Grunseth v Resource Planning and Development Commission - [2008] TASSC 35

[2008] TASSC 35

CITATION:Grunseth v Resource Planning and Development Commission
[2008] TASSC 35

PARTIES: GRUNSETH, Jon Reider

SALTEL INC
APOLLO BAY GROUP LLC
v
RESOURCE PLANNING AND DEVELOPMENT
COMMISSION
KINGBOROUGH COUNCIL
THE HONOURABLE STEVEN KONS,
ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  830/2007
DELIVERED ON:  25 July 2008
DELIVERED AT:  Hobart
HEARING DATE:  21 April 2008
JUDGMENT OF:  Crawford CJ, Slicer and Blow JJ

CATCHWORDS:

Environment and Planning - Environmental planning - Planning schemes and instruments - Tasmania - Amendments to planning schemes - Notice and advertising - Sufficiency of advertisement - Whether amendment invalid for insufficiency

Land Use Planning and Approvals Act 1993 (Tas), ss38(1) and 42(3)(b).
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Scurr v Brisbane City Council (1973) 133 CLR 242, referred to.
Aust Dig Environment and Planning [51]

REPRESENTATION:

Counsel:
             Appellants:  M E O'Farrell and A B Walker
             Second Respondent:  D R Armstrong
Solicitors:
             Appellants:  Dobson Mitchell & Allport
             Second Respondent:  Don Armstrong

Judgment Number: [2008] TASSC 35
Number of paragraphs: 103

Serial No 35/2008
File No 830/2007

JON REIDER GRUNSETH, SALTEL INC and APOLLO BAY GROUP LLC
v RESOURCE PLANNING AND DEVELOPMENT COMMISSION, KINGBOROUGH COUNCIL and THE HONOURABLE STEVEN KONS ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT FULL COURT
CRAWFORD CJ

SLICER J
BLOW J
25 July 2008

Order of the Court

Appeal dismissed.

Serial No 35/2008
File No 830/2007

REASONS FOR JUDGMENT  FULL COURT
  CRAWFORD CJ
  25 July 2008

The appellants failed with an application for review under the Judicial Review Act 2000, in which they sought an order quashing a decision made by the first respondent ("the Commission") on 13 December 2006 that approved draft amendment 2005-4 to the Kingborough Planning Scheme 2000 ("the Scheme"). They appealed to this Court. The appeal was argued by counsel for the appellants and the second respondent, the Kingborough Council ("the Council"). Neither the Commission nor the third respondent, the Attorney-General, sought to be heard on the issues raised by the appeal.

The area of the municipality includes all of Bruny Island and approximately a similar area of land on the mainland of the State. The amendment related to the subdivision of all of the land that was zoned Environmental Management in the municipality. The Environmental Management zone was previously zoned Rural in the former Bruny and Kingborough planning schemes. It represents a significant part of the municipality, both on Bruny Island and on the mainland. In very brief summary, the amendment substantially reduced the capacity for subdivision within the zone by, for example, increasing the minimum lot size for subdivisions from 5 to 20 hectares, and reducing the maximum lot yield from 20 to 10 lots.

Failure to properly advertise

The first matter raised by the appeal concerns the failure of the Council to advertise the proposed amendment in accordance with the Land Use Planning and Approvals Act 1993, ("LUPA"), s38, and the Land Use Planning and Approvals Regulations 2004 ("the Regulations"), reg6. The appellants contend that the failure to so advertise rendered the decision of the Commission invalid and that on the hearing of the application for review, the learned judge erred by failing to determine that it was invalid. They submit that the learned judge also erred by considering himself to have a discretion whether to treat the decision as invalid. However, they do not contend that his Honour did not have a discretion to refuse to grant relief on the application for review, even in circumstances where the Commission's decision was invalid.

The Council is a planning authority for the purposes of LUPA. It was entitled to amend its planning scheme. After preparing a draft amendment, it had to determine whether it met the requirements of LUPA, s32, and, if it was satisfied of that, to certify to that effect. See s35(1)(a). This the Council did in relation to draft amendment 2005-4 on 12 December 2005. Within seven days after so certifying, it was required to give the Commission a copy of the draft amendment and the instrument containing the certification. See s35(4). The Council was then required by s38:

"38 ¾ After giving to the Commission a copy of a draft amendment of a planning scheme and the instrument certifying that the amendment meets the requirements specified in section 32, the planning authority must ¾
(a) cause a copy of the draft amendment to be placed on public exhibition for a period, being not less than 3 weeks and not more than 2 months, determined by the planning authority; and
(b) advertise, as prescribed, the exhibition of the draft amendment."

Concerning the advertisement, the Regulations, reg6(1) and (3), required the following:

"6 ¾ (1) For the purposes of sections 38(b) and 41B(1)(b) of the Act, the exhibition of a draft amendment is to be advertised on at least 2 occasions in a daily newspaper circulating generally in the area covered by the draft amendment, with at least one of those advertisements to be on a Saturday.
(3) An advertisement under subregulation (1) is to ¾
(a)specify where and when copies of the draft amendment may be inspected; and
(b)describe the content of the draft amendment and the location of the affected area; and
(c)specify that representations in relation to the draft amendment may be submitted in accordance with section 39(1) of the Act; and
(d)explain how to make those representations; and
(e)include any other details determined by the planning authority."

By virtue of the Acts Interpretation Act 1931, s10A(1), the word "must" in s38 is to be construed as mandatory. However, the words "is to" in reg6(1) and (2) are to be construed as being directory. It follows that it was mandatory that the Council advertised the exhibition of the draft amendment but the requirements of the regulation concerning the contents of the advertisement were not mandatory, but merely directory.

Newspaper advertisements were published by the Council on 17 December 2005, 14 January 2006 and 21 January 2006. Each advertisement was the same, save that the date for lodging representations was extended. The final advertisement was as follows:

"kingborough planning scheme 2000
notice is hereby given that the proposed amendment known as Amendment 2005-4 to the Kingborough Planning Scheme 2000 has been certified as suitable for public exhibition by Kingborough Council and may be inspected during office hours at the Council Offices, Channel Highway, Kingston, and the Resource Planning and Development Commission, 3rd Floor TGIO Building, 144-148 Macquarie Street, Hobart.
In accordance with Sections 38 and 39 of the Land Use Planning and Approvals Act 1993 any person has a right of representation in relation to the draft amendment.
Notice of the representation and the grounds thereof shall be made in writing and lodged with the General Manager by 5 pm on Thursday 16th February, 2006.
The proposal is as follows:
2005-4Amendment clarifying the outcomes and standards for subdivision in the Environmental Management Zone.

greg alomes
general manager"

The Council chose to publicly exhibit the draft amendment until 16 February 2006. By LUPA, s39(1), any person was entitled to submit representations to the Council in relation to it until that date. If a representation was made after that date, it did not have to be considered by the Council or the Commission in the ensuing process.

After the exhibition period, the Council provided the Commission with a report, in conformity with s39(2), comprising a copy of 33 representations received, a statement of the Council's opinion as to the merit of each representation, together with its views as to the need to modify the draft amendment, and a recommended modification to the draft amendment. Pursuant to s40(1), the Commission considered the draft amendment, the representations and the Council's report and, as required by s40(2), it conducted hearings on 4 and 5 September 2006 in the course of which it addressed the 33 representations. Because some of the representors had no notice of the Council's recommended modification to the draft amendment, the hearing was adjourned to enable the Council to provide notice of the modification to all representors. That having been done, the hearing was reconvened on 1 November 2006. Thereafter, the Commission prepared a detailed report in which it approved the draft amendment as modified, pursuant to s42.

Regulation 6(3)(b) required the advertisements to "describe the content of the draft amendment and the location of the affected area". The learned judge found that the advertisements satisfied the requirement that the location of the affected areas be described. However, he found that the advertisements did not comply with the regulation because they did not describe the content of the draft amendment. His Honour found that the statement in the advertisement that the amendment clarified the outcomes and standards for subdivision in the zone was misleading, in circumstances where the amendment reduced the capacity to subdivide within the zone in significant ways. The Council does not challenge that finding.

Whether the decision was declared invalid

The first ground of appeal, as amended, asserts that the learned judge (a) failed to determine whether the decision made by the Commission, consequent upon the failure to comply with the advertising requirements, was invalid; and (b) treated the issue of whether there was invalidity as part of the discretion whether to refuse relief under the Judicial Review Act, s27.

