Howlin v Resource Management and Planning Appeal Tribunal
[2015] TASSC 48
•30 October 2015
[2015] TASSC 48
COURT: SUPREME COURT OF TASMANIA
CITATION: Howlin v Resource Management and
Planning Appeal Tribunal [2015] TASSC 48
PARTIES: HOWLIN, Darryl Robert
v
RESOURCE MANAGEMENT AND PLANNING
APPEAL TRIBUNAL
CLARENCE CITY COUNCIL
FILE NOS: 275/2015
344/2015
DELIVERED ON: 30 October 2015
HEARING DATES: 4, 5 August 2015
JUDGMENT OF: Porter J
CATCHWORDS:
Administrative Law – Judicial review – Grounds of review – Jurisdictional matters – Where planning appeal tribunal chairperson refused to list appeals on the basis they had no prospects of success – No hearing in public as required by the legislation for the hearing and determination of an appeal – Power in tribunal only to dismiss appeal as frivolous or vexatious – No power to decide not to hear and determine an appeal on the basis of lack of prospects of success – Failure to exercise jurisdiction.
Aust Dig Administrative Law [1029]
Administrative Law – Judicial review – Grounds of review – Procedural fairness – Hearing – Other matters – Where planning appeal tribunal chairperson refused to list appeals on the basis they had no prospects of success – Failure to give proper and genuine consideration to substantive matters– Denial of natural justice.
Dranichnikov at v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, applied.
Aust Dig Administrative Law [1068]
Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania - Resource Management and Planning Appeal Tribunal – Powers and duties on appeal – Where tribunal chairperson refused to list appeals on the basis they had no prospects of success – No hearing in public as required by the legislation for the hearing and determination of an appeal – Power in tribunal only to dismiss appeal as frivolous or vexatious – No power to decide not to hear and determine an appeal on the basis of lack of prospects of success.
Aust Dig Environment and Planning [596]
REPRESENTATION:
Counsel:
Applicant: In person
First Respondent: (Submitted to the Court's jurisdiction)
Second Respondent: S B McElwaine SC
Solicitors:
Applicant: In person
First Respondent: Director of Public Prosecutions (Acting)
Second Respondent: Shaun McElwaine + Associates
Judgment Number: [2015] TASSC 48
Number of paragraphs: 106
Serial No 48/2015
File Nos 275/2015
344/2015
DARRYL ROBERT HOWLIN v RESOURCE MANAGEMENT
AND PLANNING APPEAL TRIBUNAL and CLARENCE CITY COUNCIL
REASONS FOR JUDGMENT PORTER J
30 October 2015
Introduction
These proceedings are made up of two matters. The first is an application for review under the Judicial Review Act 2000 (the JRA) for review of a decision of the Chairman of the Resource Management and Planning Appeal Tribunal made on 23 March 2015. The second matter is the return of a general order under r 624 of the Supreme Court Rules 2000. The order is for the Tribunal to show cause why relief in the nature of mandamus should not be granted. From its terms, this seems solely to relate to a decision of the Chairman of 22 June 2015.
The two decisions relate to three appeals by the applicant to the Tribunal from decisions of the respondent, Clarence City Council. Those decisions and the appeals concern the applicant's attempts to subdivide land at Opossum Bay. The attempts have previously given rise to a number of decisions of this Court, both of single judges, and of the Full Court. At the heart of much of the litigation generated by the applicant's attempts to subdivide the land is the status of an area of land known as Marsh Street, Opossum Bay. There has been contention over whether or not it is a public road.
By the decision of 23 March 2015, the Chairman, Mr G Geason, refused an application by Mr Howlin to "call on for hearing" before the Tribunal an appeal designated as 396/07S. The Chairman noted that the application was one to "relist" the appeal. It appears that it was listed for hearing in July 2010 but was adjourned indefinitely. In his reasons, the Chairman noted that appeals designated as 103/05S and 02/06S, also existed, but that Mr Howlin's application did not extend to those appeals. The Chairman said that in any event those other matters were caught by the same considerations which governed the application before him.
Appeals 103/05S and 02/06S were heard together by the Tribunal in 2009, leading to a decision made on 26 November 2009 to which I will return. Suffice it to say for the moment, that it did not finally determine the appeals. The second decision of 22 June 2015 only relates to appeal 02/06S. The Chairman refused an application by Mr Howlin to relist that appeal. In doing so, he basically adopted his reasons for the first decision. It follows that a reference to the hearing and determination of an appeal means, for two appeals, further and hearing and determination.
With the stated purpose of ensuring that all matters are dealt with in these proceedings, the Council is content that the application for judicial review is taken to extend to the two decisions, and as referring to all three appeals. However, Mr Howlin's focus is more on the 2006 and 2007 appeals, primarily the former. Because of the repetition in the second decision of the reasons set out in the first, except where expressly dealing with them individually, it is convenient to proceed as if the Chairman made one decision; the first one. For the reasons which follow, I have decided that relief should be granted, and that the Tribunal chairperson be directed to list the appeals for hearing and determination.
Background
The appeal 103/05S was lodged with the Tribunal in March 2005. The appeal was from a decision of the Council refusing to grant a permit for a 28 lot subdivision. I have attached to these reasons, and marked "A", the plan of that proposed subdivision. The small lot to the left (or west) of the area marked "ROADWAY" bearing the number 102, and of 512m2 in area, is presently owned by Mr Howlin's present wife and stepdaughter, respectively Lihua Qin and Xiaomin Shi. Until 2014, it was owned by Mr Howlin and his former wife. In accordance with usage adopted in other decisions, I will call this Lot A, and have marked it that way.
The area marked "ROADWAY" is presently owned by P and J-A Geappen. This is Lot B, as marked. Those two pieces of property make up what is known as Marsh Street, which runs to the boundary of the land sought to be subdivided. Lot B was previously owned by Margaret Brinckman, she having sold the land in 2008. Mr and Mrs Geappen also own the land to the south of the "roadway" land which is marked "OTHER OWNER", and which shares a boundary with Lots 1 and 3 and part of Lot 4 of the proposed subdivision. At the bottom left part of the subdivision is a narrow strip of land leading from Spitfarm Road marked "Right of Way (Roadway)". This is commonly known as Howlin Lane, as I have marked it.
Appeal 02/06S was lodged in January 2006 in respect of a refusal by the Council to grant a permit for the subdivision of the land into 29 lots. It is not necessary to look at the proposed plan of subdivision. It was basically the same as that the subject of 103/05S but with some reconfiguration of Lots 1 and 2 so as to provide public open space, and rearrangement of Lots 3, 4 and 5. Appeal 396/07S was lodged with the Tribunal in November 2007. The appeal was from a decision of the Council refusing to grant a permit for a 35 lot subdivision. I have attached to these reasons, and marked "B", the plan of that proposed subdivision. As can be seen, the two parcels of land making up Marsh Street are, on this plan, simply shown as "Marsh Street".
Before any of the appeals were heard, on 14 August 2007 Mr Howlin obtained from a judge of this Court a declaration that Marsh St "comprising the Howlin portion of Marsh St and the Brinckman portion of Marsh St is a public highway": Howlin v Brinckman [2007] TASSC 59 per Slicer J, (Howlin v Brinckman). Those proceedings were against Mrs Brinckman only. The Tribunal then heard the two appeals, 103/05S and 02/06S, together on 13 and 14 November 2007. The Tribunal allowed the appeal in respect of 103/05S and remitted it to the Council for reconsideration, and dismissed appeal 02/06S. About a week later, the Tribunal revisited its decision, held that it was wrong in part, and set aside the remission of the application the subject of appeal 103/05S.
Mr Howlin successfully appealed to this Court: Howlin v Resource Management and Planning Appeal Tribunal [2009] TASSC 9. Blow J (as he then was) ordered that the decisions of the Tribunal on 13 December 2007 in respect of both appeals be quashed, that the later decision made in respect of appeal 103/05S be quashed, and that the appeals be reheard by a differently constituted tribunal.
A differently constituted tribunal reheard the appeals in 2009. It was a three person tribunal made up of G Geason as presiding member, J Caulfield and M Ball. On 25 November 2009 it published reasons for its decision: Howlin v Clarence City Council [2009] TASRMPAT 215. This decision has some importance in these proceedings. In each case, the Tribunal upheld the appeals, set aside the decisions of the Council "and in substitution therefor [made] a decision directing the issue of the permit(s)". It made the following directions:
"(a)The Appellant may elect one or both of the proposals to be the subject of a permit; that decision is to be transmitted to Council.
