Cresswell's Transport & Quarrying Pty Ltd v Resource Planning &
[2003] TASSC 74
•27 August 2003
[2003] TASSC 74
CITATION: Cresswell's Transport & Quarrying Pty Ltd v Resource Planning &
Development Commission [2003] TASSC 74
PARTIES: CRESSWELL'S TRANSPORT & QUARRYING
PTY LTD
DAVBROS TASMANIA PTY LTD
v
RESOURCE PLANNING &
DEVELOPMENT COMMISSION
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 17/2002
DELIVERED ON: 27 August 2003
DELIVERED AT: Hobart
HEARING DATE/S: 2 April 2003
JUDGMENT OF: Crawford J
CATCHWORDS:
REPRESENTATION:
Counsel:
Applicants: S B McElwaine
Solicitors:
Applicants: S B McElwaine
Judgment ID Number: [2003] TASSC 74
Number of paragraphs: 58
Serial No 74/2003
File No LCA 17/2002
CRESSWELL'S TRANSPORT & QUARRYING PTY LTD and
DAVBROS TASMANIA PTY LTD v RESOURCE PLANNING &
DEVELOPMENT COMMISSION
REASONS FOR JUDGMENT CRAWFORD J
27 August 2003
Pursuant to the Judicial Review Act 2000, s17, the applicants applied to review the respondent's decision of 30 June 2002, whereby:
1Pursuant to the Land Use Planning and Approvals Act 1993, ("the Act"), s41(B), it rejected a draft amendment to the Meander Valley Planning Scheme 1995, providing for rezoning of land, that was prepared by the Meander Valley Council; and
2Pursuant to the Act, s43H(1)(b), it rejected the decision of the Council to permit a subdivision of the land in question.
The matter concerns part of about 24 hectares of land in certificate of title volume 129014 folio 1. An application was made to the Council under the Act, s33, to amend the planning scheme, so that the zoning of part of the land in question was to be altered from rural to industrial. Associated with that was a development application pursuant to s43A, seeking permission to subdivide the land in the event of the amendment taking place.
The land, part of which it is proposed will be rezoned and subdivided, is bounded on the south by the Meander Valley Highway, which is the old Bass Highway, on the west by the Bass Highway Link Road, which connects the old highway with the new Bass Highway, on the north by the Tasrail railway line that cuts the land, and on the east by other rural land in different ownership. At its south-western corner is a traffic roundabout on the Meander Valley Highway, from which the link road heads north to the new Bass Highway. Just west of the roundabout and south of the Meander Valley Highway is the Bowerbank Mill, a well-known landmark. The land is generally rectangular in shape, with a frontage of about 400 metres on the Meander Valley Highway and a depth to the railway line of about 800 metres. It slopes gently down away from the Meander Valley Highway, from a high point in the south-eastern corner, towards the railway line and the northern boundary, with a fall of about 30 metres. It is about 1.2 kilometres east of the entrance to the Deloraine township and about 2.1 kilometres east of the Deloraine Railway Bridge.
The land is in a rural setting with agricultural activities being the predominant land use. Ignoring a derelict house and run-down farm buildings on the land, the closest building to the site is a Seventh Day Adventist Church approximately 200 metres away on the southern side of the Meander Valley Highway. The closest residential house is about 400 metres away to the south. The site is visually prominent when viewed from the Bass Highway and is located on one of the main entry points to Deloraine.
The industrial rezoning and subdivision it is initially proposed should take place, concerns only about 5.1 hectares at the southern end of the land. It is to be divided into seven lots for industrial use. Immediately to the north of the lots is an area proposed for a waste water treatment system. Immediately to the north and also to the west of the lots, running along the Bass Highway Link Road, are strips of the land that are intended as landscape buffer areas.