The learned judge considered the question of the invalidity of the Commission's decision in pars16 – 18 of his reasons:

"16The requirement that the content of the amendment be advertised is an aspect of the first step in a statutory scheme calculated to give those who might be affected by an amendment notice of what is proposed and provide them with an opportunity to be heard in relation to the proposal. The Council's failure to comply with its obligations in this regard provides a legitimate basis for the applicants' contention that, in consequence, the Commission's ultimate decision approving the amendment is invalid. Where a decision has been made subsequent to the breach of a provision in the statutory framework that authorises the making of the decision, the test that determines the validity of the decision is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid, Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, par93.
17The requirement in reg6(3)(b) that the advertisement describe the content of the amendment serves a number of significant purposes. It is a means of providing those who may be affected by the amendment with notice of what is proposed and, in conjunction with requirements that the advertisement specify that representations may be made in relation to the amendment and explain how they may be made, it also provided a means for interested parties to have their views considered by the Council and the Commission and be involved in a hearing conducted by the Commission. In these circumstances, consistent with decisions including Scurr & Ors v Brisbane City Council & Anor (1973) 133 CLR 242, and Litevale Pty Ltd v Lismore City Council (1997) 97 LGERA 91, in the ordinary course it would be concluded that in consequence of the Council's breach, the Commission's decision was invalid and relief would follow. However, the circumstances before me suggest that this may not be an ordinary case. It is accordingly necessary for me to address the Court's discretion in relation to the granting of relief. The Court's power to make orders are expressed in terms of a discretion in the Judicial Review Act s27(1). See also that Act s38(1)(a)(ii) and Australian Broadcasting Tribunal v Bond & Ors (1990) 170 CLR 321, Mason CJ at 338.
18Before turning to the circumstances of the applicants' case, I refer to the reluctance of courts to invalidate acts done pursuant to a statutory power because of a failure to comply with a prior statutory requirement. The authorities I have in mind relate to the construction of the statutory power in question. However, the considerations that explain this reluctance are also relevant to the discretion I am called upon to exercise."

His Honour found that the advertisements did not comply with the regulations and acknowledged that authorities such as Scurr v Brisbane City Council and Litevale Pty Ltd v Lismore City Council led to a conclusion that the decision was invalid. Nevertheless, that was not a basis for holding that the decision had to be set aside without considering whether a discretion to do so should be exercised. Counsel for the appellants did not seek to argue against that in this Court, conceding that the learned judge had a discretion whether to grant relief under the Judicial Review Act. It was to that discretion that the learned judge turned. There was no suggestion by the learned judge of a discretion concerning whether the decision should be held to be invalid, his Honour confining his consideration of the discretion to the issue of relief. The reference in par18 to the relevance of considerations explaining the reluctance of courts to invalidate acts done pursuant to a statutory power because of failure to comply with a prior statutory requirement, was made in that context. After considering matters relevant to the exercise of the discretion, his Honour concluded his judgment by declining to grant the appellants the relief they sought. The first ground of appeal fails.

A procedural requirement?

By grounds 2, 3 and 4 the appellants assert that the learned judge erred in treating the advertising requirement as a procedural one and that it led his Honour to apply an incorrect principle or to consider a factor irrelevant to the discretion to grant relief. The grounds are in the following terms:

"2The learned trial Judge erred in holding ([2007] TASSC 92 at 18-21) that the Kingborough Council's failure to comply was in effect a procedural requirement only.
3In concluding, in effect, that the Kingborough Council's failure was to comply with a procedural requirement, the learned trial Judge applied an incorrect principle, namely the Court's reluctance to invalidate an act done pursuant to a statutory provision.
4Alternatively, the conclusion of the learned trial judge to the effect that the Kingborough Council's failure was to comply with a procedural requirement was [a] factor irrelevant to his discretion to refuse relief."

Earlier, I set out par18 in the judgment. In par19, his Honour quoted the following passage in the statement of Sir Arthur Channell, when delivering the judgment of the Privy Council in Montreal Street Railway Company v Normandin [1917] AC 170 at 175:

"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done."

In par20, the learned judge cited the following passage in the judgment of McHugh JA in Woods v Bate (1987) 7 NSWLR 560 at 567:

"In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition: see Simpson v Attorney-General [1955] NZLR 271; Clayton Heffron; Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306; Ex parte Tasker; Re Hannan [1971] 1 NSWLR 804; Attorney-General (NSW): Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd [1977] 2 NSWLR 955 reversed on another ground sub nom Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (Ex rel Franklins Stores Pty Ltd) (1977) 52 ALJR 218; 17 ALR 63; Tasker v Fullwood [1978] 1 NSWLR 20; Hatton v Beaumont (1978) 52 ALJR 589; 20 ALR 314."

Finally, relevant to the grounds of appeal I am considering, in par21 the learned judge quoted the following passage in the judgment of Kirby J in Emanuele v Australian Securities Commission (1997) 71 ALJR 717 at 739:

"There is a reason for the tendency in the series of cases cited by McHugh JA in Woods v Bate … and in other cases to like effect, for the reluctance of courts in recent times to invalidate acts done pursuant to a statutory provision because of a failure to comply with a prior procedural condition. Courts today are less patient with meritless technicalities. They recognise the inconvenience that can attend an overly strict requirement of conformity to procedural preconditions. In the morass of modern legislation, it is easy enough, even for skilled and diligent legal practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements. … An undue rigidity in insisting upon strict compliance with all of the procedural requirements of the Law could become a mask for injustice and a shield for wrong-doing."

Neither in those paragraphs, nor in any other part of his reasons, did the learned judge hold that the Council's failure to comply with the advertising requirements was a failure to comply with procedural requirements only. The learned judge cited passages from judgments in those three cases as statements of considerations leading to reluctance to invalidate acts done pursuant to a statutory power because of the failure to comply with a prior statutory requirement. Reference to such considerations was not irrelevant to the discretion being exercised. In the passage from the judgment of Kirby J in Emanuele v Australian Securities Commission, the statutory requirement was referred to as a procedural one. The learned judge did not categorise in that way the advertising requirements that applied in this case. For that reason, the three grounds of appeal require no further consideration. They must fail because the learned judge did not hold or conclude in the way asserted in the grounds.

Before moving on, I note that in Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at 90, Spigelman CJ referred to a statutory scheme of consultation and public exhibition in the Environmental Planning and Assessment Act 1979 (NSW) as providing "procedural" steps that Parliament had regarded as of considerable significance for the integrity of the process of formulating environment plans. A reference to statutory requirements of that kind as procedural is not erroneous, nor is it determinative of whether a decision made in breach of those requirements should be set aside.

Condition precedent to the exercise of power

The fifth ground of appeal is:

"5The learned trial Judge erred in failing to hold that the Kingborough Council's failure to comply with the advertising requirements was:
(a) a condition precedent to successful exercise of the powers of the Resource Planning and Development Commission ('RPDC'); or further, or alternatively
(b) a matter that went to the jurisdiction of the RPDC –
to convene the hearings into draft amendment 2005-4 to the Kingborough Planning Scheme."

The learned judge did not expressly hold that the Council's failure to comply with the advertising requirement was a condition precedent to the exercise of the Commission's powers or a matter that went to its jurisdiction. For that proposition, counsel for the appellants relied on Scurr v Brisbane City Council (supra) at 255, and a number of other authorities to a similar effect. However, by accepting that Scurr v Brisbane City Council and other cases would lead, in the ordinary case, to the decision being invalid and relief following as a matter of course, it is likely that his Honour accepted the proposition. The ground fails.

The exercise of the discretion

As mentioned earlier in these reasons, the application of the appellants failed because the learned judge exercised a discretion not to grant them the relief they were seeking. They had sought to have the decision of the Commission quashed, so that the Council would have to re-advertise the exhibition of the draft amendment, and the whole process before the Commission, involving representations and a hearing, would be restarted. The discretion exercised by the learned judge was provided by the Judicial Review Act, s27(1), which commences "on an application for an order of review relating to a decision, the Court may make all or any of the following orders …". The appellants accept the subsection is the source of a discretion whether to grant relief.

The appellants do not seek to have the exercise of the discretion overturned because it was unjustified on the facts that were found by the learned judge. Instead, they seek to have it overturned because three of his Honour's findings of fact, upon which the exercise of the discretion was based, were erroneous.

Grounds 6 and 7 of the appeal may be considered together. They are:

"6The learned trial Judge erred in holding ([2007] TASSC 92 at 31) that it was unlikely that another person could establish an entitlement to relief, when there was no evidence upon which that finding could reasonably be made.
7The learned trial Judge erred in holding ([2007] TASSC 92 at 31) that it was unlikely that most of the plausible objections to the amendment that could be raised were raised and canvassed in the RPDC in the course of that hearing."

The use of the word "unlikely" in ground 7 is erroneous. The learned judge found that the postulated fact was "likely". The ground should be regarded with "likely" instead of "unlikely".

The grounds refer to the concluding paragraph of the judgment:

"Mr Grunseth does not explicitly assert that he or the other applicants were disadvantaged by the inadequacy of the advertisements and I am not satisfied that they were. From the stand point of a refusal to grant relief, I do not consider that I must be satisfied that there is no possibility that some other interested person may be able to establish an entitlement to relief. On the information before me, I consider it unlikely that another applicant could establish such an entitlement. The Council went to considerable lengths to ensure that interested persons were aware of what was involved in the proposed amendment. It is unlikely that an interested person will be able to establish that he or she was prejudiced by the advertisements. The Commission conducted hearings in relation to the amendment over three days, in the course of which 33 representations were dealt with. It seems likely that most of the plausible objections to the amendment that could be raised were raised and were canvassed in the course of that hearing. In the circumstances there is no reason to conclude that a re-hearing before the Commission would result in a different outcome. Against this background I decline to grant the applicants the relief that they seek. The application is dismissed." [Emphasis added.]

