Cambria Green Agriculture & Tourism Management Pty Ltd v Tasmanian Planning Commission
[2020] TASSC 58
•3 December 2020
[2020] TASSC 58
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Cambria Green Agriculture & Tourism Management Pty Ltd v Tasmanian Planning Commission [2020] TASSC 58 |
| PARTIES: | CAMBRIA GREEN AGRICULTURE & TOURISM MANAGEMENT PTY LTD CAMBRIA GREEN AGRICULTURE DEVELOPMENT PTY LTD STAR GREEN AGRICULTURE DEVELOPMENT LTD EMPEROR SHUN GREEN AGRICULTURE DEVELOPMENT LTD MOON GREEN AGRICULTURE DEVELOPMENT LTD EMPEROR YUE GREEN AGRICULTURE DEVELOPMENT LTD SHENGLONG HONG KONG INVESTMENT LTD SUN GREEN AGRICULTURE DEVELOPMENT LTD SIU LAM SUEN LIU KEJING |
| v | |
| TASMANIAN PLANNING COMMISSION THE HONOURABLE ELISE ARCHER, ATTORNEY-GENERAL FOR TASMANIA | |
| FILE NO: | 164/2020 |
| DELIVERED ON: | 3 December 2020 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 30 November 2020 |
| JUDGMENT OF: | Estcourt J |
| CATCHWORDS: |
Administrative Law – Prerogative writs and orders – Certiorari – Declaratory relief – Particular matters and tribunals – Where Tasmanian Planning Commission declined jurisdiction to entertain an application to amend a planning scheme for want of landowner consent – Where Court satisfied of consent on material later filed in the originating proceedings but which was not before the Commission – Relief granted.
Land Use Planning and Approvals Act 1993 (Tas), s 33(2A).
R v Blakeley; Ex parte The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia
(1950) 82 CLR 54; Kidd v Resource Management and Planning Appeal Tribunal (No 2) [2011] TASSC 46, 22
Tas R 15, referred to.
Aust Dig Administrative Law [1268]
REPRESENTATION:
Counsel:
Applicants: S B McElwaine SC Respondents: P Turner SC
Solicitors:
Applicants: Shaun McElwaine + Associates Respondents: Solicitor General
| Judgment Number: | [2020] TASSC 58 |
| Number of paragraphs: | 28 |
Serial No 58/2020 File No 164/2020
CAMBRIA GREEN AGRICULTURE & TOURISM MANAGEMENT PTY LTD
CAMBRIA GREEN AGRICULTURE DEVELOPMENT PTY LTD
STAR GREEN AGRICULTURE DEVELOPMENT LTD, EMPEROR SHUN GREEN
AGRICULTURE DEVELOPMENT LTD, MOON GREEN AGRICULTURE
DEVELOPMENT LTD, EMPEROR YUE GREEN AGRICULTURE
DEVELOPMENT LTD, SHENGLONG HONG KONG INVESTMENT LTD, SUN GREEN AGRICULTURE DEVELOPMENT LTD, SIU LAM SUEN, LIU KEJING
v TASMANIAN PLANNING COMMISSION, THE HONOURABLE ELISE
ARCHER, ATTORNEY-GENERAL FOR TASMANIA
| REASONS FOR JUDGMENT | ESTCOURT J 3 December 2020 |
| The background |
1 This is the return of a general order to show cause why relief in the nature of certiorari should not be granted to quash the whole or alternatively part of a decision by the Tasmanian Planning Commission (TPC) of 22 November 2019 to refuse an application by the applicants to amend the Glamorgan Spring Bay Interim Planning Scheme 2015 (the Scheme). Declaratory relief is also sought.
2 That decision was made on the basis that, on the evidence before the TPC, it was not satisfied that s 33(2A) of the Land Use Planning and Approvals Act 1993 (LUPAA) (in the form that it was in, prior to the date of the commencement date of the Land Use Planning & Approvals Amendment (Tasmanian Planning Scheme) Act 2015), was met.