The Council received 46 representations. They raised concerns about drainage and effluent disposal, the impact of the development on the scenic amenity, cultural landscape and tourism industry, its impact on the property to the east and traffic and transport issues. Some representations supported what was proposed. The Council determined to proceed with the draft amendment to the planning scheme and to grant the development application, subject to the rezoning taking effect. A number of conditions were attached.
It was the responsibility of the respondent to consider what was proposed pursuant to the Act, s40(1), and it delegated its powers and functions to two persons. I will refer to them as if they were the respondent. A hearing was conducted under s40(2) on 26 March and 8 May 2002. A number of persons appeared before the Commission. They included representatives of the land owner and the Council and a number of person who opposed what the Council had resolved. On 30 June 2002, the respondent published its reasons for determining under the Act, s41(b), that it rejected the draft amendment and consequently, under s43H(1)(d), that it refused the planning permit, the grant of which had depended on the rezoning.
The respondent published nine pages of reasons for its decision. At this point, I refer merely to what it described as its conclusion, at the end of the reasons:
"As Mr Jamieson stated in his report to Council, the proposed amendment and development present a number of complex factors to consider. The site provides some industrial location advantages and the local area plan contains very detailed development standards. The Council is seeking a suitable industrial site which will provide long term development opportunities for industry wishing to relocate and locate in Deloraine. The proposed zoned area is small, although if successfully developed, as Mr Brownlie indicated 'the intention is to follow with further rezoning applications'. This is understandable and reasonable if the site is suitable in the first instance. However, on balance, the unresolved strategic land use issues, lack of appropriate services, potential detrimental impact on the landscape, especially in the short term, and adverse effects for tourism determine this site is not suitable as an industrial estate."
No right of appeal is given by the Act. However, the Judicial Review Act 2000, s17(1), permits a person who is aggrieved by a decision of an administrative character, to apply to the Court for an order of review relating to the decision. Such an application may only be based on one or more of the grounds specified in s17(2). Unfortunately for the Court's task, most of the grounds in the application were not expressed as grounds under that provision.
The applicants have made the application as aggrieved persons. They were the ones who sought to have the land rezoned and the subdivision approved. I understand that at least one of them owns the land. It is regrettable that while counsel for the applicants argued in support of the review, and the Council submitted to whatever orders the Court may make, none of the original representors who opposed the proposals before the respondent, sought to do so before the Court, with one exception. It may well be that they were frightened off by the risk of an order for costs. The exception was Ms Victoria Maxwell, who sought leave to appear on behalf of her father, Mr Phillip Maxwell. She appeared before the respondent on his behalf, but because she is not a legal practitioner she may not represent a party before the Court. See Charter of Justice, cl 8, and Co-Operative Property Developments of Australia Ltd v Mount [1980] Tas R 7. Further, the Supreme Court Rules, r777F(1), forbid a person who has been served with the application, as was the case with Mr Maxwell, from being heard on the hearing, unless the person has filed and served on the applicant a notice of intention to do so, and Mr Maxwell filed no such notice, nor did he seek to be relieved of the consequences under r777F(5). Accordingly, I ruled that Ms Maxwell could not represent Mr Maxwell. However, counsel for the applicants said that he had no objection if I took into account a written submission from Mr Maxwell.
Ground 3.2
Ground 3.1 of the application to review was abandoned. Ground 3.2 complains that the respondent "accepted as evidence on page 5 of its decision a submission made by Mr Smibert when, contrary to the express ruling made by the respondent at the hearing the statement made by Mr Smibert was received as a submission only and was not received as evidence and thereby breached the rules of natural justice in respect of the hearing".
The Judicial Review Act, s17(2)(a), permits an application for an order of review to be made if a breach of the rules of natural justice happened relating to the making of the decision under review.
