Iwasaki Sangyo Co (Aust) Pty Ltd v Department of Environment and Resource Management
[2012] QCATA 36
•15 February 2012
| CITATION: | Iwasaki Sangyo Co (Aust) Pty Ltd v Department of Environment and Resource Management [2012] QCATA 36 |
| PARTIES: | Iwasaki Sangyo Co (Aust) Pty Ltd |
| v | |
| Department of Environment and Resource Management |
| APPLICATION NUMBER: | APL256-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon K A Cullinane AO QC, Member |
| DELIVERED ON: | 15 February 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal is refused. |
| CATCHWORDS: | Leave to appeal – Review by tribunal of decision made on internal review under the Vegetation Management Act 1999 – Report of tribunal appointed experts reveal possibly greater area cleared than that the subject of original decision – Whether tribunal on review able to consider greater area – Limited effect of order – Nature of tribunal's task on review Vegetation Management Act 1999 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The applicant seeks leave to appeal against a decision of the Queensland Civil and Administrative Tribunal (the Tribunal) delivered on 24 June 2011.
The decision is an interlocutory one and the provisions of section 142(3) of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) apply. Leave to appeal from the decision is necessary.
The effect of the decision impugned is that in hearing a review of a decision under section 63B of the Vegetation Management Act 1999, the Tribunal would hear the proceeding with reference to a new property map of assessable vegetation (PMAV) which covered areas in addition to the area covered by the original decision of the Chief Executive.
The decision under review was itself a review a review decision under section 63A(1) of the Vegetation Management Act 1999.
The original decision was the decision by the Chief Executive to have prepared pursuant to section 20B(1) of the Vegetation Management Act 1999 a PMAV for an area he reasonably believed had been the subject of illegal clearing.
The applicant contends that leave should be granted because an important question of law or justice arises and/or an injustice will be done if the primary decision is allowed to stand. The issue is summarised by the applicant as follows:
If the interlocutory order is allowed to stand, there would be conferred upon the Respondent an unlimited capacity to expand the case against the Applicant at any time before the hearing.
I take the relevant history of the matter to be accurately set out in the submission of the respondent dated 8 April 2011. It was the submission that lead to the order being made by the Tribunal which is the subject of this application for leave to appeal. In that document the respondent summarises the history as follows:
1. The Department of Environment and Resource Management (DERM) issued a property map of accessible vegetation (PMAV) to the applicant under section 20B(1)(g) of the Vegetation Management Act 1999 (“the VMA”) on 20 April 2010.
2. The applicant applied for an internal review of the decision to issue the PMAV on 30 May 2010.
3. DERM issued a review notice on 30 June 2010 to the applicant including an amended PMAV (“the internal review decision”).
4. On 28 July 2010, the applicant filed an application with the Queensland Civil and Administrative Tribunal (“the Tribunal”) for review of the internal review decision.
5. On 24 March 2011, DERM issued an amended PMAV (“the PMAV”) which decreased the area of category A on the PMAV based on consideration of:
a)The report prepared by RPS Consultants dated 20 February 2011;
b)Information provided to DERM on 9 March 2011; and
c)Observations at the site inspection of 9 March 2011.
Pursuant to section 20(2) of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”) , the Tribunal must hear and decide a review of a reviewable decision, by way of a fresh hearing on the merits. DERM seeks the amendment of the PMAV based on new evidence which has been gained during the QCAT process referred to in (a)-(c) above.
As a result of the new evidence, DERM has a reasonable belief that a vegetation clearing offence has been committed in a number of areas not reflected on the current PMAV (“the additional areas”). Accordingly, DERM believes the additional areas should be mapped as category A on the PMAV.
DERM has produced a report (Attachment 1) documenting the reasons for forming the reasonable belief in relation to the additional areas.
The additional areas are outlined in blue on working diagrams (Attachment 2).
The current category A areas as depicted on PMAV dated 24 March 2011 are outlined in red on the wording diagrams (Attachment 2).
DERM is of the view that this submission is necessary to produce the correct and preferable decision which is the purpose of a review pursuant to section 20(1) of the QCAT Act.
The Member of the Tribunal who made the order the subject of the application had been appointed to conduct a mediation between the parties. In the circumstances as they developed it was agreed that the Member would conduct both the mediation and the hearing by way of review.
Division 3 of Part 1 of Chapter 2 of the Act provides for the review jurisdiction of the Tribunal.
