Irwin v Meander Valley Council
[2007] TASSC 79
•22 October 2007
[2007] TASSC 79
CITATION: Irwin v Meander Valley Council (No 3) [2007] TASSC 79
PARTIES: IRWIN, Karl
HAYWARD, John
v
MEANDER VALLEY COUNCIL
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M40/2007
DELIVERED ON: 22 October 2007
DELIVERED AT: Burnie
HEARING DATE: 27, 28 and 29 June 2007
JUDGMENT OF: Crawford J
CATCHWORDS:
Administrative Law – Judicial review – Grounds of review – Procedural fairness – Bias – Apprehension of bias – Whether statute excludes operation of common law principles.
Local Government Act1993 (Tas), s56.
Dickason v Edwards (1910) 10 CLR 243; I W v City of Perth (1997) 71 ALJR 943, applied.
R v West Coast Council; ex parte The Strahan Motor Inn (1995) 4 Tas R 411, distinguished.
Aust Dig Administrative Law [1071]
Environment and Planning – Environmental planning – Planning schemes and instruments – Tasmania – Other matters – Permitted forestry on rural land – Failure to publicly notify change to draft scheme – Whether provisions of scheme invalid – Whether requirement of natural justice breached.
Land Use Planning and Approvals Act 1993 (Tas), s28.
R v Resource Planning & Development Commission; ex parte Dorney (No 2) (2003) 12 Tas R 69, distinguished.
Aust Dig Environment and Planning [52]
REPRESENTATION:
Counsel:
Applicants: A R Lewis
Respondent: S B McElwaine
Solicitors:
Applicants: FitzGerald and Browne
Respondent: S B McElwaine
Judgment Number: [2007] TASSC 79
Number of paragraphs: 60
Serial No 79/2007
File No M40/2007
KARL IRWIN and JOHN HAYWARD v MEANDER VALLEY COUNCIL (NO 3)
REASONS FOR JUDGMENT CRAWFORD J
22 October 2007
The application was made under the Judicial Review Act 2000 to review two planning decisions of the respondent ("the council"). On 16 January 2007 the council granted to G W Richards ("Mr Richards") two planning permits under the Land Use Planning and Approvals Act 1993 ("LUPA"), s58. One permit resulted from planning application number DA246/2005 and concerned the land contained and described in Certificates of Title 82158/1 and 231665/1. The land was referred to in the permit as being Off Blairs Road, South Mole Creek. On the plan attached to these reasons, the two pieces of land that are the subject of that permit are rectangular, one above the other, and marked in the name of G W Richards. The other planning permit resulted from planning application number DA247/2005 and concerned the land contained and described in Certificate of Title 109595/2. The land was also described in the permit as Off Blairs Road, South Mole Creek. On the plan attached, the land the subject of that permit has a thick L-shape and is marked in the name of G W & G K Richards.
In planning permit number DA246/2005 the permitted development was referred to as forestry in accordance with Forest Practices Plan TAS0123 and in planning permit number DA247/2005 the permitted development was described as forestry in accordance with Forest Practices Plan TAS0124. The Forest Practices plans had been prepared under the Forest Practices Act 1985 and on 31 August 2005 were certified by a delegate of the Forest Practices Authority pursuant to that Act, ss19 and 43. By virtue of that Act, s20, the plans authorised forest practices, and operations associated with those forest practices, to be carried out on the lands specified in the plans in accordance with the provisions of the plans during the period 31 August 2005 to 30 June 2009. Under Plan TAS0123, 1575 cubic metres/tonnes of timber were expected to be removed from the land and under Plan TAS0124, the expected quantity was 4250 cubic metres/tonnes. Each of the plans contained comprehensive requirements for the carrying out of the proposed forestry operations, dealing with matters such as access and roads, areas where harvesting was not to take place, protection of water courses, landings, snig tracks, felling prescriptions, protection of flora and fauna, restoration of the land and reforestation.
Notwithstanding that the Forest Practices plans were certified under the Forest Practices Act, the proposed operations required planning permits under LUPA. Like much of the land in the municipal area controlled by the council, the land in question was in the Rural zone under the Meander Valley Planning Scheme 1995 ("the Scheme"). Under the Scheme, the policies of the Rural zone included (inter alia) the encouragement of farming activities and the retention of agriculture as a major rural activity, the facilitation of forestry in appropriate locations and the promotion of a sustainable forest products industry, and the conservation of areas of natural significance or scenic value. The development proposed in each planning application was a "permitted" use in the rural zone. Nevertheless, it required a permit from the respondent. By cl 2.5.1 of the Scheme, the council was required to grant the permit, with or without conditions, provided that the development complied with all relevant Scheme standards. One set of requirements and standards applied to what was proposed because the development was to take place in a Karst area. Conservation of the area is regarded as important for the maintenance of water quality in caves. The Scheme, cls 4.10.1 – 4.10.3 specifically applied to the proposed development:
"4.10.1Use and development in the Karst area shown on the Plan is subject to clauses 4.10.2 – 410.3.