In the course of the hearing before the respondent, Mr T Smibert made a long and passionate submission that concentrated on the harmful visual impact he submitted the proposed industrial area would have on what is an attractive entrance to Deloraine. During the course of the presentation of his submission, counsel for the applicants raised the point that what Mr Smibert was saying amounted to a submission but was not evidence and it would be impossible to cross-examine him about it, because it was not factually based. The Chairman agreed and stated that it would be received as a submission. Mr Smibert continued, without further interruption, to present his lengthy submission. When he concluded, counsel for the applicants declined an offer from the Chairman to ask Mr Smibert questions, saying that he did not think it would be appropriate.
In the respondent's reasons, in the course of identifying landscape and cultural protection issues that had been raised, it said (inter alia):
"Mr Smibert, who is a professional landscape painter and has been involved in cultural and local tourism, drew attention to the visibility of an industrially developed site in the first impressions that visitors receive when approaching Deloraine from the east. The landscape surrounding Deloraine is an important component of the local tourism industry and in his opinion this area and entrance to the town is visually significant. He considered the proposed site as among the worst possible from a tourism point of view."
Counsel for the respondent pointed out to the Court that in its conclusion I cited earlier, the respondent found (inter alia) that industrial use of the land would potentially have a detrimental impact on the landscape and adverse effects on tourism. Mr Smibert had dealt with those matters in his submission.
There is no merit in the ground. It was not inappropriate for the respondent to refer to what Mr Smibert had submitted in its reasons when identifying the issues that had been raised. The potential effects of the proposed industrial area on landscape values and tourism were major issues for the consideration of the respondent, as the applicants and their counsel were well aware. A number of witnesses addressed those issues and a number of submissions were made to the respondent about them. The applicants called evidence that was directly relevant to those issues. There was no breach of the rules of natural justice.
Ground 3.3
This ground, as amended, is that "the respondent on page 7 of the decision placed reliance upon objective (b) [sic] of LUPA and concluded that there was no evidence that the draft amendment furthered that objective when, in the circumstances, the objective was irrelevant and thereby took into account an irrelevant matter in reaching its decision".
In the course of its reasons, the respondent considered the objectives of the resource management and planning system in the Act, Sch1, Pt1. They included "(a) to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity". The respondent simply observed that "there is no evidence that the draft amendment will further this objective".
The Act, s5, obliged the Council and the respondent to perform their functions and exercise their powers under the Act in such a manner as to further the objectives. Section 20(1)(a) required that a planning scheme for an area "must seek to further the objectives set out in Schedule 1 within the area covered by the scheme". Section 32(1)(a) required that an amendment of a planning scheme "must seek to further the objectives set out in Schedule 1". By referring in its reasons to the objectives, the respondent was merely referring to what the Act required the proposed amendment to further. By observing that there was no evidence that objective (a) would be furthered by the draft amendment, the respondent was correct. It may have had no real relevance to the issues raised before it, but that is of no consequence. The respondent did not rely on what the applicants complain was irrelevant in its ultimate conclusion that the draft amendment should be rejected. There is no reason to think that the lack of evidence that the draft amendment would further the objective, which it was by law required to do, in any way resulted in the decision that was adverse to the applicants. There is no merit in the ground.
Ground 3.4
This ground is that "the respondent, at page 7 of its decision, took into account objective (a) [sic] of LUPA and concluded that the draft amendment did not further that objective without setting out its findings on material questions of fact and the reasons which led to that conclusion."
In the course of its reasons, the respondent considered objective (b). By virtue of s32(1)(a), the amendment of the planning scheme was required to seek to further the objective, which was "to provide for the fair, orderly and sustainable use and development of air, land and water". The respondent expressed its determination about that in the following terms:
"The draft amendment does not further this objective particularly in determining the strategic future of industrial development within the Municipal area and considering the lack of reticulated sewerage from the site. Some industrial zoned areas within Deloraine contain vacant land and in some circumstances are serviced."
