Irwin v Meander Valley Council
[2008] TASSC 82
•17 December 2008
[2008] TASSC 82
CITATION: Irwin v Meander Valley Council [2008] TASSC 82
PARTIES: IRWIN, Karl
HAYWARD, John
v
MEANDER VALLEY COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: 767/2007
DELIVERED ON: 17 December 2008
DELIVERED AT: Hobart
HEARING DATE: 17 September 2008
JUDGMENT OF: Evans, Tennent and Porter JJ
CATCHWORDS:
Administrative Law – Judicial review – Grounds of review – Procedural fairness – Hearing – Notice to persons affected – Sufficiency of complying with statutory requirements.
Land Use Planning and Approvals Act1993 (Tas), s25.
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, referred to.
Aust Dig Administrative Law [1059]
Administrative Law – Judicial review – Grounds of review – Procedural fairness – Bias – Personal or pecuniary interest – Whether statute excludes operation of common law principles.
Local Government Act1993 (Tas), ss48 and 56.
R v West Coast Council; ex parte Strahan Motor Inn (1995) 4 Tas R 411; R v Barnsley Licensing Justices [1960] 2 QB 167; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, referred to.
Aust Dig Administrative Law [1072]
REPRESENTATION:
Counsel:
Appellants: In person
Respondent: S B McElwaine
Solicitors:
Appellants: Fitzgerald & Browne
Respondent: Shaun McElwaine
Judgment Number: [2008] TASSC 82
Number of paragraphs: 73
Serial No 82/2008
File No 767/2007
KARL IRWIN & JOHN HAYWARD v
MEANDER VALLEY COUNCIL
REASONS FOR JUDGMENT FULL COURT
EVANS J
TENNENT J
PORTER J
17 December 2008
Order of the Court
Appeal dismissed.
Serial No 82/2008
File No 767/2007
KARL IRWIN & JOHN HAYWARD v
MEANDER VALLEY COUNCIL
REASONS FOR JUDGMENT FULL COURT
EVANS J
17 December 2008
On 16 January 2007 the Meander Valley Council granted two planning permits to Gerald Richards permitting forestry on two areas of land at Mole Creek. The appellants, Karl Irwin and John Hayward, and others, had made representations to the Council against the grant of the permits. Following the grants, the appellants, by an originating application, applied for a review of the Council's decisions under the Judicial Review Act 2000. The originating application was dismissed on 22 October 2007, see Irwin v Meander Valley Council [2007] TASSC 79. The appellants appeal against that dismissal. They contend that the learned trial judge erred in finding:
·That those aspects of the Meander Valley Planning Scheme that make forestry on rural land a permitted use were valid.
·That the Council's decisions were not invalid because one of the councillors who voted for them may have derived a pecuniary benefit from the outcome.
·That the Council's decisions were not an improper exercise of power.
Are the Scheme's provisions as to forestry invalid?
The appellants contend that the provisions of the Scheme that make forestry on rural land a permitted use are invalid. The Scheme was made pursuant to the Land Use Planning and Approvals Act 1993 (LUPA). The learned trial judge summarised the legislative and factual background to this issue in pars7 - 9 of his decision. Save for an observation which I have underlined in par9, that the Panel's determination that the draft scheme should be modified was "Consistent with the representations", the accuracy of the paragraphs has not been challenged. They are as follows:
"7On 18 December 1995, the council fixed its common seal to the Meander Valley Council Draft Planning Scheme 1995. On 23 December 1995 it advertised publicly that the Land Use Planning Review Panel, established under LUPA, s8, had resolved to certify the draft scheme under s24(2)(a), and advised that a copy of the draft Scheme might be inspected for the next two months and that representations could be made concerning it on or before 23 February 1996. It did so in accordance with s25. Under s26(1), members of the public could submit representations in relation to the draft planning scheme. Under s26(2), the council had to report to the Panel within three months of the expiry of the exhibition period, concerning the representations so received, along with a statement of its opinion concerning the merits of the representations.
8Under s27, the Panel was required to consider all matters and to hold a hearing in relation to each representation. Following that, under s28(1), the Panel was authorised to require that the draft planning scheme be modified, to reject it or to direct that a specified part of it be done again. Under s29(1) where, after consideration of a draft planning scheme (including one required to be modified or to have parts substituted), the Panel was satisfied that it was in order, the Panel was required, subject to the approval of the Minister, to give its final approval to the draft planning scheme, and under subs(3), 'notwithstanding any failure to comply with a procedural provision of this Part, the planning scheme comes into operation on such date as is specified by the Panel ...'.
9One of the provisions in the draft planning scheme was that forestry in the Rural zone was a discretionary use. There was also a Forestry zone in which forestry was a discretionary use. The Panel considered 278 representations that had been made concerning the draft planning scheme. A series of public hearings were conducted by it. They extended over 40 hearing days between 6 November 1996 and 2 July 1997. On 16 April 1997, the panel conducted a hearing of representations by North Forest Products concerning provisions for forestry; Forest Protection Society, Meander Resource Management Group and Liffey District Resource Management Group concerning use and development provisions for the Rural and Forestry zones; and Forest Practices Board concerning the application of the Forest Practices Code. Consistent with the representations, the Panel determined that the draft scheme should be modified by (inter alia) deleting the Forestry zone; defining forestry as establishing, managing or harvesting trees; and classifying forestry as a discretionary use in the Open Space zone and a permitted use in the Rural and Utility Services zones. On 3 November 1997, after those modifications had been made to the draft planning scheme, along with many others, the Panel acted pursuant to s29 by giving its final approval to the draft planning scheme and specified that the Scheme would come into operation on 8 November 1997, which it did."
The appellants contend that the learned trial judge's observation that the Panel's determination that the draft scheme should be modified as to forestry was "Consistent with the representations" is not correct. Although the accuracy of the observation is inconsequential in terms of the outcome of the appeal, I will address the appellants' contention. The Panel had received five representations that had a bearing on forestry. On 16 April 1997, the Panel conducted a hearing in relation to those representations and thereafter it determined that the draft scheme should be modified as detailed in relation to forestry. The modifications are not strictly consistent with each of the representations. It would be more accurate to say that the modifications are consistent with the decision made by the Panel after hearing the representations. As I have said, nothing turns on the accuracy of the learned trial judge's observation.
By their originating application, the appellants initially contended that the provisions in the Scheme that made forestry a permissive use in the rural zone were invalid because they "were never exhibited for public comment and thereby promulgated in breach of" LUPA. That ground was abandoned before the learned trial judge as the evidence established that the requirements of LUPA as to exhibiting and advertising the draft scheme had been complied with. The ground was amended at trial so as to contend that the relevant provisions in the Scheme were invalid because they "were never exhibited for public comment and thereby denied the applicants natural justice". The amended ground relies on the common law to impose an obligation to exhibit the changed provisions as to forestry for public comment and contends that the failure to do so denied the appellants natural justice.
