City of Swan v Taylor - [2005] WASCA 88

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CITY OF SWAN -v- TAYLOR [2005] WASCA 88

CORAM: JOHNSON J

HEARD: 29 JANUARY 2004

DELIVERED : 20 MAY 2005

FILE NO/S: SJA 1102 of 2003

BETWEEN: CITY OF SWAN
Appellant
AND
RAYMOND WILLIAM TAYLOR
Respondent

ON APPEAL FROM:
Jurisdiction              :  TOWN PLANNING APPEAL TRIBUNAL OF WESTERN AUSTRALIA
Coram  :MR P MCGOWAN
Citation  :TAYLOR and CITY OF SWAN [2003] WATPAT 33
File No  :APP 6 of 2003

Catchwords:

Town planning - Town Planning Scheme No 9 - Appeal from Town Planning Appeal Tribunal - Tribunal not dealing with "use class" of appeal land - Turns on own facts

Legislation:

City of Swan Town Planning Scheme 9

Rules of the Supreme Court 1971 (WA), O 65
Telecommunications Act 1997 (Cth)
Town Planning and Development Act 1928 (WA), S 47, s 54B

Town Planning Regulations 1967 (WA)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr D W McLeod & Mr P Wittkuhn
Respondent: Mr W S Martin QC & Ms G R Lee

Solicitors:

Appellant: McLeods
Respondent: Minter Ellison

Case(s) referred to in judgment(s):

Australian Waste Management Pty Ltd v Shire of Swan & Metropolitan Region Planning Authority (1985) 16 APA 134
Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322
Buttfield & Ors v City of Albany & Ors (2001) 27 SR (WA) 121
City of Cockburn v McNiece Industrial Systems Pty Ltd, unreported; SCt of WA; Library No 5523; 24 September 1984
Erceg v Metropolitan Region Planning Authority, unreported; Town Planning Appeal Tribunal; Appeal No 28 of 1983; 29 October 1984
Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157
MMF Holdings Pty Ltd v Town of Claremont, unreported; Town Planning Court of WA (Brinsden J); Appeal No 146 of 1977; 13 March 1978
Re Minister for Planning; Ex parte City of Canning (1999) 101 LGERA 284
Ruhamah Property Co Ltd v Federal Commissioner of Taxation (1928) 41 CLR 148
Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199
Western Australia Planning Commission v Temwood Holdings Pty Ltd (2004) 211 ALR 472

Case(s) also cited:

Bonton Pty Ltd v City of South Perth, unreported; Town Planning Appeal Tribunal of WA; Appeal Nos 2 & 17 of 1981; 21 August 1981
Coulton & Ors v Holcombe & Ors (1986) 162 CLR 1
Gull Petroleum (WA) Pty Ltd v Nashville Investments Pty Ltd (1999) 102 LGERA 431
Hutchison 3G Australia Pty Ltd v Monash CC [2003] VCAT 508
Lizzio & Anor v Ryde Municipal Council (1983) 155 CLR 211
R v Busselton Shire Council; Ex parte Busselton Home Entertainment Pty Ltd & Ors (1993) 83 LGERA 188
Re Town Planning Appeal Tribunal; Ex parte Environmental Protection Authority [2003] WASCA 248
Turner v Kowloon Holdings Pty Ltd [2003] WASCA 276

JOHNSON J: This is an appeal from a decision of the Town Planning Appeal Tribunal of Western Australia ("the Tribunal") made 14 July 2003 granting an application for development approval.

Background

The respondent (the appellant in the Tribunal) made application on 21 September 2002 ("the Application") to the appellant (the respondent in the Tribunal) ("the Council") for approval of a development described as a "telecommunications facility". The application was accompanied by a submission prepared by Planning Solutions (Aust) Pty Ltd. That submission explained that the telecommunications facility was to form part of the Hutchison mobile telephone network in the Perth metropolitan region. The proposed development was further explained as comprising "a 35‑metre high monopole and the following Hutchison equipment; three (3) panel antennas, two (2) parabolic antennas and an equipment shelter 3.0 metres x 2.5 metres, all located within a 1.8 metre high security fence".
The development was proposed on Lot 1, Marshall Road, West Swan ("the Appeal Land"). The Appeal Land has an area of 2.8924 hectares. It is zoned "General Rural". A nursery business is conducted on the land. The telecommunications facility was to be located on an area in the north‑west corner leased by Hutchison from the respondent.
At a meeting on 18 December 2002, the Council resolved to refuse the application. The Council offered the following reasons for the refusal:
"(1)The proposal is considered to be inappropriate due to the site's location within the MRS Urban area and would be incompatible with the future residential development on the surrounding lots;
(2)The approval of such a development may create an impediment to the future conversion of the land to Urban as envisaged by the Metropolitan Region Scheme; and
(3)The proposal does not meet the requirements of the relevant Council Policy in respect of setbacks from boundaries and its distances from nearby residences."

