Brighton Council v Compost Tasmania Pty Ltd

[2000] TASSC 49

[2000] TASSC 49

CITATION:                 Brighton Council v Compost Tasmania Pty Ltd

Cooper & Ors v Compost Tasmania Pty Ltd [2000] TASSC 49

PARTIES:  BRIGHTON COUNCIL
  v

COMPOST TASMANIA PTY LTD

COOPER, Colin
COOPER, Robyn
TRUSSLER, Harry
v
COMPOST TASMANIA PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 4/2000

LCA 6/2000

DELIVERED ON:  23 May 2000
DELIVERED AT:  Hobart
HEARING DATES:  13 April 2000
JUDGMENT OF:  Underwood J

CATCHWORDS:

Local Government - Town planning - General matters - Planning Schemes and Instruments and like matters - Tasmania - Brighton Municipality Planning Scheme - Meaning of the word "industry".

Jumbunna Coal Mine (NL) v Victorian Coal Miners' Association (1908) 6 CLR 309, referred to.
Aust Dig Local Government [161]

Administrative Law - Judicial review at common law - Procedural fairness - Existence of obligation - Under legislation - Particular cases - Statutory obligation to permit parties to inspect documents to which Tribunal proposes to have regard in making decision.

Resource Management and Planning Appeal Tribunal Act1993 (Tas), s19.
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456; Keller v Drainage Tribunal [1980] VR 449, referred to.
Aust Dig Administrative Law [53]

Statutes - Acts of Parliament - Interpretation - Permissive, directory and mandatory provisions - General principles - Scope and object of the enactment.

Hatton v Beaumont (1978 ) 20 ALR 314; Project Blue Sky v ABA (1998) 194 CLR 355, applied.
Resource Management and Planning Appeal Tribunal Act1993 (Tas), s19.
Aust Dig Statutes [44]

REPRESENTATION:

Counsel:
             Appellant Brighton Council:  M E O'Farrell
             Appellants Cooper, Cooper & Trussler:    G B G Bradfield
             Respondent:  P G J Zeeman
Solicitors:
             Appellant Brighton Council:  Dobson Mitchell & Allport
             Appellants Cooper, Cooper & Trussler:    Bradfields
             Respondent:  Murdoch Clarke

Judgment Number:  [2000] TASSC 49
Number of Paragraphs:  51

Serial No 49/2000
File Nos LCA 4/2000

LCA 6/2000

BRIGHTON COUNCIL v COMPOST TASMANIA PTY LTD
COLIN COOPER, ROBYN COOPER, HARRY TRUSSLER v
COMPOST TASMANIA PTY LTD

REASONS FOR JUDGMENT  UNDERWOOD J

23 May 2000

Introduction

1. The respondent made a Development Application to the Brighton Municipal Council for a permit for the:

"… development of a pilot project for the composting of wastes using a proven aerobic windrow composting system to produce high quality agricultural compost with a substantial humus content."

1. By resolution passed on 13 September 1999, the Council refused the application.  The respondent appealed to the Resource Management and Planning Appeal Tribunal ("the Tribunal") pursuant to the Land Use Planning and Approvals Act 1993 ("the Act"), s61(4). On 22 December 1999, the Tribunal allowed the appeal and granted the application for a permit, subject to conditions set out in the Tribunal's reasons for decision.

1. The appellant, Brighton Council, and three persons who had made representations pursuant to the Act, s57(5), appealed to this Court, pursuant to the Resource Management and Planning Appeal Tribunal Act 1993, s25. There are two notices of appeal. The grounds of each are substantially the same and they were heard together. It is convenient to treat them as one appeal in these reasons for judgment.

The proposal

1. As I understand it, the proposal is to produce high grade agricultural compost by mixing carbonaceous material such as straw, woodchips and the like with nitrogenous material such as fish concentrate, fruit waste and the like.  To this mix, water, rock dust and minerals have to be added.  The mixture needs to be turned over from time to time in order to ensure that all of it has continuous exposure to the air.  The level of carbon dioxide, acids, alkalis, moisture and so on have to be constantly monitored and adjusted.  The following description of the project is taken from the Tribunal's reasons for judgment at 1:

"The system would be situated on approximately 10 hectares of land adjacent to the Boral Bridgewater Quarry complex.  The site is approximately 10 hectares in area and would be prepared with a hard standing base of compacted crushed metal.  There would be a series of windrows of the compost material, each running parallel to the fall of the slope down towards the Jordan River.  Each of the windrows would be approximately 3 metres wide and 1.5 metres high and up to 150 metres long.  Covers would be draped over the windrows to keep them dry and control temperature, but allow air circulation.  The ingredients would be selected and monitored to conform to the planned mix.  They would be rejected if they were not satisfactory.  The ingredients would arrive at the site ready to integrate in the windrows, and would not be stock-piled on the site.  The only exception to that would be the storage of some rock dust to be used as an additive to the compost, and also storage of a liquid stabilised fish concentrate, which would be in tanks either above or below ground level.  The generic description of the ingredients would be about 70 - 80 per cent carbonaceous material, about 20 per cent nitrogenous material, including the fish concentrate.  Water would be added to enhance the composting process as required, as would rock dust and minerals in order to achieve the necessary fertilising qualities.  There would be constant monitoring of the various indicators of the composting state such as carbon dioxide, acid and alkali levels, temperature, and moisture content.  The windrows would be turned by a tractor-drawn turning machine, as often as required to keep them functioning at an optimum level.  The natural and improved drainage would be directed to a catchment pond for recycling of any run-off water, into the compost windrows.  The windrows would be oriented and covered so as to prevent any excess moisture leading to leaching into groundwater."

1. The Development Application provided that it was intended to erect on the site a "Colorbond steel shed for machinery incorporating site office and staff amenities".

1. The project excited much opposition.  In essence, the opposition to the Development Application was based upon potential emissions of odour, pathogens, noise and general adverse impact on the environment and nearby residential properties. 

The process

1. (a)   Shortly after lodgement of the Development Application, the respondent submitted a Development

Proposal and Environmental Management Plan.

(b)The Development Application was advertised on 14 July 1999 and the time for making representations expired on 28 July 1999, as is provided by the Act, s57(5).

(c)The Development Application and associated Development Proposal and Environmental Management Plan were referred to the Environmental Management and Pollution Control Board ("the Board") because the proposal fell within the definition of a Schedule 2, Level 2 activity as provided by the Environmental Management and Pollution Control Act 1994, ("the Environment Act"), s3. The Environment Act, s25, provides that where a development application has been made to a planning authority pursuant to the provisions of the Act for a permit in respect of a proposed permissible Level 2 activity, the planning authority must refer the application to the Board for assessment under the Environment Act. The section goes on to require the planning authority to provide the Board with copies of representations it has received pursuant to the provisions of the Act, s57(5). The Environment Act, s25(3) requires the Board to undertake an assessment of the proposed activity and, in effect, direct the planning authority to either refuse the permit or, if the application is not likely to result in serious or material environmental harm, impose specified conditions upon any permit the planning authority sees fit to issue.

(d)On 16 and 21 July 1999, the appellant Council wrote to the respondent requesting further information with respect to the project.

(e)Pursuant to the power of delegation conferred by the Environment Act, s16, the Board delegated its powers, conferred by that Act, s25(3), to an environmental officer, Ms Naomi Oosting.

(f)Within the time prescribed by the Act, s57(5), many of the residents in the vicinity of the proposed development made representations.

(g)On 24 August 1999, a public meeting was held at the Pontville Hall for those interested in the proposal.

(h)On 26, 28 and 31 August 1999, the respondent wrote letters to Ms Oosting supplying her with further information about the project.

(i)On 2 September 1999, Ms Oosting made a comprehensive and detailed report. She recommended that the Director of Environmental Management approve the respondent's application to operate a Level 2 Waste Depot in accordance with a lengthy list of conditions which she set out in her report. Ms Oosting also recommended, in accordance with the power contained in the Environment Act, s25, that the Director of Environmental Management require the appellant Council to impose the same conditions upon any permit it might grant pursuant to the respondent's Development Application.

(j)The Director of Environmental Management acted in accordance with Ms Oosting's recommendations.

(k)Mr Shield, a consultant planner to the appellant Council, prepared a report for Council.  In it, Mr Shield gave reasons why the Development Application could be conditionally approved and reasons why it could be refused.  He did not recommend that the appellant Council take either course. 

(l)As already noted, the appellant Council refused the Development Application on 13 September 1999.