3 The first applicant is Cambria Green Agricultural & Tourism Management Pty Ltd. Cambria Green Agriculture Development Pty Ltd is the second applicant; Star Green Agriculture Development Ltd is the third applicant; Emperor Shun Green Agriculture Development Ltd is the fourth applicant; Moon Green Agriculture Development Ltd is the fifth applicant; Emperor Yue Green Agriculture Development Ltd is the sixth applicant; Shenglong Hong Kong Investment Ltd is the seventh applicant; Sun Green Agriculture Development Ltd is the eighth applicant; Siu Lam Suen is the ninth applicant and Liu Kejing is the tenth applicant
4 The grounds of the originating application in these proceeding, originally numbered 2.1-2.7, are set out in par 5 of the order nisi, and numbered 5.1-5.7, are as follow:
"5.1 The respondent erred in law in that it reached the wrong jurisdictional fact finding in its Decision that the first named applicant did not act as the agent of each of the land owners comprised in certificates of title 14001/1, 100097/1, 10096/1, 233262/1, 251306/1, 148927/1, 115706/1, 115706/2, 149607/1, 111628/1, 23216/3 and 23216/2 (the lands) when on or about 19 March 2018 a request was lodged with the Glamorgan Spring Bay Council pursuant to s 33 of the Land Use Planning and Approvals Act 1993 (LUPA) to amend the Glamorgan Spring Bay Interim Planning Scheme 2015 (the Planning Scheme) in its application to the lands.
5.2
The respondent erred in law in that it failed to make the correct jurisdictional fact finding in its Decision, namely that the first named applicant acted as the agent of each land owner of the lands when on or about 19 March 2018 a request was lodged with the Glamorgan Spring Bay Council pursuant to s 33 of LUPA to amend the Planning Scheme in its application to the lands.
5.3
The respondent erred in law in that it reached the wrong jurisdictional fact finding that, even if the first named applicant did not act as the agent of each of the land
2 No 58/2020
owners of the lands when on or about 19 March 2018 a request was lodged with the Glamorgan Spring Bay Council pursuant to s 33 of LUPA to amend the Planning Scheme in its application to the lands, the land owners did not subsequently ratify the steps taken by the applicant.
5.4 The respondent erred in law in that it reached the wrong jurisdictional fact finding in its Decision that one or more of the land owners did not provide his, her or its written permission as required by s 33(2A)(b) of LUPA to the making of the request by the applicant on or about 19 March 2018 to the Glamorgan Spring Bay Council pursuant to s 33 of LUPA to amend the Planning Scheme in its application to the lands. 5.5 The respondent erred in law in its Decision in that it failed to make the correct jurisdictional fact finding, namely the request made by the first named applicant on or about 19 March 2018 to the Glamorgan Spring Bay Council pursuant to s 33 of LUPA to amend the Planning Scheme in its application to the lands, was accompanied by the written permission of each of the owners as required by s 33(2A)(b) of LUPA. 5.6 The respondent committed jurisdictional error in the conduct of the hearing that led to the making of the Decision in that it failed observe the rules of natural justice as required by s 10(1)(b)(v) of the Tasmanian Planning Commission Act 1997 as follows:
(a) it did not exercise the power (or afford the opportunity) to require that the evidence of Mr Ronald Hu be taken on oath or affirmation but then rejected his evidence for the reason that it was either 'unsworn' or 'unverified'; (b) it failed to warn any of the applicants or Mr Ronald Hu that evidence presented to it at the hearing by the applicants which was not sworn, affirmed or otherwise 'verified' would not, may not or might not be accepted by it as truthful, persuasive or credible; (c) it failed to warn any of the applicants or Mr Ronald Hu that the corporate records presented in evidence to it on behalf of the applicants would not be accepted as correct and or would not be given weight unless those records were 'verified'. 5.7 The respondent erred in law in its Decision in that it misunderstood the legal effect of s 127 of the Corporations Act 2001 as requiring that, for the purposes of s 33(2A)(b) of LUPA, the written permission of Cambria Green Agriculture Development Pty Ltd required a document that was signed by each of its directors."
5 The first respondent (TPC) does not seek to show cause on the return of the general order. Each organisation and person named in and required by par 3 of the order nisi to be served, has filed a notice of submission. The Attorney-General was joined as a party on 16 March 2020 to act as contradictor.