(b)Council and the Appellant are to prepare a schedule of conditions to be attached to one or both of the permits for the consideration of the Tribunal. The schedule is to be prepared within 21 days of the date of this decision.
(d) [sic]If no agreement can be reached in that time the matter will be relisted for further hearing to determine the permit terms."
Mr Howlin and the Council did not reach agreement. The appeals were relisted in accordance with the last direction, but no hearing took place, at least in the sense of a hearing of the merits. It appears that the Chairman took the view that the further hearing should await the outcome of fresh litigation in relation to the status of Marsh Street. The debate about that continued notwithstanding Slicer J's declaration. That debate arose in the Full Court in associated cost proceedings in which the Council became involved: Howlin v Brinckman; Howlin v Clarence City Council [2009] TASSC 18; Clarence City Council v Howlin [2010] TASFC 2.
In 2010, the Council brought an action against Mr Howlin and a number of affected landowners, including the Geappens, seeking a declaration that Marsh Street was not a highway and not maintainable by the Council. The Council succeeded before Evans J, Clarence City Council v Howlin [2012] TASSC 26, and again on appeal by Mr Howlin to the Full Court, Howlin v Clarence City Council [2013] TASFC 7 (Howlin v Clarence City Council). Mr Howlin's application for special leave to appeal to the High Court was dismissed: [2014] HCASL 3.
That brings me to Mr Howlin's applications to the Tribunal to list his appeals. On 28 July 2014, Mr Howlin wrote to the Registrar of the Tribunal making an "application to call on the hearing of Appeal 396/07S and application for costs". He estimated the time for the hearing as one day, and asked for the earliest tentative date the Tribunal could offer.
On 30 July 2014, the Registrar wrote, by email, to Mr Howlin and Council officers, noting Mr Howlin's request, and stating:
"The Appellant is directed to file a detailed application for relisting which identifies the basis for a relisting to occur with detailed reference to;
1The matters/grounds which are sought to be heard.
2The relevance of any extant proceedings or concluded proceedings in other jurisdictions which may affect the appeal and the decision to relist the matter."
In a lengthy email of 27 August, Mr Howlin set out his grounds, and particulars of facts and law relied on. It is not necessary to set out any detail of this. It is sufficient to note the following. As part of his grounds, Mr Howlin stated that the Supreme Court had ruled that if Marsh Street is not a public highway a subdivision of land "over both Marsh Street and the Applicant's fee simple frontage over 'Howlin Lane' is limited to three lots". I need to digress a little to explain this. In his introductory observations in Howlin v Brinckman at par [5], Slicer J said that if Mr Howlin's land had a right of access by easement only, the number of allotments permitted through subdivision would be limited to three, with Mrs Brinckman retaining the right-of-way over the questioned land.
In Clarence City Council v Howlin [2010] TASFC 2, Crawford CJ (with whom Tennent and Wood JJ agreed), in explaining the background said at [18] that "if Mr Howlin was successful in establishing that both portions of Marsh Street were a public highway, they would have been able to create many lots of land. However, if they only had a right-of-way over the Brinckman portion of Marsh Street, the subdivision would have been limited to three lots".
Crawford CJ added a footnote to the effect that the Howlin land sought to be subdivided had a 5.77m frontage onto Spitfarm Road for its southern boundary, some distance from Marsh Street, but that this frontage was inadequate for Mr Howlin's purposes. Howlin Lane is that small strip of land shown to the south-east of the proposed subdivisions shown on the attached plans. At least at one point in these proceedings, the Council argued that the statements of Slicer J and subsequently Crawford CJ, were only observations and are not in fact correct. (It seemed to me that at another point, that argument was resiled from.)
In his submissions as to the listing, Mr Howlin also asserted that the subdivision of land by right of carriageway to a public highway was and is legal "and appropriate access in the State of Tasmania". As a further point, he submitted that the High Court authority of Gallagher v Rainbow (1994) 179 CLR 624 "confirms that easements created under the Real Property Act can be increased to provide legal and appropriate access for the further subdivision of land". He went on to say that he could provide unlimited and indefeasible right of carriageway over Marsh Street to the three different subdivisions and provide a lot with each frontage to a public highway in that subdivision.
Much of the material he provided as particulars of facts and law, amounted to assertions that the Full Court's decision in Howlin v Clarence City Council was wrong, as was the judgment of Evans J, that even if not a public road, proper access to the subdivision could be provided for, particularly given that a number of properties with frontages on Marsh Street did not have a right of carriageway over Lot A.
The Council responded to Mr Howlin's submissions by letter of 4 September 2014. In short, the submission was that the parties to the appeals were bound by the decision of the Full Court in Howlin v Clarence City Council. That being so, Marsh Street could not be treated as a public road, and that none of the three subdivision proposals could succeed because the requirements of s 109 of the Local Government (Building and Miscellaneous Provisions) Act 1993 (the LGBMP Act) relating to minimum lots, could not be complied with, and under s 84(1)(a) of that Act, the plans could not be approved.
On 26 September 2014, Mr Howlin lodged a lengthy reply. He alerted the Registrar to the fact that by that time, proceedings had been instituted by the Council in this Court seeking clarification of the situation with respect to rights-of-way over Lot A, and that interlocutory injunctive relief was being pursued. He put further arguments along the same lines as his original submission. He argued that the 2009 decision of the Tribunal had not been the subject of any appeal, and that the decision of Slicer J in Howlin v Brinckman had not either been overturned on appeal by the Council, or disturbed by the Full Court in 2010.
For reasons which are not immediately apparent, Mr Howlin made further lengthy submissions by letter of 1 October 2014, clarified by a further submission of 7 October. Matters canvassed included the status of the Tribunal's 2009 decision, the effect of the various Supreme Court judgments, the failure of the Council to involve itself in the Brinckman action until the question of costs arose, the costs of the appeals to the Tribunal, and the application of the res judicata principle in relation to the Brinckman decision.
On 23 March 2015, the Chairman refused the application. On 5 June 2015, Mr Howlin sent an email to the Acting Registrar of the Tribunal, attaching an application "for the purpose of issuing a planning permit for the 29 lot subdivision of my land approved in" the 2009 decision. I assume this was intended to be an election as to which proposal was to be the subject of the grant of a permit, in accordance with direction (a) made on 29 November 2009: see par [11] above. The application set out what was said to be relevant legislation and case law, addressed issues of functus officio, the "approved" 29 lot subdivision on appeal 02/06, "the law overlooked or avoided", the doctrine of res judicata, the creation of rights of carriageway for the subdivision and the question of reasonable apprehension of bias on the part of the Chairman. This does not seem to have been sent to the Council for its response. On 22 June, this application was refused.
Although it has not been given any prominence in these proceedings, I should refer to a further application Mr Howlin made to the Tribunal through the Registrar on 5 December 2014. In an email, Mr Howlin said the extensive litigation had caused him great hardship, and that he wished to make application for "an interim order granting approval for the subdivision of at least one lot on the approved plan, namely the 'house lot 7' depicted on approved plans 103/05S and 02/06S". The Tribunal did not do anything about that until the decision of 23 March 2015.
Relevant legislation
Before turning to the first of the Tribunal's decisions, it is convenient to set out the relevant parts of the LGBMP Act. Section 84(1) relevantly provides as follows:
"84 Council not to approve subdivision
(1) The council is not to approve a plan of subdivision if —
(a) any proposed lot has not the qualities of a minimum lot; or
(b) it includes any lot or other block of land smaller than is required or permitted by a finally approved planning scheme;
…".
Section 109 contains provisions which relate to an urban building area, a country building area, and a changing building area. Such areas are defined by reference to the Building (Consequential Amendments) Act 2003. By a rather complicated process, Opossum Bay is to be regarded as an urban building area. The 2003 Act made provision for further delineation, and it appears Opossum Bay is an outer urban building area, although nothing turns on that.