Classification of the proposed facility under Town Planning Scheme No 9

The appeal land is subject to the Council's Town Planning Scheme No 9 ("TPS 9"). Clause 1.8 of TPS 9 sets out the general objectives. The intention of the scheme is to promote the orderly and proper development of land within the area covered by it, by making suitable provisions for use of the land. Clause 2.2 carries the heading: "ZONES - EFFECT AND PROCEDURES". Under cl 2.2.1(b) a number of zones are set up. One of these zones is rural. There are a number of subcategories within the rural zone, one of which is "General Rural". There is no dispute that the appeal land was zoned "General Rural".
Also of relevance are cl 2.2.2 and cl 2.2.3. These two clauses are in the following terms:
"2.2.2 Zoning Tables
The Zoning Tables (Table 3A - Midland Sub‑Regional Centre Zones and Table 3 - District Zones Other than for the Midland Sub‑Regional Centre) indicate, subject to the provisions of the Scheme, the permissibility of uses in the various zones.
The symbol indicating the permissibility of any use is determined by cross reference between the list of use classes on the left hand side of the Zoning Tables and the list of zones on the top of the Zoning Tables.
2.2.3Symbols
a)    The symbols used in the cross reference in the Zoning Tables appended to this clause and in the appendices have the following meanings:
'P'means that the use is permitted by the Scheme;
'AA'means that the use is not permitted unless special permission is granted by the Council;
'SA'means that the use is not permitted unless special approval is granted by the Council and the Council has followed the procedures required by paragraph 2.3.7.2 and, where applicable, had regard to the provisions of subclauses 4.2.3, 6.2.1 or 7.2.1.
'IP'means that the use is not permitted unless it is determined by the Council to be incidental to a use determined by the Council to be the predominant use and is approved as such by the Council.
b)    Where no symbol appears in the cross reference of a use class against a zone in either of the Zoning Tables, a use of the class shall not be permitted in that zones.
c)    Where in the Zoning Tables a particular use is mentioned, it is deemed to be excluded from any use class which by its more general terms would otherwise include such particular use."
The meaning of these symbols is amplified in other clauses of TPS 9. Clause 2.3.6.3 of TPS 9 is in the following terms:
"'IP' Uses - The decision of Council:
a)identifying the predominant use of any land; and
b)as to whether any use is incidental to the predominant use is a factual decision to be made upon the Council's assessment of the circumstances of any case. Having determined that the use involved in an application to commence or carry out development is properly an 'IP' use, the Council shall deal with the application in accordance with the provisions of paragraph 2.3.6.1 as if the use involved was a 'P' use."
Clause 2.3.6.1 sets out the meaning and effect of a "P" use as follows:
"If an application under this Scheme for approval to commence or carry out any development involves a 'P' use, the Council shall not refuse the application by reason of the unsuitability of that use, but notwithstanding that the council may in its discretion impose conditions upon the approval to commence or carry out the use, and if the application proposes or necessarily involves any building or other work the Council upon considering that building or other work may exercise its discretion as to the approval or refusal and the conditions to be attached to the proposed development."
It can be seen that, once it is established that the use involved is a "P" use, the decision of Council in relation to the application ceases to be discretionary unless the application proposes or necessarily involves any building or other work.
Returning to the effect of the zoning tables, the reference in cl 2.2.2 to Table 3 should be a reference to Table 3B. There is no Table 3, and it is quite clear from reading Table 3B that it is this table to which cl 2.2.2 refers. In Table 3B, the various zones appear across the horizontal axis. One of the zones is General Rural. On the vertical axis appears the heading "Use Class". As an example of the correct interpretation of the Table, the first entry under "Use Class" is "ancillary accommodation". If that entry is followed across to General Rural, there appears the code "AA". In accordance with cl 2.2.3(a), that means that, in an area in the General Rural zone, ancillary accommodation is not permitted without special permission of the Council.
Whilst Table 3B contains a considerable number of use classes, it also addresses the situation where a proposed development does not fall within any of the nominated use classes. The final entry in the column setting out the "use classes" is the following: "Any other use not included above". The code for such a development is "AA", meaning that the use is not permitted unless special permission is granted by the Council.
Clause 2.2.4 also addresses the situation where a proposed use is not specifically referred to in the list of use classes set out in the Table. It states:
"If a particular use is not mentioned in the list of use classes in one of the Zoning Tables or is not included by reference in the definition of nay of the use classes in that Zoning Table, such use shall, for the purpose of that Zoning Table be deemed to be a use that is not listed and shall be treated as falling within the use class of 'Any Other Use Not Included Above'."
A number of potential use classes have been referred to in the course of this appeal. Council documentation refers to the use class "Public Utility". In Sch 1 of TPS 9 there is no definition of the term "public utility". However, cl 1.13 of TPS 9 relevantly provides that words and expressions used in the Scheme but not defined in Sch 1 have the meanings assigned to them in Appendix "D" to the Regulations. The Regulations are defined in Sch 1 to mean the Town Planning Regulations 1967 ("the Regulations"). Regulation 27 provides that in every Scheme Text the words and expressions used therein shall, unless otherwise stated in the Text, have when so used the respective meanings given to them in Appendix "D". The term "public utility" is defined in Appendix D to mean:
"Any works or undertaking constructed or maintained by a public authority or municipality as may be required to provide water, sewerage, electricity, gas, drainage, communications or other similar services."
The term "public authority" is defined in Sch 1 of TPS 9 as follows:
"A Minister of the Crown acting in his official capacity, a State Government Department, State trading concern, State instrumentality, State public utility and any other person or body, whether corporate or not, who or which, under the authority of any Act, administers or carries on for the benefit of the State, a social service or public utility."
It can be seen from these definitions that the use class "Public Utility" is not confined to services provided by government agencies. The key determinants are authorisation under an Act of Parliament and the benefit to the public of the proposed facility. The definition of the term "Public Utility", as it relates to the relevant use class of a particular facility, is consistent with the term "Public Utility" commonly used to refer to a corporation that performs a public service: Butterworth's Words and Phrases Legally Defined Vol 3: K‑Q at 472‑3.
Schedule 1 of TPS 9 provides definitions for other use classes referred to in Table 3B. Before the Tribunal reference was made to two other "use classes": "Radio & TV Installation - Small Scale Commercial" and "Radio & TV Installation: Large Scale Commercial". "Radio & TV Installation: Small Scale Commercial" is defined to mean "masts, aerials and other associated equipment considered by the Council to be visually unobtrusive, used by commercial enterprises for the transmission or reception of radio or television signals but does not include any other type of building or equipment requiring frequent servicing". The term "Radio & TV Installation: Large Scale Commercial" means "buildings, masts, aerials and equipment used by commercial enterprises for the transmission or reception of radio, or television signals and associated activities". Returning to Table 3, a large scale commercial radio and TV installation is a prohibited use. A small scale commercial radio and TV installation carries the designation "IP". As indicated above, such a use is permitted if incidental to the predominant use of the land. Whether a proposed facility is incidental to the predominant use is a matter of fact. Once that fact is established, there is no discretion to refuse the application by reason of the unsuitability of the use.
Table 3B and Sch 1 of TPS 9 make no reference to a telecommunications facility as proposed by the respondent. If the proposed facility does not fall within the definition of public utility, large or small scale commercial radio and TV installation then the only relevant "use class" would be "Any other use not included above" which has an "AA" designation meaning that the use is not permitted unless special permission is granted by the Council.

