John Fuglsang Developments Pty Ltd v Sultan Holdings Pty Ltd - [2017] TASSC 1

[2017] TASSC 1

COURT: SUPREME COURT OF TASMANIA

CITATION: John Fuglsang Developments Pty Ltd v Sultan Holdings Pty Ltd
[2017] TASSC 1

PARTIES:  JOHN FUGLSANG DEVELOPMENTS PTY LTD
  SALAMANCA INN HOLDINGS PTY LTD
  v
  SULTAN HOLDINGS PTY LTD
  HOBART CITY COUNCIL

FILE NO: 1696/2015
DECISION

APPEALED FROM: John Fuglsang Developments Pty Ltd and Salamanca Inn Holdings Pty Ltd v Hobart City Council and Sultan Holdings Pty Ltd [and other appeals] [2015] TASRMPAT 20

DELIVERED ON:  17 January 2017
DELIVERED AT:  Hobart
HEARING DATES:  7, 8 March 2016
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Environment and Planning – Environmental planning – Development control – Matters for consideration of consent authority – Consideration of particular planning matters – Environmental matters – Noise and vibration from blasting – Excavation during construction phase of development.

Environmental Management and Pollution Control Act 1994 (Tas), s 25(1)(b); Sch 2, cl 5(a).
Penrith City Council v Waste Management Authority (1990) 71 LGRA 376; Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 623, 149 LGERA 360, distinguished.

Aust Dig Environment and Planning [114]

Environment and Planning – Development control – Consents, approvals and permits – Conditions – Certainty and finality – Construction management plan.

Mison v Randwick Municipal Council (1991) 23 NSWLR 734, distinguished.
Aust Dig Environment and Planning [218]

REPRESENTATION:
Counsel:
             Appellants:  A Galasso SC, A R Spence
             First Respondent:  S B McElwaine SC
             Second Respondent:  D J D Morris
Solicitors:
             Appellants:  Page Seager
             First Respondent:  Shaun McElwaine + Associates

Second Respondent: Simmons Wolfhagen

Judgment Number: [2017] TASSC 1
Number of paragraphs: 102

Serial No 1/2017
File No 1696/2015

JOHN FUGLSANG DEVELOPMENTS PTY LTD
and SALAMANCA INN HOLDINGS PTY LTD
v SULTAN HOLDINGS PTY LTD and HOBART CITY COUNCIL

REASONS FOR JUDGMENT BLOW CJ

17 January 2017

This appeal concerns a proposal by the first respondent, Sultan Holdings Pty Ltd, for a development on some land in Montpelier Retreat, Hobart, that has been used for car parking for decades. Sultan submitted a development application for the site to the Hobart City Council in November 2014. The proposed development included car parking for 604 vehicles, 29 serviced apartments, at least 72 residential apartments, a "wellness centre" (whatever that might be), at least 11 commercial tenancies, 2 tenancies potentially operating as restaurants and/or bars, and some public open space.
In February 2015 the council decided to grant a permit for the proposed development, subject to a number of conditions, pursuant to s 61(5) of the Land Use Planning and Approvals Act 1993 ("the LUPA Act"). There were four appeals from that decision to the Resource Management and Planning Appeal Tribunal. One of those appeals, no 20/15P, was commenced by the two present appellants. Two of them were commenced by other opponents of the proposed development. The fourth was commenced by Sultan. Its appeal related to the permit conditions. Sultan's appeal was resolved without a hearing. The other appeals were heard together. The Tribunal was constituted by its chairman, Mr G P Geason, and two other members, Ms M E Ball and Mr R Locke.
In August 2015, in a decision relating to the three appeals that proceeded to hearing, the Tribunal decided that a permit was to be granted to Sultan, with changes to Condition 9 thereof, but otherwise incorporating the conditions that had been agreed upon between Sultan and the council for the purpose of resolving Sultan's appeal. The decision of the Tribunal has been published as John Fuglsang Developments Pty Ltd & Salamanca Inn Holdings Pty Ltd v Hobart City Council and Sultan Holdings Pty Ltd (20/15P); Retirement Benefits Fund Board v Hobart City Council and Sultan Holdings Pty Ltd (21/15P); The Owners of Salamanca Square Strata Corporation 129225 (ABN 64589 285 173) v Hobart City Council and Sultan Holdings Pty Ltd (22/15P) [2015] TASRMPAT 20.
This is an appeal from that decision. The appellants each own properties adjacent to the land in question. This appeal relates solely to excavation works proposed for the purpose of developing underground car parking on the site. The proposed excavation works are the subject of the Tribunal's revised Condition 9. The proposed excavation is substantial. At one end of the development, it is proposed that there will be five levels of car parking wholly below the natural ground level. If the development proceeds, between 40,000 and 50,000 cubic metres of dolerite will have to be removed by blasting. Dolerite is a hard rock. The appellants accept that the excavation could proceed without any dust problems. Noise and vibration problems were the focus of the Tribunal's decision.
By virtue of s 25 of the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), this appeal is limited to questions of law. The amended notice of appeal contains 12 grounds, numbered 1 to 11 and 5A. Ground 10 was abandoned.
The first three grounds of appeal involve assertions that, as a matter of law, it was not open to the Tribunal to make a decision in Sultan's favour. Grounds 1 and 2 involve an assertion that the proposed excavation was prohibited by the relevant planning scheme. Ground 3 involves an assertion that a permit for the development could not be granted because the proposal as to the removal of rock had not been referred to the Board of the Environment Protection Authority ("the EPA"). I will address those grounds of appeal first.