Ground 6 concerns the first of the passages I have emphasised and ground 7 concerns the second.

To counter those findings, particularly the first, the appellant sought special leave from the Court under the Supreme Court Civil Procedure Act 1932, s48(3), to adduce further evidence on the hearing of the appeal. The subsection provides that upon an appeal, further evidence shall be admitted only by special leave of the Full Court and that the Court shall only grant leave in cases in which (a) the evidence was not in the possession of the party seeking to have it admitted, and could not by proper diligence have been obtained by the party before the termination of the hearing at first instance; or (b) there is some other special circumstance which, in the opinion of the Court, justifies the admission of it. The appellants conceded that par(a) could not assist them because although they were not in possession of the evidence at the time of the hearing, they could not establish that, with proper diligence, they could not have obtained it. Instead they maintained under par(b) that there were other special circumstances that justified the admission of the evidence. The Court refused to grant special leave and said that in due course it would publish reasons for its refusal. The following are my reasons.

The evidence that was sought to be adduced was contained in affidavits of Edward George Allen and Phillip Douglas Stary. They were not cross-examined. They each owned land at Mt Nelson, which was within the Environmental Management Zone under the Scheme, and which was affected by the decision of the Commission and the consequent amendment of the Scheme. They claimed that they had not been aware of the proposal for the amendment and that if they had, they would have made representations opposing it. The effect of other parts of their affidavits was that they had seen an advertisement concerning the proposed amendment, that it referred to clarification and that they had not realised that the proposal was to substantially affect their ability to subdivide their land.

In support of the application for special leave, it was submitted for the appellants that they were not aware of the existence of the evidence prior to the termination of the hearing before the learned judge and that, although it could have been obtained, they had not anticipated, and could not reasonably have been expected to anticipate, that such evidence would be relevant to an issue on the hearing of the application for judicial review.

The application was heard by the learned judge on 27 July 2007 and his Honour reserved his decision. It had been argued for the appellants that the Commission's decision should be quashed simply because of the failure to comply with the advertising requirements. The question of a discretion whether to grant the relief was not raised. On 2 August 2007, the learned judge reconvened the hearing and published to counsel a list of three matters that his Honour thought arose but had not been addressed by the parties. The second of those matters included the following:

"2At this stage, as I understand it, the only matter relied on is the alleged inadequacy of the S38(b) advertisement and the relief sought relates solely to that alleged inadequacy. If so, shouldn't I hear submissions:
·   …; and
· as to whether the court should refuse relief referable to the alleged inadequacy in the exercise of its general discretion or pursuant to s38(1).
In this regard I have in mind that:
·   courts are reluctant to invalidate acts done pursuant to a statutory provision because of a failure to comply with a prior procedural condition; and
·   it may be that the alleged inadequacy in the advertisement did not prejudice the applicants."

The hearing was then adjourned to a date to be fixed, to enable the parties to consider the matters that had been raised. It resumed on 31 August and lasted a little over two hours. Counsel for the parties made submissions about the matters that had been raised, but no attempt was made to adduce further evidence. However, the question of the discretion had been directly raised and the appellants had adequate opportunity to consider it and, if they wished to do so, to apply to re-open their case and adduce further evidence. They made no such application, confining their attempts to avoid an exercise of the discretion against them, to argument. Having lost the argument, they now seek special leave from this Court to adduce new evidence for the purpose of disturbing findings of fact made by the learned judge which, it is said, led to the way in which the discretion was exercised. The evidence was available to the appellants at all material times. With proper diligence, they could have obtained it and put it before the learned judge. In the circumstances, leave should not be granted. There is nothing special about the circumstances that justifies a grant of leave.

In R v McDermott (No 1) (1947) 47 SR(NSW) 379 at 381 – 382, Jordan CJ explained the general principle that applies:

"A civil court deals with cases in which a dispute concerning civil rights is thrashed out by contesting parties, ordinarily with legal assistance. The function of the Court is to 'keep the ring' — R v Harris [1927] 2 KB 587 at 590 — to see that the contest is carried on with due decorum and in proper legal form — and then to decide, or assist in deciding, the matter in dispute. When once a decision has been given, it is of the highest importance that it should not be disturbed except for some reason of great weight. 'No element in the administration of justice is so destructive of its efficiency as uncertainty; and no grievance more sorely felt by suitors than that which snatches success away at the moment of its accomplishment, and sets all abroad and in doubt again after one complete hearing and decision. Nothing shakes so much that confidence in the law which it is the first duty of all tribunals to uphold': Scott v Scott (1863) 3 Sw & Tr 319 at 322."

It will be a rare case in which on appeal a party will be permitted to call new evidence that was available at first instance, simply for the purpose of overturning an adverse finding of fact.

I return to grounds 6 and 7 of the appeal. Evidence was given in the form of affidavits by the first appellant and by Mr Ferrier, the Council's Director of Community Planning and Development. There was no cross-examination. The first appellant explained that he owned 126.16 hectares of land on one side of Lennon Road, Bruny Island, that was affected by the decision. The second and third appellants were tenants-in-common of 160.9 hectares of land on the other side of Lennon Road. The first appellant was the sole shareholder of the second appellant. The land of the second and third appellants, which the first appellant referred to as "the Apollo Bay land" was farming land and had no building on it. A permit for a subdivision of that land was, on 13 April 2007, the date of swearing of the second of his affidavits, before the Resource Management and Planning Appeal Tribunal by reason of an appeal against conditions and an appeal by a neighbour against the permit. Proposals for subdivision of the land, in one form or another, had been before the Council for over four years. The first appellant said that, according to the Council's solicitors, draft amendment 2005-4 would reduce the number of lots that could be included in a subdivision of the Apollo Bay land from 19 lots plus a balance lot, to 1 lot plus a balance lot.

Because the three applicants for review were concerned about the effects of the decision on their use of their Bruny Island land, most of the evidence they presented was confined to that issue, as was the evidence of Mr Ferrier. It was the evidence of the first appellant that he made no representation to the Council in response to its three newspaper advertisements. It was not his evidence that he was misled by the advertisements or even that he read them, nor was it his evidence that he was unaware of what was being proposed until it was too late for him to make representations against it. He said that the first Commission hearing of representations concerning the draft amendment was on 4 and 5 September 2006. He did not attend the hearing and, in fact, was not in Australia at that time. He said that the Commission made changes to the draft amendment and that he obtained a copy of the changed draft amendment from a person who attended the hearing. After the hearing, he spoke to a Mr Gill, who attended the hearing, and to an environmental consultant. On 1 November 2006, he appeared at the resumed hearing of the Commission as a representative of the Bruny Island Community Association, which had made representations concerning the draft amendment and therefore was entitled to appear before the Commission and have its representations considered.

It can be seen that the only basis upon which the appellants are seeking to have the decision of the Commission overturned is inadequacies in the Council's advertisements concerning the content of the draft amendment, and yet they do not claim that they were misled or in any other way prejudiced as a result of those inadequacies.

Other evidence of what took place procedurally was contained in Mr Ferrier's affidavit and in the Commission's reasons for its decision. Mr Ferrier said that from late 2005 to the end of March 2006, the Council conducted eleven public meetings in various parts of the municipality to discuss a review of the Scheme. The balance of his affidavit dealt only with dealings between the Council and Bruny Island owners and residents. He said that one of the eleven meetings was at Alonnah on Bruny Island on 19 January 2006 (between the dates of the second and third of the Council's newspaper advertisements) and the first appellant attended. Discussion at the meeting was dominated by draft amendment 2005-4, which was then on public exhibition, rather than on the broader review of the Scheme which was being undertaken. The first appellant was a very active participant in the discussion, his main concern being the impact of the draft amendment in relation to the potential to subdivide land. Mr Ferrier annexed to his affidavit extensive notes he had taken at the meeting concerning issues that were raised.

Mr Ferrier's evidence was that following issues raised at the Alonnah meeting, the Council decided to provide more information to Bruny Island residents and to hold another meeting at Bruny Island to deal specifically with draft amendment 2005-4. On 25 January 2006, the Council sent letters to all owners of Bruny Island land that was in the Environmental Management Zone, explaining in detail what the draft amendment provided and inviting them to attend an information session and workshop at Lunawanna Hall on Bruny Island on 8 February 2006. At about the same time, the Council published a press release in the Bruny News, a local newspaper for Bruny Island, explaining the effect of the draft amendment and the fact that the information session and workshop would be held. On 8 February 2006, the information session and workshop was conducted in relation to the draft amendment at the Lunawanna Hall, at which Council staff explained the details of the amendment to attending landowners and members of the public.