Relevantly, s 109 provides as follows:
"109 Minimum lots
(1) Unless the relevant planning scheme provides otherwise, the minimum lot is to have —
…
(c) in an urban building area —
(i)an area of not less than 550 square metres; and
(ii)a frontage to a road of not less than 18 metres; and
(iii)such boundaries that within them can be drawn a circle having a diameter of not less than 18 metres, and its centre not more than 18 metres from a road; or
…
(f) in any building area, reasonable vehicular access from the carriage-way of a road to a boundary; or
…
(2) …
(3) Unless the relevant planning scheme provides otherwise, a lot has the qualities of a minimum lot —
…
(b) if being in an urban building area it —
(i)has a frontage to a road of not less than 6 metres; and
(ii)has the centre of the circle mentioned in subsection (1)(c) distant from that road not more than 18 metres; and
(iii)complies in all other respects with subsection (1); and
(iv)is approved by the council as equivalent to a minimum lot; or
…
(g) if, being in any building area and not otherwise having the qualities of a minimum lot, provision has been made in a planning scheme approved for its existence or creation as a lot; or
(h) if, being in any building area and having all the qualities of a minimum lot except in respect of frontage it —
(i)has a frontage to a road of not less than 3·6 metres, over which frontage no other land has a right of way as its sole or principal means of access; and
(ii)is approved by the Commission given at the request of the council, as equivalent to a minimum lot; or
(i) if, being in any building area and having all the qualities of a minimum lot except in respect of frontage it–
(i)has access to a road by a right of way at least 3·6 metres wide over land not required as the sole or principal means of access to any other land and not required to give the lot, if any, of which it is part the qualities of a minimum lot; and
(ii)is approved by the Commission given at the request of the council, as equivalent to a minimum lot; or
(j) if, being in any building area and lying behind a block fronting a road and being in all respects a minimum lot if that block were a road it —
(i)has a private road at least 3·6 metres wide to the public road, which private road is not required as the sole or principal means of access to any other land; and
(ii)is approved by the Commission given at the request of the council, as equivalent to a minimum lot;
…".
The decision of 23 March 2015
After setting out the chronology of the application to relist, the Chairman dealt with the application for the "interim order" simply saying that the the Tribunal had no power to make such order. In relation to the subdivision of the Howlin land he went on to say as follows (omitting footnote references):
"16The proposition that the Applicant's land at Opossum Bay is ripe for subdivision cannot be disputed.
17Assuming itself to be freed from the legal constraints arising from the status of Marsh Street, and in circumstances where the Council did not maintain its refusal on that ground, the Tribunal upheld an appeal against a refusal for the subdivision of the land in its decision published at [2009] TASRMPAT 215.
18But that decision should be construed as a provisional approval, granting a permit only upon the settlement of conditions. Conditions had not been agreed before the Supreme Court cast significant doubt on the proposition that Marsh Street was a highway. In that situation the decision has remained a provisional ruling.
19On 30 June 2010 Appeal 396/07S was adjourned due to the uncertainty about the status of Marsh Street and the prospect of a Supreme Court determination of the question.
20Approval of subdivision of this land, in all its versions, has floundered due to the Applicant's difficulty in satisfying the applicable planning scheme with respect to the provision of frontage. Section 84 of the Local Government (Building and Miscellaneous) Provisions Act (LGBM Act) becomes relevant in those circumstances."
The Chairman went on to set out the whole of ss 84 and 109 of the LGBMP Act. He then went on to observe that the legal status of Marsh Street was "central to the determination of this application". [My emphasis.] He made the following points.
· Slicer J had held that Marsh Street was a highway maintainable by the Council, but the Full Court's decision in Clarence City Council v Howlin of 2010 cast doubt upon that conclusion.
· The matter was unequivocally determined by Evans J in Clarence City Council v Howlin [2012] TASSC 26. (The Chairman did not refer to the appeal; Howlin v Clarence City Council.)
· The Tribunal was bound by the determination of Evans J as were the parties, referring to Blair v Curran (1939) 62 CLR 464, per Dixon J at 531.
· It followed that the requirements of s 109 of the LGMBP Act were not satisfied, "precluding subdivision".
The Chairman went on to raise a possible argument which, as far as I can see, had not been raised up until that point. He said that it may be that Mr Howlin seeks to argue that the circumstances favour a conclusion that Marsh Street can provide a satisfactory access in the manner described by the Tribunal in Bunnings Group Limited v Burnie City Council [2014] TASRMPAT 11, if the reasoning in that case is applied. The Chairman noted Mr Howlin's contention that it is well established that the rights of carriageway over private roads are capable of satisfying the statutory requirement of s 109. He next noted that in R v West Tamar Council; ex parte Phillips [1999] TASSC 107, Evans J held that the word "road" as it appears in s 109(3) means a public road.
The Chairman went on to explain that in the Bunnings case, a two lot subdivision was proposed. Both lots had actual frontage to a public road; the only issue being that s 109(1)(f) was satisfied; that is, whether reasonable vehicular access could be provided. He noted that in the Bunnings case, the Tribunal had said that if there is reasonable vehicular access, the fact that it is conferred by means of a right-of-way is not important. He said that the most striking difference between the Bunnings matter and the present one was that "the reliance on the right of carriage way in the former was demonstrated by evidence to be sufficient for the purpose and certain, including as to the duration of the access rights. Such certainty is a paramount." I note that the Chairman did not actually discuss s 109(3)(i) and how that might apply in Mr Howlin's appeals.
In any event, the Chairman continued:
"40In a physical sense the adequacy of Marsh Street was perhaps acknowledged by the Tribunal but with the legal status of the street resolved, it is to the prospect of that route providing adequate access in terms of s 109 that is in issue. The history of disputes over access rights in and over Marsh Street evidences such uncertainty, a conclusion not ameliorated by the fact of the proceedings in relation to the construction of a lockable gate over the entry to Marsh Street. [That is, the pending proceedings about the status of the rights-of-way over lots A and B.] The Tribunal is provided with no basis upon which it could reach a conclusion other than that there is not now or in prospect certainty of access over Marsh Street. That distinguishes the matter from the facts in the Bunnings matter.
41It must be emphasised that it is not for the Tribunal to make the Applicant's case for relisting a matter. It is for the Applicant. The Applicant has placed nothing before the Tribunal to justify such course: there is nothing which suggests that access requirements for the Applicant's proposed subdivision are sufficient and certain, such that s109 of the LGBM Act can be satisfied whether now or in the future.
42The Tribunal is bound to give effect to the language of s109 of the LGBM Act, assisted in the interpretation of it by the decision of the Supreme Court in Phillips and applying that decision in the broader context of the ruling [of Evans J] in Clarence City Council v Howlin.
43In those circumstances, the application to relist should be refused since the subdivision application in matter 396/07S has no prospect of being approved.
44The same conclusion is inevitable in respect of each of the other matters, though none of them is the subject of the extant application."
The decision of 22 June 2015
In his reasons, the Chairman set out the brief chronology of the application to relist this appeal, and continued:
"3By ruling published at [2015] TASRMPAT 14B, the Tribunal dealt with a similar application in respect of Appeal 396/075. It set out a detailed history in relation to that matter, and other matters including 02/06S.
4The matters set out at paragraph 17 of [2015] TASRMPAT 14B explain the circumstances at the time of the decision reported at [2009] TASRMPAT 215.
5The legal effect of the decision at [2009] TASRMPAT 215 is set out at paragraph 8 of [2015] TASRMPAT 14B.
6It is not necessary to repeat the analysis for dealing with this application. That analysis is applicable. The determinative point remains the same: the status of Marsh Street is now settled, precluding subdivision. The Tribunal has noted, and repeats, that it is bound by that determination, as is the Applicant and the Council.
7For the same reasons as were given in [2015] TASRMPAT 14B the application to relist the appeal in respect of 02/06S should be refused. The Tribunal foreshadowed that result at paragraph 44 of that decision.
8The application to relist is refused."
The JRA application
I will first deal with the provisions of the JRA which are relevant to the application. Section 17 enables a person who is aggrieved by a decision to which the Act applies, to apply to the Court for an order of review relating to the decision. By s 17(2)(a) and (d), available grounds are respectively that a breach of the rules of natural justice "happened relating to the making of the decision", and that the decision was not authorised by the enactment under which it was purported to be made. Section 5 provides that a reference to the making of a decision includes a reference to refusing to make a determination (amongst other things), and doing or refusing to do anything else: see s 5(a) and (g).
The situation with the grounds of the application is unfortunately confusing. In their terms as originally drafted, the grounds are specifically related to 397/06S. As amended by consent, they now also relate to 02/06S. There are grounds 1 to 3, said to relate to the first decision as to 397/06S, and grounds 1 to 4 said to relate to the second decision as to 02/06S, although grounds 3 and 4 of that second set simply seek to repeat grounds 1 and 2 of the first set.
The first grounds numbered 1 and 2 complain of errors of fact and law on the part of the Chairman by:
· finding that access to the subdivision was not of sufficient certainty in terms of reasonable vehicular access, and
· finding that the principle of res judicata applied in relation to the judgments in Clarence City Council v Howlin [2012] TASSC 26 and Howlin v Clarence City Council on the authority of Blair v Curran, and ignoring Howlin v Brinckman "and the current common law position on res judicata".