The Scheme is a form of delegated legislation. Ordinarily those affected by delegated legislation have no entitlement to be consulted on proposed legislation or to be heard in relation to it. This is illustrated by Bates v Lord Hailsham [1972] 1 WLR 1373, a case that involved the delegated legislative powers of a committee to make orders relating to solicitors' remuneration. A solicitor applied to the court to restrain the committee from making an order changing the basis of charging for conveyancing on the ground that the committee was obliged to allow more time for consultation and representations before it made orders. At 1378, Megarry J observed:
"Let me accept that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. Nevertheless, these considerations do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected by delegated legislation, and affected very substantially, are never consulted in the process of enacting that legislation; and yet they have no remedy. Of course, the informal consultation of representative bodies by the legislative authority is a commonplace; but although a few statutes have specifically provided for a general process of publishing draft delegated legislation and considering objections …, I do not know of any implied right to be consulted or make objections, or any principle upon which the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation and consideration has been given."
The above should not be taken to mean that there is no common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which directly and immediately affect the rights, interests and legitimate expectations of individuals other than as members of the public or a class of the public. However, where such a decision is one for which provision is made by statute, the application and content of the doctrine of natural justice, or the duty to act fairly, depends to a large extent on the construction of the statute, see Kioa v West (1985) 159 CLR 550, Mason J at 584. In the same case at 633, Deane J said:
"The precise content of the requirements of procedural fairness which must be observed by a particular administrative decision-maker is controlled by any relevant statutory provisions and may vary according to the circumstances of the particular case."
As to the need for the decision to affect individuals other than as members of the public or a class of the public, in Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 103 ALR 661 at 680, Hill and Heerey JJ considered a number of authorities referable to a decision-maker's obligation to give notice of a contemplated decision, and concluded:
"What this trend of authority leaves untouched is the clear distinction between statutory powers the exercise of which is necessarily directed towards the rights and expectations of individuals and those which affect the community at large or a section of it."
Similarly, in Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281, Lehane J, at 295 – 297, canvassed a number of decisions in relation to the reach of the obligation to give individuals notice of a pending decision and an opportunity to be heard, and said at 297:
"All of the authorities to which I have referred, however, make it clear that though a decision for which an Act or delegated legislation provides is to be characterised as administrative rather than legislative, nevertheless if it affects the interests of the public, or a section of the public, at large rather than the interests of particular individuals it will, usually at least, be a decision in relation to which no particular individual or body can claim an entitlement to procedural fairness: particularly, an entitlement to be heard, in relation to a proposed decision, before it is made."
The changes to the draft scheme that are challenged by the appellants result in forestry on land in the rural zone becoming a permitted use rather than a discretionary use. These changes expand rights insofar as they make it easier for an owner of land in the rural zone to obtain a permit to carry out forestry and it is difficult to see how they impact on those owners in the relevant sense. Obviously enough the changes also impact on members of the community at large who have an interest in, or concern about, forestry operations on land in their vicinity or generally. However, consistent with the usual situation identified by Lehane J, those members of the community would not ordinarily be entitled to notice of the draft scheme or to be heard in relation to it. Moving back from the general to the particular, the situation may be otherwise, depending upon the relevant statutory provisions and all the circumstances of the case. What then did LUPA require in relation to the notices to be given referable to the draft scheme and the right to be heard in relation thereto? Upon the Panel being satisfied that the draft scheme in its original or amended form was suitable for exhibition, it was necessary that the draft be publicly exhibited and advertised as prescribed, s25. Thereupon members of the public were entitled to make representations in relation to the draft and be heard by the Panel referable thereto, ss26(1) and 27. Following that hearing, the Panel was entitled to approve the draft scheme or, pursuant to s28, the Panel could:
·reject it;
·direct that part of it be done again; or
·modify it.
Had the draft scheme been rejected, the Council was required to prepare another draft and, consistent with s28(2), the new draft had to be exhibited and advertised, and representations could be made on it which the Panel was required to consider. Had the Council been directed to do part of the draft scheme again, the effect of s28(3) and (4) was that the new part had to be exhibited and advertised, and representations could be made on it that the Panel was required to consider. Where, as occurred, the draft scheme was modified, LUPA imposed no requirement that the modification be exhibited or advertised, and no entitlement was given to anyone to make representations on it or to be heard by the Panel in relation to it.
As can be seen, whilst LUPA imposed express requirements about the giving of notice and the like in relation to a draft that replaced a rejected draft or a new part of a draft, no such requirement was imposed in relation to a modification of a draft. This strongly indicates a statutory intention that there was no obligation to give notice and the like of the modification, and that the failure to do so would not amount to a denial of natural justice. This view finds support in the following provisions:
·"29(3) When the Panel gives its approval to a draft planning scheme–
(b) notwithstanding any failure to comply with a procedural provision of this Part, the planning scheme comes into operation on such date as is specified by the Panel …".
and
·"30(2) The failure to comply with a provision of this Division within the period referred to in that provision does not invalidate a planning scheme approved by the Panel under this Division."
These provisions covered the portion of LUPA in question, which dealt with the promulgation of a new planning scheme. They express a clear intention that a finally approved scheme should not be invalidated for a failure to comply with a procedural provision or a time requirement. That being the intention where there is a non-compliance, obviously enough it is an intention that applies with even more force where the procedural provisions and time requirements have been complied with.
The decision of Blow J in Grunseth v Resource Planning and Development Commission [2008] TASSC 35 bears on the effect of s29(3)(b). That provision is in the same terms as s42(3)(b) which relates to the amendment of a scheme. Grunseth dealt with the consequences that flowed from a council's failure to comply with a statutory requirement to advertise notice of a draft amendment to a scheme. Blow J, in the course of pars88 - 99 of his decision, expressed the view that by virtue of s42(3)(b) the amendment was valid and not a nullity.
Statutory provisions loosely analogous to the provisions of LUPA that are under consideration were the subject of the decision of the Court of Appeal (NSW) in Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78. That case dealt with provisions of the Environmental Planning and Assessment Act 1979 (NSW) on the preparation of a local environment plan. That Act provided for the steps to be taken in the preparation of a plan, which included an obligation for the contents of the plan to go through a process of public notice and exhibition, the receipt of submissions and a hearing where appropriate. Following submissions and a hearing, the council was empowered to make any alterations to the plan, either with or without giving further public notice of the alterations. The case involved an alteration made after a public hearing without the giving of any further public notice. The majority of the Court of Appeal concluded that the statute governed the duty to afford procedural fairness. Meagher JA, at pars182 - 183, said:
"… I think the Act specifies exactly to what extent procedural fairness must be accorded to a ratepayer.
The Council was meticulous in according all ratepayers that measure of fairness which the statute mandated. It did everything it was expected to do by the statutory code."
Powell JA, at par190, said:
"… it seems to me that the provisions of [the Act] are such as to indicate a legislative intention that, except to the extent of the requirements to notify, and to consult, there provided for, a council seeking the making of an environmental planning instrument was not to be subject to any duty to accord procedural fairness to any person, or body, who, or which, might be affected by the provisions of the proposed instrument …".
