Gurner 57 Johnston Street Developments Pty Ltd v Yarra City Council
[2017] VSC 290
•8 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
S CI 2017 01186
| GURNER 57 JOHNSTON STREET DEVELOPMENTS PTY LTD (ACN 606 523 835) | Applicant |
| v | |
| YARRA CITY COUNCIL and G & M CAMINITI PTY LTD (ACN 073 521 141) and JOHN WARDLAW and JANE DUFFY | First Respondent Second Respondent Third Respondent Fourth Respondent |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 May 2017 |
DATE OF JUDGMENT: | 8 June 2017 |
CASE MAY BE CITED AS: | Gurner 57 Johnston Street Developments Pty Ltd v Yarra City Council |
MEDIUM NEUTRAL CITATION: | [2017] VSC 290 |
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PLANNING & ENVIRONMENT – Application for leave to appeal and appeal from the Victorian Civil and Administrative Tribunal – Whether Tribunal’s decision not to conduct a further hearing and hear evidence from permit applicant’s expert witness constituted a denial of procedural fairness – Appeal allowed – Tribunal’s Order set aside and proceeding remitted to the Tribunal differently constituted – Victorian Civil and Administrative Tribunal Act 1998, ss 98, 102, 148.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Adrian Finanzio SC with Mr Rupert Watters of Counsel | Planning & Property Partners |
| For the Respondents | No appearances |
HER HONOUR:
Introduction
The applicant wishes to develop land in Johnston Street, Fitzroy, currently occupied by The Spanish Club. It proposes to partially demolish the existing building and construct a seven storey apartment building. The City of Yarra refused a permit and the applicant applied to the Victorian Civil and Administrative Tribunal to review the Council’s decision.
The Tribunal conducted a hearing over three days and undertook an unaccompanied view at the beginning of the second day. As a result of the view, on the resumption of the hearing, the Tribunal raised with the parties a particular concern that it had with the northern interface of the proposed development. This resulted in the preparation and provision of further evidence by the applicant and one of the third parties, G & M Caminiti Pty Ltd (‘Caminiti’), after the hearing concluded. There followed a series of communications between the parties and the Tribunal and between the parties themselves. The Tribunal convened a directions hearing, the purpose of which was to fix a date for a further hearing on the topic of its concern. In the event, however, no further hearing took place.
On 6 March 2017, the Tribunal affirmed the decision of the Council and ordered that no permit be granted.
The applicant now seeks leave to appeal and, if leave is granted, that the appeal be allowed, the Tribunal’s order be set aside and the matter be remitted to the Tribunal to be determined according to law.
The applicant has raised a single ground of appeal. It submits that it was denied procedural fairness when the Tribunal purported to decide the application for review without giving the applicant an adequate opportunity to be heard.
Reasons for decision
The Tribunal’s decision was based on concerns arising from the presence of a motor body repair business with a spray painting booth on the northern side of the review site. The business is owned by Caminiti. The Tribunal was concerned about the impact on north facing apartments in the proposed development of emissions from exhaust stacks on the Caminiti land near the northern boundary of the review site.
The Tribunal explained its decision to affirm the decision of the Council and refuse the grant of a permit in the following terms:[1]
This application has been refused because of the proposal’s failure to achieve an acceptable design response to a significant constraint to the review site’s development. That constraint relates specifically to the direct interface between the review site and its northern neighbour, a motor body repair business. The physical condition of that interface … includes the location of emission exhaust stacks associated with the spray painting booth in the building to the rear, adjacent to the northern boundary of the review site. …
The nature of the interface condition and the implications it has for the development of the review site was brought to the attention of the parties during the hearing by the objector (Mr Carminiti [sic]) and subsequently by myself following my unaccompanied inspection of the review site and neighbouring properties. … My observations were presented to the parties at the resumption of the hearing.
The Applicant requested the opportunity to address the issues associated with the interface condition. Because of the strong policy support for the redevelopment of the site and the generally confined basis of the Council’s and the objector’s concerns about the proposal, I provided the Applicant with the opportunity to address the issues associated with the northern interface.
Amended plans and associated documentation were prepared and circulated in accordance with Orders provided by me to allow that to occur. For the reasons I elaborate on below, notwithstanding the attempt to address the northern interface condition by the preparation of amended plans, an acceptable outcome has not been achieved. The failure to address the northern interface issue is not compensated for by the generally acceptable aspects of the balance of the proposal.