Mr Ferrier's evidence included a number of conversations he had with the first appellant in September and October 2006 concerning the draft amendment, demonstrating that the first appellant was well aware of what was proposed prior to his appearance before the Commission at its hearing on 1 November 2006.

The only other material evidence was the document containing the Commission's reasons for approving the draft amendment. It referred to 33 representations having been received from individuals and organisations. Some of them were identified as coming from Bruny Island, such as the Bruny Island Community Association Inc and the Bruny Island Primary Industry Group. Others were identified as coming from elsewhere within the municipality, such as the Snug Land and Coast Care Group Inc and the North West Bay River Catchment Community. Those representors who appeared before the Commission at its hearings on 4 September and 1 November 2006 were also identified, including "Mr J Grunseth for the Bruny Island Community Association" at the second of those meetings. The Commission noted that it held hearings at the Council Chambers, Kingston (not on Bruny Island) on 4 and 5 September and 1 November 2006.

The general nature of representations was summarised by the Commission. Fourteen supported the amendment in principle, with suggestions for alterations to improve it; one representation made neutral comments; seven representations opposed the amendment totally; and the remainder voiced various criticisms of it but also suggested changes to wording or content. Representations objecting to the amendment opposed most aspects of the proposed standards, with particular concern for the increase in the quantitative standards for lot size and yield. Representors sought reinstatement of the then current provisions, or the subdivision standards, applying to rural zones in previous planning schemes. Requirements for clustering of lots, concentrating subdivisions close to roads and the removal of private timber reserves as a condition of subdivision were raised. Clarification was sought on the status of areas to be conserved and springside areas in relation to public open space contribution. Representations contended that there was a bias towards environmental management at the expense of landowners and farmers, with claims that costs of conservation should be paid for by the community through compensation to landowners. Other issues that were raised were referred to in the Commission's reasons. Concerns were raised over changes to the Environmental Management Zone between the Electrona Industrial Zone and Snug.

The Commission noted that evidence at the hearings reiterated the matters raised in the representations. The issues raised general concerns and the details of the draft standards in the amendment. The main thrust of the issues raised by representors was the claimed adverse impacts of the increased regulation of subdivision for landowners on Bruny Island. The principal objection was to the increase in the lot size for subdivision from 5 hectares to 20 hectares and another was the requirement to remove any private timber reserves as a condition of subdivision.

The Commission dealt comprehensively with a consideration of the issues that had been raised. The reasons are contained in twenty-five pages and do not have a Bruny Island bias in the matters considered. It is clear that the draft amendment was considered having regard to its potential impact on all of the municipality's land within the Environmental Management Zone.

The finding of the learned judge that it was unlikely that an interested person would be able to establish that he or she was prejudiced by the advertisements is not attacked by the grounds of appeal, although it is doubtful that the evidence supported it. Ground 6 concerns the finding that it was unlikely that another person, that is to say a person other than one of the three appellants, could establish an entitlement to relief under the Judicial Review Act. The relief sought by the appellants was an order quashing the decision of the Commission to approve the draft amendment. The finding that it was unlikely that another person could establish an entitlement to relief, needs to be considered in the light of what the learned judge said in the two paragraphs that preceded the finding:

"The inadequate advertisements upon which the applicants seek to rely in order to obtain relief were published approximately 11 to 12 months prior to the decision of the Commission which the applicants seek to quash. The time lapse between the advertisements and the Commission's decision is significant because considerable inconvenience may flow from quashing the decision. The process would have to start again and a good deal of that which was done may have to be done again. Anyone who has acted on the decision may be disadvantaged. These are the sorts of reasons why a grant of relief consequent upon judicial review is discretionary. The more that has been done in reliance upon the validity of the Council's advertisements, the more difficult it is for the applicants, or any others minded to seek a review of that which transpired, to obtain relief.

A difficulty faced by a respondent opposing relief arising from the inadequacy of a notice such as the advertisements in question is that whilst lack of prejudice to an applicant may be demonstrated, the Court cannot be sure that other members of the public have not been prejudiced. See Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, Wilson J at 518 and Curac v Shoalhaven City Council & Ors (1993) 81 LGERA 124 at 130."

Because the Commission approved the draft amendment on 13 December 2006, without specifying a date upon which it would come into operation, it in fact came into operation on 20 December 2006 by virtue of LUPA, s42(4). There was evidence that on 23 December 2006, the Council advertised the approval of the amendment in the Mercury newspaper. The application of the appellants for judicial review was filed on 23 January 2007. The hearing of the application concluded on 31 August 2007 and the judgment from which the appeal has been brought was published on 16 November 2007. The learned judge was entitled to infer, in the absence of evidence that any other persons had applied for judicial review of the Commission's decision, that none had done so and having regard to the passage of time, it was becoming increasingly unlikely that other persons would do so. His Honour quite properly commented on the lapse of time since the publication of the advertisements in December 2005 and January 2006 and the likelihood that considerable inconvenience might flow from quashing the decision, and noted that persons may have acted on the amendments and might be disadvantaged. The comment of the learned judge that the more that had been done in reliance upon the validity of the Council's advertisements, the more difficult it was for the appellants, or any others minded to seek a review of that which had transpired, to obtain relief, was an appropriate one in all the circumstances. The finding that it was unlikely that another applicant could establish an entitlement to an order quashing the Commission's decision was open having regard to all the matters I have been discussing. The more time passes without an application by another person that is based on the inadequacy of the advertisements, makes it increasingly unlikely that the decision will be quashed in the future. The Judicial Review Act, s23(2), expressly empowers a court to refuse to consider an application for review of a decision in circumstances where the application was not made within a reasonable time after the decision was made. For these reasons, ground 6 fails.

The finding that it seemed likely that most of the plausible objections to the amendment that could be raised were raised and were canvassed in the course of the Commission's hearings, which is attacked by ground 7, has not been shown by the appellants to have been erroneous. The reasons of the Commission dealt with a great number of issues that had been raised by representors. Counsel for the appellants suggested no other unresolved issues that might have been raised.

The eighth and final ground of appeal is that the learned judge erred in finding that a summary of the amendment was provided by the Council to all of the owners of land in the Environmental Management Zone, when the only evidence was that a letter containing such a summary was sent to all owners of land on Bruny Island which was zoned Environmental Management. The so-called finding is to be found in par15 of the learned judge's reasons. Its context was a consideration of whether the Council's advertisements failed to comply with reg6. His Honour concluded that draft amendment 2005-4 could not be correctly described, as the advertisements described it, as clarifying outcomes and standards for subdivision, because it substantially changed them. The learned judge then said: "That this is so is made clear by a summary of the amendment provided by the Council to all the owners of land in the zone under cover of a letter of 25 January 2006." (The letter had in fact only been sent to Bruny Island owners of land in the zone.) The learned judge then quoted a substantial part of the letter for the purpose of demonstrating that the effect of the draft amendment was to make substantial changes and not merely clarify outcomes and standards.

The so-called finding did not influence the exercise of the discretion whether to grant relief and, in any event, it was corrected by the learned judge in the course of a consideration of the discretion. At par24 of the reasons, the learned judge said: "By letter dated 25 January 2006 the council sent letters to all owners of land on Bruny Island zoned environmental management. That letter sets out full details of the draft amendment. An extract from that letter is set out in par15 above." The ground must fail.

None of the grounds of appeal should succeed. The appeal should be dismissed.
File No 830/2007

REASONS FOR JUDGMENT FULL COURT

SLICER J
25 July 2008

The appellants sought review of a decision of the Resource Planning and Development Commission ("the Commission") which had upheld an application to modify the Kingborough Planning Scheme 2000 ("the planning scheme") reducing the capacity for subdivision within land zoned "Environmental Management" by increasing the minimum lot size for subdivided land from 5 to 20 hectares and reducing the maximum lot yield from 20 to 10 lots. Their application to a judge of this Court for an order quashing the decision, pursuant to the Judicial Review Act 2000, was dismissed. The judicial review application had claimed breaches of natural justice and procedures, lack of jurisdiction and statutory authorisation, inadequacy of a prescribed notice, and claimed errors of fact.

The appeal to this Court claims errors in that:

(1)Given the breach of the advertising requirements of the Land Use Planning and Approvals Act 1993 ("LUPA"), s38, the Court had no discretion in refusing relief. The Attorney-General intervened so as to be heard on the issue, but upon the appellants abandoning this contention, withdrew from the hearing. The appellants have successfully amended the notice by substituting as a ground:
"1The learned trial Judge, having found ([2007] TASSC 92 at 15) that the Kingborough Council had failed to comply with the advertising requirements of s38 of the Land Use Planning and Approvals Act 1993:
(a) failed to determine whether the decision made by the Commission consequent on the failure to comply was invalid ([2007] TASSC 92 at 16 and 18);
(b) treated the issue of whether there was invalidity under the Land Use Planning and Approvals Act 1993 as part of discretion whether to refuse relief under the Judicial Review Act 2000, s27."