It should be apparent from the above, that I am not persuaded that the Panel was subject to an obligation to give notice and the like of the modifications in contention or that its failure to do so denied the appellants natural justice.
The conclusion that I have reached obviates the need to address three matters that would have required attention had the appellants' contention on this issue been accepted. The first matter arises from the fact that it is now over 10 years since the Scheme was finally approved. Considerable inconvenience could flow from quashing the portions of the Scheme in contention and those who have acted on those portions could be considerably disadvantaged. The more that has been done in reliance upon the validity of the impugned portions of the Scheme, the more difficult it would be for the appellants to prevail on the Court to exercise its discretion to grant the relief they seek, Grunseth v Resource Planning and Development Commission [2007] TASSC 92, pars18 - 31. This difficulty is compounded by a second matter that would need to be addressed, which is that the appellants are seeking relief pursuant to the Judicial Review Act. The effect of that Act, s17(3), is that an order for review under that Act may only be made in relation to a decision made since the date of its commencement, 1 December 2001. Whilst the permits in dispute were granted subsequent to that date, for the purposes of this issue, the primary attack made by the appellants is on the decision to approve the draft scheme in 1997. No relief referable to that decision could be granted in proceedings brought under the Judicial Review Act or, it seems to me, in proceedings that did not involve the Panel's successor, the Commission. The final matter that would arise is an unresolved argument advanced on behalf of the Council to the effect that if the appellants established that the portions of the Scheme in contention were invalid, there would be no planning controls over forestry in the rural zone, and in consequence the forestry operations under challenge could proceed without the need for a permit.
Before leaving the first issue, I will address three authorities that the appellants submit support their invalidity contention. The first of these authorities, R v Resource Planning and Development Commission; ex parte Hayward [2000] TASSC 40, also relates to the Scheme. The background to that decision is that the draft scheme as exhibited in 1995 made forestry a discretionary use in the residential low density zone, but this was changed after the Panel conducted hearings and the Scheme as approved in 1997 made forestry a prohibited use in that zone. In 1998, the Resource Planning and Development Commission Act 1997 came into operation and the functions of the Panel were taken over by the Commission created by that Act. The Commission became concerned that the owners of two properties in the newly created residential low density (R2) zone had been denied natural justice in relation to the decision to change the draft scheme and make forestry a prohibited use in that zone. In order to avoid an application to this Court by the two owners that might have resulted in the Scheme being overturned, the Commission sought and obtained the approval of the Minister for Environment and Land Management for the Commission to direct the Council to put in train the making of an amendment to the Scheme that would make forestry a discretionary use on the two properties in question. The course adopted was authorised by LUPA, s34(1). Consistent with the Commission's direction, the Council initiated the procedure for making the amendment. The draft amendment was exhibited and advertised, representations were received, and the Council provided the Commission with a report in which it opposed the making of the amendment. The Commission, by its delegates, held a hearing in relation to the amendment and ultimately approved it. John Hayward had opposed the amendment and, following its approval, he applied to this Court for an order that the amendment be quashed on the grounds of apparent bias by the Commission, as well as a denial of natural justice in the conduct of the hearing referable to the amendment. Underwood J (as he then was) dismissed the application. The appellants submit that the decision in Hayward assists them because:
·it records the Commission's concern that the owners of the two properties in question might be able to overturn the Scheme on the basis that they had been denied natural justice in relation to a change to the draft scheme that made forestry a prohibited use;
·it is authority that an amendment to a draft scheme in relation to a forestry use must be exhibited; and
·it recognises that certiorari was a remedy that was available to the two property owners and Mr Hayward.
The decision does record the Commission's concern that because of the change made to the draft the two affected owners might get the Scheme overturned on the basis that they had been denied natural justice in relation to the change. However, the opinion of the Commission on that issue has no bearing on the decision of a court considering the same issue. It is for the court, not the Commission or anyone else, to determine that issue. In any event, the issue before this Court is not the same issue as that which concerned the Commission. The Commission's concern related to the effect of a change on two owners whose rights were significantly restricted, as distinct from a change that broadened the rights of owners. It may be that the former could not be characterised as a modification to the draft scheme and in consequence would not be protected by the provisions of LUPA referable to modifications. It is not correct to assert, as the appellants do, that the decision in Hayward is authority that an amendment to a draft scheme in relation to a forestry use must be exhibited. The decision in Hayward relates to the amendment of an approved scheme and s38(1) requires that such an amendment be exhibited and advertised. That provision has no application to the process of approving a draft scheme. As has already been explained, the applicable provisions of LUPA were complied with in relation to the process of approving the draft scheme and the modification in contention. It is correct, as contended by the appellants, that the decision in Hayward recognised that certiorari was a remedy that was available to the two property owners and to Mr Hayward. The availability of that remedy does not mean that those persons were entitled to the remedy any more than the appellants' undisputed right to seek remedies under the Judicial Review Act means that they are entitled to the remedies.
The second authority relied upon by the appellants is R v Resource Planning and Development Commission; ex parte Dorney (No 2) (2003) 12 Tas R 69. The decision in Dorney, like the decision in Hayward, relates to the amendment of an approved scheme, as distinct from a change made in the course of approving a draft scheme. Dorney involved amendments sought by the Hobart City Council to its approved planning scheme. The draft amendments were publicly exhibited and advertised in accordance with LUPA. In broad terms, for relevant purposes, the amendments proposed a landscape and skyline conservation zone and a bushland conservation and recreation zone, and the only use designated as permitted as of right in those zones was "passive recreation". Other uses were designated as discretionary. Following the hearing required by LUPA, s40, the Commission abandoned the proposals for the two new zones in favour of a community bushland zone covering much the same area, and decided that all uses other than "passive recreation" were to be prohibited in the new zone. Section 41 authorised the Commission to "modify or alter to a substantial degree" the draft amendment. Pursuant to s41B, where an amendment is altered to a substantial degree (as distinct from modified), it is necessary to exhibit, advertise and conduct hearings referable to the alteration. The Commission proceeded as if the changes it had made to the draft amendment were modifications, and had not altered it to a substantial degree. On this basis, the changes were not exhibited, advertised and the subject of a hearing. The owners of land adversely affected by the changes sought prerogative relief as well as relief under the Judicial Review Act referable to the changes Blow J, at 38, held that it was not reasonably open to the Commission to categorise the changes made to the draft amendment as mere modifications, as distinct from alterations to a substantial degree. At par63, his Honour held that in the absence of the re-advertising required by LUPA in relation to such alterations, or the provision of other appropriate notice to the adversely affected owners, they had been denied procedural fairness. His Honour set aside the decision of the Commission to approve the draft amendment as changed. The appellants contend that consistent with this decision, it should be held that the changes in dispute made by the Panel to the draft of the Meander Valley Planning Scheme resulted in it being "altered to a substantial degree", and that this required that those changes be publicly exhibited. The decision in Dorney is plainly distinguishable. The changes made to the draft amendment to the Hobart Planning Scheme dealt with in Dorney deprived the affected owners of rights of use, whereas the changes in question in this case broadened the rights of owners. More particularly, the provisions of LUPA that applied to the amendment of the Hobart Planning Scheme are markedly different to those that applied to the approval of the draft Meander Valley Planning Scheme. The former included an express requirement that where a draft amendment to an approved scheme was "altered to a substantial degree", it must be re-advertised, etc. There was no similar statutory requirement in relation to the latter. The appellants also referred to Blow J's conclusion at par52 that under the applicable legislation councils were not subject to any duty to accord procedural fairness to those who might be affected by the provisions of a draft planning scheme or a draft amendment to a planning scheme, but that it was the role of the Commission, rather than councils, to afford procedural fairness to such persons pursuant to the Resource Planning and Development Commission Act 1997, s10(1)(b)(v). This conclusion in relation to the Commission does not assist the appellants. The extent to which LUPA made it the role of the Panel to afford procedural fairness to those affected by a draft planning scheme is governed by the terms of LUPA and, as already explained, no such requirement was imposed in relation to the modification of a draft planning scheme. Moreover, Blow J was dealing with the Commission, not its predecessor, the Panel, and in concluding as he did, his Honour placed some reliance upon the Resource Planning and Development Commission Act, s10(1)(b)(v), which provides that where the Commission holds a hearing, it must observe the rules of natural justice. No similar provision applied to the Panel.