The basis of Council's decision to refuse the application

The difficulty with the Council's original decision in this case is that the reason for determining the "use class" as "Public Utility "AA"" is not immediately apparent. The Council did have before it a report of one of its officers. Under the heading "Background" there is reference to the existing General Rural zoning and to the existing land use which is stated to be "Deer farm, nursery and residence". The last entry under the heading "Background" is the use class of Public Utility "AA". It would seem that the officer considered the proposed facility to be best defined for the purposes of Table 3B as a public utility. As such the applicable code is "AA" requiring special permission of the Council before the use becomes a permitted use. It would seem that this is the source of Council's belief that it had a discretion whether or not to approve the respondent's application. When the report, the motion, the resolution, the reasons for decision and the explanatory correspondence are considered, it is apparent that the Council has accepted the report's determination of use class and exercised its discretion to refuse the application for the reasons set out above. I note in passing that the submission made to Council on behalf of the applicant contains the following statement:
"The Subject Site is currently zoned "General Rural" under the provisions of TPS No 9. The proposed use is listed as an 'SA use' under the provisions of TPS No 9. The proposal may be approved under the provisions of TPS No 9."
The only "SA" designations in Table 3B are for "Dwelling: Grouped", "Equestrian Trotting & Training Facility" and "Hostel" uses. There being no possible connection between these uses and a telecommunications facility, it is apparent that the Table has been misread or there is a typographical error and the reference is meant to be "AA". Relevantly, an "AA" determination is consistent only with a use class of "Public Utility" or "Any other use not included above".
In exercising its discretion, Council expressly took into account the "relevant Council Policy" which is stated in the report to be the Telecommunications (Mobile Phone) Facilities Policy. This policy deals specifically with applications for telecommunications (mobile phone) facilities which are relevantly defined to be "any telecommunication infrastructure … that comprises a mast, tower or other structure with aerials and antenna fixed to it for use by a carrier for the transmission or communication of electronic signals and includes associated buildings and equipment shelters". In referring to the relevant provisions of TPS 9, express reference is made to cl 2.3.8 which identifies the matters to be considered when Council exercises a discretion. The only conclusion which can be drawn from this reference to cl 2.3.8 is that, in developing its telecommunications (mobile phone) policy, Council considered that telecommunications facilities fell into a use class which involved the exercise of a discretion. That would only be the case if the use was designated "AA" or "SA". As I have indicated, there is no relevant use category which has a "SA" designation. It should also be noted that TPS 9, in identifying the consequences of an "AA" designation, cites cl 2.3.8 as a subclause to which regard must be had. Consequently, if telecommunications facilities fall into a use class which, under Table 3B, has a designation other than "AA", the Policy would have little effect.

Appeal to this Court

It is from the decision of the Tribunal reversing Council's decision to refuse development approval that the Council now appeals. It seeks to have the decision of the Tribunal set aside and the appeal dismissed.
Section 54B of the Town Planning and Development Act1928 (WA) ("TPAD Act") provides for an appeal from the Tribunal to the Supreme Court. It materially states:
"(1)Subject to subsection (2), any person aggrieved by a direction, determination or order of the Appeal Tribunal in proceedings before the Tribunal to which the person was a party may appeal to the Supreme Court against the direction, determination or order, in the manner, and in the time, prescribed by the Rules of Court.
(2)An appeal does not lie to the Supreme Court from a direction, determination, or order of the Appeal Tribunal unless the appeal involves a question of law."
Order 65 of the Rules of the Supreme Court1971 (WA) ("RSC") also applies. Order 65 r 10(1) provides:
"Subject to paragraph (2), the appeal shall be in the nature of a rehearing, and the Judge hearing the appeal may confirm, quash or vary the decision of the tribunal against which the appeal is made or remit the matter to the tribunal for rehearing, with or without directions."
Order 65 r 10(2) gives the Judge a discretion to admit additional or fresh evidence.
The approach the Court takes to appeals of this kind was considered in some detail by McLure J in Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 199. Her Honour stated (at [12]):
"On a proper construction of s 54B(2) of the TPD Act, if a question of law is involved in the decision of the Tribunal, the whole of the decision, and not merely the question of law, is then open to review: Ruhamah Property Co Ltd v Federal Commissioner of Taxation (1928) 41 CLR 148 at 151."
However, it must be emphasised that it is only if the Tribunal has made an error that the whole decision of the Tribunal is open to review. This is consistent with the approach taken by the High Court in Ruhamah Property Co Ltd v Federal Commissioner of Taxation (1928) 41 CLR 148 and the Full Court of this Court in Bradshaw v Medical Board of Western Australia (1990) 3 WAR 322 at 328: see Temwood per McLure J at [15] and Western Australia Planning Commission v Temwood Holdings Pty Ltd (2004) 211 ALR 472 per McHugh J at 490.

Further, and of greatest significance in the circumstances of this case, the fact that the whole of the decision of the Tribunal may be reviewed if a question of law is involved, does not confer on the Supreme Court, on an appeal under s 54B of the TPAD Act, a jurisdiction greater than that conferred on the Tribunal under s 47 of the TPAD Act. There would be little legislative purpose in confining the right of appeal to the Tribunal if all parties are also given a right of appeal to a Court with jurisdiction to revisit every aspect of the original decision.

The grounds of appeal to this Court

The grounds of appeal as set out in a Substituted Minute of Proposed Amended Notice of Appeal dated 28 January 2004 identify three alleged errors which can be summarised as follows:
"(1)The Tribunal erred in holding that the proposed use fell within the definition of "Radio & TV: small scale commercial;
(2)The Tribunal erred in concluding that the proposed facility was incidental to the existing use of the land;
(3)The Tribunal erred in failing to determine that it had no jurisdiction to entertain the appeal in that the Council had refused the application without specifying the use class on which it relied."
Apart from joining issue with the appellants on the appeal, the respondent filed an Amended Notice of Contention. Relevantly, the respondent contends as follows:
"1.The Respondent's proposed use and development may be classified as a 'public utility' under the City of Swan Town Planning Scheme No 9 ('TPS 9') in the alternative to the Tribunal's finding that it constituted a radio and TV installation: small scale commercial.
2.The use class 'public utility' is classified as an 'AA' use class in the General Rural zone, within which the Respondent's proposal is located.
3.The Appellant's planner classified the proposal as a 'public utility' use under the TPS 9 such classification being a determination of fact, and not an exercise of discretion.
3A.Alternatively, the Tribunal should have found that the use proposed for the land was not within any of the uses classes listed in the Zoning Table within the Scheme, and was therefore, pursuant to Clause 2.2.4 of the Scheme, to be treated as falling within the use class of 'Any other Use not Included Above', which could be approved within the General Rural Zone as an AA use having regard to the matter specified in Clause 2.3.8 of the Scheme.
4.For the reasons given by the Tribunal in relation to amenity at paragraphs 41 to 56 of the decision, the Tribunal should have reached the same decision without making the determinations and findings referred to in paragraphs 1 and 2 of the Appellant's Grounds of Appeal."