A prohibited "General Industry" use? (Grounds 1 and 2)

The Sullivans Cove Planning Scheme 1997 applies to the site in question. The Tribunal was required to apply the provisions of that scheme pursuant to s 62(3) of the LUPA Act. Before the Tribunal, the appellants contended that the proposed excavation constituted "General Industry" for the purpose of the planning scheme. Under the planning scheme, "General Industry" is a prohibited use. The appellants contended that it was therefore not open to the council or the Tribunal to grant planning permission when the proposed excavation was essential to the proposed development. The Tribunal rejected that argument. The appellants contend that it thereby erred in law.
The Tribunal drew a distinction between use and development. It held that the proposed excavation amounted to works in the course of development, as distinct from a use, and that the prohibition on "General Industry" as a use therefore did not preclude the granting of a planning permit.
The LUPA Act draws a distinction between use and development. Its definition of "use", in s 3(1), is as follows:
"use, in relation to land, includes the manner of utilising land but does not include the undertaking of development".
"Development" is defined in the same subsection as follows:
"development includes —
(a) the construction, exterior alteration or exterior decoration of a building; and
(b) the demolition or removal of a building or works; and
(c) the construction or carrying out of works; and
(d) the subdivision or consolidation of land, including buildings or airspace; and
(e) the placing or relocation of a building or works on land; and
(f) the construction or putting up for display of signs or hoardings —
but does not include any development of a class or description, including a class or description mentioned in paragraphs (a) to (f), prescribed by the regulations for the purposes of this definition".
"Works" is in turn defined in the same subsection as follows:
"works includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil, but does not include forest practices, as defined in the Forest Practices Act 1985, carried out in State forests."
The planning scheme contains, in Pt G thereof, definitions of "use", "development" and "works" that are identical or practically identical to those in the LUPA Act. The exclusion in relation to forest practices has been omitted from the definition of "works", but even the reference to regulations in the definition of "development" has been reproduced word for word, absolutely inappropriately.
The proposed excavation work was intended to take place only during the construction phase. It was not intended that the land would be used for the quarrying or extracting of dolerite after construction was completed. It follows that, for the purposes of the planning scheme, the proposed excavation constituted "works" and "development" as defined, but not a "use" of the land.
Clause 16.3.3 of the planning scheme provides that "General Industry" is a use that is prohibited throughout the area to which the scheme applies. The definition of "General Industry", in Sch G to the scheme, includes the following:
"General Industry
Land used for any of the following operations:
…
(d)winning clay, gravel, rock, sand, soil, stone, or other materials (other than Mineral, stone, or soil extraction) …".
The prohibition in cl 16.3.3 refers to "General Industry" as a use, but does not refer to developments or works. "General Industry" is defined as land "used" for any of certain listed operations. It follows that the removal or "winning" of rock during construction operations is not a "use", and therefore not prohibited by cl 16.3.3. Grounds 1 and 2 of the notice of appeal are based on assertions that that clause imposes such a prohibition. Those grounds must fail.

