Drewitt v Resource Management and Planning Appeal Tribunal
[2007] TASSC 111
•21 December 2007
[2007] TASSC 111
CITATION: Drewitt v Resource Management and Planning Appeal Tribunal [2007] TASSC 111
PARTIES: DREWITT, Julianne
v
RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 495/2007
DELIVERED ON: 21 December 2007
DELIVERED AT: Hobart
HEARING DATE: 7 December 2007
JUDGMENT OF: Blow J
CATCHWORDS:
Environment and Planning – Environmental planning – Development control – Consents, approvals and permits – Validity – Delegation of power – Delegation by council to general manager – Sub-delegation by general manager to council committee.
Land Use Planning and Approvals Act1993 (Tas), s6.
Local Government Act1993 (Tas), ss22(1), 64.
Aust Dig Environment and Planning [208]
REPRESENTATION:
Counsel:
Applicant: S B McElwaine
Respondent: No appearance
Glenorchy City Council: K A M Pitt QC, P Ikedife
Epoh Investments Pty Ltd: G L Sealy
Solicitors:
Applicant: Shaun McElwaine
Respondent: No appearance
Glenorchy City Council: Simmons Wolfhagen
Epoh Investments Pty Ltd: Murdoch Clarke
Judgment Number: [2007] TASSC 111
Number of paragraphs: 47
Serial No 111/2007
File No 495/2007
JULIANNE DREWITT v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL
REASONS FOR JUDGMENT BLOW J
21 December 2007
These proceedings concern a planning permit issued on behalf of the Glenorchy City Council ("the council") in respect of a building containing a pharmacy and medical consulting rooms. The building was already being used for those purposes before the issue of the permit. The effect of the permit is to allow development involving the expansion of the building to cover the whole site, with the removal of some car spaces that presently exist at the rear of the premises. The applicant appealed to the Resource Management and Planning Appeal Tribunal in respect of the permit. Her appeal was dismissed. She has applied for the review of the Tribunal's decision under the Judicial Review Act 2000, contending that the decision to grant the permit was made by a committee with no power to make such a decision, and that the Tribunal made errors of law concerning the provisions of the Glenorchy Planning Scheme 1992 ("the planning scheme") relating to parking.
The Tribunal was named as the respondent to the application, but it has decided to take no part in these proceedings, and has filed a notice of submission pursuant to the Supreme Court Rules 2000, r777G. At the hearing of the application, both the council and the owner of the property, Epoh Investments Pty Ltd ("Epoh"), were represented by counsel and opposed the application.
The originating process in this matter purports to be both an originating application seeking relief under the Judicial Review Act and a notice of appeal pursuant to the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"). No point was taken at the hearing as to whether the originating process was irregular. An irregularity does not make the originating process void: Supreme Court Rules, r15. I will proceed on the basis that both an application under the Judicial Review Act and an appeal under the RMPAT Act are before me. The grounds relied upon for the application and the appeal are identical. I will deal with the grounds relating to parking before considering the grounds relating as to the validity of the decision to issue the permit.
Ground (b) –Relaxation
The provisions of the planning scheme as to access and parking extend over many pages. They begin with a laudable list of aims and objectives in cl 10.1. That clause includes the following:
"10.1 aim and objectives
The aim of these provisions is to ensure that uses and Development have safe and adequate access for pedestrian, cyclist and vehicular traffic, and appropriate parking arrangements.
The objectives to satisfy this aim are:
…
(c) to ensure that all Use or Development is provided with adequate permanent parking to cater conveniently and safely for the expected demand generated by use of the Site;
…
(g) to ensure that adequate parking space is provided for exclusive use of persons with a disability, visitors and employees …".
After that list of aims and objectives, there are a number of specific provisions, many of which are not relevant to this case. Clause 10.2 contains provisions in relation to disabled parking. Clause 10.5 sets out requirements for parking spaces in a table called Table 17. Clause 10.6.7 makes provision for bicycle parking. Clause 10.6.8 makes provision for motorcycle parking. Clause 10.7 relates to payments of cash in lieu of providing parking spaces. Clause 10.8 makes provision for the relaxation of the requirements of some earlier clauses. It includes the following:
"10.8 performance variations
Subject to Clause 7.5, the Council may relax the standards of clause 10.2, 10.3, 10.4, 10.5, and 10.6 where:
…
(d) alternative parking is available in proximity to the Site;
…
(g) if [sic] it is satisfied that a relaxation would not conflict with the aim [sic] and objectives set out in Clause 10.1."