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."
A number of people, including the applicants, made representations to the council against the granting of the permits. The applications for the permits were assessed by the council's officers, an independent forestry expert with knowledge of Karst systems, the State Government's Earth Science Section, the Forest Practices Authority and an independent planning consultant. The council determined that the proposals were not prohibited by reason of cl 4.10.3 of the Scheme and that the permits should be granted, subject to a number of conditions.
Ground 6 – the validity of the Scheme
Ground 6 of the application for judicial review is:
"The decisions of the Respondent were contrary to law in that the relevant clauses in the Meander Valley Planning Scheme upon which DA246 and DA247 were determined whereby forestry on rural land was a permitted use under that Scheme were never exhibited for public comment and thereby denied the applicants natural justice."
In essence, the applicants' case is that the provisions of the Scheme that make forestry on rural land a permitted use are invalid.
On 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.
Under 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 ...".
One 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,
Originally, ground 6 in the origination application asserted that the provisions in the planning scheme whereby forestry was to be a permitted use in the Rural zone, were "never exhibited for public comment and thereby promulgated in breach of the Land Use Planning and Approvals Act 1993". It was submitted, for that reason, the planning scheme was invalid. However, that basis for invalidity was abandoned by the applicants when they successfully applied to amend the ground into its present form. They now rely for invalidity upon a breach of a common law requirement of natural justice. They maintain that because of the failure to publicly notify the change to the draft scheme, they were deprived of the opportunity to be heard by the Panel concerning it. However, they presented no evidence that if they had learned of the proposed change they would have made representations or done anything else about the matter, nor any evidence that any other person would have done the same.
The starting point for a consideration of the need for notification of what was proposed for a planning scheme is LUPA itself. Notwithstanding that planning schemes may materially affect the use to which owners and occupiers may put land, to the extent even of prohibiting many uses, the Act did not require that individual landowners, or anyone else, be personally served with notice of what was intended. By s25, it merely required public exhibition of the draft planning scheme and advertising that exhibition. If, following a consideration of the draft planning scheme and the hearing of representations, the Panel determined that there was something wrong with the draft, three alternative courses were open to the Panel. Under s28(1)(a) it might require the planning authority to "modify the draft planning scheme". That is what occurred here and no criticism of the Panel's determination to do so is made. No provision of the Act required notification to the public, or any member of it, of an intention that such a modification should be made to the draft planning scheme. The second course open to the panel, under s28(1)(b)(i), was to reject the draft planning scheme. If it did so, s28(2) required the planning authority to prepare and submit to the Panel another draft planning scheme. In that event, the provisions of ss24 and 25 requiring advertising and publicly exhibiting a draft planning scheme, would have applied, along with the provisions of ss26 and 27 concerning the making of representations and hearings in relation to them. The third course open to the Panel was one that fell between the first two so far as concerned the significance of changes to be made. It was, under s28(1)(b)(ii), to direct the planning authority that a specified part of the draft planning scheme be done again. If it did so, s28(3) required the planning authority to prepare and submit to the Panel a substitute version of that part. In that event, the provisions of the Act requiring advertising and publicly exhibiting a draft planning scheme would have applied, along with the provisions concerning the making of representations and hearings in relation to them.
There is no complaint that there was a failure to comply with any provision of the Act. The draft planning scheme was finally approved and should be regarded as being in force and as having been lawfully made. It is a valid instrument of subordinate legislation made in conformity with the authority of an Act of Parliament.
Counsel for the applicants relied on a passage in the judgment of Blow J in R v Resource Planning & Development Commission; ex parte Dorney (No 2) (2003) 12 Tas R 69 at 113 where, in the circumstances of that case, his Honour concluded that procedural fairness required the delegates of the Commission, before making a decision to alter draft amendments to a planning scheme into a radically new and unexpected proposal, to inform all owners of land affected by the amendments. An effect of the change was to prohibit the owners of land in a particular area from using or developing their land in all ways other than "passive recreation". The case is clearly distinguishable from this one, for here the change was not one that restricted the rights of owners. By making forestry a permitted use, instead of a discretionary use, the rights of owners to use their land were potentially increased.
If common law principles of natural justice or procedural fairness applied to the proceedings of the Panel they did not extend to the protection of members of the public at large. Kioa v West (1985) 159 CLR 550 at 584 and 620; Botany Bay City Council v Minister for Transport and Regional Development (1996) 137 ALR 281 at 296.