No referral to the Environment Protection Authority (Ground 3)

When a council, in its capacity as a planning authority, is considering an application for a planning permit under the LUPA Act, s 25(1)(b) of the Environmental Management and Pollution Control Act 1994 ("the EMPC Act") requires the council to refer the application to the Board of the EPA if the proposed use or development is a "permissible level 2 activity" for the purposes of that Act. Sultan's application was not referred to that Board. The appellants contend that Sultan's proposal, because it involved the removal of substantial quantities of rock, was a proposal for a "level 2 activity", and that the planning application therefore was required by s 25(1)(b) to be referred to the EPA Board. Sultan contends that its proposal was not one for a "level 2 activity", and that therefore no such referral was required.
The resolution of this issue depends on the interpretation of the applicable legislative provisions. The relevant words in s 25(1) of the EMPC Act read as follows:
"(1) Where an application has been made to a planning authority under the Land Use Planning and Approvals Act 1993 for a permit in respect of a use or development of land that is a permissible level 2 activity … the planning authority must —
(a) …
(b) refer the application to the Board."
Section 3(1) of the EMPC Act defines "level 2 activity" to mean "an activity specified in Schedule 2".
Schedule 2 to that Act lists seven categories of activities. In respect of each category, there are several paragraphs outlining the circumstances in which particular activities in that category will amount to level 2 activities. The provisions in the schedule as to the fifth category of activity read as follows:
"5 Extractive Industries
(a)Quarries: the extraction of any rock or gravel and producing 5 000 cubic metres or more of rock or gravel per year.
(b)Extractive Pits: the extraction of sand or clay and producing 5 000 cubic metres or more of product per year.
(c)Mines: the extraction of any minerals and producing 1 000 tonnes or more of minerals per year."
If the proposed development goes ahead, rock will be extracted from the site at a rate exceeding 5,000 cubic metres per year. The appellants contend that, for the purposes of the relevant provisions of the EMPC Act, the proposed development would therefore constitute a quarry, and therefore an extractive industry, and therefore a level 2 activity. Sultan contends that, despite the quantity of rock that it proposes to have removed, the proposed development will not in substance amount to a quarry or an extractive industry, and that s 25(1)(b) is therefore inapplicable.
In relation to this issue, counsel for the appellants relied on some cases from the New South Wales Court of Appeal. In Penrith City Council v Waste Management Authority (1990) 71 LGRA 376, a public authority had applied to a council for development consent for the establishment of a regional waste disposal depot. It proposed the progressive excavation of large pits over 20 or more years, the depositing and compacting of solid waste in those pits, and the covering of the waste with the excavated material. There was legislation that required an application for development consent to be accompanied by an environmental impact statement if "designated development" was proposed. A schedule to some regulations listed numerous categories of development that constituted "designated development": Environmental Planning and Assessment Regulation 1970 (NSW), Sch 3. One category was specified as follows:
"(n) extractive industries, being —
(i) The winning of extractive material … ; or
(ii) An industry or undertaking … which depends for its operations on the winning of extractive material from the land upon which it is carried on …". [Irrelevant words omitted.]
The Court of Appeal (Kirby P, Meagher and Handley JJA) held that the proposal was for "designated development". At 388, their Honours addressed the question whether the proposed development would be an extractive industry within the scope of par (n). They said:
"It was urged that if the Court said so it would mean that every building site which involved the extraction of materials from the land (as for car parking) would attract par (n), and the obligation (with consequential expense and delay) of providing an environmental impact statement. Again, we must say that each case will depend upon its own facts and circumstances. What is involved, as has been repeatedly stressed, is always a question of fact and degree. As is clear from the authorities, … there are two alternative tests. We agree that, when classified by reference to its principal purpose, the Authority's activities would not be described as an extractive industry. However this does not mean that it cannot be an extractive industry within the second limb of the definition when it is classified by reference to the dependence of its operations on the winning of extractive material from the land on which it is carried. ...