The first ground 3 asserts that the Chairman erred in fact and law by breaching the rules of natural justice required to be observed by the Tribunal under s 16(1)(d) of the Resource Management and Planning Appeal Tribunal Act 1993 (the RMPAT Act), and by demonstrating a reasonable apprehension of bias. These things are said to have occurred where the Chairman: (i) failed to act with expedition, and (ii) failed to comply with the provisions of s 18(1) of the RMPAT Act by not hearing the appeals in public "when no findings were made under the provisions of s 22A of the [RMPAT] Act to enable an exercise of power to dismiss the appeal."
The second ground 1 asserts an error of law in refusing to relist 02/06S. The ground alleges that the refusal does not constitute a valid exercise of power under ss 23(4), (5), (6)(a) and (b) and 24(1) and (2) of the RMPAT Act, and contravened s 17(2)(d) of the JRA, as the refusal was not authorised by the enactment under which it was purported to be made. I will come back to the provisions of the RMPAT Act. The second ground 2 complains of an error of law in failing to exercise a remaining duty to issue permit conditions for the 29 lot subdivision approved in 02/06S, in circumstances where the Council did not appeal that decision, the decision was not stayed, and was not the subject of a referral to this Court on a question of law.
Primarily of course, because of the terms of the second decision, all of the grounds essentially concern the reasons of 23 March 2015 which, in turn, are to be treated as applying to the three appeals.
The order to show cause
The order calls on the Tribunal to show cause why relief similar to mandamus should not be granted, compelling the Tribunal "to resume the hearing of the appeal the subject of the decision entitled DR Howlin v Clarence City Council [2009] TASRMPAT 215" for the purpose of determining the conditions to be attached to the permit directed to be issued at par [73] of the decision, and for the purpose of dealing with any questions as to costs. The sole ground is very confined, and is as follows:
"That the Tribunal erred in determining that the subdivision of the land the subject of the permit directed to be issued cannot occur for want of road frontage without resuming the hearing for the purpose of determining whether road frontage can be created by the construction of a road on the proposed building estate and if so imposing permit conditions accordingly."
Because of the terms of the originating application giving rise to this order, and the terms of the request of 5 June 2015 (see above at [33]), the order to show cause must be confined to the decisions as they relate to 02/06S.
The issues to be decided
Regrettably, the confusion caused by the grounds of review in the JRA application is exacerbated by Mr Howlin's written submissions. There are submissions on the 'first' grounds 1 and 2, but not ground 3. There are no submissions on the 'second' grounds 1 and 2, but there are on suggested grounds 3 and 4 which do not exist. They relate to the question of Marsh Street providing access to the subdivision if it is not a public road. The separate and much more voluminous written submissions in support of the order to show cause address the four grounds set out in the originating application, and not the sole ground in the order. Those four grounds are in not dissimilar terms to all grounds in the JRA application with one or two additional matters being raised.
The Council's position was essentially that it did not want to leave unresolved any issue reasonably raised. As a consequence, there is some latitude and flexibility available in interpreting the grounds, but clear limits remain. Because of the limited terms of the sole ground of the order to show cause, what follows relates to the JRA application except where specifically stated otherwise.
Much of what Mr Howlin argues is not properly maintainable in the proceedings. Because of their nature, in neither proceeding is it open to argue errors of fact. Mr Howlin does not allege error in relation to a jurisdictional fact. The errors of law not associated with the nature and exercise of the Tribunal's jurisdiction and powers, relate to the status of the previous Howlin decisions and the application of the principle of res judicata, and the interpretation of the provisions of the LGBMP Act.
I will immediately deal with the first of those issues. With respect, and acknowledging that Mr Howlin is self-represented, he seems to misunderstand the concept of res judicata. He suggests that Howlin v Brinckman is binding on the present parties, but that HowlinvClarence City Council is not. He suggests that Blair v Curran is no longer good law. He has cited subsequent cases but has not explained what he says the current law is, as distinct from what was stated in Blair v Curran. He does not explain why the Full Court's judgment in Howlin v Clarence City Council does not bind the parties, nor to the extent that it establishes or explains general propositions of law, why it is not generally binding[1].
[1] Mr Howlin seems to suggest that the High Court's refusal of his special leave application changes the status of the Full Court's decision. He cites High Court authority for the proposition that a decision on a special leave application is not res judicata as between the parties, equivalent to a judgment which finally decides a legal dispute between them. Of course that is correct, but Mr Howlin does not address the question of why that means the Full Court's decision does not attract the principles of res judicata and issue estoppel.
The concepts of res judicata and issue estoppel were discussed by Pearce J in Quarmby v Qasair Investments Pty Ltd [2014] TASFC 11 in the following terms:
"Issue estoppel
10 An issue estoppel prevents a party from having the same issue determined by a court or other tribunal more than once. There are obvious reasons for this. It prevents the undesirable situation of different courts and tribunals coming to different and conflicting conclusions on the same issue and encourages the finality of judgments. Issue estoppel operates to prevent, in some circumstances, an issue of fact or of law already determined being raised again later to pursue some other claim or cause of action. It is different to res judicata which relates to the cause of action itself being finally determined. Issue estoppel concerns the issues necessarily involved in the cause of action.
11 Dixon J explained this in the High Court in 1939 in Blair v Curran (1939) 62 CLR 464 at 531–532:
'A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. … The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.'
12 Three preconditions must exist before issue estoppel will apply. The following requirements are derived from the speech of Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd[No 2] [1967] 1 AC 853 at 935:
(1)the first decision was final;
(2)the same question has been decided; and
(3)the decision involves the same parties, or at least parties with the same legal interest.
13 Lord Guest's statement of principle was authoritatively approved and applied by the High Court in Kuligowski v Metrobus (2004) 220 CLR 363. The doctrine of issue estoppel extends to the decision of any tribunal which has the jurisdiction to finally decide a question arising between the parties: Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 355 at 453. A final order is one which is final and conclusive on the merits, not one of an interlocutory character, but a decision that is completely effective unless and until rescinded, altered or amended: Kuligowski at 375 [25]. The fact that an appeal lies from the decision does not make it any less final: Administration of Papua New Guinea v Daera Guba (above) at 454.
14 An issue estoppel will only arise if the same issue or question has been decided. The High Court in Kuligowski approved the following statement of Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 at 276:
'Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.'
15 The estoppel extends not only to the final conclusion, but also to matters necessarily established as the legal foundation or justification for the conclusion. In Blair v Curran (above) Dixon J said at 531:
'The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion ...
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. … In the phraseology of Coleridge J in R v Inhabitants of the Township of Hartington Middle Quarter (1855) 4 E & B 780, at p 794 [119 ER 288, at p 293], the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue.'
16 His Honour continued at 532:
'In the phraseology of Lord Shaw, "a fact fundamental to the decision arrived at" in the former proceedings and "the legal quality of that fact" must be taken as finally and conclusively established. But matters of law or fact which are subsidiary or collateral are not covered by the estoppel'."
It follows that at least as between Mr Howlin and the Council, the issue of whether Marsh Street is a public road is finally and conclusively established. I do not propose to deal with any grounds or arguments which involve a challenge to the correctness of the decision of Evans J, or of the Full Court. There is simply no point in setting out any of Mr Howlin's extensive submissions about this aspect. Irrespective of what arguments Mr Howlin now has, or what legislation he asserts was overlooked[2], in determining the appeals the Tribunal could not treat Marsh Street as a public road. (What use may be otherwise made of lots A and B in relation to Mr Howlin's proposed subdivision is a different question.)
[2] Mr Howlin asserts that ss 244-249 of the Local Government Act 1940, were not disclosed by the Council to Evans J or to the Full Court, and that they are of great significance. However, the relevant plan of subdivision which was the genesis of debate about Marsh St as a roadway was lodged in 1945. The provisions referred to operated only between 3 December 1940 to 3 November 1941, and I cannot see how otherwise they have any relevance.
Associated with this issue is the status of the Tribunal's 2009 decision. It will be recalled that on 25 November 2009, the Tribunal upheld appeals 103/05S and 02/06S, and directed "the issue of the permit(s)" on conditions to be agreed. Mr Howlin suggests that the decision is binding. He points out that it remains a decision of the Tribunal, not having been the subject of any proceedings in this Court. He argues that the Tribunal is under a duty to give effect to it. He also suggests that the Tribunal has no power to amend the decision other than in accordance with s 23(5) and (6), although that really forms part of a separate argument about the validity of the power exercised in the decisions under review.