Clause 10.5.2 of the planning scheme required a complete reassessment in respect of parking as if a new use was proposed for the site. The Tribunal considered the provisions of Table 17 and some conflicting evidence as to how many parking spaces were required thereunder. It determined that, under Table 17, between 80 and 90 car parking spaces were required. Ultimately it proceeded on the basis that Table 17 required 85 spaces. It took into account the fact that the developer was providing four parking spaces on another site. It took into account the fact that the developer had paid cash in lieu of providing six spaces when the original development was approved. It took into account the fact that some 20 spaces were available at any time in a nearby car park owned by the council. After taking those facts into account, the Tribunal considered that there was an unsatisfied need for a further 55 car spaces. It decided that the developer should not be required to provide those 55 spaces, and that it should be required to pay cash in lieu pursuant to cl 10.7.1. Accordingly, it varied the permit conditions so as to require that "Cash-in-lieu be taken for the amount of $121,000 (for 55 car spaces)".
Ground (b) of the grounds of review and grounds of appeal set out in the originating application reads as follows:
"(b) the Respondent erred in law in the exercise of the discretion conferred by clause 10,8 of the Glenorchy Planning Scheme 1992 in deducting 20 carparking spaces from the number to be provided in respect of the development application the subject of its determination when, properly construed, clause 10.1(c) and or clause 10.1(g), each when read with clause 10.8(g) of the planning scheme precluded it from doing so".
Counsel for the applicant submitted that cl 10.8, in permitting the council to "relax" certain requirements, did not empower it to dispense with any such requirement altogether. But in my view the word "relax", in that context, has a meaning that extends that far. It would be absurd if cl 10.8 permitted the council to reduce the number of car spaces to one, but never to zero. Further, cl 10.7.1 empowered the council to require a cash payment "in lieu of any or all of the parking spaces required pursuant to Table 17 where compliance is not practicable or not desirable". The granting of a permit for a development with no parking spaces was authorised by that clause.
When the Tribunal addressed the provisions of cl 10.1(g), it concluded that a nearby car park would afford adequate parking space for the exclusive use of persons with disabilities, but made no specific finding in relation to parking for visitors and employees. Counsel for the applicant submitted that it thereby erred in law. It is significant that cl 10.1(g) did not require the Tribunal to ensure that adequate parking space was provided for visitors and employees. It amounted to nothing more than a statement of a policy objective. Despite the existence of that policy objective, cl 10.7.1 made it possible for a permit to be granted in respect of a development that made no provision at all for parking. No error was involved in referring to the policy objective, and then making a decision based on other considerations.
Counsel for the applicant relied on provisions in Table 17 that required one parking space per 1.5 employees to be provided, subject to the discretionary provisions of the planning scheme. However that requirement did not prevail over the discretionary provisions.
Ground (b) must fail.
Ground (c)
This ground was abandoned.
Ground (d) – Parking for the disabled
This ground reads as follows:
"(d) the Respondent erred in law in that it failed to apply clause 10.9.1 of the planning scheme which clause required the provision of two carparking spaces for persons with disabilities, which carparking spaces were not provided for by the Respondent in making its decision".
Clause 10.9.1 of the planning scheme includes the following:
"10.9.1Parking for persons with disabilities shall be provided for all commercial, education & training, industrial, civic, institutional & hospital, multiple dwellings and multi storey dwelling categories based on the following sliding scale:
…
For Use or Development generating more than 36 spaces and less than 150 spaces
…".
2 spaces
The applicant contends that the disabled parking spaces required to be provided pursuant to cl 10.9.1 are additional to the parking spaces required to be provided pursuant to cl 10.5. There is no express provision in the planning scheme as to whether that is the case or not.
Counsel for Epoh relied on a footnote that appears at the bottom of each page of Table 17, reading as follows:
"In addition to the requirements of table 17, provision must be made for parking of bicycles and motor bikes in accordance with Cl 10.6.7 and 10.6.8. The number of which will be to the satisfaction of the Council. Provision must also be made for persons with a disability in accordance with the table at Cl 10.9."