The task of classification being one which addresses the 'character extent and other features' of the proposed activity, we are left in no doubt in this case that those features, together with the character and extent of extraction of soil inherent in the Authority's proposed operations brings the case within Schedule 3. It requires the characterisation of the development proposed as 'designated development'. It hence attracts the obligation to support the application with an environmental impact statement."
It is worth noting that the outcome of that case depended on the legislative provision as to an "industry or undertaking … which depends for its operations on the winning of extractive material". There is no equivalent provision as to dependency in the applicable Tasmanian legislation. That case therefore does not help the appellants.
That case was followed in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323, 149 LGERA 360. In that case a developer sought development consent to construct 72 dwellings in the Blue Mountains. It proposed constructing an effluent disposal system for those dwellings that included an on-site sewage treatment plant and a below-ground trickle irrigation system. There was a new but similar legislative regime whereby an environmental impact statement was required if the proposal was for "designated development": Environmental Planning and Assessment Act 1979 (NSW), s 78A(8)(a). A schedule to a regulation listed 34 categories of designated development, one of which was headed "Sewerage systems or works": Environmental Planning and Assessment Regulation 2000 (NSW), Sch 3. The developer argued that the proposed sewage treatment system was merely ancillary to the proposed residential development, and that its application was therefore not one in respect of designated development. However the Court concluded that the application was in respect of designated development, and that an environmental impact statement was required. At [179] Tobias JA, with whom Giles JA and McClellan CJ at CL agreed, said:
"… As I have already indicated, there is no proper basis for construing s 78A(8)(a) as applying to an application only in respect of designated development. I agree … that it would be contrary to the intent of the legislation now in force to hold that an activity which falls within one of the categories listed in Pt 1 of Sch 3 should necessarily lose that character because it only forms part of a greater development or is not the main purpose of the development in respect of which the application has been made." [Original emphasis.]
Each of those cases related to activities that were intended to continue indefinitely after the completion of construction works. In the Penrith case, the Waste Management Authority proposed to repeatedly excavate and refill pits for at least 20 years. In the Chase Property case, the developer proposed that the treatment plant and the below-ground trickle irrigation system would be permanent features of its residential development. In this case, the excavation of dolerite is intended to take place only during the construction phase. However the words of s 25(1) of the EMPC Act are significant. The subsection applies when an application has been made under the LUPA Act "for a permit in respect of a use or development of land that is a permissible level 2 activity". (My emphasis.) Section 3(2) of the EMPC Act provides that words and expressions used both in that Act and in the LUPA Act have the same meanings as they have in the LUPA Act unless the contrary intention appears. There is nothing to indicate a contrary intention as to the meaning of "development".
In my view the applicability or otherwise of s 25(1)(b) depends on the interpretation of cl 5, which I have set out above. For the purposes of cl 5(a), is any use or development involving the extraction of rock at the rate of 5,000 cubic metres or more per year deemed to constitute a quarry? Or does cl 5(a) apply only to activities that are quarries in the ordinary sense of that word, and only to those quarries where extraction occurs at an annual rate of 5,000 cubic metres or more? The heading "Extractive Industries" tends to suggest that the latter proposition is correct. A large-scale excavation would not necessarily be regarded as an industry, but any quarry, in the ordinary sense of that word, would be regarded as an extractive industry.
Questions of fact and degree are involved. It is conceivable, for example, that at the site of a very large development, the developer might operate the site commercially as a quarry until excavation works were completed, and then close the quarry and erect a building.
As Hayne, Heydon, Crennan and Kiefel JJ said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47], "the task of statutory construction must begin with a consideration of the text itself", and "The language which has actually been employed in the text of legislation is the surest guide to legislative intention." It follows that, unless there is a good reason to adopt a different interpretation, cl 5(a) should not be interpreted as deeming something to be a quarry when that thing is not a quarry in the ordinary sense of that word. No doubt a quarry can be temporary. No doubt a quarry can be part of a larger development. The Chase Property case establishes that it would not lose its character as a quarry if it were. But I think cl 5(a) must be interpreted as applying only to quarries in the ordinary sense of that word.

