Forest Marsh Pty Ltd v Resource Planning and Development Commission

[2007] TASSC 50

[2007] TASSC 50

CITATION:Forest Marsh Pty Ltd v Resource Planning and Development Commission [2007] TASSC 50

PARTIES:  FOREST MARSH PTY LTD
  v
  RESOURCE PLANNING

AND DEVELOPMENT COMMISSION

TITLE OF COURT:                   SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  59/2006
DELIVERED ON:  27 June 2007
DELIVERED AT:  Hobart
HEARING DATE:  20 April 2007
JUDGMENT OF:  Underwood CJ
CATCHWORDS:

Statutes – Acts of parliament – Statutory powers and duties – Exercise – Delegation of power conferred by statute – Whether delegator divests him or herself of the power.

Acts Interpretation Act1931 (Tas), s23AA(6).
Huth v Clarke (1890) 25 QBD 391; Bayly v Municipal Council of Sydney (1927) 28 SR(NSW) 149; Gordan, Dadds & Co v Morris [1945] 2 All ER 616; Blackpool Corporation v Locker [1948] 1 KB 349, discussed.
Re Reference Under Section 11 of Ombudsman Act 1976; ex parte Director-General of Social Services (1979) 2 ALD 86, distinguished.
Aust Dig Statutes [93]

Administrative Law – Judicial review – Grounds of review – Procedural fairness – Generally – Content of procedural fairness.

Land Use Planning and Approvals Act 1993 (Tas), s40.
Re Refugee Tribunal; ex parte AALA (2000) 204 CLR 82; Clarence City Council v South Hobart Investments Pty Ltd [2007] TASSC 16, applied.
Aust Dig Administrative Law [1046]

REPRESENTATION:

Counsel:
             Plaintiff:  S B McElwaine
             Defendant:  P Turner
Solicitors:
             Plaintiff:  S B McElwaine
             Defendant:  Director of Public Prosecutions

Judgment Number:  [2007] TASSC 50
Number of paragraphs:  44

Serial No 50/2007
File No 59/2006

FOREST MARSH PTY LTD v RESOURCE PLANNING
AND DEVELOPMENT COMMISSION

REASONS FOR JUDGMENT  UNDERWOOD CJ

27 June 2007

Introduction

1. The plaintiff has brought this action to challenge a resolution of the defendant Commission made on 19 June 2006.  The principal relief sought in the action is a declaration that the Commission's resolution, or "purported decision", as it is described in the statement of claim, is void.  The arguments to support entitlement to a declaratory judgment are that the defendant did not have power to make the purported decision or that it is invalid for want of procedural fairness.  No oral evidence was called at trial.  Documents were admitted by consent and the facts were agreed.

The material facts

1. The plaintiff is the owner of 65 hectares of land on the southern shore of Arthurs Lake in Tasmania.  The relevant planning authority is the Central Highlands Council ("the council") and the use of the land is governed by the Central Highlands Planning Scheme ("the scheme").  The land was, and presumably still is, zoned rural.

1. Pursuant to the Land Use Planning and Approvals Act 1993 ("LUPA"), ss33 and 43A, the plaintiff requested the council to initiate an amendment to the scheme to rezone its land from rural to holiday residential and to grant a permit for a subdivision into 29 allotments.

1. The council resolved to initiate the requested amendment and conditionally granted the permit. It followed the procedures prescribed by LUPA, ss34, 35, 38, 39 and 43F. Representations, mostly against the proposed amendment and permit, were received. In obedience to LUPA, ss39 and 43F(6), the council reported to the Commission.

1. By virtue of LUPA, s40, the Commission was obliged to consider the draft amendment, and by virtue of s43G, the permit, and to hold a hearing in relation to each representation referred to in the council's report. The Resource Planning and Development Commission Act 1997 ("the Commission Act"), s8(1), provides that, "[t]he Commission may delegate any of its functions and powers other than this power of delegation". On 17 October 2005, the Commission exercised this power and delegated to John Vandenberg and Clarry Prior, jointly and severally ("the delegates") all of its functions and powers prescribed by LUPA, ss40, 41, 41A, 41B, 42(1), 42(2), 43G, 43H and 43I, in relation to the proposed draft amendment and the permit.

1. In the exercise of their delegated powers, the delegates considered the draft amendment and permit and held a hearing. Pursuant to LUPA, s41A, the delegates determined that the council alter the draft amendment to a substantial degree, taking into account the matters contained in the annexure to the reasons for the delegates' determination.