(2)That the Kingborough Council's ("the Council") failure to comply with LUPA, s38, amounted to substantive, rather than procedural, error, rendering the amendment invalid and incapable of adoption by the Commission.
(3)The findings of the learned primary judge that despite the defective notice:
(a)it was unlikely that another person could establish an entitlement to relief; and
(b)most of the plausible objections to the amendment that could be raised were fully canvassed in the Commission in the course of its hearing.

(4)The learned primary judge erred in his finding that an adequate summary had been provided to all residents within the zone to be affected, when the only evidence was that of notification to land owners of Bruny Island.

Notice and statutory requirement

The amendment was significant and affected all residents of the municipality and all land within the environmental management zone. In general terms it sought to provide solutions in reducing environmental harm to physical, biological, scenic, water and land form features in fragile areas of the municipality. Relevant to this appeal were provisions governing private land and its division. The Commission itself modified some of the planning provisions, but significant to the interests of the appellants, approved clauses which, in the words of the Commission, adopted:

"− the 20ha minimum lot starting point;
− that subdivision would require the revocation of any private timber reserves (PTR);
− the minimum frontage width for lot access; and
− the methodology for determining the hierarchy of conservation outcomes."

In effect, each site "must have a minimum size of 20 hectares and meet the requirements set out in Table 9.1 [the planning scheme]."

The respondent Council was required to advertise and publicly exhibit the draft amendment to the planning scheme. It did so in an unsatisfactory manner, the tenor of which could be described, depending on vantage, as less than comprehensive or appropriate. The advertisement published on three occasions stated:

"kingborough planning scheme 2000
notice is hereby given that the proposed amendment known as Amendment 2005-4 to the Kingborough Planning Scheme 2000 has been certified as suitable for public exhibition by Kingborough Council and may be inspected during office hours at the Council Offices, Channel Highway, Kingston, and the Resource Planning and Development Commission, 3rd Floor TGIO Building, 144-148 Macquarie Street, Hobart.
In accordance with Sections 38 and 39 of the Land Use Planning and Approvals Act 1993 any person has a right of representation in relation to the draft amendment.
Notice of the representation and the grounds thereof shall be made in writing and lodged with the General Manager by 5 pm on Thursday 16th February, 2006.
The proposal is as follows:
2005-4Amendment clarifying the outcomes and standards for subdivision in the Environmental Management Zone.

greg alomes
general manager"

The learned primary judge found the advertisement to be other than a clarification, a conclusion not contested here. However, his Honour correctly found that:

"The advertisement … clearly identifies that it involves the Scheme and specifies that it relates to 'outcomes and standards for subdivision in the Environmental Management Zone'."

and was:
"sufficient to satisfy the requirement that the advertisement describe the location of the affected area."

Thereafter the Council correctly exhibited the proposed amendment, and reported to the Commission in accordance with LUPA, s39. The respondent Council acknowledged the inadequacy of the advertisements published on 17 December 2005 and 14 and 21 January 2006, and prepared a comprehensive summary of the amendment which it provided to "all owners of the land in the zone under cover of a letter dated 25 January 2006". That finding is contested, but it is common ground that there is no evidence other than that the letter was forwarded only to residents of Bruny Island and not others within the municipality. From late 2005 until the end of March 2006, the Council conducted 11 public meetings in various parts of the municipality. Relevant to these proceedings are the minutes of one of those meetings held at Alonnah, Bruny Island on 19 January 2006 which record that the potential features of the proposed amendment were outlined, and that the appellant Grunseth took an active part, voicing his concerns about inhibition of subdivision and potential disadvantage for subdividers. Also relevant are the findings of the learned primary judge in his reasons for judgment at pars24 – 27, which state:

"By letter dated 25 January 2006 the council sent letters to all owners of land on Bruny Island zoned environmental management. That letter sets out full details of the draft amendment. An extract from that letter is set out in par15 above. Mr Grunseth is on the list of addressees to whom the letter was sent, his address being recorded as 258 Lennon Road. Saltel and Apollo Bay are on the list at the same address. Mr Grunseth says that his street address is 259 Lennon Road, Bruny Island, and that he does not know what the street address is for Saltel or Apollo Bay. As their land is on the opposite side of the road to that of Mr Grunseth, it would not be surprising if their street address is 258 Lennon Road. Mr Grunseth does not deny that he or those entities received the letter. At a different point in the affidavit to which I am referring he says that all his mail was redirected to the Kettering Post Office from where he collected it from time to time.
The February 2006 edition of the Bruny News, a local Bruny Island newspaper, included a press release from the Council outlining the objectives of the proposed amendment and advice that the Council would conduct an information and workshop session in relation to the amendment, at the Lunawanna Hall on 8 February 2006. A that meeting Council staff, including Mr Ferrier, explained the details of the amendment. Mr Grunseth does not refer to the Bruny News report or this meeting in his affidavits.
The time for making representations expired on 16 February 2006. Mr Grunseth says: 'I did not make any representation in response to the advertisement, which only described the amendment as a "clarification''.' He does not say he was not then aware of the substance of the draft amendment.
Mr Grunseth says he did not attend the Commission's hearing on the amendment on 4 and 5 September 2006 as he was out of Australia. I conclude that he was in Australia by 7 September 2006 as he had a scheduled meeting with Mr Ferrier on that date, as well as meetings with him on 29 September and 17 October 2006. Mr Ferrier says that between early September 2006 and late October 2006, there were also various unscheduled meetings and phone conversations between he and Mr Grunseth, which often dealt with how amendment 2005-4 would bear on a subdivision application being advanced by Mr Grunseth."

The relevance here is that the appellants claim the exercise of a private, rather than public, right as persons directly affected by the proposal. The learned primary judge was conducting an exercise of judicial review which provided wide discretionary power. The appellants, but for the above, might have successfully claimed, as they did in the amended originating application, as a basis, denial of natural justice and/or procedural fairness. A claim that the statutory notice did not comply "strictly or substantially" with a statutory, rather than regulatory, requirement, would neither mandate disallowance nor warrant success. For the appellants to succeed they must establish invalidity.

Following the public meetings, the matter became the province of the Commission. The meetings, exhibitions and published notices had resulted in 33 representations by interested parties, all of which were referred to the Commission. On 31 July 2006, the Commission delegated its exercise of power to two Commissioners as permitted by the Resource Planning and Development Commission Act 1997. The Commissioners conducted hearings on 4 and 5 September, and 1 November 2006. In their reasons for decision delivered on 13 December 2006, they record 41 individuals and 10 persons representing organisations or institutions as representors. At the hearing of 4 and 5 September, five individuals and four organisations are shown (in addition to the respondent Council) as representors, and one additional individual and one organisation – the Bruny Island Community Association, appearing through the appellant Grunseth – as appearing on 1 November. Mr Grunseth had continued involvement in the process in meetings and telephone conversations with a Council representative, Mr Ferrier.

Jurisdiction, validity and compliance

LUPA, s38, requires a planning authority to:

"(b) advertise, as prescribed, the exhibition of the draft amendment".

The Land Use Planning and Approvals Regulations 2004, reg6, relevantly provide:

"6 ¾ (1) For the purposes of sections 38(b) and 41B(1)(b) of the Act, the exhibition of a draft amendment is to be advertised on at least 2 occasions in a daily newspaper circulating generally in the area covered by the draft amendment, with at least one of those advertisements to be on a Saturday.
(2) …
(3) An advertisement under subregulation (1) is to ¾
(a)specify where and when copies of the draft amendment may be inspected; and
(b)describe the content of the draft amendment and the location of the affected area; and
(c)specify that representations in relation to the draft amendment may be submitted in accordance with section 39(1) of the Act; and
(d)explain how to make those representations; and
(e)include any other details determined by the planning authority."

Failure to advertise at all might vitiate the required statutory preconditions for validity. Inadequate compliance with a regulatory provision is more problematic since its form and contents are directory (Acts Interpretation Act 1931, s10A(a); cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). Here the planning authority "advertised", albeit unsatisfactorily, as required by LUPA, s38, of its exhibition and, by regulations, on more than the prescribed occasions, of the place of inspection (reg6(3)(a), 6(1)), the location of the affected area (reg6(3)(b)), the right and form of representations (reg6(3)(c) and (d)), and at least the subject matter of the standards for subdivision in the Environmental Zone (reg6(3)(b)). In Scurr & Ors v Brisbane City Council & Anor (1973) 133 CLR 242, the High Court dealt with an advertisement of a site specific development without identifying the location of that site. In his concurring judgment, Menzies J stated at 245:

"It is not my view that any departure from the provisions of the section would, of itself, require that an appeal against a proposal of the council to give its consent should be upheld. In his reasons, however, Stephen J has, I think, demonstrated that the departure from the requirements of the section which he considers did occur here was of a critical character."

while Gibbs J expressed his opinion at 246 that:
"If no public notice at all has been given, clearly the Board cannot proceed to make a valid decision. Where some public notice by advertisement has been given, the adequacy of the advertisement would have to be decided in the first place by the Board and on appeal by the Court."