In its decision at [52], the Tribunal considered the nature of Sultan's proposal and concluded, "It is not a quarry proposal, nor is it a quarry which will temporarily be operating at this site." As I have said, s 25 of the RMPAT Act limits this appeal to questions of law. When the Tribunal concluded that the proposal was not one for a quarry, it did not err in law unless it could be said that the only conclusion reasonably open to it was that the proposal was one for a quarry, within the meaning of cl 5(a): The Australian Gas Light Co v Valuer-General (1940) 40 SR(NSW) 126 per Jordan CJ at 138; Vetter v Lake Macquarie City Council [2001] HCA 12, 202 CLR 439 at [24]. Since the proposal to extract rock was incidental to the proposal for a large mixed use development, I consider it was reasonably open to the Tribunal to conclude that the permit sought under the LUPA Act was not in respect of a quarry, even a temporary one, in the ordinary sense of the word. It follows that the Tribunal did not err in law as to this issue, and that Ground 3 of the notice of appeal, which asserts that it did, must fail.

Clause 29.5 of the planning scheme (Ground 4)

The planning scheme contains 120 pages of so-called schedules. Schedule 8 is entitled "Environmental Management". It includes cl 29.5, which is the subject of a ground of appeal. The provisions of cl 29.5 relied on by counsel as relevant, or possibly relevant, to this appeal read as follows:
"29.5 Environmental Objectives
Where an activity constitutes either a Permissible 'Level 1' activity or a Permissible 'Level 2' activity within the relevant Activity Area, the following environmental objectives must be satisfied in determining such an application.
Air Quality
Activities shall demonstrate 'Best Practice Environmental Management' in respect to the minimisation and mitigation of all discharges to the atmosphere.
…
Hazard and Risk
Land within the Cove must be used and developed in a manner which provides a safe working and living environment. In doing so, best practices must be employed in respect to the handling of dangerous goods and all relevant dangerous goods and environmental laws complied with.
…
Noise
Buildings shall be sited and designed having regard to current noise levels in the area as well as their intended use.
Where activities with the potential to generate significant noise are proposed in proximity to residential accommodation and other 'noise sensitive' activities, appropriate measures to mitigate and minimise noise emissions must be undertaken.
New 'noise sensitive' activities such as residential accommodation shall be located and where necessary incorporate acoustic measures to minimise the potentially adverse impacts of existing or likely future activities on nearby land.
…".
The Tribunal considered the status of cl 29.5 and, in its reasons at [63], said:
"Clause 29.5 contains objectives. Objectives do not, per se, provide a basis for refusing a proposal."
Ground 4 of the notice of appeal reads as follows:
"The Tribunal erred in its determination that cl 29.5 of the Scheme did not provide matter relevant to, and hence bases for, refusal of the proposal."
The significance of cl 29.5 needs to be considered by reference to the context of that clause.
By virtue of cl 16.3.2, Sultan's proposed use of the land was "discretionary". That is to say, the Tribunal, standing in the shoes of the council, had a discretion to refuse the application for a permit. That discretion was subject to the following "Condition", which was imposed by cl 16.3.2:
"Must meet the objectives and performance criteria of the Activity Area to the satisfaction of the Planning Authority. Otherwise 'prohibited' and must be refused."
The planning scheme divides Sullivans Cove into "Activity Areas". The proposed development is in Area 2.0. Clause 16.2 lists 12 "objectives" applicable "to all use and development" in Activity Area 2.0. In respect of each objective, it specifies "performance criteria". Clause 29.5 lists "environmental objectives" that are applicable to the whole of the Sullivans Cove Planning Area. It seems clear that those environmental objectives are therefore separate and distinct from "the objectives and performance criteria of the Activity Area" referred to in cl 16.3.2.
For the purpose of determining the appeal, the Tribunal was therefore required first to determine whether the proposed development met "the objectives and performance criteria of the Activity Area", as listed in cl 16.2, to its satisfaction. Then, if it was satisfied that those requirements were met, it was required to make a discretionary decision as to whether to grant or refuse a permit. The decision-making process was therefore a two-stage process. The evidence as to environmental issues, particularly noise and vibration, was relevant to both stages of that decision-making process.
However it appears from the Tribunal's reasons that it paid practically no attention to the second stage of the decision-making process. The objectives and performance criteria specified in cl 16.2 related to the minimisation of environmental risks and effects, and selection of the most appropriate measures to be taken to mitigate and minimise noise emissions if a permit were granted. But there remained a fundamental question as to whether, even with the best possible permit conditions relating to noise and vibration, it would be better to refuse a permit altogether, or to impose a permit condition permitting an excavation only to a much shallower depth. The Tribunal did not address that question.