Ground 6 fails for the reasons I have given. It is unnecessary to resolve the argument advanced for the council that if the ground succeeded and it was to be held that the material provisions of the planning scheme are invalid, there are no planning controls over forestry in the municipality or, at the very least, in the Rural zone.
Grounds 1 and 2 – whether decisions void for bias of councillor
These two grounds are:
"1The 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 his family, had an expectation of being likely to receive a pecuniary benefit from the decisions the subject of this application.
2The procedures that were required by law to be observed relating to the making of the 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 28E(4) and s 48."
Particulars of both grounds are identical:
"(a) Councillor Kelly's mother, Beverley Anne Kelly, is the owner of blocks of land ('Mrs Kelly's land') adjacent to the land the subject of the applications to the Respondent for planning approval and identified as DA246 and DA247 ('the Richards land').
(b) Councillor Kelly owns and operates a business, M J Kelly Logging, which works in the business of forest logging and reforestation.
(c) Councillor Kelly has applied for and been granted approval of Forest Practices Plan MAC 0554 for forestry operations on Mrs Kelly's land.
(d) M J Kelly Logging is the nominated harvesting and restoration and reforestation contractor for work on Mrs Kelly's land.
(e) Mrs Kelly's land is accessed by the same road as that accessing the Richards land, and forestry operations on Mrs Kelly's land require access through the Richards land.
(f) Approval of forestry operations on the Richards land, with associated access work, will facilitate access to Mrs Kelly's land. The cost of upgrading the road will be borne by those associated with forestry operations on the Richards land, sparing Councillor Kelly or his mother the cost of upgrading the access road to Mrs Kelly's land.
(g) Councillor Kelly voted at the meeting of the Respondent the subject of this application, in favour of each application."
Michael James Kelly ("Councillor Kelly") was a member of the council at the time that the two planning decisions were made. He was one of six councillors who supported a decision that what was proposed was not prohibited use and development under cl 4.10.3 of the scheme. That decision accorded with the recommendation made to the council by its officers. Two councillors voted against accepting the recommendation.
Councillor Kelly's mother owned the land marked on the attached plan in the name of B A Kelly. His father first acquired an interest in it in 1971 and ownership passed to Mrs Kelly on his death. For many years his father conducted logging operations on the land. Prior to 2002, vehicle access to Mrs Kelly's land was from South Mole Creek Road, along Blairs Road to about point X on the attached plan, and then along a Crown Reserve road to about point C, which is just before the eastern boundary of the first applicant's land ("Mr Irwin's land"). The council has fully maintained Blairs Road only to point X.
From point C, immediately before entering Mr Irwin's land, the road crossed a narrow road reserve that ran north/south along the eastern boundary of his land. The road reserve separated his land from the land of G W Richards. The road then crossed his land to point F, then across the land of G W & G K Richards to point G and into Mrs Kelly's land. As the road passed across Mr Irwin's land it followed the route of a road reserve for much of the distance. However, it occasionally moved outside the boundaries of the road reserve.
In or about 2001, Mr Irwin purchased from the State the narrow strip of road reserve running north/south along his eastern boundary, which included land over which the road to Mrs Kelly's land passed. He placed a gate across the road on his eastern boundary and in January 2002, he padlocked the gate. Because of the locked gate, Mrs Kelly and her servants and agents have been prevented from enjoying vehicular access to her land. It was Councillor Kelly's evidence, which was not challenged, that as a result of the sale to Mr Irwin of the narrow strip of road reserve running along his eastern boundary, access to Mrs Kelly's land cannot be obtained along that part of the road without Mr Irwin's consent.
On 24 September 1999, a delegate of the Forest Practices Authority certified Forest Practices Plan MAC0554 pursuant to the Forest Practices Act, ss19 and 43. The plan authorised forest practices and operations on Mrs Kelly's land during the period 1 November 1999 and 30 December 2002. The applicant was Councillor Kelly and the contractor specified in the plan was M Kelly Logging, which is a reference to one of Councillor Kelly's businesses. The Forest Practices Plan has been renewed on several occasions and the current approval is until 2008.
Before forestry operations may be carried out on Mrs Kelly's land, a planning permit from the council must be obtained. The council will not grant such a permit without proof of legal access to the land. It was Councillor Kelly's evidence that the delay has cost him and Mrs Kelly many years of productivity on the land, because harvesting of timber has not been possible and a plantation proposed to replace the harvested trees has not been established, and will not be until many years after it otherwise would have occurred. If road access, together with a planning permit, can be obtained, it is Councillor Kelly's intention to make a profit from the carrying out of logging operations on his mother's land. Mrs Kelly has been trying to obtain a licence from the Crown, the effect of which, if I understand Councillor Kelly's evidence correctly, would be to re-open the old road access to Mrs Kelly's land.