What needs to be established is the effect of the 2009 decision. The practice of granting a permit without determining all the conditions that ought to be imposed, and without making findings of fact sufficient to set such conditions, has been held to amount to a constructive failure to exercise the Tribunal's jurisdiction: Meander Valley Council v Resource Management and Planning Appeal Tribunal [2013] TASSC 42. At [17]-[19], Estcourt J said:
"It was, no doubt, the Tribunal's intention that if the parties could not agree upon and bring in permit conditions acceptable to the Tribunal, then it would re-list the appeal for further hearing to determine the conditions necessary to satisfy all of its concerns. However, in circumstances where it had not yet determined for itself what was required to do that, or indeed, whether it was actually possible to do that in all respects, it was clearly premature to uphold the appeal and to direct the appellant to issue a permit.
The Tribunal had no power to determine the appeal by upholding it, while reserving to itself the power, if necessary, to set at a subsequent time the conditions it might require … If it had wished to embark upon a course of upholding the appeal, but only once certain permit conditions had been agreed by the parties and found acceptable to the Tribunal, or if not, then set by the Tribunal after a further hearing, then it should have merely foreshadowed its determination and announced that course.
If the Tribunal did not take that course then it was inappropriate for it to exercise its power to direct the appellant to issue a permit, other than pursuant to s62(1)(c)(ii) of the Land Use Planning and Approvals Act which required, relevantly, that the Tribunal direct the appellant that the permit issued must contain 'specified conditions', which of course it did not do, or at the very least, … did so in a way that was manifestly incomplete."
By reference to the Meander Valley Council case, the Chairman's said that the 2009 decision "should be construed as a provisional approval, granting a permit only upon the settlement of conditions". However it is construed, the Council accepts that the Tribunal committed a jurisdictional error. It also says that the 2009 decision was not a decision authorised by the statutory provisions, and did not finally conclude the exercise of its jurisdiction. It says that the Tribunal's statutory decision-making is incomplete as it has not made any decision which finally disposed of either appeal. On that basis it is open to the Tribunal to revisit the decision; cf Purton v Jackson [2012] TASFC 2. In my opinion, that description of the situation is correct. There can be no valid argument that a permit or permits has or have been granted.
As to the remaining issues, Council argues that the Tribunal made no material errors of law, that the Tribunal in fact afforded Mr Howlin procedural fairness, and that in any event the granting of relief by this Court would be futile. The Council says this is because it is quite clear that, by virtue of the operation of ss 84(1) and 109 of the LGBMP Act, the permits simply cannot be granted. The Council says there is no conceivable way that s 109 can be complied with so that the proposed lots qualify as minimum lots.
That brings me to two affidavits on which Mr Howlin sought to rely. He sought to read into evidence an affidavit of his wife, Lihua Qin and one of Paul Geappen, respectively co-owners of lots A and B. The Council objected to both affidavits. The only parts of Ms Qin's affidavit which are conceivably relevant, and which I took provisionally, are as follows:
"11We have no objection to our 'ROAD Lot A Portion of Marsh Street' being used for the dedicated purpose of legal and appropriate access for the approved subdivision of my husbands land or any proposed subdivision of the Geappens land [sic].
12If in the alternative [rights of carriageway] are required to be granted for each approved lot subdivided from my husband's land, or any proposed subdivision of the Geappens land, we have to objection to granting further ROC, for the purpose of legal and appropriate access for subdivision, over our lot A portion of Marsh Street to my husband and the Geappens [sic]."
Mr Geappen's affidavit contained nothing of relevance. It seems to be based on an assumption that Marsh Street is a public road. It does not contain similar statements to those in the affidavit of Ms Qin, but I was told by Mr Howlin, without objection, that Mr Geappen (and I assume Mrs Geappen) took the same view as Ms Qin. This material was not before the Tribunal, although Mr Howlin told the Registrar in his submissions of 27 August 2014 and of 5 June 2015, that the owners of Lot A were prepared to grant individuals rights of carriageway to the extent necessary to enable subdivision to proceed.
What Mr Howlin seems to be asserting is that the owners of Lots A and B are prepared to dedicate their land as a highway. This would attract the operation of some of the provisions of Pt II of the Local Government (Highways) Act 1982. Dedication of roadways within cities and towns has to be with council approval under its seal. Where the dedication is by way of a sealed plan to take effect under Pt 3 of the LGBMP Act, and in any case, there are construction and maintenance obligations: see ss 7, 9 and 10. The potential relevance of the material is that it shows what further aspects might have been raised by Mr Howlin were the appeals to have been relisted for hearing.
Therefore, setting them out in what I see to be an appropriate sequence, the issues to be determined are:
· the Tribunal's power to refuse the relisting of the appeals for hearing;
· whether Mr Howlin was denied natural justice, including whether there is an apprehension of bias on the part of the Chairman;
· whether the Tribunal made any other jurisdictional errors of law;
· whether futility or discretionary considerations dictate the refusal of relief.
The power to refuse to list an appeal for hearing
The Tribunal's powers
Section 61(4) of the Land Use Planning and Approvals Act 1993 (the LUPA Act) provides for an appeal to the Tribunal against the decision of a planning authority refusing to grant a permit, or granting a permit subject to conditions or restrictions. Section 62(1)(c) provides that after hearing an appeal, the Tribunal may, in addition to its powers under the RMPAT Act:
"(c) in the case of an appeal against a grant of a permit, a refusal to grant a permit or a grant of a permit subject to conditions or restrictions —
(i) direct the planning authority to grant the permit; or
(ii) direct the planning authority to grant the permit and direct the planning authority that the permit must or must not contain any specified conditions; or
(iii) direct the planning authority not to grant a permit."
By virtue of s 9(1), the chairperson may give directions as to the arrangement of the business of the Tribunal and as to the members who are to constitute the Appeal Tribunal for the purposes of particular proceedings. Section 10 provides for the constitution of the Tribunal for an appeal, and refers to three different activities. Subsection (1) provides that the Tribunal is to be constituted for the purposes of the hearing and determination of an appeal by the chairperson, or a member other than the chairperson, or, subject to subs (2), the chairperson and not more than four other members.
Section 10(2) refers to two additional activities; the exercise of powers in relation to the hearing and determination of an appeal, and those for purposes other than the hearing and determination of an appeal. It provides:
"(2) The Appeal Tribunal may be constituted for the exercise of powers in relation to the hearing and determination of an appeal, or for purposes other than the hearing and determination of an appeal, by the chairperson or any other member."
Procedural provisions are contained in s 16. Relevantly, it provides:
"16 Procedure of Appeal Tribunal
(1) In an appeal before the Appeal Tribunal —
(a) the procedure of the Appeal Tribunal is within the discretion of the Appeal Tribunal; and
(b) the appeal is to be conducted with as little formality and technicality, and with as much expedition, as a proper consideration of the matters before the Appeal Tribunal permits; and
(c) the Appeal Tribunal is not bound by the rules of evidence and may inform itself on any matter in any way that it considers appropriate; and
(d) the Appeal Tribunal must observe the rules of natural justice; and
(e) the Appeal Tribunal is entitled to hear matters afresh and to take account of new evidence not considered by the person who made the decision which gave rise to the appeal; and
(f) the Appeal Tribunal must hear and determine the appeal within 90 days after it is instituted or within such further period as may be granted under subsection (6).
(2) For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of an appeal before the Appeal Tribunal may be given —
(a) if the hearing of the appeal has not started – by the chairperson or by a presiding member authorized by the chairperson to give procedural directions; and
(b) if the hearing of the appeal has started – by the member presiding at the hearing or by another member authorized by the member presiding to give procedural directions.
…
(6) The Minister may, by notice in writing given to the chairperson, extend the period of 90 days referred to in subsection (1)(f) where the Minister is of the opinion that the interests of justice so require.
(7) The extension by the Minister under subsection (6) of the period of 90 days referred to in subsection (1)(f) is not necessary if all parties agree in writing to the extension of that period."
Subject to questions of confidentiality to be determined by the Tribunal, s 18(1) provides that the hearing of an appeal must be held in public. Section 22 enables the Tribunal, for the purposes of an appeal, to do all things necessary or convenient to be done for or in connection with the hearing and determination of the appeal. Section 23(1) gives to the Tribunal, for the purpose of determining an appeal, all the powers that are conferred by the relevant legislation on the person who made the decision that gave rise to the appeal. Section 23(2) has to be read in conjunction with s 62(1)(c) of the LUPA Act which I have set out above. It provides as follows[3]:
"(2) The Appeal Tribunal must make a decision in writing —
(a) affirming the decision appealed against; or
(b) varying the decision appealed against; or
(c) setting aside the decision appealed against and —
(i)making a decision in substitution for the decision appealed against; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Appeal Tribunal."