The respondent's findings and reasons for concluding that the draft amendment did not further the objective particularly in determining the strategic future of industrial development within the municipal area, are readily apparent from a perusal of all of the reasons. The respondent referred earlier to provisions of the planning scheme strategy for Deloraine and to the planning scheme strategy for industrial development that stated that the strategy for industry was to promote the concentration of activity at Prospect, with provision also being required for industrial activity associated with towns, processing of products and servicing the rural economy. It referred to the fact that the planning scheme provided a number of industrial zoned areas, but the Council had been concerned about the shortage of suitable industrial sites in Deloraine and had commissioned several reports on the matter. It referred to evidence and submissions about those matters, including evidence about the adequacy or inadequacy of available industrial zoned areas and the question of whether there was a need for more.
The respondent also referred to evidence that although the subject area was 5.1 hectares in size, it was intended that further rezoning applications for the balance of the land in the title would follow, subject to demand. A submission was made that the planning scheme proposed that land at Birralee Road, Westbury, would be used for industrial activity requiring large areas. The respondent referred to the fact, of which there was evidence, that the Council was in the course of undertaking a strategic review of the planning scheme and a directions paper was soon to be released for public comment. It was noted that it was too early to place any weight on recommendations about the matter.
It was recognised by the respondent that there was limited zoned industrial land in Deloraine for large-scale industrial development and that such areas needed to be developed. It was noted that the Council had been frustrated in the past by not being able to get owners to develop their properties for industrial development. Incentive for the present proposal had come from the owner of the land wishing to relocate his business to the site, with another business also wishing to relocate there. The respondent acknowledged that the site had some attractive characteristics such as good access, relatively flat land and nearness to rail and a gas pipeline. The respondent considered that if the site was suitable for industrial development, it would be illogical not to allow expansion to accommodate demand in the future, but in that regard, the environmental and physical constraints over the rest of the title were noted as being unknown.
The respondent recorded its concern that the Council had not suggested that the draft amendment was part of a strategic review of industrial land in the municipality as a whole and Deloraine in particular. It noted, from evidence, that apart from two existing industrial/commercial businesses wishing to relocate to the site, the demand for industrial land was unknown. It recorded that even though Deloraine was a recognised service centre in terms of retailing, business and commercial activities for the surrounding agricultural evidence, no evidence was provided that suggested there was a large demand for industrial land. It noted that the planning scheme had zoned several areas for industrial development, some of which had development constraints, but there were other areas which had the potential to allow industrial development.
The respondent was of the opinion that the industrial strategy outlined in the planning scheme did not support the rezoning. The Council did not propose to change the scheme strategy and the respondent considered that the Council could not simply rely on its corporate strategic plan to support its strategic land use arguments. It regarded the proposal as representing a major strategic land use shift for Deloraine and potentially for the municipal area. In view of the fact that the Council was currently undertaking a strategic land use review within the municipal area, part of that review involving a strategy for industrial development, and it was understood that a directions paper would soon be released for public comment, the respondent regarded it as appropriate that the review be finalised before large new areas or locations were to be zoned for industry. In its conclusion, the respondent referred to the problem as "the unresolved strategic land use issues".
The other relevant finding of the respondent, that the draft amendment did not further the objective of providing fair, orderly and sustainable use and development of air, land and water, was expressed as based on a consideration of the lack of reticulated sewerage from the site. There was evidence that the site would not be connected to the Council's reticulated water and sewerage system. The respondent referred to evidence given by Mr W Cromer, a consultant environmental, engineering and ground water geologist, who was called by the applicants, that he had investigated the site and found that in-ground waste water disposal on the proposed Lot 1 would on occasions be affected by excessive soil moisture and water logging, and that the best engineering solution would be to designate an off-site disposal area for Lot 1 on higher ground. Mr Cromer's opinion was that the Council should determine the design elements of a disposal system, but a possible system could be an appropriately sized septic tank eventually discharging into trenches in the designated area. Mr Cromer had made calculations for a disposal system based on a number of potential employees on Lot 1. The biological oxygen demand arising from possible future industrial activities on other lots, such as food processing, had not been specifically assessed by him. Mr Cromer acknowledged in his evidence that it was unusual, but not unknown, for an industrial estate to rely on a septic tank/absorption drain system. The respondent noted in summary, that Mr Cromer submitted that storm water and seepage water controls could be achieved by standard engineering practices.
