the learned primary judge did.

The urban development issue

The appellant contends that it was reasonably open to the delegates to find that the proposed development fell within the description "urban and residential development" in cl 2.4.2. When a question arises as to whether a thing falls within the description of a word or a phrase in a statute, a question of law arises if, on the facts found, only one conclusion is open. If different conclusions are reasonably possible, the determination of the correct conclusion involves only a question of fact: The Australian Gas Light Co v The Valuer-General (1940) 40 SR(NSW) 126; Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547; Hope v Bathurst City Council (1980) 144 CLR 1; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354. Whether or not cl 2.4.2 is a legislative provision, the delegates cannot have erred in law if two possible conclusions were reasonably open to them as to whether the proposed development fell within the description "urban and residential development".

The transcript of the discussion between Commissioner Nolan and Mr Shepherd suggests that there is room for different views within the planning profession as to the meaning of the term "urban development". It would seem that Commissioner Nolan took the view that, in a sense, Bicheno does not finish until the boundary of the furthest development on the highway out of the town. I think there must also be scope for the view that a tourism development having some of the characteristics of urban development may be regarded as constituting urban development for the purposes of cl 2.4.2. When considering whether the RPDC's delegates erred in interpreting a provision of the State Coastal Policy, it must be borne in mind that the RPDC is a specialist statutory authority, and that it had a very significant role in the preparation of the State Coastal Policy by virtue of the SPP Act, ss6, 8, 9 and 11. I think that courts should be very slow to attribute errors of interpretation of planning instruments to specialist authorities like the RPDC. I see no reason why a tourism development located close to a town, or having some of the characteristics of urban development, should not be regarded as constituting urban development for the purposes of cl 2.4.2. The proposed development is close to Bicheno, and has some of the characteristics of urban development, in the sense that visitor accommodation, cafés and wine bars are most commonly located in towns or urban areas.

For the above reasons, ground 1 must succeed.

Clause 2.4.2 ¾ the "threshold test" issue

Although I have concluded that all three of the grounds of appeal must succeed, it is necessary to consider the respondents' contentions that, for various reasons, the orders of the learned trial judge should not be disturbed. Some, but not all, of those contentions are set out in a notice of contention filed by the respondents' solicitors. The Supreme Court Rules 2000 make no provision for the filing of such a notice, unlike the rules of some other courts, eg, the Federal Court Rules, O52, r22(3). In this Court, the appropriate course is to summarise any such contentions in the written submissions filed before the hearing of the appeal.

The respondents contend that cl 2.4.2 does not impose a threshold test which needed to be satisfied before the RPDC could give its approval to the draft amendment. They contend that, when relevant, cl 2.4.2 only sets out policy objectives, or matters to be taken into account in making a discretionary decision.

Much depends on the nature of the decision being made. In some contexts, a decision-maker might be bound to take a State policy into account, but have a discretion to make a decision inconsistent with that policy. In other situations, a decision-maker might have a discretion to ignore a State policy altogether. But in the present context, because the LUPA Act, s32(1)(b), requires that an amendment of a planning scheme "must be prepared in accordance with State Policies", the RPDC is bound by the State Coastal Policy, and may not make a decision inconsistent with it.

Clause 2.4.2 does not impose a mandatory requirement in relation to ribbon development. It provides that different types of development "will be encouraged in order to avoid ribbon development". Thus, it implies that ribbon development should be avoided. But it goes no further than making the avoidance of ribbon development a policy objective, to be taken into account in discretionary decision-making.

However more restrictive language is used in the first sentence of cl 2.4.2, which provides that "Urban and residential development in the coastal zone will be based on existing towns and townships." In my view, if the RPDC makes a finding of fact that a proposed development amounts to urban development that is not based on an existing town or township, it must conclude that the requirement imposed by the LUPA Act, s32(1)(b), is not satisfied, in that the proposed draft amendment is not in accordance with the State Coastal Policy. In that respect, I think cl 2.4.2 imposes a threshold test.

When the delegates concluded that cl 2.4.2 was "not satisfied", I do not think they erroneously treated the provision relating to ribbon development as imposing a threshold test. Reading their reasons as a whole, and bearing in mind their status, I think they must have meant that the proposed development was offensive to cl 2.4.2 in that it constituted both urban development and ribbon development.