[3] Section 23(4), (5) and (6) are referred to in the second ground 1 of the JRA application. It is convenient if I set them out here:
Section 24(1) requires the Tribunal to give written reasons for its determination of an appeal, and by subs (2), the reasons must include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
Plainly enough, there are provisions which relate to the hearing and determination of an appeal, as distinct from those which relate to incidental or procedural aspects. Section 10(2) allows the Tribunal to be differently constituted for the latter. There are two sections of the RMPAT Act which seem to contemplate summary determination of an appeal. The first is s 21 which is rather curiously worded, but gives the Tribunal power to dismiss an "application" where a party to an appeal who has had reasonable notice, fails to appear at a pre-hearing conference or at the hearing of the appeal, where the only other party is the decision-maker. Section 22A is in the following terms:
"22A Power of Appeal Tribunal to dismiss an appeal
The Appeal Tribunal is to dismiss an appeal if it is satisfied that the appeal is frivolous or vexatious or may dismiss an appeal if the appellant fails to comply with its directions."
Discussion
The decisions under review were effectively ones not to hear and determine the appeals, but to stay them indefinitely. The Chairman did not say so, but it might be presumed that at some point, if there was a material change in circumstances, it would be open to Mr Howlin to again attempt to persuade the incumbent chairperson to list them. This outcome is to be contrasted with the express provisions of the RMPAT Act. Subject to what express or implied powers exist, the Tribunal is to hear and determine appeals made to it. The wording of the scheme suggests an imperative for appeals to be heard and determined. It must be remembered that the Tribunal stands in the place of the original decision-maker, and is to make the correct or preferable decision on the material before it: St Helen's Area Land Care and Coast Care Group Inc v Break O'Day Council (2007) 16 Tas R 169 per Blow J, with whom Evans J agreed, at 191 [72].
Section 16 requires the appeal to be "conducted" with as much expedition as a proper consideration of the matters permits. Section 16(1)(f) requires the Tribunal to "hear and determine appeals" within 90 days, subject to Ministerial consent or the agreement of the parties.[4] Section 22 gives powers to facilitate "the hearing and determination" of an appeal. Under s 23(2), the Tribunal must make a decision in writing affirming or varying the decision appealed from, or setting it aside and making a decision in substitution, or remitting the matter.
[4] I was not told about this but I assume that, one way or another, extensions were obtained. The material shows that the Chairman took the view that nothing should happen until the case of Clarence City Council v Howlin was resolved.
The only express way in which an appeal can be summarily determined is by way of ss 21 or 22A, neither of which was invoked in this case. Section 22A has particular relevance. The Chairman's conclusion was, in effect, a conclusion that the the appeals were frivolous; that is, so obviously untenable that they could not succeed: see Pridmore v MagentaNominees Pty Ltd (1999) 161 ALR 458 at 462-463 for the meaning of "frivolous". Yet the Chairman did not utilise that provision, and the matter was not heard in public. It can be accepted that the Tribunal has the power to stay proceedings to prevent an abuse of its process. That would arise from the power in s 22(1) to do all things necessary and convenient for and in connection with the hearing and determination of an appeal.
In Tasmanian Water and Sewerage Corporation Pty Ltd v Resource Management and Planning Appeal Tribunal, Estcourt J held at [52]-[54] that s 22(1) gave to the Tribunal powers to control its proceedings to prevent an abuse of process. In this case, the proposition assumes, correctly I think, that an order staying an appeal would be a thing done in connection with the hearing of an appeal: Commissioner of Corrective Services v Walker [2007] NSWCA 213 per Santow JA (Mason P and McColl JA agreeing) at [30].
Alternatively, the power to stay proceedings as an abuse of process may be an inherent or implied power: Tasmanian Water and Sewerage Corporation (above) at [54]; James v Medical Board (SA) (2006) 95 SASR 445; Prescott v Legal Practitioners' Disciplinary Tribunal [2009] SASC 309. Proceedings can be stayed as an abuse of process if they are oppressive, or brought for an improper purpose. Improper purpose will exist if the proceedings are brought as a means of obtaining some advantage for which they are not designed, or for some collateral advantage beyond what the law offers: Williams v Spautz (1992) 174 CLR 509. In this case, the Chairman did not purport to base the refusal to list the appeals on an assertion that they amounted to an abuse of process.
For the sake of completeness, I add that although s 22 may enable a stay of proceedings to be ordered in an appropriate case, broad though its terms are, my view is that it does not empower the Tribunal to dismiss an appeal without a proper determination following a merits hearing, ordinarily in public, as required by s 18(1) of the RMPAT Act.
It is true that by virtue of s 9(1), the chairperson may give directions as to the arrangement of the Tribunal's business. That would no doubt include when appeals are to be listed. In this case, the Chairman refused to list the appeals because the applications for the permits had no prospects of being approved. In my opinion, neither the chairperson nor a tribunal appointed for a particular case has the power to decide not to hear and determine an appeal because it considers there are no prospects of success. I say this even accepting that the parties are able to make submissions beforehand.
I do not lose sight of the requirement for the Tribunal to conduct an appeal with as little formality and technicality as a proper consideration of the appeal permits, but I have detailed the courses of action which the Tribunal might take in relation to an appeal, other than a hearing and determination on the merits. Simply refusing to hear and determine an appeal because it appears to have no prospects of success is not one of them. The Tribunal is to hear and determine appeals. Two appeals are partly heard and remain undetermined. One appeal remains unheard and undetermined. The Chairman lacked the relevant power and, in effect, through the Chairman, the Tribunal declined to exercise its jurisdiction. That is reviewable error.
There may well be an additional difficulty, at least in relation to appeals 103/05S and 02/06S. Those appeals were heard by a tribunal of three as constituted under s 10(1). It seems to me that this tribunal, having made the decision in 2009 but not finally disposing of the matters, was seised of them, and had to properly exercise the jurisdiction. The decision was made by one member of the tribunal that further hearing of the appeals should not be embarked on because they then lacked merit. Without deciding the point, I observe that it is very difficult to say that this was the exercise of a power in relation to, or for a purpose other than, the hearing and determination of those appeals, within the meaning of s 10(2) of the RMPAT Act. This may be contrasted with a decision as to costs: see Saunders & Ward Pty Ltd vResource Management and Planning Appeal Tribunal [2015] TASSC 28[5].
[5] Presently on appeal to the Full Court but not as to this point.
As I have said before, appeal 396/07S was listed for hearing in July 2010, but was adjourned indefinitely. The reasons for that are set out in D R Howlin v Clarence City Council [2010] TASRMPAT 128. It is noted as the decision of "G P Geason, Presiding Member". It is not clear, but it might well be that this appeal was listed before a tribunal of three, as is customary, or at least two members. If that is the case, then the same difficulty arises in relation to that appeal, notwithstanding that a public hearing of the merits had not been embarked on.
Denial of natural justice
It is unclear to me whether Mr Howlin alleges a breach of the rules of natural justice other than a breach of the bias rule. The ground in the JRA application speaks of a breach of the rules and a reasonable apprehension of bias, and refers to circumstances of failing to act with expedition on the first listing application, and of (essentially) failing to hold a hearing in public.
For some reason, the written submissions in respect of the order to show cause broadly address the issue, and not those in respect of the JRA application. In any event, distilling the submissions to a rational essence, Mr Howlin argues an apprehension of bias created by staying the issue of the permit in appeal 02/06S and by failing to act expeditiously on the first listing application. That second failure is also said to be, of itself, a denial of natural justice. I will deal with all of the considerations raised in respect of bias, and separately with delay as a denial of natural justice.
An apprehension of bias?
The test for apprehended bias is whether a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the question that is required to be decided: Johnson v Johnson (2000) 201 CLR 488 at 492 [11]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344 [6]. The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality is largely a question of fact, although it is necessary to consider it in the legal, statutory and factual context in which the decision is made: Isbester v Knox City Council (2015) 89 ALJR 609 at 613 [20]. Natural justice is concerned with prejudgment, not predisposition for or against an argument or conclusion capable of being swayed by evidence or argument: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 per Gleeson CJ and Gummow J at 531-532 [71]-[72].
The attributes of the fair-minded lay observer were discussed in Johnson v Johnson by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at 492-494 [12]-[14], and by Kirby J at 509 [53]. He or she is taken to be reasonable, does not make snap judgments, knows commonplace things and is neither complacent nor unduly sensitive or suspicious. Additionally, he or she is to be attributed with knowledge of all of the circumstances of the case: Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87 [85], [95].