The respondent noted evidence that the site would be connected to a water scheme. Notwithstanding that no sewerage scheme would serve the site, the respondent acknowledged that drainage and on-site effluent disposal could be achieved to some degree. However, it expressed the view that for an industrial estate to be able to meet its development potential and environmental standards, it should be connected to a sewerage treatment scheme and not rely on septic tanks or packaged plants.
The respondent, in its conclusion, gave a number of reasons why, on balance, it had determined that the site was not suitable as an industrial site. One of those reasons was the lack of appropriate services. It was not the only one and the respondent did not determine that because of it alone, the proposal should be rejected.
In support of this ground, counsel for the applicants referred to evidence that was before the respondent but not mentioned in its reasons. So far as concerned the strategic future of industrial development within the area, he referred to the evidence of the Council's town planner, Mr Jamieson. In particular, Mr Jamieson presented a summary of Council's actions taken since 1989 concerning the obtaining of reports that might lead to a strategy for industrial development. He also said that the present proposal was the most strategically thought out proposal that Council had entered into.
It is apparent from the respondent's reasons, that it considered Mr Jamieson's evidence, for it referred to the evidence that the Council had been concerned about the shortage of suitable industrial sites in Deloraine and had commissioned several reports on the matter. It referred to other evidence of Mr Jamieson and also of Mr Brownlie, a town planner called by the applicants. There is no reason to think that it rejected what Mr Jamieson said in evidence about such matters. The respondent was not obliged to recite what he said. Of course, it disagreed with the support the planners expressed for the proposed amendment, but it sufficiently explained its reasons. So far as a strategy for the future was concerned, it expressed its concern arising out of evidence that I do not understand to have been challenged, that the incentive for this site came from its owner, rather than from a process of strategic review of industrial land in the municipality as a whole and Deloraine in particular. It noted that the industrial strategy outlined in the planning scheme did not support the rezoning and that the Council was currently undertaking a strategic land use review. Obviously having regard to unsatisfactory aspects of the land in other ways, the respondent formed the opinion that it was appropriate that the review be finalised before large new areas or locations were zoned for industry.
In further support of this ground, counsel for the applicants referred to evidence about the lack of reticulated sewerage to which the respondent did not refer in its reasons. The evidence was given by Mr Cromer. In particular, he gave evidence that although it would be a matter for the Council to determine, waste water could be dealt with by septic tanks, although for Lot 1 it would be better to dispose of it in a designated area on high ground. He thought those proposals would be adequate and involved a "fairly achievable engineering proposition". Surprisingly, having regard to the fact that he was called as an expert for the purpose of the hearing, he confessed to not knowing whether it was usual for industrial estates not to be connected to a Council sewerage system and accepted that what he was proposing was probably unusual. He also accepted that individual industries might have waste requirements that could not be catered for by the proposal and as a consequence, they might not be allowed to proceed because of inadequate waste water facilities. In that regard he thought that the Council would have to determine each development application on a lot by lot basis. It was obviously to those aspects of his evidence to which the respondent was referring when in its reasons, it concluded that "drainage and on site effluent disposal can be achieved to some degree but for an industrial estate to be able to meet its development potential and environmental standards it should be connected to a sewerage treatment scheme and not rely on septic tanks or package plants".
The respondent is a specialist tribunal and I have no doubt that it has some experience considering proposals for industrial land. It was entitled to come to the view it reached and in concluding that the draft amendment should not be approved, notwithstanding Mr Cromer's views concerning waste disposal. It adequately explained its reasons. I add that its determination concerning waste disposal was only one of several reasons it gave for concluding that the draft amendments should be rejected.