The third authority relied upon by the appellants is King v Forest Practices Tribunal [2007] TASSC 64. That case involved a challenge by Mr King to a recommendation by the Forest Practices Authority that land which adjoined Mr King's land be declared a private timber reserve pursuant to the Forest Practices Act 1985. The only ground upon which Mr King could object to the recommended declaration was that he "would be directly and materially disadvantaged if [it] was granted". His appeal to the Forest Practices Tribunal against the recommendation was dismissed. He then challenged that dismissal under the Judicial Review Act. In the course of dismissing that challenge, Blow J recognised that in assessing whether the proposed declaration would directly and materially disadvantage Mr King, it was appropriate to compare the forestry that was likely if the declaration was made with that which was likely if the declaration was refused. Not surprisingly, for the purposes of that comparison, it was considered relevant that forestry was a permitted use on the land so that in any event there was likely to be forestry on the land. This consequence of forestry being a permitted use under a planning scheme does not assist the appellants. It has no bearing on the validity of the changes made to the draft that became the Meander Valley Planning Scheme.
Were the decisions invalid because a councillor derived a pecuniary benefit from them?
The bases for the grounds of the appellants' originating application that address this issue are:
·"… that one of the members of the [Council] who participated in the decisions …, Councillor Kelly, and/or members of his family, had an expectation of being likely to receive a pecuniary benefit from the decisions"; and
·"… that the decisions were reached in circumstances where Councillor Kelly … breached The Local Government Act1993, sections 28E(4) and s 48".
Michael Kelly was a member of the Council that made the decisions. He was one of six councillors who supported the primary recommendation made to the Council by its officers in relation to each permit granted to Gerald Richards, that is, that the proposal to which the permit related was not a prohibited use and development under the Scheme. Two councillors opposed that recommendation.
Each permit placed the following obligation on Gerald Richards:
"All roads used for log transport are to be maintained and/or upgraded during, and immediately after, the completion of timber harvesting to Council requirements. The roads are to be inspected prior to, and at the completion of, cartage, with Council's Engineer to ascertain the condition and any subsequent maintenance and upgrade requirements."
Road access from Blairs Road, a local highway, to the land covered by each permit is via a section of road described as a Crown Reserve road ("the reserved road"), which is not a local highway. On some evidence before the learned trial judge the reserved road was 800 metres long, whilst other evidence gave it a length of 1.5 kilometres.
The significance of the reserved road is that it also forms part of what was the access from Blairs Road to land owned by Beverley Kelly, Councillor Kelly's mother. Access to her land had been available from the end of the reserved road across land owned by Karl Irwin, the first named appellant, and then across other land. In January 2002, Mr Irwin barred continued access across his land. This was the only means by which Mrs Kelly's land could be accessed for forestry purposes. She has been trying to obtain a licence from the Crown, the effect of which would reopen the road access to her land across Mr Irwin's land. If she does not succeed, Councillor Kelly will be unable to obtain a planning permit from the Council to allow him to carry out forestry operations he intends to undertake on his mother's land. The potential profit from these forestry operations to Councillor Kelly and his mother is not the pecuniary benefit relied on by the appellants.
The pecuniary benefit that the appellants rely on is that which might flow to Beverley Kelly and Councillor Kelly from the obligation imposed on Gerald Richards by the condition that he maintain and upgrade the reserved road. They will benefit from any maintenance of, or improvements to, the reserved road carried out by Gerald Richards or in his interests in the event that:
·Mrs Kelly regains a right of access to her land over Mr Irwin's land; and
·the Council grants a planning permit for forestry operations on Mrs Kelly's land.
In the course of giving evidence before the learned trial judge, Councillor Kelly denied that he would derive any pecuniary benefit as asserted. He said that the reserved road had been there for 60 years, was consolidated, and was suited for forestry transport purposes. In dealing with this issue, the learned trial judge put aside the somewhat remote and contingent nature of the asserted pecuniary benefit and proceeded on the assumption that when Councillor Kelly voted on the decisions in contention, he had an expectation of receiving, or was likely to receive, a pecuniary benefit as claimed by the appellants. On this basis the circumstances of the case fell squarely within the provisions of the Local Government Act 1993, s48. Part 5 of that Act, which contains ss48 to 56, deals with the interests of councillors. An interest is designated to be a pecuniary benefit or detriment by s49(1) which provides:
"(1) A councillor or member has an interest in a matter if the councillor or member or a close associate would, if the matter were decided in a particular manner, receive, have an expectation of receiving or be likely to receive a pecuniary benefit or pecuniary detriment."
Section 51(i) provides that the mother of a councillor is a close associate, so for the purposes of s49(1), Councillor Kelly would have an interest in a matter if, in consequence of a decision, he or his mother would receive, have an expectation of receiving, or be likely to receive, a pecuniary benefit or pecuniary detriment. As to such an interest, s48 provides:
"48 Declaration of interest by councillor
(1) A councillor must not participate at any meeting of a council, council committee, special committee, controlling authority, single authority or joint authority in any discussion, nor vote on any matter, in respect of which the councillor–
(a) has an interest; or
(b) is aware or ought to be aware that a close associate has an interest.
Penalty:
Fine not exceeding 20 penalty units.
(2) A councillor must declare any interest in a matter before any discussion on that matter commences.
Penalty:
Fine not exceeding 50 penalty units.
(3) On declaring an interest, the councillor is to leave the room in which the meeting is being held.
Penalty:
Fine not exceeding 20 penalty units.
(4) The councillor, by notice in writing, is to advise the general manager of the details of any interest declared under this section within 7 days of so declaring.
Penalty:
Fine not exceeding 20 penalty units.
(5) The general manager is to –
(a) ensure that the declaration of interest is recorded in the minutes of the meeting at which it is made; and
(b) record the details of any interest declared in the register of interests kept under section 54.