Sections 19 and 20 provide respectively as follows:
19 Exercising review jurisdiction generally
In exercising its review jurisdiction, the tribunal-
(a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
(b) may perform the function conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and
(c) has all the functions of the decision-maker for reviewable decision being reviewed.
20 Review involves fresh hearing
(a) the purpose of the review of a reviewable decision is to produce the correct and preferable decision.
(b) The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.
Section 24 provides as follows:
24 Functions for review jurisdiction
(1) In a proceeding for a review of a reviewable decision, the tribunal may –
(a)Confirm or amend the decision; or
(b)Set aside the decision and substitute its own decision; or
(c)Set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
(2) The tribunal’s decision under subsection (1) (a) or (b) for a reviewable decision-
(a)Is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under part 8 ; and
(b)Subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.
(3)The tribunal may make , to the chief executive of the entity in which the reviewable decision was made, written recommendations about the policies, practices and procedures applying to reviewable decisions of the same kind.
(4) If the tribunal makes written recommendations under subsection (3) and the chief executive is not the decision-maker for the reviewable decision, the tribunal must give a copy of the recommendations to the decision-maker.
(5) In this section-
Chief executive includes chief executive officer.
Section 63A(1)(b) of the Vegetation Management Act 1999 (which deals with internal reviews) confers the power to amend the original decision or substitute another decision for the original decision.
The applicant challenges on five grounds the decision made by the Tribunal. These are:
Ground 1That the tribunal member acted in excess of jurisdiction or in the alternative committed an error of law in determining that areas in addition to those presented in the Information Notice of 20 April 2010 were able to be considered as part of the reviews.
Ground 2That the tribunal member acted in excess of jurisdiction or in the alternative committed an error of law in determining that the respondent had not made a decision within the meaning of Vegetation Management Act 1999 (“VMA”), s 20B(1)(g)(i).
Ground 3That the tribunal member acted in excess of jurisdiction or in the alternative committed an error of law in determining that the tribunal in exercising its review function does not have to consider whether or not the chief executive held a reasonable belief about whether or not additional areas were he subject of a vegetation clearing offence.
Ground 4That the tribunal member acted in excess of jurisdiction or in the alternative committed an error of law in determining that the compulsory conference process could be used by a party to the proceeding to enlarge the scope of the review beyond that of the reviewable decision under review
Ground 5That the tribunal member acted in excess of jurisdiction or in the alternative committed an error of law in determining that the jurisdiction of the tribunal did not limit its review function when the jurisdiction conferred by the enabling Act (the VMA) was confined by VMA, s 63B to that of the applicant’s grievance.
The tribunal in exercising its review function considers the matter afresh exercising all of the powers of the decision maker whose decision is being reviewed. The task of the tribunal is to arrive at the correct and preferable decision.
The power to issue a PMAV is provided for in Division 5A of Part 2 of the Vegetation Management Act 1999. In this case the Chief Executive acted under section 20B(1)(g). Pursuant to section 20B(2) each owner of land to be included in a PMAV is to be given notice of the decision.
The preparing of a PVMA and the identification of (amongst other things) vegetation category areas are central to the purposes of the Act (section 3(1)) and the means by which those aims are achieved (section 3(2)).
The additional information with which the application is concerned has come to light through the Tribunal’s processes. Expert witnesses have been appointed and their reports obtained.
The order made by the Tribunal is plainly limited in its effect. It permits the Tribunal to consider the further material in carrying out its task. It is in my view clearly relevant to a review of the review decision itself.
Whether the evidence of the additional areas comes to have any further significance remains to be seen. This is made clear in the reasons for the decision sought to be impugned.
So far as ground two is concerned I am of the view that the Tribunal was correct in characterising the position of the respondent. A reading of the submission dated 8 April 2011 does not provide support in my view for the applicant’s contention. Nor is there any basis to be found elsewhere in the material.
Ground three seems to be based on a misconception of the process of review and the role of the Tribunal in it. The Tribunal stands in the position of the original decision maker and it is the tribunal’s belief that is relevant when this task is undertaken not that of the original decision maker.
I have already referred to the somewhat unusual circumstances of this case in which the member of the Tribunal who conducted the review and whose decision is the subject of this application for leave has been appointed to conduct the mediation. I do not think the course taken is in any way inconsistent with section 69 of the Act.
The final ground of the appeal in my view imposes limitation upon the Tribunal’s powers when conducting a review for which no support is to found in the terms of the relevant legislation.
The application for leave does not, in my view raise matters which would call for the grant of leave. I would therefore refuse the application.
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