The first issue is the so-called stay of the appeals. Mr Howlin holds the view that the Chairman stayed the hearing of the appeals pending the resolution of the Clarence City Council v Howlin litigation, something which Mr Howlin suggests the Chairman was not empowered to do. It appears from material I have that the appeals 103/05S and 02/06S were listed for further hearing after Mr Howlin and the Council could not agree on the conditions of the proposed permit, but that the hearing did not go ahead. The material I have does not explain the reason. I assume that it is correct to say that the further hearing did not take place because of the ongoing litigation concerning the status of Marsh Street.
As I have already pointed out, I also assume that the Tribunal secured extensions of the 90 day time limit set by s 16(1)(f) to hear and determine appeals. Subject to that, of course, the procedure of the Tribunal is within its own discretion. I do not think that the fair-minded lay observer might reasonably apprehend from waiting until the resolution of the Marsh Street issue, that the Chairman might not be impartial and has pre-judged the issues. I say that even accepting that there has been non-compliance with s 16(1)(f).
The next issue is the failure to hold a public hearing. A ground of the JRA application puts this in terms with a failure to comply with s 18(1) when no findings were made under the provisions of s 22A to enable an exercise of power to dismiss the appeal. I am not sure how the two are said to relate. Mr Howlin's written and oral submissions do not clarify the matter. I can only speculate that there is an assertion that an apprehension of bias is generated by the fact that the Chairman effectively found the proceedings to be frivolous or vexatious, an exercise contemplated by s 22A, but did not hear the matter in public. In my view, a reasonable lay observer would not make anything of this.
The next issue is the delay in dealing with the first application for listing. Mr Howlin relies on s 16(1)(b) which relevantly requires the Tribunal to conduct an appeal with as much expedition as a proper consideration of the matter permits. The delay was from 28 July 2014 to 23 March 2015, although a period of a little over two months was occupied by the filing of submissions following the Registrar's request of 30 July 2014. I note that the Full Court decision in Howlin vClarence City Council was on 23 July 2013, and that Mr Howlin's special leave application to the High Court was dismissed on 12 February 2014. Therefore, Mr Howlin delayed in making his application by a little over five months, but it seems that he was engaged in correspondence with the Council for some time before that. In any event, the focus is really on the period from early October 2014 to 23 March 2015.
Conscious that I have not heard from the Chairman, I can accept that on the face of things, this is a long period of time to decide not to list an appeal. (The first decision related only to 396/07S.) The question is what a fair-minded lay observer would make of it. As with the previous issue, I think that prejudgment or general impartiality would not be the thing that primarily would strike the observer. Without expressing any personal view, I think the observer would more readily ascribe this delay to personal issues such as pressure of work, oversight, uncertainty, hesitation or even incompetence.
I am not satisfied that there is any matter which gives rise to an apprehension of bias. Nor am I satisfied that the cumulative effect of the matters raised has that effect.
Delay
Delay in giving a decision can amount to a denial of natural justice, where that delay creates a substantial risk that the decision-maker will not be able to fairly or reasonably deal with the issues, given the passage of time: see for instance Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17 at 32-33 [69]-[74]; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 per Gleeson J at 476 [10], per Kirby J at 503 [106], per Callinan and Heydon JJ at 526 [172]. In this case, the Chairman had written submissions to consider. There was no evidence to consider, and so demeanour of witnesses played no role. There is nothing to suggest that there has been any procedural unfairness caused by the delay in making the decision.
Errors of law?
Much of Mr Howlin's argument about the viability of Marsh Street as access to the subdivision is a repetition of arguments put to Evans J and the Full Court, or further argument as to the same issues. There are some further errors of law which Mr Howlin alleges were made by the Chairman. Whether or not they are jurisdictional errors of law is another question. The debate is focussed on some of the provisions of s 109 of the LGBMP Act.
The essential issues raised by Mr Howlin are as follows. Generally, access via Marsh Street was not properly considered. Marsh Street is a "road" for the purposes of s 109, and the Chairman was wrong to treat it otherwise. If not a road, then the subdivision of the land would result in the creation of rights-of-way over Lots A and B in favour of each of the subdivided lots, thereby satisfying s 109. As part of this argument, Mr Howlin suggests additional specific errors in the approach to the construction of s 109(1)(f), and (3).
I need to go back to the Chairman's first decision. It will be recalled that he set out s 109 in its entirety. Having said that the Tribunal was bound by the determination of Evans J, the Chairman simply said that it followed that the requirements of s 109 were not satisfied thus "precluding subdivision". There was no explanation as to why that would be so, apart from an earlier observation that "approval of subdivision of this land, in all its versions, has floundered due to the applicant's difficulty in satisfying the applicable planning scheme with respect to the provision of frontage".[6]
[6] This may be a reference to an earlier decision: D R Howlin v Clarence City Council [2006] TASRMPAT 202. The Council refused a permit to subdivide the land into three lots. The Tribunal ruled as a preliminary point that the appeal could not succeed because the terms of the planning scheme required that the boundary of the lots be to a public road. At that stage, there had been no decision to that effect.
It will also be recalled that the Chairman went on to discount a possible argument, based on a notion of satisfactory access as described in an earlier Tribunal decision, and on Mr Howlin's contention that it was well established that rights of carriageway over private roads were capable of satisfying s 109. The Chairman dealt with the issue as one of certainty of access under s 109(1)(f). He said that the history of disputes over access rights in and over Marsh St evidenced an uncertainty of access. He alluded to the pending proceedings taken by the Council to determine which land had the benefit of what easements, saying that there is nothing to suggest that access requirements were sufficient and certain. The Chairman did not attempt to make any findings of fact about whether subdivision was possible to the extent of lots which would qualify by way of s 109(3)(i).
The Council submits that this was an unnecessary excursion, and does not seek to justify the reasoning, submitting that the true point of the decision is the prohibition set out in s 84 of the LGBMP Act as it is read with s 109. However, it is not correct to say, either in strict terms or in applying the law to such established facts as there were, that the fact of Marsh Street not being a public road precluded subdivision. There remained a possibility at least, of subdivision, and at least to an extent.
Under s 109, to be a minimum lot, the lot must have a frontage to a road of not less than 18m. Relevantly, subs (3)(b) deems a lot to have the quality of a minimum lot if four things are satisfied, one of which is a frontage to a road of not less than 6m. In turn, that requirement might be satisfied if the lot complies with the two requirements of subs (3)(i). Noting that Marsh St is shown as 16.8m wide, they are:
· access to a road by a right-of-way at least 3.6m wide over land not required as the sole or principal means of access to any other land, and not required to give the lot, if any, of which it is part, the qualities of a minimum lot;
· it is approved by the Tasmanian Planning Commission at the request of the council, as equivalent to a minimum lot.
In my view, the Chairman was wrong in law in not examining the argument for the potential of some subdivision by virtue of s 109(3)(i) or otherwise. It was clearly raised on the material he had. There are two aspects of this which are also relevant to the question of futility. I will start with the simplest aspect. It relates to access to a subdivision through Howlin Lane. I am not sure whether it is in fact a right-of-way or a private road. If the former, the servient tenement does not seem to be identified on any plan. In any event, the simple proposition is that a subdivision of the land which complies with s 109 seems to be possible. Of course, a subdivision of land can be one parcel of land divided into two, with the dimensions of one being much larger than the other, provided that one is a "minimum lot".
This was actually what Mr Howlin was referring to in his application to the Tribunal dated 5 December 2014 which I have described in par [25] above. It will be recalled that he sought what he called "an interim order" granting approval for the subdivision on one lot, that being lot 7. The Chairman peremptorily dismissed the application in the first decision, saying that the Tribunal had no such power.[7] In the present proceedings, the Council seemed to concede that there was no issue that a subdivision of lot 7 would be compliant. However, this is not an exceptional case when it would be appropriate for this Court in a JRA application to make specific findings of fact to determine the appeal as to the subdivision on its merits: Howlin v Resource Management and Planning Appeal Tribunal [2009] TASSC 9, per Blow J at [33].
[7] It is difficult to understand why this approach was taken. The proposals relating to both appeals 103/05S and 02/06S showed lot 7 to the first stage of 8 and 10 stage developments respectively. At the least, it might be thought that this approach was a failure to advert to an alternative method of disposition, and a "recourse to exotic legalism", as discussed by Wright J in Kain v Glamorgan Spring Bay Council (1996) 90 LGERA 326 at 336-337.
The next aspect is less straightforward. In Howlin v Brinckman, Slicer J said at [5], that if Marsh Street was not a public road, and Mr Howlin's land had a right of access by easement only, "the number of allotments permitted through subdivision would be limited to three" and that Mr Howlin would retain the right-of-way over the questioned land. As I earlier noted, in Clarence City Council v Howlin [2010] TASFC 2, Crawford CJ (Tennent and Wood JJ agreeing) said at [18] that if there was only a right-of-way over Lot B, the proposed subdivision would have been limited to three lots. Mr Howlin seeks to rely on those observations. They were mentioned in his submissions to the Registrar.