(6) In addition to any penalty imposed under this section, a court may make an order –
(a) barring the councillor from nominating as a candidate at any election for a period not exceeding 7 years; and
(b) dismissing the councillor from office."
Section 52 details a number of situations in which Pt5 does not apply, even though a councillor has a pecuniary interest. None of those situations is relevant. Section 53 allows a person who considers that a councillor has an interest in a matter to notify the general manager of that interest. As to the effect of a councillor failing to declare an interest in a decision and voting on it, s56 provides:
"56 Validity of decisions
Any proceedings or decisions of a council, council committee, special committee, controlling authority, single authority or joint authority are not invalid by reason only that at the time the proceedings were held or the decisions were made, a councillor or member —
(a) had not declared an interest as required by section 48 …; or
(b)had voted on a matter in respect of which the councillor or member had not declared such an interest."
So, even if it is accepted that, as contended by the appellants, Councillor Kelly breached s48 by failing to declare an interest and voting, s56 provides that this does not invalidate the decisions. Such breaches of s48 as might be established against Councillor Kelly in appropriate court proceedings would expose him to the penalties detailed in that section, including an order that he be dismissed from office and barred from nominating as a candidate at any election for a period not exceeding seven years. However, as to the effect of such breaches on the validity of the decisions in question, s56 expressly preserves the validity of a decision where a councillor:
"(a) had not declared an interest as required by section 48 …. ; or
(b) had voted on a matter in respect of which the councillor or member had not declared such an interest."
In this case, on the assumption that Councillor Kelly had a pecuniary interest as alleged, his breaches referable to the challenged decisions are covered by s56 as:
(a) he did not declare an interest; and
(b) he voted on a matter in respect of which he had not declared an interest.
The appellants submit that s56 should be construed as preserving the validity of a decision only where there has been a breach of either limb (a) or limb (b) of s56, but not where, as here, both limbs have been breached. This submission relies on the use of the disjunctive "or" in s56 between the limbs, but ignores the terms of limb (b). That limb expressly covers the situation where a councillor has both not declared an interest in a matter and voted on it. For this reason I reject the appellants' submission. I mention that had limb (b) been more narrowly drafted, for example, confined to a councillor voting on a matter in respect of which he or she had an interest, I may well have still rejected the submission. In that situation it seems to me that "or" should not be read as being strictly disjunctive, but as a hybrid of disjunctive and conjunctive, that is, as "or, or as well", so that the validity of a decision would be preserved where it breached limb (a) or limb (b) or both limbs. As to such a construction, see Federal Commissioner of Taxation v Industrial Equity Ltd (2000) 171 ALR 1 at par19 and Minister for Immigration and Ethnic Affairs v Baker (1998) 153 ALR 463 at 469 – 470.
A further submission advanced by the appellants is that the provisions of the Local Government Act 1993, and in particular s56, do not express a clear intention to exclude the operation of the common law in relation to a councillor breaching his or her obligations referable to a pecuniary interest. In support of this submission, the appellants rely upon R v West Coast Council; ex parte Strahan Motor Inn (1995) 4 Tas R 411, a decision of Zeeman J which dealt with a challenge made to a decision of a council on the basis of the apprehended bias of one of the councillors. The evidence of the councillor's apprehended bias was overwhelming and Zeeman J quashed the decision. The case does not assist the appellants as it relates solely to apprehended bias. At 419 – 420, Zeeman J addressed the relevant provisions of the Local Government Act and found that the councillor did not have any interest that attracted s48(1), with the result that the saving provisions contained in s56 did not arise. Accordingly, the apprehended bias of the councillor was dealt with under the common law and without regard to s56. This decision provides no basis for concluding that s56 does not exclude the application of the common law in relation to a pecuniary interest. To conclude otherwise would render s56 otiose.
By their originating application and in their submissions to this Court, the appellants contended that the decisions of the Council were invalid because they were reached in circumstances where Councillor Kelly breached the Local Government Act, s28E(4), which provides:
"28E Code of conduct
…
(4) A councillor is to comply with the provisions of the code of conduct in performing the functions and exercising the powers of a councillor."
No evidence as to the existence of a code of conduct referable to the Council was put before the learned trial judge, and before this Court the parties acknowledged that no code was in existence at the relevant time. In these circumstances the appellants cannot derive any assistance from s28E(4).
By their written submissions to this Court, the appellants contend that the learned trial judge erred in failing to find that the Council's decisions were invalid by reasons of the Local Government Act, s339A, which provides:
"339A Misuse of office
(1) A councillor, an employee or a member must not procure the doing or not doing of anything by the council to gain, directly or indirectly, an advantage or to avoid, directly or indirectly, a disadvantage for –
(a) the councillor, employee or member; or
(b) a close associate of the councillor, employee or member; or
(c) a member of the councillor's, employee's or member's family.
Penalty:
Fine not exceeding 50 penalty units.
(2) In addition to any penalty imposed under this section, a court may make an order –
(a) barring the councillor from nominating as a candidate at any election for a period not exceeding 7 years; or
(b) dismissing the councillor or member from office."
I deal with this submission notwithstanding that no basis for it is to be found in the appellants' originating application. There is nothing in s339A, or elsewhere in the Local Government Act to suggest that a finding that a councillor had procured the doing or not doing of anything in breach of the section results in the invalidity of the impugned action or inaction or its consequences.
For these reasons I reject the appellants' contentions that the Council's decisions are invalid because a councillor derived a pecuniary benefit from them.
Were the Council's decisions an improper exercise of power?
I will deal with this aspect of the appeal by addressing each of the appellants' written submissions referable to it.
The first submission
"The trial judge erred in finding that the Council acted in accordance with the law in approving the development applications when it was a condition precedent that the Council decision be made subject to the Local Government Act ss48-56."
The thrust of this submission has already been dealt with. On the assumption that s48 was breached, the effect of s56 is that the breach did not invalidate the decisions.
The second submission
"There has been no determination from the Local Government Authority as to the Council's satisfaction of this requirement, despite complaints re Councillor Kelly's conflict of interest"
As explained by the appellants in the course of the hearing, this submission is in some way based on further evidence they sought special leave to adduce of:
· minutes of a meeting of the Council on 8 July 2008 which contain the following entry under the heading "Questions without notice":
"2.5 John Hayward, 188 Kellys Cage Road, Weegena
How many Councillors believe it is up to the individual Councillor to determine a conflict of interest in respect to forestry and of those, how many have some financial dealings with the forestry industry?
Response by Mayor: It is up to individual Councillors to make a determination whether they have an interest or not."; and
·copies of letters from the Director of Local Government to a Mr P Godfrey dated 24 April 2008, 21 May 2008 and 7 July 2008. These letters relate to the investigation of Councillor Kelly's alleged breach of the Local Government Act, s48, arising from his participation in the decisions of 16 January 2007 that are in contention. In very brief summary, in these letters the Director of Local Government details the investigations that had been carried out, advises that evidence that roadwork had been carried out on Blairs Road was not sufficient to establish that Councillor Kelly had a pecuniary interest in the decisions, and says that the Director of Public Prosecutions has advised that there is no reasonable prospect of convicting Councillor Kelly of a breach of s48.