6 In its continued form, s 33 of LUPPA provided as follows:
"33 Request for amendment of planning scheme
(1) A person may request a planning authority to amend a planning scheme administered by it.
A request is to be in a form approved by the planning authority or, if a form
has been approved by the Commission, is to be in that form.
(2A) If a request under subsection (1) is in respect of one parcel or several
parcels of land covered by the planning scheme and is requested by a person who
is not the owner of the land to which the proposed amendment applies, the request
must be –
(2)
(a) signed by the owner or owners of the land; or (b)
accompanied by the written permission of the owner or owners to the making of the request.
3 No 58/2020
(2B) Before making a decision as to whether or not to initiate an amendment of the planning scheme, the planning authority must consider –
(a) whether the requested amendment is consistent with the requirements of section 32; and (ab) any representation made under section 30I , and any statements in any report under section 30J as to the merit of a representation, that may be relevant to the amendment; and (b) any advice referred to in section 65 of the Local Government Act 1993 received by it.
(3) A planning authority must, within 42 days of the receipt of a request or such longer time as the Commission may allow, make a decision as to whether or not to initiate an amendment of the planning scheme and serve on the person who made the request notice of its decision within 7 days of making the decision.
(3AA) If the planning authority decides under subsection (3) to initiate an amendment of a planning scheme after receipt of a request from a person under subsection (1), it must –
(a) initiate the amendment under section 34 ; and (b) certify the draft amendment under section 35 –
within 42 days of receiving the request or such longer time as the Commission allows.
(3A) Where a planning authority decides not to initiate an amendment of the planning scheme, the person who requested the amendment may, within 14 days of being notified of that decision, request the Commission to review the process by which the planning authority reached its decision.
(3B) Where the Commission has been requested to review the process by which the planning authority reached its decision, the Commission may request the planning authority to provide it with any material relevant to that process.
(3C) A planning authority must provide the material requested by the Commission within 7 days of receiving that request.
Penalty: Fine not exceeding 100 penalty units.
(3D) The Commission must, not later than 28 days after receiving the material requested by it or such longer period as the Minister may allow –
(a) direct the planning authority to reconsider the amendment; or (b)
confirm that in reaching its decision the planning authority took into account the matters specified in subsection (2B).
(3E) The Commission must, within 7 days of making its decision, notify the planning authority and the person who requested the review of its decision.
(4) Where a planning authority decides not to initiate an amendment of the planning scheme, a person may not request the authority to initiate an amendment which is substantially the same as the first-mentioned amendment within a period of 2 years from the date on which the planning authority made its decision.
(5) If –
(a)
an interim planning scheme has been declared under section 30F or an interim planning scheme has been made under section 30M; and
(b)
a local provision of the scheme consists of a change to the zoning of an area of land from the zoning that applied in relation to the area of land before the scheme was declared or made; and
(c)
an owner, or occupier, of all or part of the area of land made a representation under section 30I in respect of the change of zoning; and
(d)
the planning authority receives a request under subsection (1) from the owner or occupier, respectively, to amend the zoning of the area of land –
4 No 58/2020
the planning authority must give to the Commission, within 14 days after receiving the
request, a notice in relation to the request.
(6) A notice under subsection (5) in relation to a request from an owner or occupier under subsection (1) must specify –
(a) the area of land to which the notice relates; and (b) the zoning of the area of land under the planning scheme that applies to the area of land; and (c) the zoning of the area of land that applied in relation to the area of land before an interim planning scheme in relation to the area of land was declared; and (d) the planning authority's opinion as to the merits of the proposed alteration of the zoning of the area of land.
(7) The Commission, within 30 days after receiving from a planning authority a notice under subsection (5) in relation to a request under subsection (1)in respect of an area of land, must decide whether to seek the approval of the Minister under section 34(2) to the giving under that section of a written direction to a planning authority in relation to the request." [My emphasis.]
7 The applicants' counsel, Mr McElwaine SC, submits that, save for one matter (par [5.7] of the order nisi), the case is about jurisdictional fact error. The applicants' arguments are that the request to amend was made by the management company as the express agent of each landowner, and for that reason s 33(2A) of LUPPA did not apply, or alternatively, each landowner provided the written permission that is referred to in the section.