1. It is convenient to deal with the appeals upon the basis they were argued.

Zoning

1. The site for the proposal is situated within the General Agricultural zone of the Brighton Planning Scheme No 1, 1992.  Mr Shield and the appellant Council classified the proposed use as "Rural Industry" within the meaning of the Planning Scheme.  Such a use is discretionary in the General Agricultural zone.  With respect to this classification, the Tribunal observed in its reasons for decision, pars6 and 13:

"6   The site lies within the area controlled by the Brighton Section 46 Planning Scheme No 1 of 1992.  Under that scheme it is in the General Agriculture zone.  The relevant use classification of Rural Industry is a discretionary use within that zone.

…

13   In the 'general agricultural' zone a 'house' is a permitted use and a 'rural industry' is a discretionary use.  It was common ground between the parties that the use applied for fell within the definition of rural industry, and the Tribunal so finds."

1. It appears that the whole process proceeded upon the unquestioned assumption that the classification of the proposed use as "Rural Industry" was correct.  This assumption was erroneous.

1. The Planning Scheme defines Rural Industry as follows:

"Rural Industry means any land used for any operation conforming to the requirements for a Light Industry, where the produce of farming or forestry land uses in the immediate area is processis [sic] or where equipment used for such purposes in the locality is fabricated or serviced."

1. The Planning Scheme defines Light Industry in the following terms:

"Light Industry means any land for an industry that does not or will not:

(a)  impose any due load on any existing or projected utility service or supply; or

(b)  have a detrimental effect on the amenities of the environs by reason of air, noise or other pollution or waste product emanating from the land, the presence of vermin therein or through the creation of electrical interference;

but does not include a Scheduled Premises under the Environmental Protection Act."

1. The Environmental Protection Act 1973 was repealed by the Environment Act. The latter Act, s107, Sch6, cl 31, provides that after the commencement of the Environment Act:

"a reference in any law, instrument or document to the Environment Protection Act 1973 is taken to be a reference to the Environmental Management and Pollution Control Act 1994".

1. As already noted, the proposed use falls within the classification of Scheduled Premises within the meaning of the Environment Act. Accordingly, it follows that the proposed use is not light industry within the meaning of the Brighton Planning Scheme, and consequently does not fall within the meaning of "Rural Industry" as defined by that Scheme. On the hearing of the appeals, all counsel were agreed that this was correct. However, Mr O'Farrell for the appellant Council and Mr Bradfield for the appellant representors, submitted that the correct classification for the proposed use is "General Industry". Mr Philip Zeeman, for the respondent, contended that the proposed use does not fall within the definition of any use set out in the Table of Uses in the Planning Scheme other than "Miscellaneous" ¾"Any use of land not specifically defined elsewhere in this Schedule". "General Industry" is a prohibited use in the General Agricultural zone, but "Miscellaneous" is a discretionary use within that zone.

1. Unlike many planning schemes, the Brighton Planning Scheme contains no detailed definition of "General Industry".  It simply provides that:

"General Industry means any land used for an industry not defined elsewhere in this Schedule".

1. If the proposed use is "General Industry" as defined by the Scheme, the Council had no discretion to do other than refuse the Development Application, and it follows that the Tribunal erred in overturning the Council's decision and granting the permit, subject to conditions.

1. "Industry" is a word of wide import.  In the context of planning control, it connotes a commercial operation that manufactures and/or produces a product from materials brought to and/or found on site, by systematic work. 

1. A word in a statute or other formal document, must take its meaning from the context in which it appears.  See Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 35 ALR 151 at 156 - 157; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 514. Bearing this caveat in mind, I venture to refer to Jumbunna Coal Mine (NL) v Victorian Coal Miners' Association (1908) 6 CLR 309, a case concerning the extent of the legislative power of the Commonwealth Parliament pursuant to the Constitution, s51(xxxv). The capacity of the word "industry" to embrace many concepts appears from the following passage in the judgment of Griffith CJ at 332 - 333:

"A question which arises at the outset is, what is an 'industrial dispute' within the meaning of the Constitution?  It must, of course, be a dispute relating to an 'industry,' and, in my judgment, the term 'industry' should be construed as including all forms of employment in which large numbers of persons are employed the sudden cessation of whose work might prejudicially affect the orderly conduct of the ordinary operations of civil life."