Mr Howlin is essentially correct in his submission about the effect of Gallagher v Rainbow (1994) 179 CLR 624. The case is authority for the proposition that where there is an easement in favour of land, and that land is subdivided, the benefit of the easement attaches to the dominant tenements in their subdivided form. That is a presumption only, and is subject to a construction of the easement. A proper construction might produce the result that it benefits the dominant land only in its original form.
If it is assumed for the moment that the benefit of the easement in favour of Mr Howlin's land attaches to the subdivided lots, then Marsh St would may be able to provide access under s 109(3)(i) for a few lots, but that would depend on whether the extent to which it is "required" as the sole or principal means of access to any other land. There are other properties having frontages on Marsh Street. As mentioned before, at one point the Council seemed to accept that some lots could be created by this means, although it generally maintained that no subdivision using Marsh St was possible. I do not intend to suggest that limited subdivision on this basis can occur. At the same time, I am not really able to say that it cannot, but it is not a matter for me to decide. The point is that the Chairman did not consider any of this. Findings of fact need to be made to resolve the issue. That should have been done by the ordinary process of hearing and determining an appeal. Again, it is not up to this Court to attempt to make such findings in proceedings such as these.
The error in not considering both of these aspects can be characterised in three ways which not uncommonly interrelate or overlap: X v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 319. The first is one which is not referred to in the grounds. The failure may be seen as an improper exercise of the power by failing to take a relevant consideration into account: JRA, ss 17(2)(e) and 20(b). Alternatively, the failure can be regarded as a constructive failure to exercise the jurisdiction, as explained by Kirby J in Dranichnikov at v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at 1101 [87]-[89]. At par [87], his Honour said that where there has been a fundamental mistake at the threshold in expressing, and therefore considering, the legal claim propounded by an applicant, the error will be classified as an error of jurisdiction, and will be treated as a constructive failure of the decision maker to exercise the jurisdiction and powers given to it. Lastly, the failure may be seen as a failure to give "proper realistic and genuine consideration" to something which was substantive and clearly raised, and hence a denial of natural justice: Dranichnikov per Gummow and Callinan JJ at 1092 [24]-[25].
At this point, I should mention the question of the apparent willingness of the owners of Lots A and B to dedicate the land as a public highway. I very much doubt whether Mr Howlin could do anything with that willingness in the context of the present appeals. Without deciding the point, it seems to me that Mr Howlin would have to start again with another application to the Council for a permit based on, and sensibly accompanied by, notices given by the owners under s 7 of the Local Government (Highways) Act 1982, in order that the Council might give its approval. Such an application for a permit might well be one substantially different to that which Mr Howlin pursued in the three applications and subsequent appeals. But those are matters which the Tribunal should decide.
More discrete questions of law which arise are the meaning of "road" in s 109(3), and the application and meaning of s 109(1)(f). In strict terms, it is not necessary for me to deal with them, but I will do so in deference to the arguments, and given my decision as to the outcome. I will not discuss whether any error of law is a jurisdictional one. The first question can be quickly dealt with. As the Chairman noted, R v West Tamar Council; ex parte Phillips [1999] TASSC 107, is authority for the proposition that the word "road", as it appears in s 109(3), means a public road. The issue was not fully argued before me, but I have considered the reasoning in the West Tamar Council case. I am not persuaded that it is "plainly wrong": Motor Accidents Insurance Board v Young (2011) 20 Tas R 89 at 93-94 [8]. On the contrary, with respect, I think it is correct. Given the declared status of Marsh Street as between these parties, the Chairman did not make an error of law in not treating Marsh Street as a public road for the purposes of s 109(3).
The next point is that relating to s 109(1)(f). In the decision, the Chairman seemed to merge the concepts of an access to a road by a right-of-way, and the question of reasonable vehicular access from the carriageway of a road to a boundary. He noted the Tribunal's statement in the Bunnings case, that a "reasonable access way is one which is secure and affords sufficient means of passage". The Chairman also quoted from that part of the Bunnings decision where it was said that the task of assessment involves consideration of the particular facts and circumstances. This, the Tribunal said, necessarily involved asking whether on the facts, there is provided reasonable access to the subject lot commencing from the carriageway of a road through and over which "reasonable vehicular access" can be had to the balance lot. Further, that a right-of-way is a relevant consideration, but only in the sense that a planning authority must be satisfied that reasonable vehicular access is given nearby; if the facts of the case demonstrate that reasonable vehicular access is conferred, then the fact that it is by means of a right-of-way is not important.
Section 109(3)(i)(i) deals with rights-of-way. No doubt the terms of the easement would need to be examined in any particular case, but if the right-of-way is a private right-of-way of the correct dimensions, not having the disqualifying features set out in the provision, then it would be sufficient for the purposes of that provision. As Evans J noted in the West Tamar Council case in aid of the interpretation of "road", a private right-of-way is usually granted in perpetuity; there may be considerably less secure rights of access such as, as in that case, a licence.
Section 109(1)(f) deals with the separate issue of reasonable vehicular access in any building area. Any access from a road to a boundary, including by right-of-way, has to amount to reasonable vehicular access. That relates to physical characteristics. The access must be sufficiently constructed to allow for ordinary vehicle traffic. That involves a number of issues including surface, width, sight lines, and drainage. I am not at all confident that the discussion by the Chairman in this so-called excursion, correctly delineated the two separate issues. I do not need to say anything further.
So far I have been dealing with the JRA application. I need to deal specifically with the order to show cause. The sole ground is that the Tribunal erred in determining that the subdivision of the land could not occur for want of road frontage, without resuming the hearing for the purpose of determining whether road frontage can be created by the construction of a road on the proposed building estate. In my view, no such error is made out. I have held that there was jurisdictional error of law in refusing to list or relist the appeals, as the case may be. However the ground as drafted misconstrues the issue with the subdivision proposals. Ignoring the situation of lot 7, the problem with the frontage issue within the meaning of s 109 relates to the application of s 109(3)(i), and whether access to any lots can be provided by way of rights-of-way. It is not an issue of the construction of a road on the building estate. Even affording some latitude due to the circumstances, the ground remains misconceived and must fail.
Outcome
Jurisdictional error has been established in the JRA application. The remaining issue is the exercise of the discretion to grant relief, contained within which is the question of futility. I will deal with that last question first. In effect, I have already resolved that in Mr Howlin's favour. The distinct possibility of the creation of lot 7 and the question of a limited number of lots using Marsh Street as an access (depending on the situation with rights-of-way) means that I am not satisfied that relief would be futile.
The Council also submits that relief should be denied because Mr Howlin did not appeal to this Court under s 25 of the RMPAT Act. That section gives to a party to an appeal before the Tribunal, the right to appeal on a question of law, from any decision of the Tribunal in the appeal. I doubt whether the decision not to list an appeal for hearing and determination is a decision in the appeal. Assuming that it is, I see no reason for Mr Howlin's failure to appeal to disentitle him to relief.
An appeal on a question of law is not as confined an exercise as an application for judicial review, in which jurisdictional error of law needs to be established. Either way, the challenge has to be made to this Court. There are no reasons that an unsuccessful appeal would facilitate the hearing of proceedings of the present type such as canvassed in Solution 6 Holdings Limited v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558 at 593-595 [142]-[143], and Rodger v De Gelder [2011] NSWCA 97 at [84]-[85].
Orders
The Tribunal is not a body corporate. It consists of the chairperson and a number of members, one or more of whom make up the Appeal Tribunal for a particular case. With that in mind, along with the facts of what happened, I think the appropriate orders are as follows. The JRA application is granted. There will be orders in those proceedings quashing the two decisions and directing the chairperson of the Resource Management and Planning Appeal Tribunal to list appeals 103/05S, 02/06S and 396/07S for hearing and determination, or further hearing and determination, as the case may be. The order to show cause is discharged.
APPENDIX A
APPENDIX B
(4) A decision of the Appeal Tribunal comes into effect at the expiration of the period of 10 days after the day on which the decision is made or, if a later day is specified in the decision, that day.
(5) The Appeal Tribunal may correct a clerical mistake or an error arising from any accidental slip or omission or an evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in its decision.
(6) The Appeal Tribunal may amend its decision on an appeal if it is satisfied that the amendment —
(a) does not change the effect of any condition required by the Appeal Tribunal; and
(b) will not cause an increase in detriment to any person.
3
37
0