The appeal to the Town Planning Appeal Tribunal

(i) The Jurisdiction of the Tribunal

Before turning to consider the proceedings in the Tribunal, it is necessary to consider the scope of the Tribunal's power to entertain an appeal of this type.
Section 47 of the TPAD Act, as it stood at the time of the appeal to the Tribunal, created a qualified right of appeal. The relevant portions of s 47 are as follows:
"(1)A person may appeal, or refer a matter, to the Appeal Tribunal if a right to appeal, or refer a matter, under this Part is conferred on the person by -
(a)this Act or any town planning scheme in force under this Act;
…
(2)Where a person is entitled under the provisions of a town planning scheme in force under this Act, the Metropolitan Region Scheme or a regional planning scheme to appeal against the exercise by the responsible authority of a discretionary power, this appeal is to be made to the Tribunal under this Part."
It can be seen that the jurisdiction of the Tribunal depends on the existence of a right to appeal under the Act or in the relevant town planning scheme. The only other section of the TPAD Act which confers a right to appeal decisions made pursuant to town planning schemes, limits the right to appeal to decisions involving the exercise of a discretion by the responsible authority: s 8A of the TPAD Act.
The right to appeal under TPS 9 is similarly constrained. Clause 2.6.8 of TPS 9 is headed "Rights of Appeal" and states:
"Should an applicant or an owner of land the subject of an application be aggrieved by a decision of the Council exercising a discretionary power under the Scheme he may appeal in accordance with Part V of the Act and the rules and regulations made pursuant to the Act."
In summary then, the jurisdiction of the Tribunal is confined to a review of the exercise of a discretionary power and does not extend to reviewing determinations of fact. In my view, such a conclusion is apparent from the legislative framework alone. However, there is considerable authority to support that conclusion.
In MMF Holdings Pty Ltd v Town of Claremont, unreported; Town Planning Court of WA (Brinsden J); Appeal No 146 of 1977; 13 March 1978, Brinsden J, as President of the Town Planning Court, was called upon to determine as a preliminary legal point the Town Planning Court's jurisdiction to hear the appeal under s 37 of the TPAD Act 1928 as it then stood. His Honour stated (at 5):
"I am obliged therefore to look to the scheme to see whether the matter which is raised in the appeal arises in respect of the exercise of a discretionary power … What the notice of appeal and answer throw up seems to me in the first place, to be a matter of fact as to whether or not the proposed work falls within the description in clause 5.1 of the scheme, the appellants maintaining that it does not and the respondent to the contrary. In my view, whether a work falls within clause 5.1 is not a matter of discretion on the part of the local authority. It either does or it does not as a matter of fact."
His Honour went on to conclude that there was no jurisdiction in the Town Planning Court to hear the appeal.
Brinsden J also drew a distinction between the Town Planning Court making findings of fact necessary for it to reach a decision as to how to exercise its discretion and making a determination on a question of fact which will decide whether there is any right in the Court to exercise a discretion at all: at 6 ‑ 7. He concluded (at 7):
"If the appellants should be right as a matter of fact that the proposed work is not covered by clause 5.1, this Court would not be able to give any relief to them because all it is entitled to do is to exercise the discretion the scheme give to the respondent [council], and the finding that the work does not fall within clause 5.1 takes away the right of the respondent [council] to exercise any discretion." (emphasis added)
In City of Cockburn v McNiece Industrial Systems Pty Ltd, unreported; SCt of WA; Library No 5523; 24 September 1984, the Supreme Court dealt with an application for a writ of prohibition directed to the respondent Minister prohibiting him from hearing and determining an appeal under s 37 of the TPAD Act. Section 37, as it then stood, created a right of appeal to the Minister "if the appeal is in respect of the exercise of a discretionary power by the responsible authority under the scheme". In this case, the Council considered a development application proposed by the applicant and found that it constituted a "noxious industry" within the meaning of the relevant town planning scheme and refused its consent. The applicant disputed that the proposed development constituted a "noxious industry" and appealed to the Minister. Burt CJ summarised the appellant's case and the proper scope of an appeal from a decision of Council in the following terms:
"The appellant's case is essentially simple. By the scheme the use of the land sought to be developed for the establishment thereon of a "noxious industry" is not permitted. The industry proposed to be established was a "noxious industry" and the appellant Shire had no power to give its consent to the application. Hence its refusal to consent did not involve the exercise of a discretionary power and the Minister had no authority to entertain an appeal from that refusal. In my opinion that is correct."
In his reasons for decision Burt CJ also addressed the situation where Council has allegedly made an error of classification in relation to a proposed development facility. He said (at 3 ‑ 4):
"The Shire may or may not have misunderstood the concept of 'noxious industry' as for the purposes of the scheme that expression is defined. If it did not, then its decision was correct and it was a decision which did not involve the exercise of any discretion and the appeal subsequently made by the Minister is not an appeal 'in respect of the exercise of a discretionary power' within the meaning of s. 7 of the Act and no appeal lies to the Minister from it. If, of the other hand, the appellant Shire has misunderstood the meaning of the expression 'noxious industry': so that upon the proper construction of that expression the application did not contemplate the use of the land for an industry so described and with the result that the application was one which ought to have been dealt with by the Shire in the exercise of a discretion given to it by the scheme, then the Shire has declined to exercise its discretion and the proper remedy would be mandamus compelling it to reconsider the application and to exercise its discretion controlled by the relevant criteria with reference to it. Swan Hill Corporation v Bradbury, (1937) 56 CLR 746, at p 758, per Dixon J."
The issue of jurisdiction also arose in Buttfield & Ors v City of Albany & Ors (2001) 27 SR (WA) 121 in which the Town Planning Appeals Tribunal concluded that its jurisdiction was limited to circumstances which involve the exercise of discretionary power (at 124). The appellants had appealed against a decision made by the City of Albany by which it granted planning consent to the second respondents to enable land owned by them to be used for the purpose of firewood cutting and storage. In reaching its decision, the Council undertook two steps. First it determined the appropriate use class was industry‑rural for the purposes of its Town Planning Scheme No 3. Secondly, the Council had to decide in the exercise of its discretion whether the application should be permitted in any event, and if so on what appropriate conditions. The Tribunal held that the decision by the council to categorise the proposed use of land as a rural industry under the Scheme did not involve the exercise of a discretionary power and therefore there was no decision involving a discretionary power capable of forming the basis of an appeal to the Tribunal.