The appellants submitted to the Tribunal that no development should occur on the site "because of impacts that will be caused during the construction phase". Their submissions to the Tribunal were all to the effect that, because of provisions in the legislation and the planning scheme, it was not open to the Tribunal to allow the proposed development to proceed. They did not argue that, if it was open to the Tribunal to make a discretionary decision, then the Tribunal should decide to refuse a permit or drastically reduce the depth of the excavation. However the Tribunal was not, as a result, absolved from considering how to exercise its discretion if the objectives and performance criteria of cl 16.2 were satisfied.
In its reasons, the Tribunal considered the provisions of cl 29.5 and of cl 16.2(j) – the only provision in cl 16.2 relevant to environmental matters. Clause 16.2(j) specifies as an objective, "To ensure sound environmental planning and management for all activities". It specifies two performance criteria. The first relates to energy requirements, and is irrelevant. The second contains irrelevant material as to "a new environmental gain for the wider environment", but relevantly provides as follows:
"All use and development must minimise direct and indirect environmental risk or effects … ".
The combined effect of cl 16.3.2 and cl 16.2(j) was that the Tribunal was first obliged to determine whether Sultan's proposed use and development would minimise "environmental risk or effects". Then, if it was satisfied that those things would be minimised, it was required to make a discretionary decision as to whether to grant or refuse a permit. However the Tribunal proceeded as if reaching a state of satisfaction as to the minimisation of environmental risk or effects would result in a decision that a permit should be granted.
In its reasons, commencing at [55], the Tribunal addressed cl 29, cl 16.2(j), and the evidence as to blasting, noise, vibration, and the duration of the proposed excavation. At [88] it said:
"The real question is not 'How long will this take?' rather it is whether the direct and indirect risk of environmental harm or effects, can be managed so that they are minimised to an acceptable level. That question adopts elements of the Objectives at Clause 29 (management of risk of harm) and the performance criterion at Clause 16.2(j) – (minimisation of risk). The Tribunal considers that conflating the two elements of the Scheme captures appropriately the requirement which the Scheme enshrines – that is the minimisation of risk through management of it."
The Tribunal went on to determine that the environmental risks and effects relating to dust, noise and vibration could be appropriately minimised by changing Condition 9 of the permit that the council had resolved to grant by imposing certain requirements in relation to the construction management plan. It then proceeded to make a decision varying the council's decision by revising Condition 9.
The findings made by the Tribunal as to the minimisation of "environmental risk or effects" should have led it to conclude that cl 16.3.2 did not prohibit the proposed development, but required the making of a discretionary decision. The Tribunal did not address the issue as to how its discretion should be exercised. It overlooked the second stage of the required decision-making process. It thereby erred in law. However Ground 4 is directed to a much narrower question – the question whether the Tribunal erred in law by treating cl 29.5 as not providing a basis for the refusal of Sultan's proposal.
A number of observations can be made about the provisions in cl 29.5 quoted above:
·     Although the clause uses the expression "environmental objectives", the first sentence of the clause says that those so-called objectives "must be satisfied". If a so-called objective is a requirement that must be satisfied, then it is not an objective in the literal sense, but is a mandatory requirement.
·     The provision as to air quality has no present significance because this appeal relates only to noise and vibration, and not to dust.
·     The provisions as to "hazard and risk" have no present relevance either. They relate to the health and physical safety of individuals, and not to the other effects of noise and vibration on individuals or buildings. As far as I am aware, it was not suggested to the Tribunal that blasting in the course of excavations might pose any significant risk of physical injury.
·     The first paragraph under the heading "Noise" appears to be relevant to this appeal. Read literally it imposes a requirement that the proposed building "be sited and designed having regard to current noise levels in the area". In making a discretionary decision, the Tribunal was required to consider whether the design of the proposed building, involving a multi-level underground car park necessitating the excavation of dolerite, was appropriate, having regard to current noise levels in the area. That required a comparison between the existing noise levels and the likely noise levels during the excavation phase, as well as the likely impact of the increased noise levels on individuals and businesses in the area surrounding the site.