1. More relevantly to the matter at hand, O'Connor J took a more conservative approach to the meaning of the word "industrial" as appears from the following passage in his judgment at 365 - 366:

"The appellants contend that the word 'industrial' in the Constitution does not cover so wide a field, that it is restricted to work connected directly or indirectly with production and manufacture. 'Industrial dispute' was not, when the Constitution was framed, a technical or legal expression. It had not then, nor has it now, any acquired meaning. It meant just what the two English words in their ordinary meaning conveyed to ordinary persons, and the meaning of these words seems to be now much what it was then. Taking first the authority of dictionaries: Webster's International Dictionary, in the 1892 edition, defines 'industrial' as follows: ¾ 'Consisting in industry; pertaining to industry, or the acts and products of industry; concerning those employed in labour, especially in manual labour, and their wages, duties, and rights.'  The Standard Dictionary (1893) defines 'industry': ¾ 'Labour employed in production, especially in manufacturing; useful labour in general; also, labourers as a body; as organized industry.  Any single branch of productive activity; the labour and capital employed in a trade or department of business; as, the iron industry; the farming industry; American industries.' Murray's New English Dictionary of later date and high authority gives many uses of the word, but that bearing on the question in controversy is: ¾ 'Industry; systematic work or labour; habitual employment in some useful work, now especially in the productive arts or manufactures'.  The dictionaries apparently agree in recognizing both uses of the words 'industry' and 'industrial' as referring to labour in the production and manufacture of goods, and as referring to labour of any kind."

1. Turning to the Brighton Planning Scheme, there is no doubt that "General Industry" has a wide meaning in a non-technical sense.  The Scheme expressly defines the following activities, all of which fall within the general concept of industry:

·    Abattoir;

·    Extractive Industry;

·    Hazardous Industry;

·    Home Occupation;

·    Light Industry;

·    Noxious Industry;

·    Rural Industry;

·    Timber Mill.

1. The Table of Uses groups the uses under various headings, one of which is "Industrial".  Under this heading are listed the above uses, together with the following:

·    Contractors Depot;

·    Fuel Depot;

·    Research and Development Ind;

·    Scrap Yard;

·    Service Industry;

·    Wood Yard.

1. Curiously, "Research and Development Ind" is not referred to in the Planning Scheme's definition of use categories.

1. Although most of the defined industrial uses simply use the word "industry", it is worth noting that "Extractive Industry" is defined to mean:

"Any land used for the excavation of any resource(s) such as sand, earth, soil, clay, turf, gravel, rock, stone, minerals or the like, or any treatment or processing of products from any of the foregoing processes, whether on the land from which the same was extracted or on adjacent land."

1. By that definition, the Scheme contemplates that an industrial process includes the treatment or processing of raw materials.  The proposed use could be described as the treatment or processing of materials in order to produce a product, and thus an industry not otherwise defined by the Table of Uses.   In the light of the specific definition of a number of uses which are, by their nature, industrial, it follows that "an industry not defined elsewhere in this Schedule" is intended to embrace all operations in which labour and/or machinery is used in a systematic way to produce a product, other than those that fall within some specifically defined industry.  There is no doubt, in my view, that the proposed composting operation falls within the definition of "General Industry" in the Brighton Planning Scheme and consequently is a prohibited use in the General Agricultural zone in which it is proposed to be established.

1. Although that is sufficient to dispose of this appeal, it is appropriate to deal with the grounds that complain of a failure to afford the appellants natural justice, as this complaint seems so often to attend the work of Tribunals. I suspect that this is due in part, to the fact that such Tribunals do their work without the structure of prescribed procedures, and comprise in the main, persons who are engaged because they have specialised knowledge upon which they are expected to draw in the discharge of their statutory functions.

Natural justice

1. By the notices of appeal, both the appellant Council and the appellant representors complain that they were not afforded natural justice at the hearing before the Tribunal.  This claim arises out of the following circumstances.  To assist the appellant Council make its decision Mr Shield made a report which was considered by the Council.  The report is some 21 pages in length.  It deals with all aspects of the Development Application.  It concludes with reasons for conditionally granting the permit and reasons for refusing the permit.  In the event of the Council deciding to adopt the former course, the report sets out 30 conditions (one of which was compliance with all the conditions set by the Director of Environmental Management) that Mr Shield recommended the Council impose. 