In Re Minister for Planning; Ex parte City of Canning (1999) 101 LGERA 284 the Full Court considered an application for a writ of prohibition directed to the Minister preventing him from considering and determining a planning appeal against a decision of the council where the council refused to grant a developer approval to develop certain land for a health centre incorporating medical consulting rooms and a pharmacy. The land in question was zoned "Highway Commercial" under the relevant planning scheme. Within that zoning the relevant use class was determined to be "health centre" which was an AA use meaning that development or use of the land for the purpose of a health centre was discretionary. However, under the scheme a pharmacy was a "shop" which was a use designated "IP" in the zoning table. An IP use was not permitted unless it is determined by the council to be incidental to a use determined by the Council to be the predominant use. The application was refused by council on the basis that the pharmacy was not considered to be a use incidental to a medical complex.
In discharging the order nisi, the Full Court held that there was no basis upon which the Court could stop the Minister from proceeding to deal with the appeal in question because it was indeed an appeal against the refusal of a discretionary use: per Kennedy J at 288, Murray J at 292 ‑ 3 and Anderson J at 295. The Full Court further held that the question whether the use for the purposes of a pharmacy was incidental to the use for the purposes of the medical complex, was simply a question of fact and degree and was not a discretionary decision from which an appeal could be made: per Kennedy J at 287, Murray J at 292 and Anderson J at 296.
Thus, the law on this subject is clear. An appeal lies to the Tribunal only in relation to the exercise of a discretionary judgment. Mere questions of fact and degree are not properly the subject of an appeal. This conclusion creates a difficulty for the appellant.
Counsel for the appellant submitted that the issue as to the proper classification of the proposed use arose during the course of the appeal and the Tribunal was entitled, if not obliged, to deal with the issue for the purpose of determining the appeal. In support of that proposition reference was made to the decision of the Tribunal in Erceg v Metropolitan Region Planning Authority, unreported; Town Planning Appeal Tribunal; Appeal No 28 of 1983; 29 October 1984. In Erceg, the Tribunal held that the proper characterisation of a use is a question of mixed fact and law which involves the application of the statutory definitions, if any, to the given facts. Whether or not a given use falls within a particular definition is a question of law (14). The Tribunal proceeded to deal with the matter accordingly.
However, the decision in Erceg can be distinguished on the basis that the relevant provisions of the TPAD Act and the relevant Scheme, the Metropolitan Region Scheme ("MRS") created a right of appeal that was not restricted to discretionary decisions. At the time that Erceg was decided, the section of the TPAD Act which defined the term "appeal" and hence identified the basis of the right to appeal, was s 37. Section 37 was in the following terms:
"In this Part -
'appeal' means -
(a)an appeal to the Minister under -
(i)a town planning scheme that has effect under section seven of this Act, if the appeal is in respect of the exercise of a discretionary power by the responsible authority under the scheme;
(ii)subsection (6) of section seven B of this Act;
(iii)subsection (1) of section twenty-six of this Act;
(iv)subsection (6) of section twenty-eight A of this Act;
(b)a reference to the Minister under subsection (3) of section 10 of this Act;
(c)an appeal to the Minister under clause thirty-three of the Metropolitan Region Scheme; … "
It can be seen that s 37 conferred a right to appeal under cl 33 the MRS. At the relevant time, cl 33 of the MRS conferred a right of appeal in these terms:
"(1)an applicant for approval to commence development on land zoned under Part III of this Scheme whose application has been refused by the Commission or local authority exercising the power duly delegated to it by the Commission or approved subject to conditions that are unacceptable to the applicant may, except where the refusal or conditional approval is in accordance with the provisions of an operative Town Planning Scheme or a Town Planning Scheme made or amended pursuant to section 35 of the Scheme Act, appeal to the Minister against such refusal or conditional approval."
Plainly, cl 33 of the MRS does not confine the right of appeal to appeals from the exercise of a discretion. Consequently, the decision of the Tribunal in Erceg does not assist in resolving the issue before this Court, relating as it does to different statutory and scheme provisions.
The appellant also relies on the decision of the Tribunal in Australian Waste Management Pty Ltd v Shire of Swan & Metropolitan Region Planning Authority (1985) 16 APA 134. In that case, the Shire's refusal of development approval proceeded upon the assumption that the use was permitted but discretionary in a rural zone under the provisions of its scheme. The applicant appealed that decision. At the hearing, counsel for the Shire contended that the proposed use ought properly to have been characterised as a "noxious industry" which, under the provisions of its scheme, was not a permitted use in rural zones. The Tribunal proceeded to determine the issue of the proper characterisation of the proposed development and concluded that it was, indeed, a noxious industry.
The Tribunal dealt with the objection of the appellant developer in the following way (at 147):
"It is no answer to the respondent's contention to submit, as the appellant does, that the shire council having initially approved and communicated the approval of the application, its approval could not be revoked.
On the Tribunal's view of the law the original approval was a nullity, it was beyond the power of the shire to grant it.
There was in that sense nothing to rescind.
The refusal of approval of 26 March 1984 may itself be of doubtful effect in that it was given in the purported exercise of a non‑existent discretion."
The Tribunal, having concluded that the proposed development involved a noxious industry, upheld the preliminary objection and dismissed the appeals (at 148).
It can be seen that the issue confronting the Tribunal in Australian Waste Management Pty Ltd v Shire of Swan & Metropolitan Region Planning Authority was the same as that which occurred in this case. In the course of the appeal, the Tribunal was made aware by counsel for the Shire that the original decision as to the appropriate use designation was erroneous. The applicable provisions of the relevant scheme, cl 6.9 of TPS 1, similarly restricted the right of appeal to an appeal from a decision involving the exercise of a discretion. Unlike the decision in Erceg, I can find nothing in the case of Australian Waste Management Pty Ltd v Shire of Swan & Metropolitan Region Planning Authority which might distinguish the decision from the conclusions of Burt CJ in City of Cockburn v McNiece Industrial Systems Pty Ltd and the Full Court in Re Minister for Planning; Ex parte City of Canning (supra). I am, of course, bound to follow the decision of the Full Court. Further, the decision of Burt CJ in City of Cockburn v McNiece Industrial Systems Pty Ltd is highly persuasive. However, even if I were entitled to prefer and adopt the approach of the Tribunal in Australian Waste Management Pty Ltd v Shire of Swan & Metropolitan Region Planning Authority I would decline to do so. On the Tribunal's view of the law, the original approval was a nullity, it was beyond the power of the Shire to grant it. In my view, it was beyond the power of the Tribunal to rectify it. The legislation and the provisions of the scheme are clear, as are the authorities decided by the Supreme Court. Where the only right of appeal lies from a decision of the Council exercising a discretionary power, the appellate Tribunal has no power to review the initial use class classification, or any other primary finding of fact, on which the Council's decision was based.