8 Put differently, the argument is that, if as a fact the request that is made pursuant to s 33(1) is by an owner (whether personally or through the authority of his or her agent), then no question of compliance with s 33(2A) arises. That is the question raised by grounds 5.1 and 5.2. If that issue is determined adversely to the applicants, then their alternative contention is that s 33(2A)(b) was satisfied in fact.
9 In his written submissions counsel for the applicants sets out the factual matrix relevant to grounds 5.1 and 5.2 as follows:
"The section 33 request
6 By letter dated 19 March 2018, Ireneinc corresponded with the General Manager of the Glamorgan Spring Bay Council (the Council). By it the author made application to amend the Glamorgan Spring Bay Interim Planning Scheme 2015 (the Planning Scheme) to insert a Specific Area Plan affecting 12 registered land titles that form the Cambria Estate at Swansea. In part the first sentence reads:
'I am writing on behalf of our client Cambria Green Agriculture & Tourism
Management Pty Ltd to lodge the accompanying documentation …'7 Included with that documentation were nine consent forms. Cambria Green Agriculture & Tourism Management Pty Ltd (the Management Company) was not one of the registered proprietors. The land owners were:
CT Owner 148001/1 Sun Green Agriculture Development Ltd 100097/1 Shenglong Hong Kong Investment Ltd 10096/1 Emperor Yue Green Agriculture Development Ltd 233262/1 Liu Kejing 251306/1 Moon Green Agriculture Development Ltd 148927/1 Liu Kejing 115706/1 Siu Lan Suen 5 No 58/2020
115706/2 Liu Kejing 149607/1 Emperor Shun Green Agriculture Development Ltd 111628/1 Star Green Agriculture Development Ltd 23216/3 Cambria Green Agriculture Development Pty Ltd 23216/2 Cambria Green Agriculture Development Pty Ltd 8 The following written permission forms were lodged with the request:
Date
CT Owner
19/3/18 23216/2 Cambria Green Agriculture Development Pty Ltd 19/3/18 23216/3 Cambria Green Agriculture Development Pty Ltd 19/3/18 11628/1 Star Green Agriculture Development Ltd 19/3/18 149607/1 Emperor Shun Green Agriculture Development Ltd 19/3/18 251306/1 Moon Green Agriculture Development Ltd 16/3/18 10096/1 Emperor Yue Green Agriculture Development Ltd* 19/3/18 100097/1 Shenglong Hong Kong Investment Ltd 19/3/18 148001/1 Sun Green Agriculture Development Ltd 19/3/18 115706/1 Siu Lam Suen 19/3/18 233262/1, 148927/1, 115706/2 Liu Kejing 9 The owner of C/T 100096/1 is marked with an asterix for the reason that there is an inconsistency on the face of the document between the heading, that refers to Emperor Yue Green Agriculture Development Ltd, and the name of the corporation below the signature block that refers to Sun Green Agriculture Development Ltd. A quick reference to the certificate of title that was included with the application discloses that the registered proprietor was Emperor Yue Green Agriculture Development Ltd. The jurisdiction determination of the TPC did not turn on this discrepancy which it noted at [59-60] but ultimately determined did not 'invalidate' the permission at [61].
10 The Council accepted that the application had been validly made to it and ultimately made a decision to initiate the amendment pursuant to s 33(3) and certified the draft amendment as required by s 35. Thereafter it gave public notice of the draft amendment and received very many representations as allowed by s 39. In due course, the Council provided a report to the TPC as required by s 39(2) and the TPC then embarked upon its consideration of the draft amendment as required by s 40. It was required to hold a hearing in relation to each of the representations, although it has power to consolidate each representation in a single hearing.
11 Apparently in response to further material provided by one or more of the representors to it, the TPC decided in May 2019 that 'it wished to adjudicate the jurisdictional matters before reconvening the hearing to consider the merits of the draft amendment.' On 30 August 2019, the TPC conducted that which it described as a 'hearing into jurisdictional issues regarding the land owner consent letters that accompanied the amendment request' which then led to it finding that it did not have jurisdiction for the reasons published on 22 November 2019."
10 Before me the applicants rely upon and formally read into evidence, the affidavits of Ronald Hu filed 18 December 2019; Ronald Hu made 4 August 2020 and Liu Kejing made 29 July 2020.