1. The council complied with the determination. The Commission certified the amended amendment and directed the council to exhibit it. This time, no representations were made to council during the period the amended amendment was on exhibition and the council so reported to the Commission. LUPA, s40, required the Commission to consider the report and the Commission met to do this on 19 June 2006. It appears that before that meeting, the Commission was given a report by one of its employees, a Mr Lindus, described in the report as a planning advisor. This 15 page report, dated 16 May 2006, sets out a detailed analysis of the proposed amendment to the scheme as altered to a substantial degree pursuant to the delegates' determination. The report asserts, "while the delegates directed the draft amendment to be altered to a substantial degree, the altered amendment must now be considered on its own merits".

1. The end result of 12 pages of analysis is Mr Lindus' recommendation to the Commission that the amendment, as altered to a substantial degree, be rejected.  There is no evidence as to whether Mr Lindus gave the delegates the benefit of his views when they were considering the amendment and conducting a hearing in the first place, but as I see it, implicit in his report and recommendation to the Commission dated 16 May 2006, is his view that the delegates got it wrong.

The purported decision

1. From a paper prepared by an officer of the Commission, Kerry Bowden, it appears that the Commission discussed Mr Lindus' report and recommendation at its meeting on 19 June 2006. It accepted "the validity of the issues" raised by the report, but decided not to accept Mr Lindus' recommendation to reject the amendment as altered to a substantial degree, "noting that the matter had been the subject of a hearing with a determination that the amendment be altered to a substantial degree and re-advertised". In a clear acknowledgement that the Commission was considering the application pursuant to LUPA, s40, as it was required to do by virtue of s41B(2), the Commission's paper states:

"The Commission accepted that this was in fact a new amendment, but asked that consideration be given to how best to ensure that the expectations of the council, the [plaintiff] and the representors arising from the first hearing are met and appropriately advertised."

1. The Commission decided that "the most equitable way to further this matter" was to hold another hearing. It noted that LUPA, Pt3, Div2, made no provision for a hearing when there were no representations, but relied upon the Commission Act, s6(2), which provides:

"(2)   The Commission may do all things necessary or convenient to be done for or in connection with, or incidental to, the performance of its functions."

1. The Commission identified a number of issues referred to in Mr Lindus' report, all of which Mr McElwaine, who appeared as counsel for the plaintiff, contended had already been considered by the delegates.  The Commission then made the purported decision in these terms:

"The Commission considered the report provided and after discussion resolved to request that delegates Prior and Vandenberg reconvene a hearing to consider the issues raised in the report and hear and determine the amendment and section 43A."

1. On 8 July 2006, the Commission placed newspaper advertisements which set out the issues identified by the Commission at the time it made the purported decision, advised that the hearing in relation to the draft amendment would be reconvened on a date to be advertised and, meantime, invited written submissions.

Did the Commission have power to make the purported decision?

1. Mr Turner, counsel for the Commission, conceded that his client had lawfully delegated all its powers with respect to the proposed draft amendment to the delegates, but contended that notwithstanding, it was empowered to make the purported resolution. Mr McElwaine submitted that because the Commission had delegated its powers to consider and determine the draft amendment and permit in accordance with the relevant provisions of LUPA, and because it had not revoked that delegation, it had no power to direct the delegates to hold another hearing. An immediate answer to this submission is that the Commission did not "direct" its delegates to do anything. It simply requested them to reconvene the hearing to consider the issues raised in Mr Lindus' report, a request that could have been refused. However, as Mr McElwaine pointed out, the request was treated as a direction and the advertisements were placed in the newspapers under the authority of the manager of the Commission. Both counsel argued the case upon the basis that the Commission determined that there would be another hearing and that at the time of that determination, the Commission's powers and functions under LUPA, specifically ss40 and 42, were delegated to the delegates. Accordingly, it is appropriate that I should determine this aspect of the case upon that basis.

1. Mr McElwaine's submission was that a delegated power that has not been revoked cannot be exercised by the delegator.  Mr Turner's submission was to the contrary.  In essence, resolution of these competing submissions is a question of statutory interpretation.  The Acts Interpretation Act 1931 ("the Interpretation Act"), s23AA, enacts general provisions where an Act confers a power to delegate the function or power. Relevant to this action, subs(2)(c) provides that a delegation may be revoked and subs(6) provides:

"(6)   A function or power that has been delegated may, notwithstanding the delegation, be exercised by the delegator."