(ii) The Proceedings in the Tribunal

(a) Determination of use class

The proceedings before the Tribunal are notable for a lack of clarity and consensus concerning the "use class" adopted by the Council or the "use class" to be adopted by the Tribunal. The proceedings before the Tribunal were initiated by a notice of appeal which identified the proposed use as having an "IP" designation. The only use class which has an IP designation and which could possibly be relevant to the appeal is "Radio & TV Installation: Small Scale Commercial". Whilst the ground of appeal correctly states that such a designation enables the proposed development to be approved by Council, the balance of the grounds do not address the issue of whether the proposed use is incidental to the predominant use of the land. The grounds of appeal simply address the reasons given by the Council for refusing the application. It was not until the appeal to this Court that the Respondent first suggested that that Council had classified the proposal as a "Public Utility" use or alternatively as "Any other use not included above".

The Statement by Respondent filed in the Tribunal on behalf of the Council does not identify the relevant use class. The existence of a discretion is asserted in the Statement by Respondent and the balance of the document addresses the exercise of that discretion.
Both the statements filed on behalf of the parties and the statements of counsel before the Tribunal have contributed to the confusion which arose concerning the applicable use class. In the witness statement of Paul Basil Kotsoglo, filed on behalf of the respondent, Mr Kotsoglo identifies the proposed use as falling within the use class of "Radio and TV installation: small scale commercial". He goes on to state that this use class is listed as an "IP" use class under the Table. Mr Kotsoglo makes no comment on whether operating a telecommunications facility is a use incidental to the predominant use of the land as a nursery. The balance of his statement addresses the discretionary issues relied upon by the Council in refusing the Application.
On behalf of the appellant, the statement of Natalie Elaine Good, a City of Swan planning officer, was put before the Tribunal. Ms Good stated (at par 32):
"The City has treated telecommunications installation as being either 'public utility' - an 'AA' use - or alternatively 'a use not listed', for the purposes of TPS 9. Whichever use class is adopted, according to Table 3B - Zoning Table, - by clauses 2.2.3 - 2.2.4 and 2.3.6.2, Council has discretionary power to refuse the use, or to give special approval to it, conditionally or unconditionally."
As I read her statement, Ms Good appears to be saying that, historically, Council has treated applications of this type as being either a "public utility" use or an "any other use not included above" use. I do not see her statement as suggesting that in this case Council relied on the latter use. As I have indicated, the only use class referred to in the relevant council documentation is "Public Utility". There is no reference to "any other use not included above" as being a relevant use.
The confusion was further compounded when the matter was actually heard by the Tribunal. The following exchange took place between the President of the Tribunal and both counsel:
"MS SIMPKIN: It is submitted that the tribunal therefore has no need to inquire into the status of the proposal as an IP use because there's no discretion being exercised by the respondent in relation to it, thus the issue is not within the jurisdiction of the tribunal. According to clause 2.6.8 of the scheme:
'An appeal only lies from the council's exercise of its discretionary power and as a result no appeal can lie in relation to factual determinations of the respondent.'
As the scheme sets out in paragraphs B and C that I've quoted and - -
PRESIDENT:   Sorry. Why are you raising that point?
MS SIMPKIN:   Because, sir, the - - clause 2.2.3's definition of incidental use, which I've quoted earlier, says that the use is not - -
PRESIDENT:   No. Is it - - does it arise from something in the statement by a respondent?
MS SIMPKIN:   It arises from something in the evidence of the respondent which is that the use class is public utility or use not listed.
MR McLEOD:   I think I should say at this stage that I'm not going to be contending with any vigour - in fact I'm not going to be contending at all - that the use class should be public utility, and I have some difficulty with the notion that it should be a use not listed if it could possibly fit within the radio and TV installation use class. The only problem with the radio and TV installation use class is that it has an internal, if you like, amenity test which operates in an interesting way in this context. So I'm not going to be making any argument that the proper use should be public utility or use not listed.
PRESIDENT: Very well. All right. We don't need to hear any more about that one."
It can be seen from this exchange that the respondent did attempt to draw to the attention of the Tribunal the limits of its jurisdiction but then conducted the case on the basis that the City had in fact determined that the use was incidental to a predominant use and thus within the discretionary power to approve. It did so without making any express challenge in its grounds of appeal to the use class determined by Council. The Council's legal representative, on the other hand, appears to have assumed that there was a challenge to the use class adopted by the Council and conceded the point.
In an attempt to further clarify the appellant's position, counsel made the following submission in the Tribunal:
"I submit, president, that the correct use class here is the radio and TV installation large scale commercial. The stipulation in the definition of radio and TV installation small-scale commercial definition that the masts and associated equipment are considered by the council to be visually unobtrusive is a requirement that can't be satisfied."
In abandoning the use class on which Council relied, counsel for the appellant submitted that the proposed facility could not be described as a public utility because it was a commercial operation. Although it is unnecessary for me to decide the point, I note in passing that it is apparent from the definitions of public utility and public authority that a commercial organisation may be a public authority for the purposes TPS 9. The owner of the proposed telecommunications facility is a carrier for the purpose of the Telecommunications Act 1997 (Cth) and as such is entitled to provide telecommunications services to those in the community who wish to avail themselves of the service. Consequently, there is a strong argument that the application meets the two key determinants to which I have already referred; the applicant has authorisation under an Act of Parliament, and the proposed facility is of benefit to the public. Hence, facilities which are used to provide telecommunication services may well be a public utility for the purposes of the Scheme.
The issue of use class was dealt with in the Tribunal's reasons for decision in the following terms:
"24.As I have indicated above, Lot 1 Marshall Road is zoned General Rural. The nursery which is conducted on the property is an AA use. The respondent's use class in TPS 9 also makes provision for Radio and TV Installation: small scale commercial; and radio and TV installation: large scale commercial.
25.The appellant contends that the nature of that which is contemplated is the former. The respondent contends it is the latter."
Having identified that the parties held conflicting positions on the appropriate use class, the Tribunal failed to address that conflict. The Tribunal's decision simply proceeds on the basis that the use class is "Radio and TV installation: small scale commercial". By implication then, the Tribunal has determined that the facility does not fall within the use class "Radio and TV installation: large scale commercial", but no reasoning for that decision can be found in the Tribunal's reasons. This omission on the part of the Tribunal possibly arises from the fact that the attention of witnesses was not directed to the difference between the two types of radio and TV installation. A reading of the evidence fails to divulge any comparison between the definitions of small and large scale facilities and the nature of the proposed facility. Further, nowhere in the evidence is there a comparison between this proposed installation and others. However, that is not to say that the Tribunal was not on notice that the issue was before it. In both opening and closing addresses, counsel for the appellant made it clear that the appellant's position was that the facility was large scale and that this issue would have to be resolved by the Tribunal. The fact that the development was to be undertaken by a commercial provider of mobile phone services was not in dispute. Neither was there disagreement over whether the facility was a radio or TV installation.
I might add that it is not immediately apparent to me why a telecommunications facility designed to provide data coverage would be described as a "Radio & TV Installation" which relates to facilities for the transmission or reception of radio or television signals. As I have indicated, if telecommunications facilities could properly be described as radio or TV installations, uses which involve no discretionary issues, Council's policy on telecommunications facilities would have little effect. Even if "Radio & TV installation" were the appropriate description of the facility, I also have some difficulty in accepting that the facility described in the application is "visually unobtrusive". In my view, the facility itself must meet that description. It is not sufficient that the proposed location provides a level of protection which renders the facility unobtrusive. Such factors would only be relevant in the context of amenity.
Putting these observations to one side, it is a fact that the Tribunal failed to provide reasons for concluding that the proposed facility was a "Radio & TV installation: small scale commercial" and, in my view, this failure constituted an error of law. There is another obvious difficulty with the approach taken by the Tribunal to the appropriate use class. There is nothing whatever in the evidence to suggest that the Council gave any consideration to whether or not the proposed development was a use class "Radio & TV installation: small‑scale commercial" or "Radio & TV installation: large‑scale commercial". As I have noted above, based on the relevant documentation, it is clear that the Council was in fact exercising a discretion as a result of an "AA" designation resulting from a categorisation of the proposed use as "public utility". That documentation is entirely inconsistent with determining an application based on a use which bears an "IP" designation under Table 3B.
However, in my view, the Tribunal fell into a far greater error by making any finding in relation to the relevant use category. Council made a decision on the appropriate use class. The decision was one of fact and did not involve the exercise of any discretion. For the reasons to which I have already referred, no appeal lies to the Tribunal, or to this Court, from a decision of Council which does not involve the exercise of a discretion. Consequently, it was not open to the Tribunal to review the Council's determination of use class.
In my view, this conclusion is unaffected by Council's attempt to overturn its own decision by arguing for a different classification before the Tribunal. Neither is it appropriate for the parties to reach an agreement to ignore the decision which was in fact made by Council and encourage the Tribunal to reach its own view on the issue. Parties cannot, even by agreement, confer on the Tribunal a jurisdiction it simply does not have. In any event, the right of appeal to the Tribunal under cl 2.6.8 of TPS 9 is in relation to "a decision of the Council". At no stage did the Council make a decision that the appropriate use class was "Radio & Television" whether large or small scale commercial.
It does not follow from this conclusion that errors cannot be rectified or determinations of fact cannot be questioned. A challenge to the Council's categorisation of the proposed use can properly be made by way of judicial review: City of Cockburn v McNiece Industrial Systems Pty Ltd per Burt CJ at 3 ‑ 4. As I have indicated, the Council cannot challenge or seek to quash its own determination by way of an appeal to the Tribunal, or to this Court on appeal from the Tribunal. Neither can it do so by way of judicial review proceedings. However, if council, having received legal advice, formed the view that its decision was in error, it was entitled, indeed obliged, to revisit it.