[1]Gurner 57 Johnston Street Developments Pty Ltd v Yarra CC [2017] VCAT 333 (‘Reasons’), [6]-[10].
The Reasons deal principally with the impact of the exhaust stacks. Paragraphs 32 to 51 set out how the issue of the exhaust stacks arose and how the Tribunal’s consideration of that issue unfolded, and record the opportunity given to the parties to address that issue. The applicant filed an expert report prepared by Dr Terry Bellair, an environmental science consultant, and Caminiti filed a responding report prepared by Mr Stephen Kaye of Masterbench Pty Ltd, an engineering company specialising in air handling systems and the design and manufacture of spray booths/baked enamel ovens. The Reasons record that, following the receipt of these reports, the Council requested a further hearing to deal exclusively with that issue, and the applicant’s solicitors confirmed the need for a further hearing. The Tribunal listed the matter for a one day hearing on 21 December 2016, but the applicant subsequently advised that Mr Bellair was not available on that date and the matter was listed for a directions hearing on 1 December 2016 for the purpose of considering future dates for the hearing.
The Reasons record that, prior to the directions hearing, the applicant circulated to the parties and the Tribunal a new set of plans proposing an alternative interface treatment incorporating the enclosure of north facing balconies to create ‘winter gardens’ for the relevant dwellings (referred to hereinafter as the ‘winter gardens option’). At the directions hearing on 1 December 2016, Caminiti requested the opportunity to consider the implications of the revised proposal. Caminiti subsequently advised that it continued to object to the proposal. The Reasons continue:[2]
[2]Reasons [50]-[56].
For reasons that will become apparent, it is necessary for me to record that there then occurred an exchange of unfortunate correspondence between the Applicant’s solicitors and Mr Carminiti [sic]. The Applicant’s solicitors requested a further hearing in that correspondence. The Applicant’s solicitors however then requested me to disregard the previous correspondence and expressed regret about the content of that correspondence. The applicant’s solicitor’s acknowledged Mr Carminiti’s [sic] rights to pursue his objections to the proposal.
I have disregarded the content of the correspondence referred to above, and I have therefore proceeded on the basis that I do not have before me a request for a further hearing in this matter.
I have nevertheless turned my mind to whether a further hearing is necessary in this matter. For a number of reasons I have concluded that it is not. Firstly, the Tribunal is obligated to determine each proceeding with as much speed, as the requirements of the Act and the enabling enactment and a proper consideration of the matters before it permit. I am also satisfied that I have sufficient information before me to allow me to proceed to make a decision on the application and importantly, all parties have had sufficient opportunity to put before me materials and information in support of their respective positions. Given that I regard Dr Bellair’s reports and Mr Kaye’s report as largely complementary, I would not be further benefitted by providing a further opportunity for them to be called to give evidence. Having regard to the protracted nature of the proceedings in this matter, the causes of which have been documented above, it is now necessary for there to be a final resolution of the matter. A further hearing is unnecessary in terms of providing me with additional relevant information and would not be consistent with the Tribunal’s obligations to determine each proceeding as expeditiously as possible.
It is important to recognise that with respect to the formally substituted plans, there is no dispute that the northern interface treatment reflected in those plans is unacceptable. Mr McGurn acknowledged this once the nature of the interface was brought to his attention. Dr Bellair recommended the spray booth discharge point be relocated to the north and the height of the discharge increased in height. This recommendation was made by Dr Bellair notwithstanding his assertion that residents of the north facing apartments, would detect solvent odours for relatively short periods on some occasions. The amenity impacts are presumably of such magnitude as to warrant Dr Bellair recommending the relocation of the stacks at his client’s cost.
Whether Dr Bellair’s recommended solution was ever an acceptable outcome, is not resolved and is in any event no longer relevant because the Applicant has chosen to pursue an alternative option, as reflected in the further amended plans circulated to the Tribunal and the parties two days before a directions hearing.
There is no application before me to substitute the further amended plans but I have nevertheless proceeded to assess the acceptability of the plans and I have concluded that they are not acceptable.