·     The second paragraph under "Noise" imposes a requirement as to noise mitigation and minimisation measures that applies when a permit is granted. It appears to be relevant to the imposition of permit conditions, but not to any issue as to whether a permit should be granted or refused.
·     The third paragraph under "Noise" is not relevant to this appeal. It relates to developments near sources of noise, as distinct from developments that will generate noise.
In my view the first paragraph under "Noise" in cl 29.5 required the Tribunal to consider current noise levels in the area and the impact of the design of the underground part of the building on those noise levels when deciding how to exercise its discretion pursuant to cl 16.3.2.
There are other provisions in the planning scheme that support this conclusion. Clause 16.4.2 provides, "All development of land must satisfy the relevant provisions contained within the schedules of this Scheme."
The schedules comprise Part E of the planning scheme. Clause 2 of the planning scheme, entitled "CONTENTS OF THIS PLANNING SCHEME", begins with the following:
"2.1 This Scheme comprises Parts A – G and consists of the following:
·   A strategic framework which includes a statement of preferred futures for Sullivans Cove, a Strategy Plan and a series of planning principles for guiding future use and development within Sullivans Cove.
·   Planning Scheme provisions which provide guidelines for the sound and proper use and development of land within the Planning Area.
·   A series of figures (plans) identifying the Activity Areas within the Planning Area, as well as a range of specific controls affecting use and development in Sullivans Cove."
The "strategic framework" is Part B of the planning scheme. It must follow that the schedules form part of the material described in the second dot point of cl 2.1 as "Planning Scheme provisions which provide guidelines …".
The word "guidelines", in its ordinary meaning, does not refer to mandatory requirements, but the word is sometimes misused: Smoker v Pharmacy Restructuring Authority (1994) 125 ALR 577.
Schedule 8 is entitled "ENVIRONMENTAL MANAGEMENT". It includes cl 29.5, and begins with the following provisions:
"29.1 Introduction
The ecologically sustainable development of the Cove’s natural and physical resources is a primary planning principle of this Scheme.
Whilst the protection and enhancement of the total natural resource stock of the Cove is important, there are a number of specific environmental issues to be addressed in the future planning for the Cove. These include protection of water quality in the Cove, minimisation of air pollution, assessment and management of land contamination on all land, waste minimisation and control of noise pollution and vibration.
This schedule outlines matters which must be considered when assessing applications for activities, and outlines the linkages of the Planning Scheme to the Environment Management & Pollution Control Act 1994.
29.2 Objectives
· To ensure that activities are managed in a way which facilitates the ecologically sustainable development of the Cove’s natural and physical resources and the maintenance of ecological processes and genetic diversity.
· To ensure that activities are managed in a way which will not cause environmental nuisance or material or serious environmental harm."
The third paragraph of cl 29.1, which says that the schedule "outlines matters which must be considered when assessing applications" indicates that, as a general rule, the schedule imposes mandatory requirements for certain relevant considerations to be taken into account, as distinct from imposing mandatory requirements which must be satisfied before a permit application may be granted. However the introduction to cl 29.5 says, "… the following environmental objectives must be satisfied …". Within cl 29.5, there are provisions that certain things "shall be" done, and provisions as to what "must" happen. None of those provisions impose quantitative or definite requirements. All of them require value judgments.
Counsel for the appellants submitted to me that cl 29.5 imposed requirements that had to be complied with, as distinct from specifying objectives, the non-fulfilment of which did not require a permit application to be rejected. However it is difficult to see how the requirement that a building be "designed having regard to current noise levels in the area" could be interpreted as a mandatory requirement. But it is clear that cl 29.5 at least required the current noise levels and the noise consequences of the proposed excavation to be taken into account in the making of a discretionary decision.
It would have been open to the Tribunal, in making a discretionary decision, to decide that the noise that the excavation would generate would have such adverse effects on nearby hotels, offices and businesses, and on members of the public, that, for that reason alone, a permit should be refused. It erred in law by treating the objectives in cl 29.5 as being incapable of providing a basis for refusing a permit. Ground 4 must therefore succeed.