1. Mr McElwaine relied upon some expressions of principle by Brennan J in Re Reference Under Section 11 of Ombudsman Act 1976; ex parte Director-General of Social Services (1979) 2 ALD 86. An issue in that case was whether a determination was a determination of the delegate or of the delegator. The relevant legislation was similar to the Interpretation Act, s23AA(6) in that it provided the Director-General with a power to delegate and expressly provided that "no delegation shall prevent the exercise of any power or function by the Director-General". At 94 – 95, Brennan J expressed the view that the delegate is not an agent of the delegator and concluded, "that where a delegate is exercising the power delegated to him, he may validly exercise the power in his own name". His Honour went on to hold that such a delegate may also exercise the power in the name of the delegator.

1. Mr McElwaine submitted that this case is authority for the proposition that, because a delegate is exercising the delegator's power, that power cannot be exercised by anyone else, including the delegator, until the delegation has been revoked.  That submission overlooks the terms of the statute.  In Re Reference Under Section 11 of Ombudsman Act 1976 whether the Director-General could also exercise the power was not an issue, but that he could do so was clearly recognised by Brennan J when he said in passing at 94:

"Although the Director-General retains the function and power of making decisions under s 14 after he delegates his powers and functions to another (s 12(3)), there is no administrative necessity for the Director-General to have s 14 matters dealt with by delegates in reliance on his powers rather than their own."

1. Mr McElwaine also referred to Fyfev Bordoni [1998] SASC 6860 and Seventh Mingcourt Pty Ltd v Lawrence [1996] FCA 109, but neither assist his contention.

1. In Fyfe v Bordoni, Olsson J referred to Re Reference Under Section 11 of Ombudsman Act 1976 (supra) at par45 and held that the effect of delegation is to confer direct power on the delegate to exercise the power, instead of the delegator, and that power remains vested in the delegate until it is lawfully revoked. His Honour reached those conclusions in the course of determining an issue quite different from the one in this case. His Honour did not have to consider, nor did he make any observations about, the meaning of legislation in the same, or similar, terms to the Interpretation Act, s23AA(6).

1. In Seventh Mingcourt Pty Ltd (supra), Branson J observed obiter dicta, at par40, that the Minister's power to delegate "all or any of [her] powers …" conferred by the National Health Act 1957 (Cth), s6, did not extend to the delegation of part of a particular power. That Act, s6(4), provided that "A delegation under subsection (1) does not prevent the exercise of a power by the Minister". Her Honour then said:

"Although s6(4) of the Act provides that a delegation by the Minister does not prevent the exercise of the power by the Minister, this does not, in my view, mean that both the Minister and the delegate may exercise the one power in respect of the same set of circumstances at the same time."

1. It seems to me that her Honour was there expressing no more than what I might describe as common sense.  The subsection to which she referred meant that both the Minister and the Minister's delegate have the power, and one or other may exercise it, but not both.  The rationale no doubt being, that once the power has been exercised, it is exhausted.

1. I accept Mr McElwaine's submissions that these cases make it clear that the delegate is exercising a power that has been conferred upon him or her and that the delegate does not exercise the power as agent for the delegator. I also accept that these cases are authority for the proposition that the delegate may also exercise the power in the name of the delegator. But I do not accept Mr McElwaine's contention that it follows from these cases that the Interpretation Act, s23AA(6), "cannot be construed as authorising the delegator to exercise the delegated functions or powers concurrently, or inconsistently, with the delegate, absent revocation of the delegation pursuant to [the Interpretation Act], s23AA(2)(c)".

1. The common law is instructive.  In Huth v Clarke (1890) 25 QBD 391, the issue was, in essence, the same as that raised in this case, except that there were no relevant statutory provisions. Lord Coleridge CJ said at 394 – 395:

"It is suggested, however, that, because there was another authority which might (had it chosen) have violated good sense by making an inconsistent order, the executive committee had no power to make the regulation in question.  But delegation does not imply a denudation of power and authority; the 6th schedule of the Act provides that the delegation may be revoked or altered and the powers resumed by the executive committee.  The word 'delegation' implies that powers are committed to another person or body which are as a rule always subject to resumption by the power delegating, and many examples of this might be given.  Unless, therefore, it is controlled by statute, the delegating power can at any time resume its authority."

1. Wills J said at 395:

"Delegation, as the word is generally used, does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself."

1. A little further on, his Honour said that "[t]he notion, therefore, that the use of the word 'delegate' implies that the executive committee parted with their own authority is misconceived."

1. This view was referred to and adopted by Mason J (as he then was) in O'Reilly v State Bank of Victoria (1982) 153 CLR 1, when he said at 17:

"Delegation is not a parting with powers by the person who grants the delegation, but the conferring of authority to do things which otherwise that person would have to do for himself (Huth v Clarke (1890) 25 QBD 391, at p 395, per Wills J)."