He submitted that the first sentence of the footnote makes it clear that the requirements of cls 10.6.7 and 10.6.8 are additional to those of Table 17; that the final sentence, which relates to the requirements as to disabled parking in cl 10.9, does not state that the requirements of that clause are additional to those of Table 17; and that that is an indication that cl 10.9 does not require additional spaces for disabled parking.
Clause 10.5.1 states:
"10.5.1The provision of parking spaces for development shall be in accordance with Table 17."
If one gives those words their ordinary literal meaning, I think they should be taken to mean that Table 17 specifies how many parking spaces are required altogether, as distinct from specifying one component of the total number of required parking spaces.
Clause 10.9.1 creates an ambiguity as to whether or not the disabled parking spaces that it provides for are additional to those required in accordance with Table 17. These provisions restrict the common law rights of landowners to use their land as they please. All other things being equal, an interpretation favourable to landowners, ie a less burdensome interpretation, should therefore be preferred to one that is unfavourable to landowners.
Having regard to the factors that I have referred to, I think cl 10.9.1 should not be interpreted as imposing requirements additional to those of Table 17. Ground (d) should therefore fail.
Proposed grounds (de) and (df) – Disabled bus parking, bicycles and motorcycles
At the hearing, counsel for the applicant applied to amend the originating application by adding new grounds as follows:
"(de)the Respondent erred in law in that it failed to apply or comply with clause 10.2.2 of the planning scheme in making its decision;
(df)the Respondent erred in law in that it failed to apply or comply with clause 10.6.7 and 10.6.8 of the planning scheme in making its decision;".
I reserved my decision as to whether the amendments would be allowed, and required counsel to provide full argument as to the proposed additional grounds.
Clause 10.2.2 provides as follows:
"10.2.2For uses and developments Major Shop/Shopping Centre, Major Business Premises, Civic Buildings and Places of Assembly, an accessible short term parking space for buses is to be provided for persons with a disability. The parking space(s) shall be capable of providing a suitable area to accommodate a bus to Australian Standards AS 2890.5."
This clause is applicable to the proposed development because the pharmacy in question constitutes a "Major Shop". The Tribunal made a finding, in par63 of its reasons, that the disabled parking spaces in a car park near to the site would "afford adequate parking space for the exclusive use of persons with a disability". Clause 10.8(d) empowered the council to relax the standards of cl 10.2, which includes cl 10.2.2, where alternative parking was available in proximity to the site. The Tribunal did not refer to cl 10.2.2 but, in the light of that finding, I do not think it needed to. The proposed ground (de) has no merit in the light of that finding.
Clause 10.6.7, which relates to bicycle parking, provides as follows:
"10.6.7 Bicycle Parking Facilities
Safe, well-lit and convenient (where possible under cover) bicycle parking or locker facilities are to provided [sic] by Major Shop/Shopping Centre, Major Business Premises, Civic Buildings and Place of Assembly Use or Development categories. These facilities must comply with the Australian Standard AS 2890.3 and be located in close proximity to a main building entrance/exit, without hindering access for other users."
The proposed ground (df) asserts that the Tribunal failed to apply or comply with that clause. However condition 5 of the permit required the provision of four bicycle parking spaces in accordance with the appropriate Australian Standard. The Tribunal left that condition as it was. There is no reason to conclude that it made any error in relation to bicycle parking.
Clause 10.6.8, which relates to motorcycle parking, provides as follows:
"10.6.8 Motorcycle Parking Facilities
Safe, well-lit and convenient motorcycle parking is to be provided for Major Shop/Shopping Centre, Major Business Premises, Civic Buildings and Place of Assembly Use or Development categories. These facilities are to comply with Australian Standard AS 2890.1 and 2890.5 and be located in close proximity to a main Building entrance/exit, without hindering access for other users."
The Tribunal did not address that clause, but there is no evidence or material before me to indicate that anyone suggested that it should. It was up to the Tribunal to determine what matters it regarded as relevant, and the comparative importance to be accorded to relevant matters: Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 452, 459, 480. The case before the Tribunal was not about motorcycle parking. I therefore do not think it was bound to take into account the provisions of cl 10.6.8. If it had, I do not think there is any realistic chance that, having decided that the requirements of the planning scheme as to car parking could be dispensed with, it might have imposed a permit condition requiring the provision of motorcycle parking.