Road access into the properties of G W Richards and G W & G K Richards is at point C, off the Crown Reserve road extending Blairs Road, via an internal track running in a south to south-westerly direction through the lands of G W Richards into the land of G W & G K Richards. Its route is shown on the attached plan. It does not lead to Mrs Kelly's land and cannot be used for the purpose of accessing it because land it would be necessary to traverse is too steep.
The state of the evidence is that unless Mrs Kelly is able to obtain a licence from the Crown which will allow her once again to use the original road access to her property across Mr Irwin's land, Councillor Kelly will be unable to obtain a planning permit from the council to allow him to carry out forestry operations on Mrs Kelly's land and to profit from doing so. On the evidence, no finding can be made as to the likelihood of everything falling into place for him.
Each of the planning permits that are the subject of this application, which relate to the lands of the Richards, contain identical conditions. Condition 15 of each is:
"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."
The recommendation of the council's officers was that the condition apply to "Council-maintained roads used for log transport", but the council amended the condition to "All roads used for log transport" for a reason that does not appear in the minutes of its meeting. Evidence was given by Mr Ian Howard, the council's Manager of Infrastructure Services and a civil engineer, that the council maintains Blairs Road, and has done so since about 1980, from South Mole Creek Road to point X on the attached plan and that the section is a "local highway" within the meaning of the Local Government (Highways) Act 1982 and, therefore, a highway for which the council is responsible. It was common ground at the hearing that condition 15 applied to the Crown Reserve road extending from point X to point C, the junction of the road leading in a southerly direction into the land of G W Richards. Mr Howard's evidence was that if that section of the road was maintained by the council, which it was not, it would probably cost the council about $1500 for an annual grading and application of gravel. However, if it became badly damaged, the cost of rectifying it might be as high as $10,000. Asked to estimate the likely cost of complying with condition 15 of the planning permits in respect of the section of road from X to C, he said that in his opinion what would be required was the installation of several new and one replacement drainage culvert, improvements to table drains and minor gravelling and grading of the road surface, at a total cost of $5500, being $3500 for culverts and table drains and $2000 for gravelling and grading. The purpose of the works would be to improve drainage, surface and visibility.
The Forest Practices Plan TAS0123, relating to the land of G W Richards, and the Forest Practices Plan TAS0124, relating to the land of G W & G K Richards, also contain conditions concerning roads. TAS0123 requires (inter alia) that "the coupe will be accessed via Blairs Road being a council road and linking onto a Crown Reserve road and then onto an internal access road", that "1.5 km of Blairs Road will be upgraded to a class 3 standard road" and that "following consultation with The Meander Valley Council's Works Supervisor, sight distances may be improved on Blairs Road and sufficient signage erected and located to ensure safest possible practices for other road users". It does not require specific work on the "Crown Reserve road", which I take to be a reference to the road from point X to point C, but as forest practices plans do not usually require work to be done on roads that are maintained by a council, the possibility exists that the reference to "1.5 km of Blairs Road" was intended to be to the Crown Reserve road from X to C. TAS0124 requires no work on Blairs Road or the section from X to C, but like the other plan, it permits the improvement of sight distances on Blairs Road. Once again, it is possible that X to C was the intended reference.
The applicant for both of the forestry practices plans relating to the Richards' lands was Gunns Ltd, and there was evidence from Mr Irwin that as a result of the certification of the plans, Gunns Ltd upgraded Blairs Road and the continuation of the road along the Crown Reserve to the junction of the internal road leading into the land of G W Richards, that is, point C. Mr Irwin's evidence was 2.1 kilometres of road was upgraded by Gunns Ltd.
Cross-examination of Councillor Kelly was directed to the question whether he was likely to benefit from condition 15 on the Richards' planning permits, or from the requirements of the Richards' forest practices plans concerning roads, in the event that Mrs Kelly is able to secure road access into her land from Blairs Road, by crossing Mr Irwin's land, and subsequently, that council grants a permit for the forestry work Councillor Kelly wishes to undertake on his mother's land. He disputed that he would have benefited from any of the upgrading work on the road by Gunns Ltd. He described the work on the road from X to C as minor and involving the replacement of one culvert pipe and clearing back vegetation. He was not sure if gravel had been put on the road. He agreed that clearing of vegetation improved sight lines, but did not think that the work was necessary for that purpose because existing sight lines were adequate. He thought that the purpose of clearing vegetation was more to do with cleaning table drains and avoiding damage to vehicles.