Contentions 1 and 2 ¾ ribbon development and the State Coastal Policy

Contentions 1 and 2 in the respondents' notice of contention read as follows:

"1That Her Honour erred in not determining that the Resource Planning and Development Commission erred in determining that the proposal would contribute to 'ribbon development'.
2That Her Honour erred in not determining that the Commission fell into jurisdictional error in that it did not ask the right question or pose the correct test as to what constituted ribbon development."

The respondents contend that their proposed development did not amount to ribbon development, and that the delegates erred in law in concluding that it did.

There is no definition of "ribbon development" in the State Coastal Policy or any relevant Act. Counsel for the respondent relied on a definition of "ribbon development" in the Macquarie Dictionary (2 ed) which reads, "the unplanned building of houses, etc, along main roads leading out of large towns". Of course the proposed development does not include houses, and Bicheno is not a large town. However the words "ribbon development" in cl 2.4.2 need to be considered in their context.

Counsel for the respondents also relied on provisions in the planning scheme as to ribbon development, and as to the "scenic corridor" along the Tasman Highway. However the planning scheme is a completely different instrument. Expressions used in it could have different meanings in the State Coastal Policy. If the authors of the planning scheme had a concern about ribbon development along roads, it does not follow that the words "ribbon development" in the State Coastal Policy should be interpreted as referring only to development along roads, and not to development along the coastline.

Counsel for the respondents relied on a decision of the Local Government Court in Brisbane, George Pippos Hotels v Logan City Council [1987] QPLR 161, which concerned the meaning of the term "Commercial Ribbon Development". At 163, Quirk DCJ said that that concept, "as it is generally understood, involves the unco-ordinated spread of Commercial Development (with points of access occurring in an unrestricted fashion) along an arterial road". That was not a case about a site with an ocean frontage, but it illustrates the point that one of the evils of ribbon development along a road is the impact on through traffic of vehicles turning in and out of the relevant site.

Counsel for the respondents also referred us to a number of definitions and comments as to the meaning of "ribbon development" collected by the Lands and Mining Tribunal of the Northern Territory in David v Development Consent Authority (2002) NTLMT 54 at 16 – 17. I do not think I need set out all that that tribunal said on the subject. It seems clear that there is no precise and universally accepted meaning attached by planners to the term "ribbon development". It is not a term of art. Its meaning must depend on its context. Where different views are possible as to whether a particular development constitutes "ribbon development" within the meaning of cl 2.4.2, no question of law is involved.

The respondents contend that the delegates took the view that any development between two other developments constituted ribbon development; that that was wrong; and that there was therefore an error of law.

What the delegates said about ribbon development was as follows:

"The proposal would constitute and contribute to ribbon development. The surrounding development comprises visitor units tucked into the Denison River settlement, the wildlife park, and golf course. … The current proposal might be infill in the terms expressed by Mr Shephard [sic], but it is also contributing to ribbon development for the strip of coast between the Denison River and Bicheno."

Clearly the delegates regarded development along a strip of coast, rather than a road, as capable of amounting to ribbon development. They considered not just whether the proposal amounted to ribbon development, but also whether it contributed to ribbon development. They took into account not just the developments immediately north and south of the site, but also the golf course. Nothing that the delegates said warrants the inference that they regarded every development between two other developments as amounting to ribbon development.

No doubt it was the intention of the authors of the State Coastal Policy that a reasonable amount of coastal bushland and coastal farmland should be preserved and not developed. I think it was therefore reasonably open to the delegates to treat the words "ribbon development" in cl 2.4.2 as covering development along a strip of coast. In saying that, I do not mean to suggest that those words could not also cover development along a coastal highway.

Further, I think it was reasonably open to the delegates to reason that the golf course, the wildlife park, the respondents' proposed development, and the Denison River visitor units would together constitute ribbon development along the coast, and that the respondents' proposed development would therefore both constitute and contribute to ribbon development. The delegates did not err in determining that the proposed development would contribute to ribbon development. Contention 1 must fail.