I see no merit in either of the proposed grounds (de) and (df). I think the appropriate course is to refuse the application for leave to amend.
Ground (e) – Payment in lieu of parking spaces
This ground reads as follows:
"(e)the Respondent erred in law in the exercise of the discretion conferred by clause 10.7.1 of the planning scheme in that it failed to make a determination as to whether complete compliance with the required number of parking spaces pursuant to Table 17 was or was not practicable or desirable."
As I have said, the Tribunal took Table 17 to require the provision of 85 parking spaces, decided for various reasons that it would be appropriate to relax the requirements of Table 17 so that only 55 spaces were required, and then decided to require a cash payment in lieu of the provision of 55 parking spaces. By this ground, the appellant contends that the developer should have been required to make a cash payment in relation to 85 parking spaces, not 55. The applicant contends that, by not requiring a cash payment in relation to 85 spaces, the Tribunal erred in law. But all that ground (e) asserts is that the Tribunal erred "in that it failed to make a determination as to whether complete compliance with the required number of parking spaces pursuant to Table 17 was or was not practicable or desirable".
Clause 10.7.2 lists the criteria to be applied when considering whether a cash payment should be required in lieu of the provision of parking spaces. It reads as follows:
"10.7.2 Consideration of the requirement for payment of cash in lieu in relation to car parking spaces will be based on the following criteria:
(a)the Development is situated in either the Central Commercial or Frame Commercial Zones;
(b)an existing (or proposed) Council car park is within 500m of the development. Consideration should be given to the type of use and likely walking distances for patrons to the proposed carparks, and if considered excessive for certain types of development, may be varied or reduced.
(c)proposed Council car parks can only be considered if they are scheduled for use within 2 years of the issue of a Development Application Permit. Any impact from a delay in accommodating demand-needs will be taken into account when assessing an application."
The Tribunal considered the evidence in relation to the topics dealt with in pars(a), (b) and (c) of cl 10.7.2, and then ordered that the permit conditions be varied so as to require cash in lieu to be taken in respect of 55 car spaces. It is implicit that the Tribunal, having considered the matters listed in cl 10.7.2, was satisfied that complete compliance with the requirements of Table 17 was neither practicable nor desirable. It did not need to recite, as if they were a mantra, the words, "Complete compliance is not practicable or not desirable." Ground (e) must fail.
Ground (a) - Validity of the permit
This ground reads as follows:
"the Respondent did not have jurisdiction to make the decision which it purported to make, to vary the planning permit issued by the Glenorchy City Council in that the Glenorchy City Council did not make a valid decision to grant the permit pursuant to Section 57 of the Land Use Planning and Approvals Act 1993".
The decision to issue the permit was made not by the council, but by one of its committees, namely the Land Use Planning Committee ("the committee"). The council and Epoh contend that the power of the council to make such a decision had been validly delegated to the council's general manager, and sub-delegated to that committee, pursuant to the provisions of the Local Government Act 1993. The applicant contends that, whilst an attempt was made to invest the committee with that power, that attempt was unsuccessful, with the consequences that the decision to grant the permit was a nullity, that the appeal to the Tribunal was incompetent, and that the Tribunal's decision is also a nullity.
Councils are able to delegate decision-making powers, and to authorise the sub-delegation of such powers, pursuant to the Local Government Act, ss22(1) and 64. Those sections read as follows:
"22 (1) Subject to subsection (2), a council, in writing, may delegate with or without conditions to the general manager, controlling authority, a council committee or a special committee, any of its functions or powers under this or any other Act, other than–
(a) this power of delegation, unless authorized by the council; and
(b) the powers referred to in subsection (3)."
"64 The general manager, in writing, may delegate to an employee of the council –
(a) any functions or powers under this or any other Act, other than this power of delegation; and
(b) any functions or powers delegated by the council which the council authorized the general manager to delegate."
The provisions of s22(2) and (3) are not relevant to this case.