(b) Determination of whether proposed use incidental to existing use

The consequence of the Tribunal's unexplained conclusion that the appropriate use category was "Radio & TV installation: small scale commercial" was that it was required then to consider whether the proposed facility was incidental to the existing and predominant use of the land.
The Tribunal determined that the relevant use class was in fact incidental to the use class of general rural which related to the whole of the property. The Tribunal expressed its conclusion in the following way:
"[35]The provisions of clause 2.2.3 of TPS 9 suggest the approach to this matter would be governed by the following oft quoted statement:
'Where the whole of the premises is used for two or more purposes none of which subserves the other, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 at 161 (cited with approval by Gibbs CJ in Lizzio v Ryde Municipal Council (1984) 155 CLR 211 at 217.'
[36]Incidental is defined to mean happening or likely to happen in fortuitous connection with something else; incurring casually and in addition to the regular or main amount. Macquarie Dictionary.
[37]Thus, that appears to be the case here. There is no suggestion that location of the H3GA pole and ancillary equipment is other than incidental to the conduct of a nursery on Lot 1 Marshall Road [and] I so find."
I consider the Tribunal's approach to the issue of whether a use is incidental to a predominant use to be flawed. The relevant term is "incidental to". The definitions relied upon by the Tribunal all related to the term "incidental". The definition on which the President primarily relied was "incurring casually and in addition to the regular or main amount". That definition of "incidental", found in the Macquarie Dictionary, is almost entirely opposite in meaning to the term "incidental to" as it appears in TPS 9. If that definition is relied upon, the greater the lack of connection between the predominant use and the proposed use, the more likely it is that the proposed use would be approved. Such a result cannot, in my view, be the intention of the Scheme, which has the general effect of limiting or controlling uses rather than amplifying them. Neither can the comparative size of the two uses be the relevant factor. Such an arbitrary approach runs counter to the stated objects of the TPS 9 which are to promote the orderly and proper development of land within the area covered by it. Such an interpretation would lead to a cocktail of divergent uses rather than the orderly development of land. In my view, the appropriate definition is the definition of "incidental to". In the Macquarie Dictionary that definition is "liable to happen in connection with, naturally appertaining to". In the New Shorter Oxford English Dictionary the term "incidental to" is defined as "naturally attaching to or consequent on". In my view, these definitions are consistent with the terms of cl 2.3.6.3. It requires the identification of a predominant use and a determination of whether the proposed use is consequent on such a use or naturally attaching, appertaining or relating to such a use. In my view, there must be some relationship or connection between the two uses for one to be incidental to the other. In view of the decision which I have reached, it is unnecessary for me to decide this issue, but I refer to it out of concern that the approach taken by the Tribunal in this case might be relied upon as authority for determining an "IP" use.
I might also add that the statement of Glass JA in Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 at 161 has been taken out of context and neither the statement nor the case as a whole is relevant to the circumstances and the issues in this case. In Foodbarn Pty Ltd v Solicitor General, the original complaint against the appellant company was that it was in breach of a planning scheme ordinance which prohibited the use of the company's premises as a shop. At the relevant time, the premises was being used both as a shop and a warehouse. The appellant sought to argue that the ordinance applied only where the dominant use of the premises was as a shop. Having observed that it is irrelevant to inquire which of multiple uses is dominant, Glass J continued:
"If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged. The ordinance is nonetheless being disobeyed."
It can be seen that the case adds nothing to a consideration of whether a proposed use is incidental to an existing use.