I have reached this conclusion because I regard the amenity impact of the exhaust on the future residents of proposed north facing apartments as significant and unacceptable. I have formed that conclusion based on both Dr Bellair’s analysis and the information provided by Mr Kaye. Mr Kaye’s report is useful because it provides information about the nature, frequency and duration of emissions on an average day (two jobs per day). There will be days when there will be no emissions because the spray booth/oven is not being used, but there will be days when the frequency and duration of emissions will be significantly greater than the average when 4 to 5 jobs are performed. This information complements Dr Bellair’s analysis and provides context to Dr Bellair’s conclusions that residents of the north facing apartments on level 1, would detect solvent odours for relatively short periods on some occasions.
The Tribunal went on to consider the possibility of an expansion of Caminiti’s motor body repair business, which it said had the potential to increase both the frequency and duration of emissions, and the shortcomings of the winter gardens option. The Tribunal concluded that it was ‘incomprehensible that the amenity impacts described above for the future residents of the north facing apartments could be regarded as anything other than unreasonable’.[3]
[3]Reasons [61].
Ground of Appeal
The applicant complains of a breach of procedural fairness as a result of the Tribunal reaching its decision without a further hearing.
The particulars to the ground of appeal set out, in summary form, the facts upon which the applicant relies in asserting a breach of procedural fairness. It is submitted that the Tribunal:
(a)recognised that the location, proximity and use of the exhaust stacks was a significant issue to be determined in coming to a final decision on the application;
(b)found that, because the application had strong policy support, the applicant should be given an opportunity to address the impact of the existence of the exhaust stacks upon the proposed development;
(c)made orders which contemplated the possible need for a further hearing on the question of the impact of the exhaust stacks upon the proposed development on 9 September 2016, 10 October 2016, 24 November 2016 and 5 December 2016;
(d)made orders on 23 November 2016 setting the matter down for a one day hearing on 21 December 2016 to consider the impact of the existence of the exhaust stacks upon the proposed development;
(e)received submissions from:
(i)the Council, on 16 November 2016 to the effect that a further hearing was required given the conflicting evidence;
(ii)the applicant, on 21 December 2016, to the effect that the applicant considered there was a need for a further hearing if, on the material available to the Tribunal on the papers, the Tribunal was concerned that the impact of the exhaust stacks upon the proposed development would be adverse; and
(iii)Caminiti, on 23 December 2016, to the effect that if a further hearing was conducted, it wished to be heard.
The applicant alleges that by purporting to decide the application for review on the basis and in the manner that it did, the Tribunal denied the applicant procedural fairness in that the applicant had no opportunity:
(a)to call evidence from its witness, Dr Bellair;
(b)to cross-examine Caminiti’s witness, Mr Kaye; and
(c)to make submissions on how the evidence should be treated or how the application should be resolved in light of the whole of the evidence, including the cross-examination.
Submissions
The applicant submits that the evidence of Dr Bellair was that the incidence of odour emanating from the exhaust stacks was low and that there were already residents living adjacent to them without complaint. There was therefore a live question about whether the impact of emissions from the exhaust stacks was sufficiently significant to warrant any change to the application plans at all. However, the Tribunal, without hearing from Dr Bellair, mistakenly drew an inference that the impact of the emissions was of such magnitude that Dr Bellair had recommended the relocation of the exhaust stacks at his client’s expense. This mistake demonstrated the need to call Dr Bellair and have him address any concerns raised by the Tribunal.
The applicant submits that it was entitled to call Dr Bellair, have him treated as an independent expert witness and have him address any issues that might have remained unresolved in the mind of the Tribunal. It says further that it should have been given the opportunity to cross-examine Mr Kaye about his expertise and independence, in circumstances where Mr Kaye’s relationship with Mr Caminiti was an issue. The applicant says that, had there been a further hearing, it would have called Dr Bellair and, in relation to Mr Kaye, it would have resisted any suggestion that his evidence should be dealt with on an equal footing with that of Dr Bellair.
The applicant submits that this evidence would have been very important to the way the Tribunal exercised its discretion under cl 22.05 of the Yarra Planning Scheme. The evidence would have been relevant to the ultimate conclusion that the Tribunal reached, that is, as to whether it was indeed ‘incomprehensible’ that amenity impacts from the exhaust stacks for future residents of the north facing apartments were anything other than unreasonable. The evidence in question bore directly on the significance of the existing problem and the ways in which the problem might manifest itself and be dealt with by the Tribunal.
The applicant submits that in the critical paragraph 52 of the Reasons, the Tribunal itself recognised that the subject matter of Dr Bellair’s and Mr Kaye’s reports was an important issue. Although the Tribunal found the reports to be ‘largely complementary’, there was a live dispute in relation to the evidence about the nature and consequences of the emissions from the exhaust stacks.