In that case, the court was concerned with the terms of an Act of Parliament (City of Brisbane Town Planning Acts 1964, s22), which prescribed a number of preconditions which included terms permitting the erection or use of land "only with the consent of the Council … the Council or its delegate, before deciding any application … cause public notice …", and which amounted to a precondition. Stephen J, who delivered the majority judgment, concluded that the term was mandatory but did not determine adequacy if, for example, the prescribed sign was less than the required "two feet in height, not less than six square feet in area, and all lettering thereof shall be not less than one inch in height, and the copy shall be posted not more than six feet from the road alignment", at 250 – 251.

His Honour dealt with adequacy in the following terms at 255 – 256:

What, then, is the effect upon this appeal of what I regard as the inadequacy of public notice of Myer's application? In argument two distinct aspects of this question were discussed, the first being whether the requirements of s 22(1) concerning the content of advertisements was mandatory or only directory, the second being whether, whatever the nature of those requirements, any shortcomings in the advertisements could be relied upon in the proceedings before the Local Government Court. The applicable principles determining the choice between a mandatory and a directory interpretation are well settled and are succinctly stated in a passage from Maxwell on the Interpretation of Statutes, 12th ed (1969), pp 314-315, which has been referred to with approval in a number of the authorities; in SS Constructions Pty Ltd v Ventura Motors Pty Ltd (1964) VR 229 , Gillard J undertook a quite detailed consideration of the application of those principles to a situation not unlike the present. His Honour was there concerned with a notice requirement appearing in Victorian town planning legislation and, although details of that legislation differ significantly from the terms of s 22, his Honour's discussion of the principles affecting a choice between a mandatory and a directory interpretation are, I think, in point in the present case.

I have already referred to the important part played by the advertising of the making of an application and to the extent to which the working of the statutory provisions depends upon its adequacy; there can, I think, be no doubt but that it is mandatory that there must be a giving of public notice by means of advertisements and that those advertisements must contain some particulars of the application. The legislation employs mandatory language, makes the giving of public notice a condition precedent to any consideration of the application by the council and the section is wholly dependant upon the giving of public notice for the attainment of its objects.
I doubt, however, whether, in the present case, a distinction of any substance exists between a mandatory and a directory interpretation of the requirement that the public notice contain particulars of the application. It is well established that a directory interpretation of a statutory requirement still necessitates, as a condition of validity, that there should be substantial compliance with the requirement; Cullimore v Lyme Regis Corporation [1962] 1 QB 718 provides a modern instance of this. When the requirement is that 'particulars of the application' should be given by public advertisement and when once it is accepted that there must be an advertisement which gives some such particulars, it is difficult to discern any distinction between a strict observance of this requirement, such as a mandatory interpretation would call for, and the substantial observance of it, as called for by a directory interpretation."

Here the statutory requirement was for notice of exhibition and inspection, whereas in Scurr, an interested party could neither locate nor identify the development. Here the twin purposes, identified by Stephen J, of providing the planning body with the views of those opposing the development, relieving it of the burden of knowing only one side of the argument and providing objections of making known their views were met. Scurr does not establish an absolute specific rule but one applying general principle. Here insufficiency of detail does not establish invalidity (Project Blue Sky Inc & Ors v Australian Broadcasting Authority (supra)). The test is that of substantive compliance which remains a mixed question of fact and law. Failure to advertise at all might establish invalidity or deprive a statutory authority of jurisdiction because of a precondition, but absent particulars or detail, especially where there is exhibition, permits a finding of substantial compliance. Failure to notify location or misstate that location might be sufficient to establish invalidity (No 2 Pitt Street v Wodonga Rural City Council (2000) 107 LGERA 237).

The learned primary judge dealt with the question of interpretation and application on the bases that this might be an ordinary case and that he was engaged in a discretionary exercise. He considered the approach that regulatory provisions relating to the performance of a public duty were directory, rather than ones requiring a finding of invalidity (Montreal Street Railway Company v Normandin [1917] AC 170) and the reluctance of courts to invalidate an act done because of an antecedent condition (Woods v Bate [1987] 7 NSWLR 560). He cited with approval the dicta of Kirby J in Emanuele v Australian Securities Commission (1997) 188 CLR 114:

"There is a reason for the tendency in the series of cases cited by McHugh JA in Woods v Bate … and in other cases to like effect, for the reluctance of courts in recent times to invalidate acts done pursuant to a statutory provision because of a failure to comply with a prior procedural condition. Courts today are less patient with meritless technicalities. They recognise the inconvenience that can attend an overly strict requirement of conformity to procedural preconditions. In the morass of modern legislation, it is easy enough, even for skilled and diligent legal practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements. … An undue rigidity in insisting upon strict compliance with all of the procedural requirements of the Law could become a mask for injustice and a shield for wrong-doing."

His Honour was entitled to conclude, as he did, on either the basis of "significant compliance" posited in Scurr or the "reluctance" test stated in Montreal Street Railway (supra) and Woods (supra). Here I would prefer to apply the "significant compliance" test referred to in Scurr and reach the same conclusion that the defect did not invalidate either the referral by Council or the proceedings of the Commission. This was sufficient detail (Lightvale Pty Ltd v Lismore City Council (1997) 96 LGERA 91) and the notice was not sufficiently misleading (Canterbury District Residents & Ratepayers Association Inc v Canterbury Municipal Council & the Minister for Planning (1991) 73 LGERA 317).

Procedural requirement and condition precedent

Grounds 4 and 5 of the notice of appeal state:

4Alternatively, the conclusion of the learned trial judge to the effect that the Kingborough Council's failure was to comply with a procedural requirement was [a] factor irrelevant to his discretion to refuse relief.
5The learned trial Judge erred in failing to hold that the Kingborough Council's failure to comply with the advertising requirements was:
(a) a condition precedent to successful exercise of the powers of the Resource Planning and Development Commission ('RPDC'); or further, or alternatively
(b) a matter that went to the jurisdiction of the RPDC –
to convene the hearings into draft amendment 2005-4 to the Kingborough Planning Scheme."

It is not clear why, as a matter of principle, any procedural irregularity would necessarily be a "factor irrelevant [to] discretion to refuse relief". A misnomer, incorrect Council address, inadequate size of a sign or other irregularity would not ordinarily be weighed in the consideration of a grant of discretionary remedy. If a finding is made that the irregularity did not invalidate the subsequent conduct or action by a statutory authority, then there remains under the Judicial Review Act power to grant remedy for the consequences of that action or conduct. If invalidity is not found, then alternate remedy remains on the basis of a different criteria. Here remedy remained discretionary, an option considered by his Honour.

Ground 5 repeats the validity argument that the publication of the notice and the exhibition of the draft amendment was a precondition to the reference to the Commission and the subsequent hearing. Failure would render the ensuing process invalid and might deprive the Commission of jurisdiction. Invalidity and lack of jurisdiction are not synonymous but, on either path, the failure would result in entitlement to remedy. It is not in every case that failure to provide notice deprives a second or reviewing tribunal, which has afforded notice, of jurisdiction (Minister for Immigration v Bhardwaj (2002) 209 CLR 597). Here there had been publication of notice and exhibition, albeit inadequate. The precondition had been met; it was the sufficiency which governed the issue of validity. (Smith v Wyong Shire Council (2003) 132 LGERA 148). Consistent with the test in Scurr and Woods, his Honour was entitled to find validity. These grounds ought fail.

Findings of fact

Grounds 6 – 8 each involves a claim of factual error. The notice of review claims:

"6The learned trial Judge erred in holding ([2007] TASSC 92 at 31) that it was unlikely that another person could establish an entitlement to relief, when there was no evidence upon which that finding could reasonably be made.
7The learned trial Judge erred in holding ([2007] TASSC 92 at 31) that it was unlikely that most of the plausible objections to the amendment that could be raised were raised and canvassed in the RPDC in the course of that hearing.
8The learned trial Judge erred in finding ([2007] TASSC 92 at 15) that a summary of the amendment was provided by Kingborough Council to all of the owners of land in the Environmental Management Zone, when the only evidence was that such a letter had been sent to all owners of land on Bruny Island which was zoned Environmental Management."

The learned primary judge stated at par31 that he did not consider that he:

"… must be satisfied that there is no possibility that some other interested person may be able to establish an entitlement to relief. On the information before me, I consider it unlikely that another applicant could establish such an entitlement."

He was entitled to make that determination as a matter of law, especially given that he was explaining his exercise of discretion. No ground attacks that conclusion as erroneous. The statement followed his finding that the applicants had not claimed to have been disadvantaged by the inadequacy of the advertisements and that he was not satisfied that they were. That conclusion was readily open. The impugned statement was but an aside, and unnecessary to justify his primary determination. It was also open on the evidence. The reasons continued:

"The Council went to considerable lengths to ensure that interested persons were aware of what was involved in the proposed amendment. It is unlikely that an interested person will be able to establish that he or she was prejudiced by the advertisements. The Commission conducted hearings in relation to the amendment over three days, in the course of which 33 representations were dealt with."