Counsel for the applicant submitted that ss22(1) and 64 do not apply in relation to a council's powers under the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), on the basis that s6 of that Act covers the field in relation to the delegation of such powers. That section reads as follows:
"6 (1) … [sic]
(2) … [sic]
(3) A planning authority may, by resolution, delegate any of its functions or powers under this Act other than this power of delegation to a person employed by the authority.
(4) A delegation may be made either generally or as otherwise provided by the instrument of delegation.
(5) Notwithstanding any delegation, a planning authority may continue to perform or exercise all or any of the functions or powers delegated.
(6) A function or power performed or exercised by a delegate has the same effect as if performed or exercised by a planning authority."
It should be noted that this section permits the delegation of power only to an employee. Since the committee was not an employee, and was not comprised of employees, its decision would be invalid if this section were the only possible source of delegated power.
The term "planning authority" is defined in the LUPA Act, s3, to mean "a council". Counsel for the applicant submitted that s6 covered the field as to the delegation and sub-delegation of powers possessed by a council in its capacity as a planning authority, and that the delegation and sub-delegation provisions in the Local Government Act were intended to operate only in relation to other powers. He pointed out that, when the LUPA Act was originally enacted, marine boards also constituted planning authorities. He referred me to the Sullivan's Cove Waterfront Authority Act 2004, under which the Sullivan's Cove Waterfront Authority constitutes a planning authority for the purposes of the LUPA Act. However, in my view, there is nothing in the language of either of the two statutes to give the slightest indication that Parliament intended the relevant provisions in the Local Government Act not to apply in relation to powers conferred under the LUPA Act. In my view there is no conflict or inconsistency between the provisions of the Local Government Act and the LUPA Act, s6. They operate concurrently, with some overlapping. A council may delegate its planning powers, and authorise the sub-delegation of them, in accordance with the provisions of either statute. A contrary interpretation would interfere with efficient administrative decision-making.
Counsel for the applicant submitted that the Local Government Act, s64, permits a general manager to sub-delegate a function or power only to "an employee of the council", and that the committee was therefore not empowered to make the decision in question. I disagree. In my view ss22(1)(a) and 64(b) confer on councils two separate powers to authorise sub-delegation. Under s22(1), a council may delegate functions or powers to "the general manager, controlling authority, a council committee or a special committee". Although s64 deals with the sub-delegation of powers delegated to a general manager, there is no provision other than s22(1)(a) relating to the sub-delegation of powers by a controlling authority, a council committee or a special committee. It must follow that s22(1)(a) is the source of the power to authorise sub-delegation in respect of those bodies. It must follow that s22(1)(a), in its application to a general manager, is not concerned with an authorisation of sub-delegation pursuant to s64(b), but is a separate source of power pursuant to which a council may authorise a general manager to sub-delegate. I think it must follow that a general manager, when authorised by the council pursuant to s22(1)(a) to sub-delegate, may sub-delegate to a council committee.
Counsel for the applicant submitted that, even if the legislation permitted the council to delegate the power in question to the general manager, and to authorise him to sub-delegate that power to the committee, the steps taken in this case to achieve such delegation and sub-delegation did not satisfy the requirements of the Local Government Act, s22(1)(a) and the Acts Interpretation Act 1931, s23AA(2)(b). The latter provision reads as follows:
"(2) A delegation –
(a) …; and
(b) must be in, or evidenced by, writing signed by the delegator or, if the delegator is a body, by a person authorized by the body for that purpose; and
(c) ... ."
For the power to grant a planning permit to be validly delegated to the general manager and validly sub-delegated by him to the committee, the legislation made the following steps necessary:
(i)Council needed to pass resolutions (a) delegating the power to the general manager, (b) authorising the general manager to sub-delegate the power to the committee, and (c) authorising a person to sign the written instrument of delegation. (It was not enough for the council to authorise a person to sign a written document evidencing the making of an oral delegation since the Local Government Act, s22(1), required the delegation to be in writing.)
(ii) A person authorised by the council needed to sign the written instrument of delegation.
(iii)The general manager needed to sign a written instrument of sub-delegation, sub-delegating the power to the committee.
Counsel for the applicant submitted that step (ii) had not been taken, ie that there was no evidence that the mayor or anyone else had signed a written instrument of delegation.