Furthermore, so the applicant contends, the Tribunal was obliged to consider the application plans in the absence of the formal substitution of the further amended plans containing the winter gardens option. The Tribunal’s observation that Dr Bellair’s recommended relocation solution was no longer relevant because the applicant had chosen to pursue an alternative option was incorrect.
According to the applicant, the fact that the Tribunal had before it the application plans and the applicant had circulated an alternative proposal in the form of the winter gardens option meant that the Tribunal could have decided the application for review in a number of ways. It could have decided that the significance of the impact was so small that it should approve the application plans. If it considered that the impact of the emissions was sufficient to warrant some alteration to the permit, the Tribunal could have imposed a condition precluding the development from proceeding, such as a condition that no construction commence until the exhaust stacks were moved. Alternatively, the Tribunal could have imposed the winter gardens option by way of a different condition. These outcomes, so the applicant contends, would have depended upon evidence from Dr Bellair about the extent of the emissions problem.
The applicant contends that in all the circumstances, it was denied procedural fairness in being denied the opportunity to make submissions on the following:
(a)how significant the impact of the exhaust stacks was, if at all;
(b)whether the evidence of Dr Bellair should be accepted;
(c)whether the evidence of Mr Kaye should be accepted;
(d)whether the Caminiti business complied with the EPA requirements and, if not, the consequences for the Tribunal’s decision-making;
(e)whether the winter gardens option was a viable option;
(f)whether, if the winter gardens option was not viable, relocating the exhaust stacks was a viable option; and
(g)the question of compliance with cl 22.05 of the Planning Scheme regarding interface uses.
Analysis
The Tribunal is bound by the rules of procedural fairness.[4] More specifically, s 102 of the Victorian Civil and Administrative Tribunal Act 1998 provides:
[4]MH6 v Mental Health Review Board [2009] VSCA 184; (2009) 25 VR 382, 391, [30].
(1) The Tribunal must allow a party a reasonable opportunity—
(a)to call or give evidence; and
(b)to examine, cross-examine or re-examine witnesses; and
(c)to make submissions to the Tribunal.
(2)Despite subsection (1), the Tribunal may refuse to allow a party to call evidence on a matter if the Tribunal considers that there is already sufficient evidence of that matter before the Tribunal.
Section 102(2) permits the Tribunal to refuse to allow the calling of evidence on a matter ‘if the Tribunal considers that there is already sufficient evidence of that matter before the Tribunal’. However, as the Supreme Court observed in Daynes v Public Advocate,[5] s 102(2) permits the Tribunal to depart from its duty to allow a party a reasonable opportunity to call or give evidence if it considers that it already has enough evidence, but it does not qualify the obligations in ss 102(1)(b) and (c) to allow examination, cross-examination and re-examination of witnesses and to make submissions to the Tribunal.
[5][2005] VSC 485, [33].
While s 98(1)(d) requires the Tribunal to determine proceedings expeditiously, this obligation is expressly qualified by the terms of the provision itself:
[The Tribunal must] determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
The critical question in this case is whether the course taken by the Tribunal allowed proper consideration of the matters before it.
The Tribunal itself raised as an issue the emissions from the Caminiti land. It gave the parties the opportunity to call expert evidence about the emissions. The Bellair report and the Kaye report were circulated and filed in the Tribunal on 2 November and 16 November 2016 respectively.
The Bellair report recommended that the exhaust stacks be relocated away from the proposed development on the basis that relocation would bring the stacks into compliance with EPA requirements and provide an acceptable level of amenity to future occupants of the land (‘relocation option’). The Kaye report identified what it described as some ‘important points of disagreement’ with the Bellair report, suggesting that the relocation option simplified the issues and did not give any thought to the disruptions to Caminiti’s business or the modifications that would be required to the machinery box of the spray painting booth. It explained that, if the spray booth was moved more than 25mm, the system would need to be brought up to current standards.
Following the receipt of the Bellair and Kaye reports, both the Council and the applicant wrote to the Tribunal seeking a further hearing.[6] The Council requested a further hearing ‘[i]n the face of the conflicting or opposing evidence adduced’. The applicant foreshadowed that at the further hearing, it intended to call Dr Bellair as an independent expert witness.
[6]On 16 November and 17 November 2016 respectively.