I am unable to link the appellants' submission in any relevant or meaningful way to a ground that might substantiate their appeal, or to the proffered further evidence. Insofar as their submission and the further evidence may be intended to bolster their contention that Councillor Kelly had a pecuniary interest in the decisions, it is of no assistance. This is so because that issue has been dealt with on the assumed basis that Councillor Kelly had a pecuniary interest in the decisions. In these circumstances I would refuse the appellants special leave to adduce the further evidence referred to.
The third submission
"The trial judge erred in ruling that there was 'ample evidence upon which the Council's conclusions were based' when the only expert evidence on the highly recondite subject of karst was substantially rejected by a non-expert Council on grounds unrelated to the planning reasons for protecting karst."
The developments that are the subject of the permits are within an area designated as a karst area by the Scheme. The Scheme recognises the importance of minimising the impact of developments in this area on groundwater dependent eco systems. The Scheme relevantly provides:
"4.10.1Use and development in the Karst area shown on the Plan is subject to clauses 4.10.2 – 4.10.3.
4.10.2Karst has an importance and influence on the landscape and use and development shall not adversely affect the sensitivity of the area.
4.10.3A use or development in the karst area shall be prohibited if that use or development is likely to:
(a)induce unacceptable levels of soil erosion and subsequent sedimentation within the Karst system;
(b)adversely alter the hydrology of the Karst system, or may potentially lead to ground surface instability;
(c)pollute surface and sub surface waterways;
(d)adversely affect land stability or create a safety hazard."
The Council was provided with a report ("the Report") on the development applications for the permits that was prepared by a consultant town planner, a senior town planner and a national resource management officer ("the officers"). The Report advised that the applications had been referred to the Department of Primary Industries, Water and Environment (Earth Science Section) for comment on matters arising under cl 4.10 and to an independent expert, Mr Grant Pearce, a senior environmental scientist with experience in both forestry and karst geology, for advice on the general impact of the proposals on the karst system.
As to the impact of the developments on the karst system, the report concluded as follows:
"The proposal, submitted in September 2005 for forestry operations on this site, located within a Karst Area has been assessed by Council officers, an independent forestry expert with knowledge of Karst systems, the State Government's Earth Science Section, the Forest Practices Authority and finally, an independent planning consultant. The impact of the proposal has been assessed and the applicant has provided additional information to support the application. A revised detailed site analysis has demonstrated that drainage paths do not enter the Mole Creek catchment above the off-take weir for the town water supply.
The independent expert has recommended mitigation measures to minimise any potential impact of the proposal on the Karst System. With this advice, the application was amended to include or address this advice and the application was considered by Council officers as a permitted use and development under the Meander Valley Planning Scheme 1995. The provisions for the Rural Zone and other sections of the Scheme are now applicable to this proposal.
The application was then assessed against the relevant provisions of the Planning Scheme and the Land Use Planning and Approvals Act 1993. In summary, the assessment found that, while it is possible for forestry operations to be undertaken in a way that could cause adverse impacts on the natural environment the application put forward for this site explicitly details an approach to these operations that takes into account the sensitive nature of the site and surrounding natural assets such as the Karst system and town water supply. The assessment, detailed above and in the GHD report, found that the proposal if undertaken as conditioned below, will be in accordance with the provisions of the Planning Scheme and the Land Use Planning and Approvals Act 1993. It is recommended that the application be approved subject to the conditions listed below."
By grounds 5(b) and (c) of their originating application, the appellants contended that there was no material before the Council upon which it could conclude that the developments would not adversely affect the sensitivity of the karst area and was not prohibited by reason of the scheme, cl 4.10, and that the decisions were so unreasonable that no reasonable person could have so decided. As to these grounds, the learned trial judge concluded that there was ample evidence upon which the Council's conclusions were based and rejected the proposition that they were so unreasonable that no reasonable person could have made them.
By the written submission under consideration, the appellants submit that the learned trial judge erred in ruling that there was ample evidence for the Council's conclusions when "the only expert evidence upon the highly recondite subject of karst was substantially rejected by a non-expert Council on grounds unrelated to the planning reasons for protecting karst".
The short answer to this submission insofar as it relates to ground 5(b) is that in order to reject the ground, all the learned trial judge needed to conclude was that the appellants had not established that there was no evidence or other material from which the Council could reasonably have been satisfied that the development was not prohibited under the Scheme, having regard to the clauses referable to a karst area. See the Judicial Review Act, s21(a)(ii). Patently, there was material from which the Council could be satisfied that the development was not prohibited.
Similarly, the short answer to the submission insofar as it relates to ground 5(c) is that in order to reject that ground, it was sufficient for the learned trial judge to conclude that the Council's decisions were not so unreasonable that no reasonable person could have so decided. See the Judicial Review Act, s20(g). Again, patently, on the material before the Council, its decisions were not unreasonable.
I will nevertheless address what I understand to be the complaint of the appellants that underpins this submission, that is, that the only expert evidence on the karst system was that of Mr Pearce, and his evidence was substantially rejected. The evidence before the Council referable to the karst area included advice from the Department of Primary Industries, Water and Environment (Earth Science Section) that the potential effects of the development on the conservation values of the karst system were adequately covered. In the absence of evidence of the qualifications of the person who provided that advice, it is not possible to say whether it came from a person who had expertise in the area of concern. It accordingly cannot be concluded that, as asserted by the appellants, the only expert evidence on the karst system that was before the Council came from Mr Pearce. More pertinently, the Report to the Council included 19 recommendations made by Mr Pearce, consolidated without being changed, into 15 recommendations. The officers who prepared the Report commented on, and advised in relation to, each of the recommendations. In summary, they advised that all but two of the recommendations should be effected by way of the imposition of a condition in the permits, or had already been implemented or otherwise addressed. They did not recommend the implementation of a recommendation that:
"As there is a strong level of public interest in the proposed coupe developments, the proponents would benefit from a focused attempt at catering for the expectations expressed by the MVC and local community stakeholders."
That recommendation is more in the nature of an observation than a recommendation and it is not surprising that the officers did not conjure up a means of implementing it. The other recommendation that was not implemented was that:
"In regards to the drying of sub-surface flows, it is recommended that a study be conducted to determine the likely hydro geological impact should the proposed coupes proceed. Of particular focus should be the potential impact of threatened Sphagnum swamp communities."
In response to this recommendation, officers reported that Sphagnum swamp communities had been identified and would not be part of the operational area. In addition, they said:
"Whilst hydro geological studies for sub surface flows are supported by Council, such a study is beyond the resources of the applicant and Council. Ongoing research is being conducted by State agencies and relevant research bodies in regard to this issue, however it is an extremely resource hungry and long term exercise."
In granting the permits, the Council acted on the advice contained in the Report and in result all but two of Mr Pearce's 19 recommendations were adopted, implemented or addressed. It is simply not correct to say, as the appellants do, that Mr Pearce's evidence "was substantially rejected".