(c) Review of discretion to refuse the application

Having concluded that the proposed use of the land for a telecommunications facility was incidental to the existing use of the land as a nursery, the Tribunal went on to consider various matters which might be considered relevant to the exercise of a discretion to approve the respondent's proposed facility. The task the Tribunal performed was to consider whether the exercise of the Council's discretion was, in all the circumstances, proper. The discretionary issues addressed by the Council which led to the refusal of the application can be summarised as follows:
(1)the site's location within the MRS Urban area and incompatibility with the future residential development on the surrounding lots;
(2)the impediment to the future conversion of the land to Urban envisaged by the MRS; and
(3)failure to meet the requirements of the relevant Policy with respect to setbacks from boundaries and distances from nearby residences.
Only those three issues were addressed by the parties in the Notice of Appeal and Statement by Respondent filed in the Tribunal.
The Tribunal in its reasons addressed the issue of the setback requirement and the issue of amenity. In relation to the issue of the required setback, the Tribunal noted that no evidence had been led from any field of discipline, to establish the rationale behind a 200‑metre setback from any dwelling or residential zoned land. The Tribunal also noted that there was evidence that there were two dwellings less than 200 metres from the proposed facility. It was therefore the case that there were dwellings which would be affected by a decision to ignore the terms of the Policy. No further mention is made of the issue although the impact of the proposed facility on surrounding landowners is considered in the context of amenity. It would seem from the reasons of the Tribunal, that the absence of expert evidence justifying the setback was considered to be sufficient cause to ignore that requirement under the Policy. In my view, whilst expert evidence might well have been of assistance to the Tribunal, its absence does not, of itself, entitle a Tribunal to conclude that it is unnecessary to comply with the setback requirement. Other information would allow a Tribunal to conclude that the required setback was sound and should be adhered to in the instant case. That said, because the Tribunal has not addressed and determined each issue individually, it is difficult to discern whether the Tribunal has indeed relied solely on the absence of expert evidence to approve the proposed facility without compliance with the setback under the relevant Policy.
The Tribunal correctly identified that the Council also opposed the appeal on the basis that the proposed structure would impact adversely on the likely sales of surrounding landowners' subdivided properties consequent on rezoning under TPS 9. However, having identified Council's position, consistent with that taken at the time of deciding the application, the Tribunal then determined the issue of amenity purely with respect to the issue of whether or not the proposed facility was unobtrusive. The Tribunal noted that the facility was to be painted a greyish colour in an endeavour to achieve a degree of screening. Although such a course may be of some assistance in reducing the impact of the facility, it would not, to my mind, render a 35‑metre monopole, three panel antennas, two parabolic antennas, an equipment shelter and 1.8‑metre high security fence, unobtrusive. The Tribunal accepted that the location of the proposed facility was surrounded on three sides by quite heavy vegetation including trees between 15 and 20 metres in height, to be expected in a rural area. The difficulty with relying on this fact is that the vegetation may well disappear following urbanisation, in which case Council's point on the incompatibility of the proposal in the event of urbanisation has some substance. On reading the Tribunal's reasons, it appears to me that the effect of the proposed urbanisation of the area really has not been addressed by the Tribunal.

The final matter upon which the Tribunal relies in deciding to approve the proposed facility is that there is a high voltage power line which runs down the adjacent road at a height of approximately 30 metres. If the proposition relied upon by the Tribunal is that once an area is blighted by one obtrusive facility or structure, a Council cannot properly or fairly object to another, I would reject it. Further, as I have indicated, urbanisation, particularly with the current emphasis on underground power, may well determine the fate of existing power lines.
It can be seen that I have a number of concerns with the way in which the Tribunal reviewed the discretionary aspect of Council's decision, most importantly that it has failed to address one of the central concerns of Council; the impact in the event of the proposed rezoning. By its Notice of Contention, the respondent would have it that all relevant matters were taken into account when the Tribunal reached the decision that the application ought be approved. As I have indicated, I have some difficulty with that proposition.
At the hearing of the appeal, the respondent submitted that, to the extent that the Tribunal considered and determined matters within its jurisdiction unaffected by the determinations outside jurisdiction, those determinations must stand. In this case, it is said, the Tribunal's determination on the discretionary issues was unaffected by the Tribunal's determination made outside jurisdiction. That is because its determination outside jurisdiction led it to conclude that there was a discretionary power to approve, the exercise of which it reviewed. The process was entirely within the jurisdiction of the Tribunal and not influenced or vitiated in any way by the determinations made by any matter outside jurisdiction. In support of this approach the respondent relied on the following extract from Administrative Law by Sir William Wade 8th Ed, Oxford University Press at 294:
"An Administrative act may be partially good and partially bad. It often happens that a tribunal or authority makes a proper order but adds some direction or condition which is beyond its powers. If the bad can be cleanly severed from the good, the court will quash the bad part only and leave the good standing."
I accept the respondent's submission that the Tribunal's determination of use class did not influence or taint its review of the Council's discretionary judgment. However, to accept that submission is not to concede that the Tribunal's decision to approve the proposed facility contains no appealable error.
Despite my views on the Tribunal's review of Council's discretionary power, the fact remains that this aspect of the Tribunal's decision is not the subject of any ground of appeal. Even in its Substituted Minute of Amended Notice of Appeal, Council has elected to dispute only the determination of use class and the finding that the proposed facility was incidental to the existing rural use. Unfortunately, for the reasons to which I have referred, neither of these issues was within the jurisdiction of the Tribunal. Accordingly, having concluded that the part of the Tribunal's decision which reviews Council's exercise of its discretion is within jurisdiction and can stand alone, there being no appeal against that part of the decision, the decision must stand.
Irrespective of whether there is any merit in the grounds of appeal relied on by the Council, each ground addresses an issue which I have determined to be outside the jurisdiction of the Tribunal and hence outside the jurisdiction of the Court. I would therefore dismiss the appeal.