On 21 November 2016, Caminiti sent a letter to the Tribunal that was critical of the Bellair report, raised questions about whether the relocation option would cause it to forfeit existing use rights, and asserted that a further hearing was unnecessary on the basis that any differences of opinion between the experts were not relevant except to the extent of the amount of use of the spray booth, which was a matter of fact, not opinion.
On 23 November 2016, the Tribunal made orders for a further hearing on 21 December 2016. In its remarks accompanying the orders, the Tribunal recorded that both the applicant and the Council had requested a further hearing following the submission of additional reports and stated that the purpose of the further hearing was confined to consideration of the issues associated with the location of the exhaust stacks. The Tribunal required the circulation of witness statements prior to the further hearing.
It seems to have been accepted by the Tribunal at this point that a further hearing to consider issues associated with the exhaust stacks was required in order to properly determine the application for review.
An unforeseen event prevented the further hearing from taking place on 21 December. By email dated 23 November 2016, the applicant requested that the further hearing be relisted due to Dr Bellair’s unavailability. The email requesting relisting stated as follows:
Given that this hearing is listed to deal with a discrete issue for which Dr Bellair’s expertise is vital, we respectfully request that the Tribunal relist the hearing for either 2 or 14 December 2016, as suggested in our [previous correspondence].
Instead of relisting the hearing as requested, the Tribunal listed the matter for a directions hearing on 1 December 2016 for the purpose of considering dates for and the duration of the further hearing.
Prior to the directions hearing scheduled for 1 December, the applicant identified what it considered to be a viable alternative approach to deal with the issue of emissions from the Caminiti land, being the winter gardens option. On 29 November 2016, the applicant wrote to the Tribunal referring to the winter gardens option, enclosing plans and foreshadowing that at the directions hearing it would ask the Tribunal to accept the winter gardens option and invite a permit condition requiring the proposal to be modified to accord with the new plans. The letter stated:
If this approach is acceptable, it may be that there will be no need for a further hearing date to be allocated.
I observe that, in advancing the winter gardens option in this way, the applicant did not withdraw the Bellair report on the relocation option or indicate that it did not wish to call Dr Bellair.
On 1 December 2016, the Tribunal held the directions hearing. Senior Counsel for the applicant outlined the winter gardens option and the means by which the Tribunal could deal with the matter, including by deciding the application for review ‘on the papers’. The Council informed the Tribunal that it considered that the winter gardens option produced an acceptable outcome, but Mr Caminiti asked for the chance to take some advice before expressing an opinion. As a result, it was decided that there would be a further exchange of material. Senior Counsel for the applicant, referring to the end of the process of exchange, said:
And at that stage, we would hope that brings the formal process to an end. But if there’s a decision to be made about whether there is a further hearing, then we will perhaps call for a submission as to what we should do.
On 5 December 2016, the Tribunal made orders in accordance with what had been discussed at the directions hearing, including for the following:
(a)The filing of material in support of the winter gardens option, including a further report of Dr Bellair, by 6 December 2016;
(b)The filing of written submissions by the respondents in relation to the winter gardens option by 15 December 2016;
(c)The filing of any submission in response by the applicant by 22 December 2016; and
(d)‘Any party that seeks a further hearing in relation to this matter must make that request in writing’.
On 7 December 2016, the Council filed a possible permit condition based on the winter gardens plans and, on 8 December 2016, the applicant filed the material it was required to file regarding the winter gardens option, including a further report from Dr Bellair.
On 15 December 2016, in accordance with the Tribunal’s orders, Mr and Mrs Caminiti made a written submission to the Tribunal about the winter gardens option, stating that they still had concerns and suggesting changes that could be made, including the substitution of fixed glass panels for the proposed sliding doors.
On 21 December 2016, the applicant filed a written submission in response to the Caminitis’ submission of 15 December. Relevantly, the 21 December submission requested a further hearing in the event that the Tribunal was not prepared to decide the application for review in favour of the applicant. The 21 December submission stated:
We respectfully submit that the Caminiti position is unfair and unreasonable and demonstrates their continued unwillingness to entertain any practical resolution.
Whilst the Caminitis are entitled to retain their objection, the point has been reached where the Tribunal should find that the applicant’s revised proposal properly addresses their concerns and achieves an acceptable planning outcome.
If the Tribunal agrees, we respectfully contend there is no need for a further hearing, and we note that the Caminitis have not asked for one. If the Tribunal has remaining concerns, our client wishes to be given the opportunity to address any such concerns by way of further hearing of the matter.