Councillor Kelly's evidence was that the work on the road from X to C will not prove to be a financial advantage to him in the event that he cuts logs from his mother's land. He said that the road is quite suitable for the use he intends, that it has been there for 60 years, and that it is a consolidated road. His Forest Practices Plan MAC0554 does not require him to do any work on the section of the road X to C. He accepted that if his vehicles cause any damage to it he will repair the damage. Asked what will happen if the section was to be damaged by a combination of his log trucks and those accessing the Richards' forest, he said that he would have to work out responsibility with the other operator. However, if one of his trucks caused particular damage, for example by running off the edge of the road and causing a table drain to collapse, he would attend to the repair and he would not expect the other operator to foot the bill. His father always repaired damage he caused to the road, and Councillor Kelly would do the same.
It was also Mr Howard's evidence that the removal of branches growing across a road can avoid damage being caused to a large truck, provide improved sight lines and, to a limited degree, allow better access to table drains. He said that "logging people" normally choose to upgrade a road if they think it is necessary and that quite often, the council requires a road that is maintained by the council to be improved or maintained at the end of a logging operation. I presume he was indicating that the council might make that a condition of a planning permit. He said that it would be very rare that the council would require work to be done on a road it did not maintain and similarly, conditions relating to roads on forest practices plans do not normally apply to roads maintained by the council. They could not do so, he said. I presume that what he meant was that only the council has the power to require work to be done on roads that are its responsibility to maintain. He was responsible for the drafting of condition 15 (numbered 14 when he drafted it) in the Richards' permits, except that he drafted it so that it applied only to "council-maintained roads". That is the application of such conditions on the majority of forestry applications. He is unaware of what caused the council to alter the condition to apply to "all roads used for log transport".
The Local Government Act 1993, s48(1), makes it an offence for a councillor to participate at any meeting of a council in any discussion, or to vote on any matter, in respect of which the councillor has an interest, or is aware, or ought to have been aware, that a close associate has an interest. Section 48(2) makes it an offence for a councillor not to declare any interest in a matter before any discussion on that matter commences. Section 48(3) makes it an offence if, on declaring an interest, a councillor does not leave the room in which the meeting is being held. By s48(4), details of an interest so declared must be notified in writing by the councillor to the general manager within seven days of so declaring and thereupon, under s48(5), the general manager must ensure that the declaration and details are recorded. A register of interests of councillors is available for inspection by any person under s54. The prescribed penalties for offences are fines, but under s48(6), a court may, in addition to imposing a fine, make an order barring the councillor from nominating as a candidate at any election for any period not exceeding seven years and dismissing the councillor from office.
By s49(1), a councillor has an interest in a matter if the councillor or a close associate of the councillor would, if the matter was to be decided in a particular manner, receive, have an expectation of receiving or be likely to receive a pecuniary benefit or pecuniary detriment. By s51(1), a close associate of a councillor includes the councillor's mother. Section 52 excludes the operation of the relevant provisions of the Act in a number of circumstances, such as if the benefit is one received in common with all of the electors of the municipal area, or at least 5 percent or 1000 of the electors, whichever is the lesser, or if the extent of the interest of the councillor or close associate is no greater than that of any other member of the public. None of the exceptions in s52 apply in the circumstances of this case.
It is common ground that Councillor Kelly did not declare an interest and that he voted in support of the grant of the Richards' permits when he had not declared that in respect of that matter, he had an interest. It was submitted for the applicants that he and his mother had an expectation of receiving, or were likely to receive, a pecuniary benefit out of condition 15 of each of the Richards' planning permits that required the Crown Reserve road from point X to point C to be upgraded, and that because Councillor Kelly voted at the meeting of the council at which the Richards' permits were granted, the decisions are voidable by virtue of the common law. The submission was based on the principle of natural justice that a member of a local government council should not participate or vote on a council's decision if the councillor is actually biased or "if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial". R v Watson; ex parte Armstrong (1976) 136 CLR 248 at 262. Those principles concerning bias and apprehended bias have been held to extend beyond decision-making by judicial officers to statutory tribunals, including local government councils upon which is conferred the power to make discretionary decisions, such as whether or not a planning permit ought to be granted. See R v West Coast Council; ex parte The Strahan Motor Inn (1995) 4 Tas R 411 and the cases cited therein.
Counsel for the applicants conceded that if the principles of bias or apprehended bias are to be applied, nevertheless the decisions of the council are not void but voidable at the Court's discretion, in accordance with Dimes v Proprietors of the Grand Junction Canal (1852) 3 HL Cas 759 at 786. In any event, the Judicial Review Act, 27(1), provides for the exercise of a discretion whether to quash or set aside a decision on any ground. The ground relied on by the applicants is a breach of the rules of natural justice under s17(2)(a) of that Act.
Although at common law a decision by such a body as the council is liable to be set aside if one of the councillors was disqualified for bias, actual or apprehended, an exception may be provided by statute. Dickason v Edwards (1910) 10 CLR 243 at 259; I W v City of Perth (1997) 71 ALJR 943 at 969. For this case an exception is provided by the Local Government Act, s56, which provides:
"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."