Counsel for the applicants submitted that the failure to sufficiently refer to the evidence and explain why it was not accepted constituted grounds for review under the Judicial Review Act, s17(2)(e) and (h). Paragraph (e) permits a ground on the basis that the making of the decision, in this case the decision to reject the proposed amendment, was an improper exercise of the respondent's powers. I hold that the ground has not been made out. Paragraph (h) permits a ground on the basis that there was no evidence or other material to justify the making of the decision. I have absolutely no doubt whatever in rejecting that ground in this case.
Ground 3.5
The ground complains that in reaching the conclusion that the draft amendment did not further objective (a) in the Act, Sch1, Pt1, the respondent failed to take into account the substantial evidence put before it in respect of the lack of suitably zoned industrial land available for development within the vicinity of Deloraine and the site constraints of land already so zoned. In that regard, counsel for the applicants based the complaint on the grounds permitted by the Judicial Review Act, s17(1)(e), that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made, and (h) that there was no evidence or other material to justify the making of the decision. I hold that the word "decision" in the Judicial Review Act, in the circumstances of this case, applies to the respondent's ultimate decision to reject the draft amendment and not to the various findings of fact in the course of reaching that ultimate decision.
The ground must fail. In its reasons, the respondent noted that the Council had been concerned about the shortage of suitable sites in Deloraine and it referred to evidence that each industrial zoned area had development constraints, ranging from possible flood inundation, poor traffic access to land use conflicts. Later, the respondent recognised that there was limited zoned industrial land in Deloraine for a large-scale industrial development and that the Council had been frustrated in the past by not being able to get owners to develop their properties for industrial development. It is plain that the matters referred to in the ground were taken into account by the respondent.
Ground 3.6
One of the objectives of the resource management and planning system, that is specified in Sch1, Pt1, par(d), is "to facilitate economic development in accordance with the objectives set out in paragraphs (a), (b) and (c)". The respondent concluded that the draft amendment would afford further economic development, but noted that "it may also adversely impact on tourism in the area". One of its reasons for later concluding that the draft amendment should be rejected, was that it had a "potential detrimental impact on the landscape, especially in the short term, and adverse effects for tourism".
Ground 3.6 asserts that what was said by the respondent amounted to a conclusion that the draft amendment did not comply with objective (d). I do not agree. The respondent expressed no such conclusion. The ground also complains of the failure of the respondent to set out the basis upon which, in accordance with the evidence, it reached the conclusion that the draft amendment might adversely impact on tourism. It also complains that the conclusion was contrary to the evidence and that the respondent failed to state why it did not accept evidence on the point.
The effect on tourism was undoubtedly an issue for the respondent. It was associated with the even greater issue of landscape and cultural protection. The respondent noted that it was generally agreed that tourism was an important and growing component of the Deloraine economy and thought that it was therefore important to preserve or add to the cultural and landscape elements that contributed to that industry. For my own part, having visited Deloraine on many occasions throughout my life, I would take judicial notice of the fact that generally speaking it is in a high value landscape area and because of that, it plainly must be attractive to tourists. The argument that was advanced to the respondent, particularly in submissions from Mr Smibert and evidence from Ms Maxwell, was that the proposed industrial land would be detrimental to the landscape value of the area and therefore detrimental to the tourism industry to some extent. In my view, if the first proposition was correct then the second followed, although the extent to which the tourism industry might be harmed would be difficult to ascertain. However, Ms Maxwell gave evidence that when visitors were asked what attracted them to Deloraine, the overriding answers were heritage, arts and crafts, the landscape and the countryside. She asserted that to place an industrial estate at what she argued was the most important entrance into the town, ran a considerable risk of adversely affecting the attractiveness of the town from a tourist's point of view. Obviously the respondent considered that there was some merit in that proposition. It was entitled to reach that view. It was not contrary to the evidence. It noted that the Council had imposed quite stringent landscaping and development controls for the proposed industrial land and thought that to place so much reliance on landscaping and development controls suggested that the appropriateness of the location was questionable.