Contention 2 raises the concept of jurisdictional error. I do not think I need say anything about the distinction between jurisdictional error and non-jurisdictional error, because I think there was no error. The respondents contend that the delegates did not ask the right question or pose the correct test as to what constituted ribbon development. They did not define ribbon development in their reasons. They were not obliged to. If I am right in concluding that it was reasonably open to them to conclude that the proposed development constituted ribbon development, it cannot be said that they did not ask the right question, nor that they did not pose the correct test. Contention 2 must fail.

Contention 3 ¾ adjoining developments

This contention concerns two sentences in the paragraph in which the delegates dealt with cl 2.4.2. The two sentences read as follows:

"The surrounding development comprises visitor units tucked into the Denison River settlement, the wildlife park, and golf course. These other developments predate the planning scheme coastal rural zoning and the Coastal Policy."

It was argued before the learned primary judge that these sentences reflected an error of law. She rejected that argument. The respondents contend that she erred in rejecting it. Contention 3 in the notice of contention reads as follows:

"3That Her Honour erred in not determining that the Commission had erred in proceeding upon the basis that adjoining developments existed by way of pre-existing use rights under s20(3) of the Land Use Planning and Approvals Act 1993 when in fact they were subject to site specific departures under clause 8.9.4 of the Glamorgan Spring Bay Planning Scheme."

There was no evidence before the delegates as to the Denison River settlement, the wildlife park, and the golf course not predating the planning scheme. It seems that they all predated it. However the Denison River units and the wildlife park are specifically mentioned in cl 8.9.4 of the planning scheme. Those developments are in the planning scheme's coastal rural zone. Developments like them are prohibited in that zone. If they predated the planning scheme, and had not been mentioned in cl 8.9.4, they would have been the subject of existing use rights under the LUPA Act, s20(3). However cl 8.9.4 was written into the planning scheme, and it makes specific provision as to the two sites. Under cl 8.9.4(a), "Use or development for a tourist operation known as the East Coast Bird Life and Animal Park" is discretionary on the relevant site. Under cl 8.9.4(b), "the use and development for 6 visitor accommodation units shall be permitted" on the relevant Denison River site, subject to certain listed conditions.

The delegates did not mention cl 8.9.4. The respondents contend that they thereby committed some sort of error which, of itself, should result in the orders of the learned primary judge not being disturbed. As I understand it, the respondents' argument is that the imprimatur given by cl 8.9.4. to two other developments is a relevant consideration that the delegates were obliged to take into account when deciding whether the draft amendment should be rejected.

Counsel for the respondents relied on the decision of the Queensland Court of Appeal in Grosser v Council of the City of the Gold Coast (2001) 117 LGERA 153. That was an appeal from a decision of Queensland's Planning and Environment Court, which decided to permit the development of an Ikebana flower school in a residential zone, largely because it was thought that the zoning was inappropriate for the site, having regard to the range and type of uses already approved in the area. The Court of Appeal took the view that that reasoning was contrary to the law as expounded in one of its earlier decisions. The judge at first instance had apparently placed a great deal of reliance on the presence of some medical centres near the subject land, and had overlooked the fact that they had been established prior to the commencement of the planning scheme in question. At 166, White J, with whom Thomas and Williams JJA agreed, said:

"It appears that his Honour's perceived error about the medical centres so infected his approach that he impermissibly 'cut across' the planning strategy adopted by the Council and exceeded his jurisdiction."

Clearly the mistake made by the judge at first instance in that case was not the jurisdictional error that led to the Court of Appeal overturning his decision. It was something that led him to that error. That case is certainly not authority for the proposition that an error of fact as to nearby developments can amount to jurisdictional error or an error of law.

In my view the fact that the delegates did not mention cl 8.9.4 does not mean that they overlooked it. They said nothing about existing use rights. Nothing that they said about the adjacent developments is incorrect. There is simply no reason to think that, as asserted in contention 3, they proceeded on the basis that the adjoining developments existed by way of pre-existing use rights when in fact cl 8.9.4 applied.