Assuming that Councillor Kelly had an expectation of receiving, or was likely to receive, a pecuniary benefit as claimed by the applicants, with the result, at common law, that the council's decision would have been liable to be quashed or set aside, the circumstances of the case fall squarely within the provisions of the section. The complaint of the applicants is that Councillor Kelly did not declare an interest, as required by s48, and he voted on the matter, in respect of which he had not declared such an interest. The provisions of the section are clear. The operation of the common law must be treated as having been excluded. Contrary to the submission of the applicants' counsel, such a conclusion is not inconsistent with R v West Coast Council; ex parte The Strahan Motor Inn (supra) for that case was not concerned with a pecuniary interest of a councillor and the circumstances did not fall within s56. The circumstances for which the section provides are exceptional and do not extend to a disqualification based on actual or apprehended bias because of some factor other than a 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.
For these reasons, grounds 1 and 2 fail. It is unnecessary to determine whether in fact Councillor Kelly had an interest of the kind referred to in s49.
Grounds 3, 4 and 5
It is convenient to deal with these grounds together. They are:
"3The making of the decisions was an improper exercise of power in that in determining that the proposed use and development was not prohibited by cl.4.10.3 of the Meander Valley Planning Scheme the Respondent took into account an irrelevant consideration (Judicial Review Act s 17(2)(e), s 18(2)(e) and s 20(a)), being that the cost of hydro geological studies for sub surface flows was beyond the resources of the applicant Richards and of the Respondent.
4The making of the decisions was an improper exercise of power in that in determining that the proposed use and development was not prohibited by cl.4.10.3 of the Meander Valley Planning Scheme the Respondent failed to take into account relevant considerations (JRA s17(2)(e), s 18(2)(e) and s 20(b)), being:
(a)the recommendation of the Council's expert consultant, Mr Grant Pearce, that 'additional investigations be conducted to fully determine the extent of public risk' (Recommendation 3);
(b)the fact that the investigations referred to in (a) above had not been carried out, the consequence being that the Respondent did not have before it an adequate assessment of the criteria raised by cl. 4.10.3 of the Meander Valley Planning Scheme.
(c)the recommendation of the Council's expert consultant, Mr Grant Pearce, that 'Furthermore, with regards to the unmarked streams, it is recommended that a comprehensive study be conducted, to further define, and locate other special features across the coupe for inclusion in the FPP Development Application. This should extend beyond the works undertaken by this investigation; The publication 'New Guidelines for the Protection of Class 4 Streams' should be used in the process. MVC may like to request a copy of the records from the assessment for verification.' (Recommendation 3);
(d)the recommendation of the Council's expert consultant, Mr Grant Pearce, '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 (sic) threatened Sphagnum swamp communities' (Recommendation 10);
5(a) The procedures that were required by law to be observed relating to the making of the decision were not observed, in that in determining that the proposed use and development was permitted under the Meander Valley Planning Scheme, the Respondent failed to have proper regard to the requirements of clause 4.5.1 of the Meander Valley Planning Scheme, as there was no evidence before the Respondent to enable the Respondent to determine the extent of any potential change to the hydrological regime of the Karst landscape underlying the land the subject of the application to the Respondent (JRA s 17(2)(b), s 18(2)(b)).
and further or alternatively
(b)The procedures that were required by law to be observed relating to the making of the decision were not observed, in that in determining that the proposed use and development was permitted under the Meander Valley Planning Scheme, the Respondent failed to have proper regard to the requirements of clauses 4.10.1,2 and 3 of the said Scheme in that there was no material upon which the Respondent could conclude that this development would not
(i) adversely affect the sensitivity of the area;
and further or alternately
(ii) induce unacceptable levels of soil erosion and subsequent sedimentation with the Karst system; and/or
(iii) adversely alter the hydrology of the Karst system, or potential lead to ground surface instability; and/or
(iv) pollute surface and sub surface waterways; and/or
(v) adversely affect land stability or create a safety hazard.
and further or alternatively
(c)Insofar as the Respondent relied on the report of Grant Pearce in respect of the development application (DA 246/2005) as material satisfying the requirements of the Meander Valley Planning Scheme in the respect set out above, the making of the decisions was an improper exercise of power (Judicial Review Act, s17(2)(e) and s20(g)), the decisions were so unreasonable that no reasonable person could have so exercised the power."