1. In Bayly v Municipal Council of Sydney (1927) 28 SR(NSW) 149, Street CJ, at 154, also adopted the view of Wills J in Huth v Clarke.  However, the learned Chief Justice expressed his view slightly differently when he said at the end of 154, after citing the passage that I have cited from the judgment of Wills J:

"The Council can at any time revoke the authority delegated to the heads of departments and to the town clerk, and can take back into its own hands the exercise of the powers delegate to them.  It has not denuded itself of any of its rights.  All that it has done is that, in exercise of them, it has given a revocable authority to others to act for it in certain specified matters."

1. In Gordan, Dadds & Co v Morris [1945] 2 All ER 616, Lynskey J cited a passage with apparent approval, from each of the two judgments at 621. However, at 622, his Honour referred to the extremely limited nature of the delegation in the case before him and concluded that "a delegation made in those terms and subject to those conditions did not amount to any denudation of any powers in the Ministry of Health". It would appear that Lynskey J accepted the principle in Huth v Clarke but for the purposes of the decision he had to make, buttressed his conclusion by the restricted nature of the power that had been delegated.

1. In Manton v Brighton Corporation [1951] 2 KB 393, Slade J referred to Huth v Clarke at 401 – 403, and cited a long passage from the judgment of Lord Coleridge, as well as most of the judgment of Wills J. His Honour said at 403:

"… I respectfully supplement the Lord Chief Justice's words when he says that the delegating power can at any time resume their authority by saying that in my judgment not only can they resume their own authority ¾  with which indeed they have never parted ¾ but they can revoke the authority which they have delegated; …".

1. However, those observations were obiter dicta, for the decision rested on the conclusion that the corporation had a power to revoke the delegation and had done so.

1. In Blackpool Corporation v Locker [1948] 1 KB 349, Scott LJ took a contrary view and held at 377 that the delegation by the Minister of certain statutory powers meant that "he, for the time being, divested himself of those powers …". Notwithstanding, the court did not expressly overrule its earlier decision in Huth v Clarke.

1. All these cases and some textbook writings are discussed and analysed at length in Robertson v Department of Food and Rural Affairs [2004] ICR 1289; Employment Appeal Tribunal.  The conclusion of the President, Burton J, at par44, was that the tribunal was bound by the Locker decision and that the nature of the delegation in that case was such that the delegator divested himself of the delegated power.  However, contrary to some of the cases I have discussed, Burton J said, at par45:

"In any event we are of the view that, in ordinary parlance, delegation does imply denudation and that ordinarily (leaving aside instruction of a non-exclusive estate agent) it will not be regarded as appropriate for a delegor to go off and do himself, without notice to the delegate, what he has just delegated.  There are dangers and uncertainties, in our judgment, in such concurrent authority."

1. The tribunal's decision went on appeal to the Court of Appeal (Robertson v Department for the Environment, Food and Rural Affairs [2005] EWCA Civ 138), but the court's judgment did not assist in clarifying the point at hand. Lord Justice Mummery, with whose reasons the other members of the court agreed, said at par41:

"The Employment Appeal Tribunal rejected the retention of power point after a very detailed discussion of the authorities, academic writings and the rival submissions (see paragraphs 31-49). It is unnecessary to go over that ground again or to express a view on the question whether delegation divested the delegator of relevant powers until the delegation has been revoked".

1. It would appear that the authors of Judicial Review of Administrative Action, Aronson, Dyer and Groves, 3rd edn, are correct when they describe the position at common law in the following terms at 310:

"Although not all the cases are in accord, it is submitted that, in the absence of a contrary indication in the Act, a delegator retains power to act or decide concurrently with the power of the delegate, and may exercise that concurrent power at any time before the delegate acts or decides.  This is consistent with the view that delegation involves a replication rather than a transfer of power." [Authorities omitted.]

1. The following passage is taken from Halsbury's Laws of England, 4th edn at par32:

"In general, a delegation of power does not imply parting with authority.  The delegating body will retain not only power to revoke the grant, but also power to act concurrently on matters within the area of delegated authority except insofar as it may already have become bound by an act of its delegate."  [Authorities omitted.]

1. By Act No 20 of 1992, the Tasmanian Parliament introduced s23AA into the Interpretation Act. Similar provisions exist in other Australian jurisdictions[1]. My researches and those of counsel and my Associate, have failed to discover any judicial interpretation of s23AA(6) or its equivalent in other places in Australia.

   [1] Interpretation Act 1987 (NSW), s49(9); Interpretation Act (NT), s46A(4); Acts Interpretation Act 1954 (Qld), s27A(10); Interpretation Act 1984 (WA), s59(1)(a); Acts Interpretation Act 1901 (Cth), s34AB(d).