I conclude that the respondent adequately stated its reasons on the point. The applicants' complaint that the respondent's conclusion was contrary to the evidence is not a basis upon which the Court may review the decision. The complaint that the respondent failed to state why it did not accept evidence on the point, was not supported by argument from the applicants' counsel.
Ground 3.7
Another of the objectives of the resource management and planning system, that is specified in the Act, Sch1, Pt1, par(e) is "to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State". The respondent observed in its reasons that apart from consultation with the Department of Infrastructure, Energy and Resources, there was no evidence that there had been any sharing of responsibility. It said that for example, there was no evidence of consultation over either heritage or strategic industrial issues.
By ground 3.7, the applicants assert that by making those statements, the respondent misconstrued the legal effect of objective (e) which, upon a proper construction of the Act, was irrelevant to the decision. I do not consider that to be so. As I observed when dealing with ground 3.3, the Act, s5, obliged the Council and the respondent to perform their functions and exercise their powers under the Act in such a manner as to further the objectives in the schedule and the amendment was required by s32(1)(a) to further them. By referring to the objectives in its reasons, the respondent was merely doing what it was required to do. I think it again touched on objective (e), when in its conclusions, it referred to the unresolved strategic land issues. That in turn was referring to its earlier mention that the Council was currently undertaking a strategic land use review within the municipal area and that a directions paper was soon to be released for public comment. It said that it was appropriate for the review, so far as it concerned a strategy for industrial development, to be finalised before large new areas or locations were zoned for industry. That review would satisfy to some extent objective (e), for it would involve the sharing of responsibility for planning between the Council and the community and possibly others.
Ground 3.8
The ground complains that the respondent, by expressing its concern that the Council had made no suggestion that the draft amendment was part of a strategic review of industrial land in the municipality as a whole and Deloraine in particular, and by stating that the demand for industrial land was unknown, failed to take account of evidence on each of those issues and failed to state why it rejected that evidence.
Counsel that he had dealt with this ground in his submissions on grounds 3.4 and 3.5. Therefore, I see no reason to deal with this ground separately. I do not consider that it has merit.
Ground 3.11
Grounds 3.9 and 3.10 were abandoned. Ground 3.11 complains that the respondent supported its conclusion that the proposed rezoning "represents a major strategic land use shift for Deloraine and potentially for the municipal area" by relying upon a strategic land use review, whereas earlier in its reasons the respondent had concluded that it was "too early to place any weight on the recommendations contained in" that review. The ground also complains that reliance on the review was misplaced because as it was merely a draft document and had no statutory basis under the Act or the planning scheme, it was irrelevant.
There is no merit in the ground. All the respondent was saying was that it was inappropriate to rezone to industrial such a substantial area of land before the Council had completed a strategic land use review, which it was in the course of undertaking, that would include a review of strategy for industrial development within the municipal area. The respondent did not take into account the contents of any such review. There was no error in the approach of the respondent.
Ground 3.12
This ground was similar to ground 3.11 and the applicants' counsel argued both grounds together. For the same reasons, I have concluded that it has no merit. I add once again, that the reasons given by the respondent for rejecting the draft amendment were not confined to one in number. There were several reasons, one of which was that it was more appropriate to wait for the Council to complete its strategic land use review before making the amendment.
Ground 3.13
This ground is that "the respondent concluded that it was important to preserve or add to the cultural and landscape elements which contribute to the tourism industry and thereby concluded that the rezoning application did not contribute to the tourism industry, without having received any evidence at the hearing to support such conclusion".
There is no merit in the ground. The respondent was entitled to come to the conclusion that the proposed industrial development would not contribute to the tourism industry. It is obvious that it would be an extremely rare industrial development that would do so, particularly when having regard to cultural and landscape elements. I referred earlier to submissions by Mr Smibert and evidence by Ms Maxwell about this aspect.