As mentioned in par3 of these reasons, cl 2.5.1 of the Scheme required the council to grant the permits, with or without conditions, provided that the development complied with all relevant scheme standards. In that regard, cls 4.10.1 to 4.10.3 applied to the proposed development. Clause 4.10.3 prohibited the development in question if it was likely to induce unacceptable levels of soil erosion and subsequent sedimentation within the karst system, adversely alter the hydrology of the karst system or might potentially lead to ground surface instability, pollute surface and sub-surface waterways or adversely affect land stability or create a safety hazard. Those requirements reflected the statement in cl 4.10.2 that development should not adversely affect the sensitivity of the karst area.
A report was made to the council by three of its officers, a consultant town planner, a senior town planner and a national resource management officer. It included information that the application had been referred to the Department of Primary Industries, Water and Environment (Earth Science Section) for comment on matters arising under cl 4.10.3 and to an independent expert for advice on the general impacts of the proposals on the karst system. That expert was Mr Grant Pearce, a senior environmental scientist with experience in both forestry and karst geology. In their report, the officers dealt with comments that had been received from the earth science section of the department and with 15 recommendations from Mr Pearce, commenting on each.
The tenth of Mr Pearce's recommendations was in two parts, the second of which was as follows:
"In regards to the drying of sub-surface flows, it is recommended that a study be conducted to determine the likely hydrogeological impact should the proposed coupes proceed. Of particular focus should be the potential impact of threatened Sphagnum swamp communities."
In their comments, the officers stated that advice from the Department was sought regarding the Sphagnum swamp vegetation communities and it was found that those communities were not required to be protected under current legislation. However, as part of a revised site plan, those areas had been identified on the site plan and marked on site and would not be part of the operational area. The officers continued:
"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."
The report of the council's officers was incorporated into the council's minutes of the meeting and occupied 72 pages. They stated their conclusion 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."
The reference to the GHD report was to the advice of Mr Pearce. Eighteen conditions were listed. After making amendments to four, the council adopted the recommendations that the proposal did not invoke "prohibited" use and development status under cl 4.10.3 of the scheme and that the application be approved, subject to the conditions as amended.
It was submitted for the applicants that the making of the council's decisions was an improper exercise of power because the council took into account an irrelevant consideration (see the Judicial Review Act, ss17(2)(e) and 20(a)) in that it took into account that the cost of a hydrogeological impact study was beyond the resources of Mr Richards and the council. However, there is no basis for concluding that the question of cost was an irrelevant consideration or that there was an improper exercise of power by the council following its receipt of the officers' report. Mr Pearce recommended that the study be conducted and, quite properly, the council's officers communicated that recommendation, along with their response to it, in their report to the council. There was no obligation on the council to accept Mr Pearce's recommendation about the matter. Its officers did not think it ought to do so. Whether the council should require such a study to be conducted was a matter for it to determine. Its failure to require it gave rise to no ground for review under the Judicial Review Act. Further, there is no basis for concluding that the council's decision that the proposed use and development would be in accordance with the provisions of the planning scheme was based on the advice of its officers that the cost of a hydrogeological study could not be afforded. Ground 3 fails.
In the course of their report, the council's officers advised that the Department of Primary Industries, Water and Environment (Earth Science Section) considered that potential effects on the conservation values of the karst system were adequately covered by the proposal. The officers stated that whilst that was helpful, they did not think the response was sufficiently detailed to make an appropriate assessment under LUPA and that it was for that reason, that they engaged Mr Pearce to advise. He in turn had made recommendations which, if adopted, would "mitigate adverse impacts of the proposal on the karst system", in their opinion. They concluded that if the proposal incorporated the recommendations, it was unlikely to have any of the adverse results referred to in pars(a) – (d) of cl 4.10.3 and therefore, that the proposed works were not a prohibited use and development under that clause.
Counsel for the applicants submitted that mitigation of adverse impacts was insufficient to satisfy the planning scheme. However, the reference to mitigation should be understood in the context of all of the report. For example, what was identified by the officers as recommendation 1 of Mr Pearce was that the use of 1080 poison and aerial chemical applications should be prohibited and that a biactive or similar herbicide should be used for weed control within the coupes. The officers accepted the recommendation, noting that the use of herbicides and poisons could have an impact on the karst system and surrounding land. It is plain that the reference to mitigation of adverse impacts on the karst system was intended as a reference to a lessening of the overall impacts of the proposal, through the imposition of controls by conditions, to the extent that it would be unlikely that the proposal would lead to any of the adverse effects referred to in pars(a) – (d).
Paragraphs (a), (b), (c) and (e) of ground 4 refer to what the council officers identified as recommendation 3 of Mr Pearce. It was in the following terms:
"With regards to the potential health risk exposures, and the proximity of the unmarked stream and Waterworks cave, it is recommended that additional investigations be conducted to fully determine the extent of public risk;
Furthermore, with regards to the unmarked streams, it is recommended that a comprehensive study be conducted, to further define, and locate other special features across the coupe for inclusion in the FPP Development Application. This should extend beyond the works undertaken by this investigation; The publication 'New Guidelines for the Protection of Class 4 Streams' should be used in the process. MVC may like to request a copy of the records from the assessment for verification."