There was evidence that the following steps were taken for the purpose of delegating and sub-delegating the power in question:
·Council officers revised and updated a document referred to as a delegations register. It was a lengthy document listing the delegated powers of each council officer who had, or who was proposed to have, any delegated powers. The officers were not referred to by name, but by their positions, eg "senior planner", "development engineer". At the very beginning of the register, the following words appeared:
"Under the powers given by section 22 of the Local Government Act (1993), Council delegates all of the powers listed in this register to the General Manager and authorises the General Manager to further delegate these powers to the positions named."
On page 32 of the register, the following appeared:
"Land Use Planning Committee
1To determine those matters of statutory land use planning listed on the agenda for meetings of the land use planning committee."
·On 13 February 2001, the council passed a resolution that included the following:
"(a)That all of the powers listed in the delegations register be delegated to the General Manager … .
(b)That the mayor be authorised to sign the delegations register as a true record of the powers that Council has delegated to the General Manager.
(c)That the General manager is authorised to delegate to the positions shown in the register those powers that are listed under the positions."
·Apparently the mayor subsequently signed the minutes of that meeting.
·On 16 February 2001 the acting general manager wrote a letter to the committee. It appears to be a standard form of letter that was intended to be sent to council employees. It contained a lot about their duties and responsibilities. It began as follows:
"Delegation of Powers
Please find attached the delegations approved by Council in relation to your position.
The powers are provided at your request to allow more efficient and effective delivery of services to our customers."
Enclosed with that letter was a document in the following form:
"The Council by virtue of Section 22 of the Local Government Act 1993 has delegated the following powers to the General Manager. The General manager by authority of Section 64 of the Local Government Act 1993 has delegated powers of Council directly to the position of:
Land Use Planning Committee
1 To determine those matters of statutory land use planning listed on the agenda for meetings of the Land Use Planning Committee."
There is no evidence or other material before me as to whether or not a written instrument of delegation was signed by the mayor or anyone else. That is probably because there was no issue before the Tribunal as to whether such an instrument had been signed. Before the Tribunal conducted a hearing, the solicitors for the applicant and the council made written submissions as to whether the committee had jurisdiction to make its decision. The solicitor for the applicant contended that the committee had no power, that the decision was invalid, and that the appeal was incompetent. However he relied only on the arguments that I have already referred to in relation to the interpretation of the provisions of the Local Government Act and the LUPA Act relating to delegation and sub-delegation. He did not contend that, even if the council could delegate the relevant power to the general manager and authorise him to sub-delegate it to the committee, it had not successfully done so because no instrument of delegation in favour of the general manager had been signed. The Tribunal determined before the hearing that the permit was valid, and proceeded accordingly.
So far as the appeal under the RMPAT Act is concerned, the material before me does not demonstrate that the Tribunal made any error of law as to this point. So far as the application for relief under the Judicial Review Act is concerned, the applicant has not established on the balance of probabilities that an instrument of delegation in favour of the general manager was not signed. Even if it were an established fact that no such instrument was signed, this is so technical a point that I think it would be appropriate, in the exercise of the Court's discretion, to refuse relief under the Judicial Review Act. See Grunseth v Resource Planning and Development Commission [2007] TASSC 92 at pars17 – 21.
Counsel for the applicant submitted that there had been no valid sub-delegation to the committee because the general manager, at most, had been authorised "to further delegate these powers to the positions named", whereas the committee was not a "position". In my view, although the word "positions" was used sloppily, it is clear enough what was intended. Ideally, the words used should have been, "to the holders of the positions named and to the committee named". I think the documents can and should be interpreted as if those words had been used.
Counsel for the applicant submitted that what was sub-delegated, or purportedly sub-delegated, to the committee was not a "function or power" within the meaning of the Local Government Act, s22(1), and was uncertain, because the committee was purportedly empowered only in relation to matters "listed on the agenda for meetings of the Land Use Planning Committee". I disagree. Under s22(1), functions or powers can be delegated and sub-delegated "with or without conditions". The words used in relation to agendas amounted to a condition requiring that no function or power given to the committee by way of sub-delegation was to be exercised except in relation to a matter listed on an agenda for one of its meetings. In my view such a condition was within the scope of s22(1).
For these reasons, ground (a) must fail.
Conclusion
For the above reasons, I refuse the application for leave to amend, I dismiss the originating application, and I dismiss the appeal.
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