On 23 December 2016, the Caminitis wrote to the Tribunal objecting to the characterisation of their complaint in the applicant’s 21 December submission and making further submissions on the Bellair reports, the relocation option and the winter gardens option (‘second Caminiti letter’). The second Caminiti letter concluded:
We think the current proposal will create unrealistic expectations of the level of amenity that can be achieved by new residents and will create conflict with our existing business in breach of clause 22.05 of the Yarra Planning Scheme.
As we have said before, we are the ones who will be suffering from the negative consequences of this proposal long after the Applicant has moved on. We do not agree that the revised proposal properly addresses our concerns and achieves an acceptable planning outcome.
We think that fixing the Winter Gardens in a closed position rather than having an option of opening and closing the sliding doors provides a better planning outcome.
If the applicant requires an opportunity to address the Tribunal on its concerns, our expert, Steven Kaye, would also welcome the opportunity to be heard.
Shortly after it received the second Caminiti letter, the applicant sent an email to the Tribunal stating as follows:
Registrar,
The Tribunal is urged to ignore the correspondence which precedes this communication.
It is most unfortunate, and is entirely contrary to the Tribunal order of 5 December 2016.
Indeed, it is entirely contrary to the third party representations to the Tribunal at the directions hearing on 1 December 2016.
It would seem that the Tribunal thought that this email referred to the applicant’s 21 December submission, in which the applicant had requested a hearing if the Tribunal had any remaining concerns. On this basis, the Tribunal disregarded the applicant’s 21 December submission rather than the second Caminiti letter. The Tribunal mistakenly concluded that the applicant’s request for a hearing had been withdrawn.
It is true that the applicant’s email urging the Tribunal to ignore the correspondence ‘which precedes this communication’ was poorly drafted. It could easily give rise to misapprehension or mistake as to what its author intended. However, properly construed, the applicant’s email asked the Tribunal to disregard the second Caminiti letter. This is apparent from a number of matters: first, when the chain of communications is examined, the ‘correspondence which precedes this communication’ is the second Caminiti letter; secondly, the second Caminiti letter was not sent pursuant to the orders of 5 December 2016, in that those orders did not contemplate any further submissions by Caminiti after 15 December 2016; thirdly, the reference to the correspondence being contrary to ‘third party representations’ makes little sense if the applicant is referring to its own communication with the Tribunal.
In its 21 December submission, the applicant stated that it wished to be given the opportunity to address any concerns the Tribunal might have by way of a further hearing. In my view, the Tribunal, having concerns, ought to have acceded to the applicant’s request. It may well have done so, had it not misunderstood the applicant’s email.
Whether or not the Tribunal understood there to be on foot a request for a further hearing, the Tribunal ought to have convened one, given the options that it had to consider and the nature of the dispute between the applicant and Caminiti. There remained a controversy about the impact of emissions from the exhaust stacks and whether doing nothing or adopting either of the options proposed by the applicant produced an acceptable outcome. The controversy was profound in that it concerned the application of the policies in cl 22.05 of the Planning Scheme and how the interface between residential and existing industrial uses in the Zone was to be managed.
Although it stated that there was ‘no dispute’ that the northern interface treatment in the application plans was ‘unacceptable’, the language used by the Tribunal in the Reasons shows the question of the impact of the emissions to be unresolved. In particular, the Tribunal stated that the amenity impacts were ‘presumably’ of such magnitude as to warrant Dr Bellair recommending the relocation of the stacks at his client’s cost. However, Dr Bellair simply noted his understanding that the applicant had offered to pay for the relocation. The use of the word ‘presumably’ invites inquiry of Dr Bellair about why he made the recommendation to relocate the exhaust stacks. Furthermore, the implied criticism of Dr Bellair’s recommendation to relocate the exhaust stacks ‘notwithstanding his assertion that residents of the north facing apartments, would detect solvent odours for relatively short periods on some occasions’ also invited a response or explanation from Dr Bellair.
The Tribunal, in deciding that it had sufficient evidence to determine the application for review, stated that it regarded the evidence of Dr Bellair and Mr Kaye as ‘largely complementary’ and that it would not be assisted by hearing them give evidence. The applicant does not accept that this is so.