The response of the council's officers in their report to the council was:
"The applicant was required to provide a detailed site plan showing the extent of streams and drainage areas on the site in an effort to determine the extent of public risk relating to the impact of the proposal on water quality. It was found that the streams on site do not flow into the Mole Creek above the intake point for the town water supply, but rather just below it. A 100 m vegetated buffer will be provided at the property boundary to Mole Creek to protect the quality of water leaving the site and entering the Mole Creek catchment. This has been addressed as part of the revised FPP and does not need to be included as a condition of the permit."
There is no reason to think that the council failed to take into account those recommendations of Mr Pearce and there is every reason for concluding that the council was satisfied with the response of its officers and that, having regard to all of the material before it, and not just particular parts of it selected by the applicants, it was satisfied that the proposal complied with all of the requirements of the planning scheme.
Public risk was not a material consideration under cll 4.10.1-3 of the planning scheme. On the face of the material before the Court, the recommendation did not concern the karst system or cll 4.10.1 – 3 of the scheme. Further, there was nothing in the scheme or LUPA that required the council to take into account Mr Pearce's recommendation 3.
Like ground 3, par(d) of ground 4 refers to Mr Pearce's recommendation 10 that a hydrogeological study be carried out. Once again, there is no reason to think that the council did not take into account that recommendation. It was a matter for the council to decide whether it would require such a study to be undertaken and plainly it did not think it necessary. There was nothing in the scheme or LUPA that made a failure to undertake the study a failure to take into account a relevant consideration. Ground 4 fails.
I turn to ground 5(a). It raises the requirements of cl 4.5.1 of the scheme. The clause did not apply directly to the karst system. It related to watercourse protection and required that "for the purposes of controlling erosion and pollution and for the protection of water quality, hydrology, botanical, zoological, landscape values and natural drainage functions of streams, rivers and wetlands, Council in assessing an application for a Permit affecting a watercourse shall have regard to the need to:
(a) require an appropriate setback;
(b) control erosion and to prevent siltation;
(c) avoid unnecessary removal of vegetation;
(d) protect bank stability; and
(e) minimise adverse changes in the hydrology regime."
Paragraph (a) of the ground complains that the council failed to have proper regard to the requirements of cl 4.5.1 because it had no evidence to enable it to determine the extent of any potential change to the hydrological regime of the karst system beneath the surface of the land. The clause did not require that "proper regard" be had by the council, merely "regard". The paragraph is expressed to be based on the Judicial Review Act, s17(2)(d), which makes it a ground for review of a decision that procedures that were required by law to be observed, relating to the making of the decision, were not observed. The question of watercourse protection was addressed by the council's officers in their report. They were satisfied that proposed measures for watercourse protection were adequate. Those measures included vegetated buffers around watercourses and sinkholes, in which no work would be undertaken, with the result that bank stability would be protected, sediment entering waterways would be minimised and the flow path of the watercourses would not be changed. The use of herbicides and poisons was restricted by a condition to protect the karst system, swamps and streams. A condition required that fuel spills within 40 metres of a stream had to be reported to the council within 24 hours of their occurrence and that all contractors carry spill control kits at all times, for use if fuel spills occurred. Another condition required that a water monitoring program be written and approved by the council prior to the commencement of operations, to monitor the impact of the development on surrounding water systems and to ensure that water quality results were regularly submitted to the council so that measures could be taken to reduce levels deemed to be excessive. It is obvious from those matters and a consideration of all of the material that was before the council that regard was had to the matters raised by cl 4.5.1.
The provisions of the clause could not have led to a refusal of the applications. By cl 2.5.1, the permits had to be granted, with or without conditions, provided that the development complied with all relevant scheme standards. Clause 4.5.1 did not establish a scheme standard for the proposal.
Further, par(a) of the ground only raises an issue of procedure, and the complaint of the applicants is not one of procedure. If there was no evidence that enabled a determination of the extent of any potential change to the hydrological regime of the karst system, a consequence was not that a required procedure was not observed by the council. Paragraph (a) fails.
Paragraph (b) of ground 5 also fails. Contrary to what is asserted, there was ample evidence upon which the council's conclusions were based. There was no breach of a requirement of procedure.
Paragraph (c) of ground 5 asserts that a reasonable person would not have made the decisions that were made by the council. Counsel for the applicants barely mentioned it. There is no merit in it. There was ample evidence justifying the decisions. I have touched on some of the evidence, but not all. Plainly the ground must fail.
Conclusion
The application will be dismissed.
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