1. On 10 November 1999, Mr Shield prepared a written report for submission to the Tribunal on behalf of the appellant Council.  It was treated as a proof of evidence.  It was not just a repetition of his report to Council, although a great deal of the content of the two documents is identical.  Inter alia the proof of evidence makes no reference to any of the conditions that were set out in the report to Council.  However, it is clear that the Tribunal had regard to Mr Shield's report to Council for the purposes of making its decision because the 28 conditions imposed by the Tribunal upon its grant of a permit are in precisely the same terms as 28 of the 30 conditions propounded by Mr Shield in his report to Council. 

1. Further, at the hearing before the Tribunal on 30 November 1999, then counsel for the Brighton Municipality referred to Mr Shield's report at the outset.  The reference was made during a submission about the nature and extent of the Development Application.  The chairman of the Tribunal said:

"Now that's in the information that was supplied, I think, but it doesn't form part of the proofs of evidence that …"

1. Counsel for the Brighton Municipality then sought "to tender the document through Mr Shield when he gives evidence …".  The Chairman then asked counsel for the respondent if there "is any problem with the Tribunal having regard to [Mr Shield's report to Council], to identify these preliminary issues …".  Counsel for the respondent said:

"Well at this stage, your Honour, I wouldn't want the Tribunal to have regard to it but it doesn't form any part of the proofs that I've been provided with and I would want time to consider further anything that Council wishes to put before the Tribunal."

1. Accordingly, the chairman asked counsel for the Brighton Municipality to deal with the preliminary point without reference to Mr Shield's report.

1. In addition, the report was brought up by a member of the Tribunal during an exchange between him and Mr Shield during the course of the latter's cross-examination.  Although of course, the appellant Council was well aware of the contents of the report, the same cannot be said of the appellant representors or the respondent, although with respect to the latter there is an indication in the transcript of proceedings that its counsel had read it at some stage before the hearing in the Tribunal commenced.

1. The Resource Management and Planning Appeal Tribunal Act, s16, provides that the procedure of the Tribunal is within the discretion of the Tribunal and that the rules of evidence do not apply. The same section also provides that the Tribunal is bound to observe the rules of natural justice. That Act, s19 provides:

"19 ¾ Subject to section 18, the Appeal Tribunal must ensure that every party to an appeal before the Appeal Tribunal is given a reasonable opportunity to present the party's case and, in particular, to inspect any documents to which the Appeal Tribunal proposes to have regard in reaching a decision in the appeal and to make submissions in relation to the documents."

1. This is no more than one aspect of the requirement to observe the rules of natural justice imposed by the same Act, s18.  Such disclosure has the advantage of preventing the possible use of inaccurate or untested material.  Members of an expert tribunal are entitled and expected to apply their relevant expertise to the decision making process, but when they gather their own information, it should be disclosed to the parties affected and those parties given an opportunity to respond to it.  See R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456; Keller v Drainage Tribunal [1980] VR 449, Murray J at 453.

1. Even if all parties were aware of the contents of Mr Shield's report before the appeal commenced, such knowledge may not, per se, satisfy the requirements of the Resource Management and Planning Appeal Tribunal Act, s19. The obligation imposed upon the Tribunal by s19 only arises with respect to a document to which it proposes to have regard in reaching a decision in the appeal. Accordingly, it is incumbent upon the Tribunal to identify such documents at or prior to the hearing. The Tribunal did not do this with respect to Mr Shield's report. Indeed, the exchange between the Chairman and counsel at the beginning of the hearing appears to indicate that Mr Shield's report to the appellant Council was not a document to which it was proposed to have regard in making the decision.

1. It appears then, that there was non-compliance with the Resource Management and Planning Appeal Tribunal Act, s19. What are the consequences of such non-compliance? Are the requirements of s19 mandatory or directory? The answer is to be found by examining the words of the section in the context of the legislation, and by having regard to the purpose of the section and the whole Act. It has been said that procedural requirements are generally mandatory, but as Jacobs J said in Hatton v Beaumont (1978 ) 20 ALR 314 at 319:

"To say that procedural requirements are usually or prima facie mandatory in character cannot gainsay the primary necessity of examining the framework and language of the statute or regulation …"

1. In Project Blue Sky v ABA (1998) 194 CLR 355 at 390 - 391 McHugh, Gummow, Kirby and Hayne JJ addressed the problem of the validity of an act done in breach of a statutory provision when their Honours said:

"In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood [1978] 1 NSWLR 20 at 23-24 in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' (Australian Capital Television Pty Ltd v Minister for Transport and Communications (1989) 86 ALR 119 at 146 per Gummow J) and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. (McRae v Coulton (1986) 7 NSWLR 644 at 661; Australian Capital Television Pty Ltd v Minister for Transport and Communication supra.)  That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales (Hatton v Beaumont [1977] 2 NSWLR 211 at 213, 226; Attorney General (NSW); Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 at 965; Tasker v Fullwood [1978] 1 NSWLR 20 at 24; National Mutual Fire Insurance Co Ltd v Commonwealth [1981] 1 NSWLR 400 at 408; TVW Enterprises Ltd v Duffy (No 3) (1985) 8 FCR 93 at 102; 62 ALR 63 at 71; McRae v Coulton (1986) 7 NSWLR 644 at 661 and see Australian Broadcasting Corp v Redmore Pty Ltd (1989) 166 CLR 454 at 457-60; 84 ALR 199; Yates Security Services Pty Ltd v Keating (1990) 25 FCR 1 at 24-6; 98 ALR 68 at 90-2. See also two recent decisions of the Court of Appeal of the Supreme Court of the Northern Territory: Johnston v Paspaley Pearls Pty Ltd (1996) 110 NTR 1 at 5; Collins Radio Constructions Inc v Day (1997) 116 NTR 14 at 17; and Wang v Commissioner of Inland Revenue [1994] 1 WLR 1286 at 1294, 1296; [1995] 1 All ER 367 at 375, 377). In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'. (Tasker v Fullwod supra.) "

1. In the enactment of the Resource Management and Planning Appeal Tribunal Act, s19 the Parliament used strong mandatory words by directing that the Tribunal "must ensure" that every party is given a reasonable opportunity to present its case and "in particular to inspect any documents to which the Appeal Tribunal proposes to have regard in reaching a decision …". As I have mentioned, this is but one aspect of the requirement to afford the parties natural justice which is imposed by the same Act, s16(1)(d). It would defeat the notion of fairness that underpins the legislative scheme of the Resource Management and Planning Appeal Tribunal Act if the provisions of s19 were regarded as other than mandatory and a decision reached in breach thereof was not regarded as invalid.

1. During the course of argument, I was informed from the Bar Table that it was common practice in the case of appeals for "the Council file" to be sent to the Tribunal.  Of course, I do not know if this is correct or not, but if it is, there is a grave danger that the practice may lead to breaches of the Resource Management and Planning Appeal Tribunal Act, s19. It must not be forgotten that much of the work of the Tribunal consists of hearing appeals de novo, and the planning authority is a party to such appeals, often actively defending its decision. To receive material from one party without disclosing to all the other parties the full extent of the material received would be a breach of the natural justice requirement as enacted by s19.

Were the prescribed statutory procedures followed?

1. On behalf of all appellants, it was submitted that the procedure prescribed by the Act, s57(3) was not followed, and in consequence, neither the Council nor the Tribunal had jurisdiction to make the decision that each made. One might be forgiven for thinking that this is a rather unusual ground for the appellant Council to raise and argue, but it is no more unusual than its primary ground that its classification of the proposed use was erroneous.

1. As I understand it, the argument proceeds as follows:

(a)  The proposal in respect of which a permit was sought was that described in the respondent's Development Application and Development Proposal and Environmental Management Plan.

(b) These documents were the ones in respect of which notice was given in accordance with the Act, s57(3) and these documents were the ones that were "open for inspection by the public" as was required by the Act, s57(4).

(c) These documents were the ones in respect of which representations were made, pursuant to the Act, s57(5).

(d)  After the expiration of the period within which such representations may be made, the proposal in respect of which the permit was sought was altered by:

(i)a letter from Groundswell Organics (for the respondent) to the Brighton Council dated 29 July 1999;

(ii)a letter from C Johnstone and Associates Pty Ltd (engineers for the respondent) to the Brighton Council dated 3 August 1999;

(iii)three letters from Groundswell Organics to Ms Naomi Oosting dated 26, 28 and 31 August 1999.

(e)  These letters changed the proposal from the one that had been advertised and open to public inspection to such a degree that the whole project required fresh notice, a new period of inspection and a further consequential 14 days within which representations could be made.