11 Counsel for the Attorney General, Mr Turner SC, in his written submissions, accepts that because jurisdictional error is contended, the Court may receive evidence comprising materials not before the TPC and that the affidavits of Mr Hu and Mr Kejing may therefore be considered by me.
12 With respect to grounds 5.1-5.5 counsel for the Attorney-General submits that I must consider the evidence before me and not simply the evidence before the TPC. That is to say that the evidence may be bifurcated into that which was before the TPC and that which was not, but which is now adduced. That distinction is submitted as important when considering relief.
6 No 58/2020
13 Mr Turner submits as follows:
"The applicants carry the onus of persuading the Court, on balance, that the consent was given – that s33(2A) has been satisfied. The TPC identified a number of matters which caused it to be unpersuaded that consent had been given. The applicants can only succeed if:
• First, the Court is positively persuaded that the evidence before the TPC is such that consent was given. In that regard it matters not what the TPC did or did not do. The submission is made that the evidence should not persuade the Court that consent was given; and, if the Court is not so persuaded then • Secondly, it is persuaded by the new evidence of Mr Liu Kejing."
14 However, Mr Turner argues that the second state of affairs is not alone sufficient to justify relief as granting relief in circumstances where new evidence is brought to the Court which could (and should) have been before the TPC is "a reward for a failure to properly appraise the TPC of material matters". He submits that the TPC retains jurisdiction to determine its jurisdiction; and it ought to consider that issue afresh if approached and given further information – such as the affidavit of Mr Kejing.
15 Mr Turner relies upon what was said by Fullagar in R v Blakeley; Ex parte The Association of Architects, Engineers, Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 91 as apposite:
"When this Court is invited to issue mandamus or prohibition … it is its original jurisdiction that is invoked … it has the task of deciding for itself on the material placed before it every question of law and every question of fact on which jurisdiction depends. It is entitled and, indeed, bound to consider all relevant material put before it, whether the material was before the inferior tribunal or not. In the case of prohibition (which goes as of right) I would think that generally speaking it would not matter (except as affecting costs) whether the material before the superior court was before the inferior court or not. In the case of mandamus it might often affect the grant or refusal of the remedy, but this would only because mandamus is discretionary and because of the rule that a clear demand for the exercise of the discretion placed on proper materials must be made to the inferior tribunal before mandamus to exercise jurisdiction would be granted. If the jurisdiction was not shown before the inferior tribunal but was shown before the superior tribunal, the latter would, I should think, apart from various special circumstances, refuse the writ and leave the prosecutor to make another application to the inferior tribunal."
16 I have considered the affidavit of Mr Kejing and I am persuaded on the basis of his evidence that the relevant consent was given. As submitted by Mr McElwaine, pars 10-11 of that affidavit put beyond doubt that Mr Hu and the managing company had the authority of each of the landowners to make the rezoning request. Mr Turner does not submit to the contrary.
17 However, the question remains as to whether I am also satisfied on the basis of the material before the TPC that the relevant consent was given.
18 In that regard I note that counsel for the applicants submits as follows:
"In any event, the TPC had before it the following evidence on the agency question. First, the witness statement of Mr Hu dated 20 May 2019 at AB71 – 122. At paragraph 5 Mr Hu said that the Management company:
'Is the Australian registered corporation that is responsible for co-ordinating the request for the amendment to the Glamorgan Spring Bay Interim Planning Scheme 2015, that is the subject of the pending hearing before the Tasmanian Planning Commission to which this witness statement relates. It acts as the agent of each of the following corporations. In that capacity, I have the authority of each of the foreign corporations (and or Mr Kejing Liu) to make this witness statement.'