I have had regard to the two reports in question. Dr Bellair’s report described the existing situation as being one of non-compliance with EPA requirements and relevant Australian Standards, and as resulting in offsite odours ‘at times’, depending on spray booth operations and weather conditions. He concluded that residents of the north facing apartments (particularly those on level one) might, at times, detect solvent odours for relatively short periods on some (but certainly not all) occasions when paint is being applied in the spray booth and the winds are from the north to north-east sector. He opined that the most appropriate course of action would be to relocate the spray booth discharge point further to the north and increase its height in order to bring it into compliance with the EPA requirements and minimise the risk of amenity impacts of solvent odours for future residents of the proposed development and the existing residents next door. He stated:
I consider that the above solution can be achieved relatively easily, quickly and with limited impact on the business operations of [Caminiti]. I understand that the Applicant has offered to pay for the above works prior to commencement of the construction of the Review Site.
In his report, Mr Kaye expressly disagreed with Dr Bellair about a number of matters. In particular, he disagreed with Dr Bellair’s claim that solvent emissions were largely confined to relatively short spraying operations. In relation to the relocation option, he stated:
It does not take much to imagine an exhaust duct emitting 8-10 cubic metres of polluted air per second, at a distance of 15 metres from a 20-25 metre tall building being at the very least a nuisance and perhaps a health threat to apartment occupants.
Mr Kaye also argued that Dr Bellair was simplifying the issues ‘in his attempts to assist the Developer to find a point to relocate the exhaust’ without giving any thought to disruptions to the Caminiti business as a result of the modifications that would be required to the machinery box of the booth. According to Mr Kaye, it was not simply a matter of moving the exhaust stacks.
All of this raised a number of questions about the nature and level of emissions from the exhaust stacks and the viability of proposed solutions, insofar as solutions were found to be required.
However, the Tribunal conducted no hearing on the question of emissions from the Caminiti land, which was the very issue that it considered to be determinative of the application for review.
In my view, the applicant was denied procedural fairness when the Tribunal proceeded to determine the application for review adversely to it without giving it an opportunity to call its expert to give evidence, challenge the evidence of Caminiti and make submissions on the impact of the emissions from the exhaust stacks based on that evidence, including as to whether, and if so as to how, the Tribunal should consider the relocation option and the winter gardens option.
In all of the circumstances, I am unable to conclude that compliance with the rules of procedural fairness in the manner described could have made no difference to the Tribunal’s decision. The viva voce evidence of Dr Bellair, the applicant’s proposed challenge to the evidence adduced by Caminiti and its submissions on the evidence could have made a difference to the outcome. The Tribunal’s error was therefore a vitiating error.[7]
[7]Stead v State Government Insurance Commission(1986) 161 CLR 141.
The application for review must be remitted to the Tribunal to be heard and determined according to law. Furthermore, I am persuaded that the application for review should be reheard by a different Tribunal member.
The circumstances in which a matter should be remitted to a differently constituted tribunal were considered by the Court in Vegco Pty Ltd v Gibbons.[8] Justice Kyrou stated:[9]
For the Court to be persuaded to order remittal to a differently constituted primary decision-maker, good reason for doing so, based on established principles, must be shown by the party seeking such an order. The guiding principle is that remittal will be to a differently constituted primary decision-maker where there is some feature of the conduct or reasons for decision of the primary decision-maker which would render it unfair to the successful party or give the appearance of unfairness to that party (whether arising from strongly expressed views on key issues, adverse findings on the credit of witnesses, apprehended bias or otherwise) if the matter were remitted to the same decision-maker or where it would be impracticable for the same primary decision-maker to re-determine the matter.
[8](2008) 30 VAR 1.
[9]Ibid [33].
In the Reasons, the Tribunal expressed strong views on the key issue of the exhaust stacks and the acceptability of the relationship between the development on the review site and the existing development on the Caminiti land. In particular, the Tribunal observed that it was ‘incomprehensible that the amenity impacts … could be regarded as anything other than unreasonable’.[10] It is evident from the Reasons that the Tribunal formed the view that the amenity impacts of the exhaust stacks were of such magnitude as to require the application for review to be refused.
[10]Reasons [61].
In the circumstances, I consider that it would create the appearance of prejudgment and unfairness to the applicant were the matter to be remitted to the same tribunal.
Conclusion
Leave to appeal is granted and the appeal is allowed.
The Order of the Tribunal made on 6 March 2017 is set aside.
The proceeding is remitted to the Tribunal, differently constituted, to be determined according to law.
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