The fourth submission
"The trial judge erred in law in ruling that 'there was ample evidence justifying the decisions' in declining to hear evidence of Tasmania's leading karst expert Kevin Kiernan at the trial."
In par59 of his reasons for decision, the learned trial judge rejected an assertion made in ground 5(c) of the originating application that the Council's decisions were so unreasonable that no reasonable person could have made them. In doing so his Honour said, "There was ample evidence justifying the decisions". What took place before the learned trial judge in relation to evidence from Dr Kiernan is not before us. There is no evidence before us that his Honour in fact declined to hear evidence from Dr Kiernan or made the ruling attributed to him by the appellants referable to that evidence. It is however agreed by the parties that no evidence from Dr Kiernan was put in during the hearing before the learned trial judge. It is clear that an affidavit from Dr Kiernan was available to the appellants at the time of that hearing. In Irwin v Meander Valley Council [2007] TASSC 12, Underwood CJ at par28 said:
"Mr Tree relied upon an opinion expressed by Dr Kiernan in his affidavit that 'it is simply not possible to determine whether the proposed forestry operations will not be likely to cause any of the consequences identified in clause 4.3.1' unless a study is done. That opinion was not before the [Council] when it made the decision, but even if it had been, the [Council] would have been entitled to disagree with it."
Counsel for the respondent says that he is unsure whether, on the hearing before the learned trial judge, counsel for the appellants referred to the availability of evidence from Dr Kiernan, but conceded that it was not admissible as it had not been before the Council, or whether an effort was made to tender that evidence and the learned trial judge ruled it inadmissible as it had not been before the Council. After considerable equivocation it was conceded by the appellants that there is no evidence that the evidence of Dr Kiernan to which they refer had been before the Council. That being so, there was no basis upon which the evidence could have been admitted before the learned trial judge. The ordinary rule is that material that was not before the maker of a decision is not considered by a court reviewing that decision; von Stalheim v Anti Discrimination Tribunal and Attorney-General for the State of Tasmania [2007] TASSC 9 at par13 and Australian Retail Association & Ors v Reserve Bank of Australia (2006) 228 ALR 28 at par454. There is no foundation for the appellants' submission. It is rejected.
The fifth submission
"The Appellants submit that the decision on karst is voidable for having been made in breach of the Local Government Act ss48-54 regarding interests and is thus in breach of LUPA Schedule 1 requiring observance of the rules of natural justice."
The appellants' reliance on the assumed pecuniary interest of Councillor Kelly has already been dealt with.
Applications for special leave to adduce further evidence
The appellants sought special leave to adduce further evidence referable to several matters. It is not necessary to go to the requirements of the Supreme Court Civil Procedure Act 1932, s48(3), in order to explain why the evidence should not be admitted.
For the reasons set out in pars37 and 38, the application to admit the evidence there referred to should be refused.
The appellants sought to put into evidence a recent map of the karst area and related information. This evidence was not before the Council when it made its decision or put before the learned trial judge. It has no bearing on this Court's consideration of the appeal and I would refuse to admit it into evidence.
The appellants also sought to put into evidence a Minute from the Executive Commissioner of the Resource Planning and Development Commission to the Minister for Environment and Land Management dated 17 June 1998. The Minute records the Commission's concern that the owners of two properties in the residential low density (R2) zone created by the Scheme had been denied natural justice in relation to a change to the draft scheme that made forestry a prohibited use. That Minute is the subject of the decision in R v Resource Planning and Development Commission; ex parte Hayward referred to in pars14 and 15 of these reasons. Of itself the Minute has no relevance to this Court's consideration of the appeal and I would refuse to admit it into evidence.
For these reasons I would dismiss the appeal.
File No 767/2007
KARL IRWIN & JOHN HAYWARD v
MEANDER VALLEY COUNCIL
REASONS FOR JUDGMENT FULL COURT
TENNENT J
17 December 2008
I have had the opportunity to read the detailed reasons of Evans J. I agree with those reasons and would also dismiss the appeal.
File No 767/2007
KARL IRWIN & JOHN HAYWARD v
MEANDER VALLEY COUNCIL
REASONS FOR JUDGMENT FULL COURT
PORTER J
17 December 2008
I have had the advantage of reading the reasons of Evans J. I agree with those reasons and would also dismiss the appeal.
I do however, wish to add some comments in relation to the question of whether the Council's decisions were "invalid because a councillor derived a pecuniary benefit from them", which is dealt with in pars18 – 33 of his Honour's reasons. His Honour has held that the Local Government Act 1993 ("the Act"), s56 excluded the application of the common law in relation to a breach of the statutory obligations referable to a pecuniary interest. Having regard to some suggestions made in the course of argument to this Court, I wish to address the issue of the precise circumstances in which the common law will be excluded by this provision.
The question of invalidity on the basis of pecuniary interest, was raised by ground 1 of the appellants' notice of appeal, which was in the following terms:
"Ground 1
The learned trial Judge erred in not upholding Grounds 1 and 2 of the appellants' application for review under the Judicial Review Act:
1 The decisions of the Respondent involved a breach of the rules of natural justice (Judicial Review Act s17 (2) (a)) or was otherwise contrary to law (Judicial Review Act s17 (a) (i)) in that one of the members of the Respondent who participated in the decisions the subject of this application, Councillor Kelly and or members of is [sic] family, had an expectation of being likely to receive a pecuniary benefit from the decisions the subject of this application.
2 The procedures that were required to be followed by law to be observe [sic] relating to the making of decisions were not observed, (Judicial Review Act s17 (a) (b)), in that the decisions were reached in circumstances where Councillor Kelly has breached the Local Government Act 1993 sections 28 E(4) and s48.
Particulars
(a) …
(b) The learned trial Judge erred in not finding that Councillor Kelly had an interest of the kind referred to in Section 49 of the Local Government Act 1993 in the outcome of the applications DA246/ 2005 and DA247/2005 for development permits for forestry on land which was adjacent to land owned by his mother in respect of which he was the applicant for forestry and associated operations.
(c) The learned trial Judge erred in distinguishing between an 'interest' as set out in S48 or s48A and an 'interest' which was not a pecuniary interest in the outcome of the applications DA246/ 2005 and DA247/2005 for development permits for forestry on land which was adjacent to land owned by his mother [sic] in respect of which he was the applicant for forestry and associated operations.
(d) The learned trial Judge erred finding [sic] that Section 56 of the Local Government Act 1993 excluded the operation of the Common Law".
The relevant grounds of the originating application before the trial judge complained firstly that "Councillor Kelly and/or members of his family, had an expectation that they might receive a pecuniary benefit from the decisions the subject of this application". The particulars of that complaint included the assertion that "the costs of upgrading the road will be borne by those associated with forestry operations on the Richard's land, sparing Councillor Kelly or his mother the cost of upgrading the access road to Mrs Kelly's land." A second complaint was that there had accordingly been a breach of the Act, ss28E(4) and 48.