He attached corporate returns for each of the land owner corporations as maintained by the Companies Registry of Hong Kong. Mr Liu Kejing is variously shown as a
7 No 58/2020
shareholder of each (mostly, he is the majority shareholder), and is a director, in some
cases the only director. A summary of that corporate information is:
Name Issued Shares held Directors AB page Capital by Liu Kejing ref Star Green Agriculture 10,000 10,000 Liu Kejing 74-81 Development Ltd Emperor Shun Green 10,000 10,000 Liu Kejing 82-89 Agriculture Development Ltd Moon Green Agriculture 10,000 10,000 Liu Kejing 90-97 Development Ltd Emperor Yue Green 10,000 10,000 Liu Kejing 98-105 Agriculture Development Ltd Shenglong Hong Kong 10,000 1,000 Lihua Li 106-114 Investments Ltd Liu Kejing Sun Green Agriculture 10,000 10,000 Liu Kejing 115-122 Paragraph 107 of that witness statement reads, with reference to each land owner Development Ltd
consent form: 'each consent form is signed by Kejing Liu (sic) with the authority of
each company'.
Secondly, the witness statement of Ronald Hu dated 9 August 2019: AB 124-125. At
paragraph [4], Mr Hu corrects an error in his first witness statement where he said that
Liu Kejing was the only director and controller of Shenglong Hong Kong Investment
Ltd. But then at paragraph 5 he says:'As the directors of that company, each of those individuals is authorised to act as the agent of the company. I have spoken to Mr Li Lihua and Mr Liu Kejing and I have enquired whether Mr Liu Kejing had authority to act as the agent of that company to provide the land owner consent that is in issue in this proceeding which is dated 19 March 2018. In substance I have been informed by each of these gentlemen that Mr Li Lihua gave his full authority to Mr Liu Kejing to act on behalf of the company in its land dealings in Australia, and in particular to provide any document necessary for the purposes of the rezoning application that is the subject of this reference to the TPC.'
At paragraph [7] Mr Hu deals with the Australian registered land owner, Cambria Green Agriculture Development Pty Ltd. Mr Hu is one of the directors of that company, according to the ASIC record that was before the TPC as exhibit A3: AB 127-130. The other director is Liu Kejing, and there are three shareholders, one of whom is Mr Hu. At paragraph 8 of that statement Mr Hu said:
'I have full authority to (sic) Mr Liu Kejing to act as the agent of Cambria Green Agriculture Development Pty Ltd in the signing of the land owner consent form on its behalf dated 19 March 2018.'
And then at paragraph [9] Mr Hu stated:
'It is also necessary to state that Cambria Green Agriculture & Tourism Pty Ltd is the corporate entity appointed by each of the corporations that own the land, to act as their agent for the taking of all steps that are necessary in relation to the lodgement of the application for rezoning with the Glamorgan Spring Bay Council, and now in relation to hearings before the TPC. I regularly report to each of the directors of the other corporations as to the progress of the steps that have been undertaken. As the chief executive officer of Cambria Green Agriculture & Tourism Pty Ltd, I have its full authority to act as its agent. It is the appointed agent of the other corporations.'
Paragraph [10] sets out evidence of ratification, just for good measure.
8 No 58/2020
Despite this evidence, the TPC was not satisfied that the Management Company acted as the agent for each of the corporate land owners, although it does not seem to have had a difficulty with the proposition that it acted as the agent of the individual land owners, Liu Kejing and Siu Lam Suen. Just why it reached that conclusion is perhaps revealed at paragraph [56] where the TPC reasoned in part that:
'There is no other evidence from Mr Hu regarding the circumstances in which the authority was given, that is, whether by power of attorney, company resolution, or confirmed by relevant documentation.'
The TPC was then critical of some answers that Mr Hu gave when questioned by one or more of the representors. At paragraph [57], the TPC at least accepted that the appointment of an agent for the purpose of making an application for a planning scheme amendment need not be evidenced in writing, but nonetheless reasoned that it was not persuaded on the basis of the oral evidence of Mr Hu that Mr Kejing 'was given the necessary authority to sign the land owner consent form on behalf of Cambria Green Agriculture Development Pty Ltd.'