The appellants were seeking judicial review as persons whose interests were affected by an administrative decision. They were not seeking to exercise a public right King v Forest Practices Tribunal [2008] TASSC 1. The court was not required to be satisfied that there were no other persons who might have come forward. It is true that the representors were primarily either residents of Bruny Island or persons or organisations which had an interest in the development or preservation of land on that island. The class of people claimed by the appellants are but constructs. New residents of the municipality could include those who had moved to the island since the making of the decision. Others, such as owners of equitable estates, who have but recently become aware of the amendment, can seek their own remedy if they could establish either disadvantage or denial of natural justice or breach of procedural fairness. (Llewellyn v Clyde Group Inc [2008] TASSC 25.)

Ground 6 of the notice of appeal has not been made out.

Ground 7 of the notice of appeal claims that:

"7The learned trial Judge erred in holding ([2007] TASSC 92 at 31) that it was unlikely that most of the plausible objections to the amendment that could be raised were raised and canvassed in the RPDC in the course of that hearing."

Again the statement was but an aside and does not manifest error. The learned primary judge was engaged in an exercise of discretion. His statement at par32 was:

"It seems likely that most of the plausible objections to the amendment that could be raised were raised and were canvassed in the course of that hearing. In the circumstances there is no reason to conclude that a re-hearing before the Commission would result in a different outcome. Against this background I decline to grant the applicants the relief that they seek."

The reasons of the delegates, without annexures, run to some 19 pages. They adequately summarise the draft amendment, its intended objectives and its effects. They deal with each criterion and state the objections to each, including the material and critiques set out in the Productivity Commission Inquiry Report entitled Impacts of Native Vegetation and Bio Diversity Regulations. The delegates considered the interrelationship of the proposed management regime and existing Private Tree Reserves and differing statutory provisions, including the Kingborough Planning Scheme, the Bruny Planning Scheme 1986, the Threatened Species Protection Act 1995, the Environment Protection and Biodiversity Conservation Act 1999, the Nature Conservation Act 2002, and the State Policies set out in the State Coastal Policy 1996, the State Policy on the Protection of Agricultural Land 2000, and the State Policy on Water Quality Management 1997. The delegates analysed each of the thirteen criteria for a subdivision required by the amendment cl 9.4.2.1(b), set out in Table 9.1. They dealt with the objections advanced by the opponent representors, made some amendments to the draft, and in some instances identified further amendments or assessments necessary if the Council wished to pursue certain matters such as boundary adjustment or in the implementation of the scheme. The reasons were thorough, disciplined and wide-ranging. The appellants had the opportunity to advance other material or reasoning through the first appellant and can show no significant matters not raised or dealt with by the delegates. An artificial or theoretical construct that something else might have been advanced by another person who might have appeared, did not prevent the learned primary judge from making the finding, if such is the import of his statement. He was not precluded, in the exercise of discretion, from either declining to take the construct into account or concluding that no other reasonable argument was apparent. This ground ought fail.

Ground 8 ought likewise fail. It could only succeed if the appellants could show a breach of natural justice or lack of procedural fairness to them. There was no statutory requirement for the Council to send a letter to "all of the owners of land in the Environmental Zone" or the letters actually sent to "all owners of land on Bruny Island which was zoned Environment Management." The letters were sent by the Council to redress possible prejudice to persons who might have had a direct or immediate interest in a proposal affecting their property or enjoyment of their island environs. The learned primary judge was conscious of the possibility of prejudice to other members of the public (Curac v Shoalhaven City Council (1993) 81 LGERA 124), but remained unsatisfied that they were. It would certainly be difficult to show that "at least" members of the district of Bruny would not have become aware of the controversy and any prejudice met by the letters to affected landowners, the conduct of public meetings and the publication in the Bruny News. It remained possible for those who later found their private interests to be affected to either seek leave to appear before the Commission or seek judicial review (Llewellyn v Clyde Group Inc (supra)). Undue rigidity in assessing theoretical or constructed public prejudice ought not affect a decision challenged by a person exercising a private right unless actual or real potential prejudice can be shown (Emmanuele v Australian Securities Commission (supra)).

Conclusion

None of the grounds of appeal have been made out. I would dismiss the appeal.
File No 830/2007

JOHN REIDER GRUNSETH, SALTEL INC, and APOLLO BAY GROUP LLC
v RESOURCE PLANNING AND DEVELOPMENT COMMISSION, KINGBOROUGH COUNCIL, AND THE HONOURABLE STEVEN KONS ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT FULL COURT
BLOW J

25 July 2008

This is an appeal from an order dismissing an application under the Judicial Review Act 2000. The proceedings relate to an amendment to the Kingborough Planning Scheme 2000, namely Amendment 2005-4. The amendment relates to the subdivision of land zoned "Environmental Management" in the Municipality of Kingborough. It reduces the capacity for subdivision within the zone by, for example, increasing the minimum lot size for new subdivisions from 5 hectares to 20 hectares, and reducing the maximum lot yield from 20 lots to 10 lots.

The Kingborough Council was required to publish advertisements relating to the draft amendment pursuant to the Land Use Planning and Approvals Act 1993 ("the Act"), s38, and the Land Use Planning and Approvals Regulations 2004, reg6. By virtue of reg6(3)(b), the advertisements were required to "describe the content of the draft amendment". They did not do that. They misdescribed the content of the draft amendment. They asserted that it was an amendment "clarifying the outcomes and standards for subdivision in the Environmental Management Zone". But the amendment did not clarify anything. It imposed substantial new restrictions.

The appellants own land on Bruny Island, within the municipality, in the Environmental Management Zone. They applied for the review of the decision of the Resource Planning and Development Commission ("the RPDC") to approve the draft amendment, and sought an order that that decision be quashed. The learned primary judge accepted that the advertisements were defective but, after considering a number of factors relevant to the discretionary exercise of his statutory powers, decided to dismiss the application.

Ground 1 – Invalidity and the discretion to refuse relief

This ground reads as follows:

"The learned trial judge, having found ([2007] TASSC 92 at 15) that the Kingborough Council had failed to comply with the advertising requirements of s38 of the Land Use Planning and Approvals Act 1993:
(a)failed to determine whether the decision made by the Commission consequent on the failure to comply was invalid ([2007] TASSC 92 at 16 and 18);
(b)treated the issue of whether there was invalidity under the Land Use Planning and Approvals Act 1993 as part of discretion whether to refuse relief under the Judicial Review Act 2000, s27."

The appellants contend that, as a result of the advertisements being defective, the RPDC did not have the power to approve the amendment, and that its decision to approve it was therefore invalid. That is to say, they contend that the amendment is a nullity. They accept that, on an application for judicial review in such circumstances, there is still a discretion to refuse relief. However they contend that the learned primary judge erred in failing to determine whether the decision was in that sense valid or invalid, and in proceeding on the basis that he had a discretion whether to treat the decision as invalid.

When a statutory requirement forming part of a decision-making process has not been complied with, the validity or otherwise of the impugned decision depends on whether it was a purpose of the relevant legislation that an act done or decision made in breach of the statutory provision was invalid: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. In my view, the intention of the legislature in such circumstances in relation to amendments to planning schemes appears from the Act, s42(3)(b), which reads as follows:

"(3) When the Commission gives its approval to a draft amendment ¾
(a) …
(b)notwithstanding any failure to comply with a procedural provision of this Part, the amendment comes into operation on such date as is specified by the Commission, being a date not earlier than the date on which it is signed; …"

The provision of the Act that the council did not comply with was s38. It is in the same Part of the Act as s42(3)(b), namely Pt3. It reads as follows:

"(1) After giving to the Commission a copy of a draft amendment of a planning scheme and the instrument certifying that the amendment meets the requirements specified in section 32, the planning authority must ¾
(a)     cause a copy of the draft amendment to be placed on public exhibition for a period, being not less than 3 weeks and not more than 2 months, determined by the planning authority; and
(b)     advertise, as prescribed, the exhibition of the draft amendment.
(2)   If the period referred to in subsection (1)(a) includes any days on which the office of the planning authority is closed during normal business hours in that part of the State where the planning scheme to be amended applies, that period is to be extended by the number of those days."

The council advertised the exhibition of the draft amendment, but breached s38(1)(b) because it did not advertise it "as prescribed". It failed to do so in that the advertisements failed to "describe the content of the draft amendment", as required by reg6(3)(b).

Counsel for the appellants submitted that the non-compliance with s38(1)(b) and reg6(3)(b) resulted in the amendment being a nullity, relying on Scurr v Brisbane City Council (1973) 133 CLR 242 and Litevale Pty Ltd v Lismore City Council (1997) 97 LGERA 91. But for the existence of s42(3)(b), that may well have been a very sound argument. However I think that provision makes it absolutely clear that the intention of Parliament was that non-compliance with any procedural provision of Part 3 of the Act would not result in a purported amendment being a nullity. I think the provisions in the Act and regulations as to advertising should be regarded as procedural, since the required advertisements are part of the procedure required to be followed before a planning scheme is amended.