Notwithstanding the appeal ground 1.2(c) set out above, the trial judge was not asked at trial to find that there was any "interest" other than one within the meaning of the Act, s49. The appellant's case at trial, confirmed by the approach in this Court, was strictly confined to an alleged breach by Councillor Kelly of the Act, s48(1).
The Act, s48(1) and (2), provide:
"48 — Declaration of interest by councillor
(1) A councillor must not participate at any meeting of a council, council committee, special committee, controlling authority, single authority or joint authority in any discussion, nor vote on any matter, in respect of which the councillor —
(a)has an interest; or
(b)is aware or ought to be aware that a close associate has an interest.
Penalty:
Fine not exceeding 20 penalty units.
(2) A councillor must declare any interest in a matter before any discussion on that matter commences.
Penalty:
Fine not exceeding 50 penalty units."
Section 49(1) of the Act provides that a councillor "has an interest in a matter if the councillor … or a close associate would, if the matter were decided in a particular manner, receive, have an expectation of receiving or be likely to receive a pecuniary benefit or pecuniary detriment." By virtue of the Act, s51(h), Councillor Kelly's mother was a "close associate". Section 56 provides:
"56 — Validity of decisions
Any proceedings or decisions of a council, council committee, special committee, controlling authority, single authority or joint authority are not invalid by reason only that at the time the proceedings were held or the decisions were made, a councillor or member —
(a) had not declared an interest as required by section 48 or 48A; or
(b) had voted on a matter in respect of which the councillor or member had not declared such an interest."
To digress for a moment, there are a number of matters of construction of these provisions which, in my view, call for comment. The first is that, although depending on what meaning is given to s48(1)(b), and accepting that ss48(1)(a) and 49 operate objectively, it is a little difficult to see what s48(1)(b) adds to the situation in which a councillor has an interest under s48(1)(a), by virtue of having a close associate who has the "attributes" of interest provided for in s49.
The second matter is that, although s49 serves to identify the circumstances in which a councillor will be said to have a relevant interest, there is no similar assistance in respect of the circumstances in which a close associate "has an interest" for the purposes of s48(1)(b). Depending on the view that is taken of the first matter I raised, it might be fairly assumed that Parliament intended the scheme to operate so that a close associate would have an "interest" in the same circumstances as set out in s49; that is, if a matter were decided in a particular manner, that person would receive, have an expectation of receiving, or be likely to receive, a pecuniary benefit or pecuniary detriment.
The third matter is, as Evans J has pointed out, s56(b) may well have been more narrowly drafted, so that it operated simply where a councillor had voted on a matter in respect of which the councillor had an interest, rather than where an interest had not been declared. Ostensibly, that may make more sense as it would be then specifically directed at the conduct proscribed by s48(1). It seems clear though, that as s56 focuses on the breach of the statutory obligations, the intention was that it only operate in relation to relevant conduct involving undeclared interests, leaving the common law to deal with the (perhaps unlikely) situation in which a councillor has declared an interest and has voted on a matter to which it relates.
A further point is that the appellants' submission that s56 does not apply where both (a) and (b) are breached, may be answered by adopting a construction which arises from the opening words of the section In those words there is a distinction between proceedings and decisions. On that basis, subpar(a) can be sensibly applied to "proceedings", whilst subpar(b) applies to "decisions". In any event, as Evans J has demonstrated, s56(b) merely reflects the coincidental but separately expressed obligations imposed by s48(1) and (2).
To return to my point, the trial judge said that assuming Councillor Kelly had an expectation of receiving, or was likely to receive, a pecuniary benefit as claimed by the applicants, the circumstances of the case fell squarely within the provisions of s56. This is so because Mr Kelly voted on a matter in respect of which he had not declared an interest. His Honour went on to say that the circumstances for which s56 provided were "exceptional and did not extend to a disqualification based on actual or apprehended bias because of some fact other than the failure by a councillor to declare an interest of the kind referred to in s49 or voting on a matter in respect of which the councillor had not declared such an interest. See R v Barnsley Licensing Justices [1960] 2 QB 167 at 177 – 180, 182 and 184 – 185".
That statement of the trial judge as to the extent of the operation of the Act, s56 must be correct, and neither the appellants nor counsel for the respondent submitted otherwise. Pecuniary interest, although having its basis in the tenet that no person shall be a judge in their own cause, is regarded, for obvious reasons, as a category of case involving disqualification by reason of actual or apprehended bias; see for instance Webb v R (1994) 181 CLR 41 per Deane J at 74-75. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, the consequence of automatic disqualification in the case of pecuniary interest, as established by Dimes v Grand Junction Canal (1852) 3 HLC 759, was rejected in favour of the test to be generally applied in the case of an asserted apprehension of bias. (As to the terms of the test, see 359 [33], 363 [80] and Webb v R (1994) 181 CLR 41.)
In the Barnsley Licensing Justices case, referred to by the trial judge, an application for an off-licence was granted by seven licensing justices, six of whom were members of the co-operative society which had made the application. The governing statute made provision for instances in which a justice would be disqualified from acting in a particular case. One of those instances was if the case concerned any premises in the profits of which a justice was "interested". A further provision of the statute provided that no act which was done by any disqualified justice shall be invalid by reason only of that disqualification.
The Court of Appeal held that the interest which the justices had was no more than that they were interested in the profits of the business carried on upon the premises. That is, they had a pecuniary interest, but one which fell strictly within the compass of the provision. In consequence, in the passages identified by the trial judge, it was held that if a disqualification was limited to the fact that the justices had an interest of the kind specified, then that alone did not render the decision invalid. Thus, if the justices were disqualified only because of the interest which fell within the provision, the decision was not invalidated. The court went on to consider whether one or more of the justices were otherwise disqualified by virtue of the common law rule of actual bias, but the grounds of that complaint were unconnected with any pecuniary interest. There was no suggestion that the issue of any bias connected with the proscribed interest, could be properly considered.
It may not be strictly necessary in this case to decide the point, but for those reasons, I conclude that the intention of Parliament was to exclude the operation of the common law, not merely in the event of a breach of the Act, s48 involving a pecuniary interest as specified in s49, but also encompassing the situation in which actual or apprehended bias is positively asserted as arising from that interest.
Further, suggestions were made in argument that in the case of an "overlap" between an interest within the meaning of s49 and some other factor giving rise to a claim of actual or apprehended bias, then s56 would still operate to the exclusion of the common law. That there will often be an overlap involving matters of pecuniary interest and other categories involving potential disqualification by reason of bias was recognised in Ebner v Official Trustee in Bankruptcy per Gleeson CJ, McHugh, Gummow and Hayne JJ at 349. In my view, in this "overlap" situation, s56 would not apply and the issue should be resolved by resort only to the common law as it operates in relation to actual or apprehended bias.
In summary, my view is that the operation of the Act, s56, is limited to the case of a breach of s48, confining an "interest" to that defined by s49, but so that actual or apprehended bias arising from that interest is covered. Where there is a pecuniary interest other than one strictly of the kind specified in s49, or where there is another category of disqualification in addition to an interest so specified, the common law prevails.
3
15
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