1. Notwithstanding the lack of authority, in my view the clear meaning of the Interpretation Act, s23AA(6) is that where an Act confers a power to delegate a function or power, the act of delegation does not divest the delegator of the delegated power or function. I so conclude because:

·the subsection was enacted against a background of uncertainty at common law; but

·there is a line of common law authority consistent with that interpretation of subs(6) and had the Parliament intended to overrule Huth v Clarke (supra) and the cases that followed it, it would not have enacted the subsection, or certainly not in those terms;

·the Interpretation Act, s23AA(4), clarifies another common law uncertainty. See Re Reference Under Section 11 of Ombudsman Act 1976; ex parte Director-General of Social Services (supra);

·given that s23AA(2)(c) confers a power to revoke a delegation, if Mr McElwaine's submission is correct, one would have expected the Parliament to have enacted that upon revocation the delegator can exercise the power or resumes the power;

·the ordinary meaning of the words of subs(6) supports this construction.

1. As I have noted, in the case of a direction that a planning authority alter a draft amendment to a substantial degree, that amendment must be exhibited and LUPA, s41B(2) provides that the statutory provisions requiring the authority to receive representations and report to the Commission on those representations apply in the same way as they did when the draft amendment was first exhibited. That subsection also applies s40 to the amendment after it has been altered to a substantial degree. Section 40(1) requires an authority to consider the amended draft and the representations, statements and recommendations contained in the report. Although in this case no representations were made to council with respect to the amendment altered to a substantial degree, on 19 June 2006, the Commission was clearly exercising the statutory power conferred by LUPA, s40, when it made the purported decision. For the reasons that I have set out, the Commission was entitled to exercise that power, notwithstanding that it had earlier delegated it to the delegates.

Procedural fairness

1. This argument is based upon the proposition that procedural fairness required the Commission to disclose Mr Lindus' report to the plaintiff and, to a lesser degree, Mr Bowden's report, before the "purported decision" was made.

1. Re Refugee Tribunal; ex parte AALA (2000) 204 CLR 82 is recent authority for these propositions:

·     where a discretionary power is conferred upon a person, the power must be exercised reasonably;

·     unless the statute conferring the power expressly, or by clear implication, excludes an obligation to afford procedural fairness, a failure to do so is an unreasonable exercise of power;

·     such an exercise of power amounts to jurisdictional error.

1. The obligation to afford procedural fairness was described in these terms by Mason CJ, Dean and McHugh JJ in Annetts v McCann (1990) 170 CLR 596 at 598:

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment." [Authorities omitted.]

1. The content of natural justice or procedural fairness varies from case to case.  I venture to repeat the following set out in my reasons for judgment in Clarence City Council v South Hobart Investments Pty Ltd [2007] TASSC 16 at pars17 – 28:

   "In Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, the High Court expressed agreement at 552 – 553 with this observation of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118:

   'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.'

   The High Court said at 553:

   'It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances.'

   With respect to the exercise of a power conferred by statute, Mason J said in Kioa v West (supra), at 584, "'the application and the content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute", and continued at 585:

   'In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.  The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.'

   See also Wilson J at 594, where his Honour referred with approval to the statement by Tucker LJ cited above.  The same approval was expressed by Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 366 – 367."

1. It is important to recall the terms of the decision in respect of which it is claimed the plaintiff was denied procedural fairness. It was no more than to reconvene a hearing to consider the issues raised in Mr Lindus' report. The plaintiff did not have a legitimate expectation that the outcome of the exercise of the power conferred by LUPA, s40, would be approval of the draft amendment, altered to a substantial degree, in accordance with s42. At the meeting on 19 June 2006, the Commission gave consideration to the draft amendment altered to a substantial degree as it was required to do so by s40. That consideration involved taking into account the issues raised by Mr Lindus and there is abundant authority (set out in Judicial Review of Administrative Action (supra) at 512, et seq) that an expert tribunal is entitled to have regard to its expertise and that of its officers.  The Commission did not resolve to reject the amendment altered to a substantial degree.  Had it done so the plaintiff clearly would have been denied procedural fairness without first disclosing Mr Lindus' report to it and giving it an opportunity to be heard. 

1. The "purported decision" in effect discloses Mr Lindus' report to the plaintiff and provides it with an opportunity to be heard with respect to the issues raised in that report.  The plaintiff might well be irritated by the delay and increased cost, and by the fact that according to its perception, the issues raised by Mr Lindus have already been considered by the delegates, but none of that equates to a lack of procedural fairness by deciding to resume the hearing. 

1. The plaintiff is not entitled to the declaratory relief sought in the statement of claim and there will be judgment for the defendant.