Ground 3.14
This ground was argued at the same time as ground 3.4 and concerned the sewerage issue. I determined it when considering the other ground.
Ground 3.15
The final ground of the application to review is that "the respondent, over all in its decision, failed to have regard to the detailed evidence which was put before it, failed to say why it rejected relevant evidence put before it and reached conclusions in its decision without reference to the evidence and thereby breached the rules of natural justice and/or reached a conclusion when there was no evidence or no sufficient evidence or other material to justify the making of that decision in the circumstances".
There is no general rule of the common law, or principle of natural justice, that required reasons for the respondent's decision to be given. Public Service Board (NSW) v Osmond (1986) 159 CLR 656. The respondent was under no statutory obligation to do so either. I emphasise that the reasons given by the respondent for rejecting the draft amendment consisted of a combination of individual items:
·the unresolved strategic land use issues;
·lack of appropriate services;
·potential detrimental impact on the landscape; and
·adverse effects for tourism.
The respondent did not purport to decide that because of one of those reasons in particular, or because of two or three of them, the draft amendment should be rejected. It was the combination of all four of them on which it based its decision.
I dealt in some detail with the respondent's reasons for concluding that there were unresolved strategic land use issues, when considering ground 3.4. The respondent was of the view that it was preferable that the strategic land use review then being undertaken by the Council, be finalised before large new areas or locations were zoned for industry. The respondent's reasons for concluding that are apparent from the published reasons. By expressing that view, it was not ignoring the opinion of some witnesses that the subject land was suitable for industrial zoning.
Similarly, the respondent adequately expressed reasons for its concerns about the lack of appropriate services. I also dealt in some detail with that when considering ground 3.4. In his submissions, counsel for the applicants argued that the only expert on sewerage and drainage to give evidence was Mr Cromer and yet his evidence was rejected for a particular reason without him being given a fair opportunity to address that reason. I pointed out earlier to some weaknesses in Mr Cromer's evidence. The respondent is a specialist tribunal which no doubt, has had considerable experience dealing with issues concerning zoning and in particular, the zoning of land for industrial purposes. Its clear preference was for an industrial estate connected to a sewerage treatment scheme and not one relying on septic plants or packaged plants. It accepted the effect of Mr Cromer's evidence that drainage and on-site effluent disposal could be achieved to a degree. He accepted that a sewerage treatment plant would be more efficient and effective and that what he proposed did have limitations.
The issues concerning potential detrimental impact on the landscape and adverse effects for tourism were directly related, for the second flowed from the first, in the respondent's view. Beauty is in the eye of the beholder and to a large extent, the respondent was capable of forming its own judgment concerning landscape values, without depending on evidence. There was a conflict before the respondent on the evidence as to whether the proposed industrial estate would be harmful to the beauty of the area and its attractiveness. Ultimately the respondent had to make a judgment about the matter and it did so. As with the other issues, it is my opinion that it was entitled to come to the conclusion it in fact reached.
Conclusion
It seems to me that to a large extent, the application for review was argued as if it was an appeal by way of rehearing. That was not the case. The applicants were limited by the Judicial Review Act, particularly by s17. They failed to demonstrate that there was a breach of the rules of natural justice relating to the making of the respondent's decision, that the making of the decision was an improper exercise of the power conferred by the Land Use Planning and Approvals Act, that there was no evidence or other material to justify the making of the decision or that any other ground for review under the Judicial Review Act, was made out. Accordingly, the application will be dismissed.
I acknowledge the work of the applicants' counsel in submitting, following the hearing, a reference to authorities concerning some of the matters that can arise under the Judicial Review Act. Because of the view I take of the reasons given by the respondent for its decision, I have found it unnecessary to refer to those authorities in these reasons.
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