That reasoning misses the point. If the Management Company acted as the agent of each land owner, no question of land owner consent pursuant to s 33(2A) arises. In that circumstance, in law, it is the owner that makes the request through its agent; a basic and uncontroversial principle of agency law: Bowstead & Reynolds On Agency (16th ed) at [1-001]; Dal Pont: Law of Agency (3rd ed) at [1.1-1.5]. The TPC then compounded this error at [58] by concluding that s 127(1) of the Corporations Act required the letter of consent to be signed by each director of Cambria Green Agriculture Development Pty Ltd. That reasoning has no basis in law. As is well understood, s 127 permits (does not require) a company to execute a document without using a common seal if, inter alia, it is signed by two directors or, in the case of a company that has only one director, that person. This provision is concerned with the execution of a document by the corporate entity. It is not concerned with the execution of a document by an individual for and on behalf of a corporate entity: see, generally, Dal Pont: Law of Agency, 3rd ed, at [1.41-1.42] and Ford, Austin and Ramsay's: Principles of Corporations Law (17th ed) at [14.010].
If the TPC had identified the correct question then its conclusion in the last sentence at [57] might be defensible. By focusing its critical gaze upon the evidence of Mr Hu the TPC managed to overlook the first attachment to his witness statement of May 2019 being the ASIC search for Cambria Green Agriculture Development Pty Ltd. Liu Kejing and Ronald Hu are the directors of that company and Liu Kejing is the only shareholder. Accordingly, there is was no reason not to accept the evidence of Ronald Hu at paragraph [5] of his witness statement of May 2019 that the Management Company (Mr Hu corrected this paragraph when he gave evidence orally at T60-61) is the Australian registered entity responsible for co-ordinating the request to amend and the further evidence of Mr Hu in his witness statement of 9 August 2019 at [9] that the Management Company is appointed by each land owner as agent to take all steps necessary for the purposes of the amendment."
19 I find those submissions highly compelling. However, there was cross-examination of Mr Hu before the TPC which could properly have left the members justifiably feeling something less than "comfortably satisfied" on the issue of Mr Hu's agency.
20 The questions of whether the request was in fact made by the owners or, if not, whether s 33(2A) was engaged, are both questions of jurisdictional fact, see Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5, 199 CLR 135, per Gleeson CJ, Gummow, Kirby and Hayne JJ at [28].
21 I am not satisfied the TPC committed jurisdictional error in finding it was not satisfied that the request for an amendment to the Scheme was made by the owners of the land involved, or that it was accompanied by the owners' written permission to the making of the request.
9 No 58/2020
22 However, in my view, grounds 5.1 and 5.2 of the general order to show cause should succeed on the basis that I am satisfied of the relevant jurisdictional fact, although only as a result of the material set out in the affidavit of Mr Kejing, filed in the proceedings before me.
23 The fact that the request for the amendment has proceeded thus far, to the point where it should be heard and determined by the TPC, is to my mind a sufficient circumstance to justify relief being granted.
24 It is unnecessary for me to consider any of the remaining grounds. I am satisfied that it is appropriate in the exercise of my discretion to grant both relief in the nature of certiorari and declaratory relief.
25 The decision of the TPC of 22 November 2019 is quashed and the Court declares that the first named applicant acted as the agent of each of the landowners comprised in certificates of title 148001/1, 100097/1, 100096/1, 233262/1, 251306/1, 148927/1, 115706/1, 115706/2, 149607/1, 111628/1, 23216/3 and 23216/2 when, on or about 19 March 2018, a request was lodged with the Glamorgan Spring Bay Council pursuant to s 33 of LUPAA to amend the Glamorgan Spring Bay Interim Planning Scheme 2015 in its application to those lands.
26 As to the question of costs, I am satisfied on the material before me that the applicants ought to have been aware of the issue of landowner consent being raised before the TPC, and should have filed a proof of evidence, or even a statutory declaration, detailing the material contained in the affidavit of Mr Kejing read before me. As a result I order that the applicants pay the Attorney-General's costs of and incidental to these proceedings on an indemnity basis.
27 As to the question of remitter, I have considered the observations of Porter J in Kidd v Resource Management and Planning Appeal Tribunal (No 2) [2011] TASSC 46, 22 Tas R 15 and I order that the applicants' application should be remitted for hearing to the TPC differently constituted.
28 The TPC in this case described Mr Hu in its reasons as "untruthful", "misleading", "not credible", "unreliable", "defensive" and "evasive". Given that Mr Hu's veracity has been vindicated by Mr Kejing's unchallenged evidence, I do not think it would be fair to the applicants to have Mr Hu's further evidence or any related evidence considered by the same TPC members who reached those strong views.
2
3
1