1. The Act, s57(2) confers a power on a planning authority to peremptorily refuse to grant a permit for a discretionary use and in the event of an authority doing so, there is no obligation to give the prescribed notice of the application. However, s57(6) contemplates that a planning authority may wish to gauge public reaction to a project before deciding whether a permit should be granted or refused as was the case with respect to the present matter. In such an event, the planning authority is required to give the requisite notice of the application for a permit, expose to public inspection the material documenting the proposed use, receive representations and make a decision to either refuse the application or grant it with or without conditions within the time prescribed by s57(6).

1. There is no doubt that the statutory provisions contained in the Act, s57(3) and (4) are mandatory. See Scurr & Ors v Brisbane City Council & Anor (1973) 133 CLR 242.

1. The appellants' submission upon the hearing of these appeals was put to the Tribunal by counsel for the Brighton Municipality at the time she tried to tender in evidence Mr Shield's report to the appellant Council.  Before the Tribunal, it was submitted that the following matters were not contained in the Development Application and Development Proposal and Environmental Management Plan, but were detailed in the later correspondence:

·    elevations of the equipment storage shed;

·    plans of the bunded silos;

·    plans showing the location of the storage bays;

·    the design of a crossing over the River Jordan;

·    identification of the precise proposed location of the operations on the 10 hectare site; and

·    the precise identification of the type of materials to be included in the mix.

1. On behalf of the respondent, counsel submitted to the Tribunal that all of the above matters were referred to in the Development Application and Development Proposal and Environmental Management Plan, and that the subsequent correspondence merely supplied further details as requested.

1. The Tribunal accepted that submission and ruled that all of the above matters were referred to in the Development Application and Development Proposal and Environmental Management Plan, albeit not in detail. The Tribunal held that the subsequent correspondence supplied the detail but, nonetheless, the Development Application included all the matters referred to and, accordingly, there had been compliance with the provisions of the Act, s57(3) and (4).

1. Obviously, if a development application determined by a planning authority is substantially different from that in respect of which public notice was given and not as described in the documents open to public inspection, there has been non-compliance with the Act, s57(3) and (4). It is equally obvious that if only inconsequential changes are made to a development application or further detail supplied after notice has been given, there has been compliance with s57(3) and (4).

1. The jurisdiction of the appellant Council, conferred by the Act, s57(6), to grant or refuse the permit was dependent upon there having been compliance with s57(3) and (4). Similarly, the jurisdiction of the Tribunal was dependent upon the Council having made a valid decision pursuant to the Act, s57(6). See Willoughby Municipal Council v Manchil Pty Limited (1974) 29 LGRA 303 at 308.

1. The determination of whether there had been compliance with the Act, s57(3) was a question of fact for the Tribunal. Error of law is only made out in this respect if the appellants establish that no tribunal, acting reasonably and properly instructed as to the law, could have determined that the matters referred to in the correspondence, written after public notice had been given in accordance with s57(3), were sufficiently included in the Development Application and Development Proposal and Environmental Management Plan that was available for public inspection as provided by s57(4). This proposition was dealt with in a different context by Cox CJ in R v Resource Planning and Development Commission; ex parte Aquatas Pty Ltd 82/1998 at 5, when his Honour said:

"Section 41B requires that if a draft amendment has been altered to a substantial degree rather than merely modified, it must be re-certified and re-exhibited with consequential rights to make representations. The prosecutor first argues that the changes to the amendments were not modifications, but were alterations to a substantial degree. It is not disputed that it is for the Commission to decide into what category the changes to Q2 and Q3 fell. Such decisions involve matters of degree and unless the categorisation is patently erroneous or it is shown that in forming that judgment the Commission placed reliance upon wholly irrelevant considerations, it is not for this Court to substitute its own view should that be at variance with that of the Commission."

See also R v The Land Use Planning Review Panel; ex parte M F Cas Pty Ltd 131/1998; Addicoat v Fox (No 2) [1979] VR 347 at 353.

1. Clearly there is a reference in the Development Application and the Development Proposal and Environmental Management Plan to each of the matters identified by counsel for the Brighton Municipality.  It is true that the correspondence amplified those references and supplied more detail, but it cannot be said that there was error of law in the decision of the Tribunal to the effect that the matters referred to in the correspondence did not substantially alter the proposal in respect of which public notice was given and which was described in the documents open for public inspection.

1. It is unnecessary to consider the other grounds of appeal which relate, in the main, to the conditions imposed by the Tribunal.

1. The appeal is allowed.  The decision of the Tribunal is quashed.