A remarkable aspect of this case is that s42(3)(b) received almost no attention during the hearing at first instance or during the hearing of the appeal. The learned primary judge stated in his reasons that he drew the attention of counsel to that provision and to s43(2), which relates to non-compliance with time provisions, but said that no counsel suggested that those provisions had any application, and that he would therefore not address them.

In his reasons, his Honour commented that the council's non-compliance with its advertising obligations provided "a legitimate basis for the applicants' contention that, in consequence, the Commission's ultimate decision approving the amendment is invalid." After referring to some authorities, he said, "… in the ordinary course it would be concluded that in consequence of the Council's breach, the Commission's decision was invalid and relief would follow." He went on to consider factors relevant to the exercise of the discretion to refuse relief as if the decision under review was not a nullity. The critical contention underlying ground 1 is that the decision under review was a nullity, and that the discretion to refuse relief should have been considered on the basis that it was a nullity. In my view, because of s42(3)(b), it was not a nullity. The non-compliance with the advertising requirements resulted in the learned primary judge having the power to quash or set aside the amendment, or part of it, either from the date it was made or some later date: Judicial Review Act, s27(1)(a).

Although the learned primary judge, when he referred to Project Blue Sky, identified the need to determine whether it was the intention of the legislature that a non-compliance like that complained of should result in a purported amendment to a planning scheme being a nullity, he did not go on to determine what the relevant intention of the legislature was. I think it is fair to say that he skipped that step in the necessary reasoning, and then proceeded on the basis that he had a discretion whether or not to refuse relief, to be exercised in accordance with the interests of justice. In my view, since the legislature did not intend a non-compliance like that complained of to result in an amendment being a nullity, it was entirely appropriate for his Honour to approach the exercise of the discretion to grant or refuse relief in the way that he did. His Honour might have failed to address a significant question, but he proceeded as if he had answered it correctly. In the exercise of the discretion conferred by the Judicial Review Act, his Honour made no error as to the status of the decision under review. Ground 1 must therefore fail.

Ground 2 – Procedural requirement

This ground reads as follows:

"2The learned trial Judge erred in holding ([2007] TASSC 92 at 18-21) that the Kingborough Council's failure to comply was in effect a procedural requirement [sic] only."

This ground does not involve a complaint that the learned primary judge treated the advertising provisions as procedural within the meaning of s42(3)(b). He ignored s42(3)(b) because counsel ignored it. The ground relates to pars18 – 21 of his Honour's reasons, in which he referred to a series of cases that suggest that courts should be reluctant to invalidate decisions because of non-compliance with procedural requirements contained in legislation governing decision-making processes.

To the extent that such authorities suggest that particular provisions are directory rather than mandatory, or that decisions following non-compliance with such provisions are voidable rather than void, I would regard them as not being directly relevant since s42(3)(b) places the status of the decision beyond doubt. In treating the council's non-compliance with the provisions relating to advertising as a non-compliance with procedural requirements that did not result in the amendment being a nullity, his Honour did not err. This ground must therefore fail.

Ground 3 – Reluctance to invalidate decisions

This ground reads as follows:

"3In concluding, in effect, that the Kingborough Council's failure was to comply with a procedural requirement, the learned trial Judge applied an incorrect principle, namely the Court's reluctance to invalidate an act done pursuant to a statutory provision."

In pars18 – 21 of his reasons, the learned primary judge referred to Montreal Street Railway Company v Normandin [1971] AC 170; Woods v Bate (1987) 7 NSWLR 560; and Emanuele v Australian Securities Commission (1997) 71 ALJR 717. As to those cases, his Honour said, at par18:

"The authorities I have in mind relate to the construction of the statutory power in question. However, the considerations that explain this reluctance are also relevant to the discretion I am called upon to exercise."

Ground 3 seems to be based on an incorrect premise, namely the premise that the amendment was a nullity. Given that the amendment was not a nullity, and that his Honour did not treat it as a nullity, I do not think it was erroneous to take into account, in deciding how to exercise the discretion whether to give relief or refuse it, comments made in other contexts as to the reluctance of courts to treat statutory decisions as nullities when procedural requirements were not complied with. The disadvantages of too readily quashing a statutory decision in such circumstances were relevant to the discretionary decision his Honour had to make. This ground must fail.

Ground 4 – Treating an advertising requirement as a procedural requirement

This ground reads as follows:

"4Alternatively, the conclusion of the learned trial judge to the effect that the Kingborough Council's failure was to comply with a procedural requirement was factor [sic] irrelevant to his discretion to refuse relief."

The provisions that were not complied with, namely s38(1)(b) and reg6(3)(b), were procedural. That fact was not irrelevant. It was fundamental. The factors that led to the decision to refuse relief were concerned with the likely consequences of non-compliance with the requirements in question. The characterisation of those requirements as procedural involved no error. This ground must fail.

Ground 5 – Jurisdiction of the RPDC

This ground reads as follows:

"5The learned trial Judge erred in failing to hold that the Kingborough Council's failure to comply with the advertising requirements was:
(a) a condition precedent to successful exercise of the powers of the Resource Planning and Development Commission ('RPDC'); or further, or alternatively
(b) a matter that went to the jurisdiction of the RPDC —
to convene the hearings into draft amendment 2005-4 to the Kingborough Planning Scheme."

Essentially this ground amounts to another assertion that the amendment was a nullity. In my view, for the reasons I have stated above, it is a valid amendment that came into operation when it was signed, by virtue of s42(3)(b). This ground must fail.

Grounds 6, 7 and 8 – Questions of fact

These grounds all concern findings of fact made by the learned primary judge. I agree with the learned Chief Justice that each of these grounds should fail, for the reasons stated by him. As to ground 8, it is true that the learned primary judge, at one point in his reasons, erroneously referred to the summary mailed out on 25 January 2006 as something provided to "all the owners of land in the zone". However his Honour was at that point using that summary to explain the substance of the amendment. He did so in the course of the reasoning that led him to conclude that the advertisements had failed to describe "the content of the draft amendment". At that stage he was not making any point as to the extent to which the council had drawn the content of the amendment to the attention of the public. Later in his reasons, when he reviewed the facts relevant to the exercise of his discretion, he correctly stated that the letters in question were sent "to all owners of land on Bruny Island zoned environmental management".

Refusal of leave to adduce evidence

During the hearing of the appeal, the court unanimously refused to grant the appellants special leave to adduce evidence contained in affidavits sworn by a Mr Allen and a Mr Stary. The deponents of both affidavits asserted that they owned land in the Environmental Management Zone of the Municipality of Kingborough; that they were unaware of the restrictions proposed in the relevant draft amendment; and that they would have made representations and opposed the making of the amendment if they had been aware of its contents. The matters that led me to decide that special leave should be refused can be summarised as follows:

·There was nothing in either of the affidavits to suggest that, in the words of the Supreme Court Civil Procedure Act 1932, s48(3)(a), "the evidence was not in the possession of the party seeking to have it admitted, and could not by proper diligence have been obtained by him [ie the appellants], before the termination of the trial".
·Therefore, by virtue of s48(3)(b) of that Act, the evidence could only be admitted if there was some other special circumstance which, in the opinion of the Full Court, justified the admission of it.
·The deponents of the two affidavits, if aggrieved by the decision to make the amendment, each had the right to institute their own proceedings under the Judicial Review Act, before or after the determination of the appeal, and even if it failed.
·If the impact of the amendment on either or both of those two deponents resulted in it being in the interests of justice for relief to be granted under the Judicial Review Act, that is the sort of decision that ought ordinarily to be made by a single judge, and not by a Full Court. Determination of such questions by a Full Court would involve a waste of judicial resources and an undesirable restriction on the litigants' rights of appeal.
·If the Court had allowed the appellants to adduce the evidence in question, procedural fairness would have required it to afford the respondents an opportunity to adduce evidence as to matters relevant to the re-exercise of the discretion to grant or refuse relief. The council might have wanted to adduce evidence as to many developments approved and refused in the relevant zone since the time of the amendment.
·There was nothing in either of the affidavits that suggested that the appellants had suffered any injustice as a result of the making of the order appealed from.
·Taking those matters into account, I was not satisfied that there was any special circumstance warranting the admission of any of the proffered evidence.

Conclusion

It is very unfortunate that the council did not properly advertise the draft amendment, as it then was, in late 2005 and early 2006. It is also unfortunate that the RPDC did not notice that the advertisements were inadequate, and get the council to re-advertise. The result, now, is that there may still be persons aggrieved by the amendment who have the right to apply to the Court under the Judicial Review Act and seek orders pursuant to s27 thereof quashing or setting aside the amendment, either wholly or in part, either from the time of its making or from some later time. It may or may not be in the interests of justice for such orders to be made. That state of affairs is unsatisfactory.

For the reasons stated above, I think that all of the grounds of appeal must fail. I would therefore dismiss the appeal.