Even if they had made such a mistake, I think it would have been an absolutely insignificant mistake. The status of the adjacent developments is of no significant relevance to the question whether the respondents' proposed development amounted to ribbon development for the purposes of cl 2.4.2. Contention 3 must fail.

Ground A ¾ natural justice

The learned primary judge decided that it was not necessary for her to determine ground A of the grounds of review contained in the originating application. The respondents now contend that ground A should be determined in their favour. They contend that, if they succeed on that ground alone, the orders of the learned primary judge should not be disturbed, and this appeal should be dismissed. Ground A reads as follows:

"AThere was an error of law within the meaning of s17(2)(a) of the JRA [Judicial Review Act] in that the Commission by its delegates breached the rules of natural justice in respect of making the decision:
(i)In that the chairman Mr Robin Nolan did not seek submissions in respect of the application of the State Coastal Policy but rather only sought submissions in respect of the terms of the permit and whether the draft amendment could be modified as proposed by the applicants."

Surprisingly, subpar(i) is the only subparagraph in ground A. There is no subpar(ii).

This ground relates to the closing submissions made by Mr Spence as counsel for the respondents at the s40 hearing. After the witnesses had finished giving their evidence, Commissioner Nolan had a lengthy discussion with Mr Spence about the conditions attaching to the permit for the proposed development. Following that discussion, he was invited to make closing submissions, said that he only wanted to make some very brief submissions, and did so. He referred to the State Coastal Policy in those submissions. At the conclusion of those submissions, Commissioner Nolan initiated a discussion as to whether a contemplated change to the draft amendment could be dealt with under s41 as a modification, rather than as an alteration to a substantial degree. Altering a draft amendment to a substantial degree requires the procedures for public exhibition, advertising, public representations, and a hearing to be repeated: LUPA Act, s41B. The delegates sought submissions only in relation to the permit conditions and the modification issue, but they afforded Mr Spence an opportunity to make any submissions he chose, and did not stop him from making submissions as to any particular point.

The RPDC Act, s10(1)(b)(v), provides that, where the RPDC holds a hearing, it "must observe the rules of natural justice". The delegates therefore owed the respondents a duty of procedural fairness. The respondents contend that that duty of procedural fairness required the delegates to seek submissions from Mr Spence as to the proposition that cls 2.1.6 and 2.4.2 in the State Coastal Policy laid down threshold tests, so that the draft amendment would have to be rejected unless the development was dependent on its coastal location, and not urban development or ribbon development.

So far as cl 2.1.6 and ribbon development are concerned, I think the submission is misconceived. For reasons that I have explained, I do not think that one can fairly regard the delegates as having thought that either of those matters gave rise to a threshold test. Further, so far as urban development is concerned, since I am of the view that the first sentence in cl 2.4.2 does lay down a threshold test, I do not believe it matters whether the delegates had a duty to invite Mr Spence to make submissions to the contrary.

There are circumstances in which a duty of procedural fairness requires a decision-maker to alert a party to proceedings to an important issue that that party might otherwise overlook. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, Northrop, Miles and French JJ said at 591 – 592:

"Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question." [Emphasis added.]

That passage was cited with approval by the High Court in SZBEL v Minister for Education and Multicultural and Indigenous Affairs (2006) 81 ALJR 515 at par29. The principle in question was also discussed by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 69, 74, 86, 102 and 115 – 118.

In my view, Mr Spence should have been well aware at the time of the delegates' hearing that the LUPA Act, s32(1)(b), required every amendment of a planning scheme to be prepared in accordance with any applicable State policy; that the proposed development might be characterised as urban development for the purpose of cl 2.4.2 of the State Coastal Policy; and that the delegates might consider that urban development did not accord with the State Coastal Policy because of cl 2.4.2, and that they were obliged to reject the draft amendment. The possibility of the rejection of the draft amendment on that basis should have been particularly clear after Commissioner Nolan's discussion with Mr Shepherd as to whether the proposed development amounted to urban development. It follows that the delegates' duty of procedural fairness did not require them to draw counsel's attention to that line of reasoning or any step in it, or to invite or seek submissions as to any aspect of it. Ground A must fail.

Conclusion

For these reasons, I would allow the appeal, quash the orders of the learned primary judge, and dismiss the originating application.

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