Constructive failure to exercise jurisdiction? (Ground 5)

Ground 5 reads as follows:
"The Tribunal erred by way of a constructive failure to exercise jurisdiction in failing, pursuant to cl 16.2(j) and/or cl 29.5 of the Scheme, to ensure that the proposed excavation, as an activity within the meaning of these provisions, was managed in a way which would not cause environmental nuisance or material or serious environmental harm."
Although this ground does not expressly refer to cl 29.2 of the scheme, it adopts the language of that clause. The clause is set out at [50] above. It lists two objectives, the second of which is "To ensure that activities are managed in a way which will not cause environmental nuisance or material or serious environmental harm".
The gravamen of Ground 5 is to be found in the assertion that there was a "constructive failure to exercise jurisdiction". The meaning of that term appears in the following passage from the judgment of Gaudron J in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323, at [41]:
"… there is said to be a 'constructive failure to exercise jurisdiction' when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account." [Footnote omitted.]
The Tribunal failed to apply itself to the real question to be decided by failing to make a discretionary decision after becoming satisfied that the proposal complied with cl 16.2(j). However that is not what Ground 5 asserts. In my view it is not possible to identify on any other basis any constructive failure to exercise jurisdiction.
Clause 16.2(j) is directed towards the minimisation of environmental risk and effects when a development proceeds. The Tribunal addressed the issues relevant to that clause in its reasons at [55]-[150]. It reviewed the evidence. It noted, at [93], that the expert witnesses were unanimous that the issues that would arise in relation to dust would be best managed through a construction management plan which identified appropriate risk management strategies and prescribed obligations for the monitoring of dust and details as to what was to happen if a nominated level was exceeded. It decided at [101] that the construction management plan was to incorporate a noise management plan based on Australian Standard AS 2436 and the New South Wales 2009 Interim Guidelines. It concluded at [122] that the adoption of a "cosmetic damage standard" was appropriate in relation to vibration, and required the construction management plan to include a Vibration Management Plan established by reference to the cosmetic damage standards of Australian Standard AS 2436. Clearly the Tribunal was satisfied that Sultan's proposal met the relevant objectives and performance criteria of cl 16.2(j).
In my view the only error of law that can be identified in the Tribunal's reasoning in relation to cl 29.5 and cl 29.2 is its error in failing to make a discretionary decision. Ground 5 appears to be directed to the merits of the Tribunal's findings of fact in relation to noise and vibration. In my view it must fail.

Irrationality (Ground 5A)

Ground 5A reads as follows:
"5AThe Tribunal's decision was irrational, illogical and not based on findings or inferences of facts supported by logical grounds.
Particulars
(a) In circumstances where, at paragraph 87 the Tribunal stated that it could reach no concluded view about the duration of the excavation, it held at paragraph 150 that 'The Tribunal has adopted an approach which ensures that such work is undertaken in a short period [sic] of time as is reasonable.'
(b) At paragraph 132 the Tribunal stated that it was 'satisfied that, through the adoption of these steps, best practice outcomes can be achieved and that through that process the requisite minimisation of direct and indirect environmental risks or effects is achieved' when there was no basis to support that conclusion."

Evidence as to the likely duration of the excavation was given to the Tribunal by a number of experts including a Mr Osterman and a Mr George called by Sultan, and Mr Moore. Mr Osterman and Mr George estimated that the excavation could take 20 weeks. Mr Moore estimated that it could take as long as 40 weeks. There was evidence that the duration of the excavation would depend upon the number of blasts, the number of holes that would be drilled, the depths of the holes, the results of each blast, the weather, and any interruptions to the work. Some of the reasoning underpinning Mr Osterman's opinion as to the duration of the excavation had not been disclosed to the Tribunal or to the parties adverse to Sultan.
In its reasons at [87] to [88], the Tribunal said the following:
"87The Tribunal can reach no concluded view about the duration of the excavation. There is uncertainty about a number of matters relevant to the question, and aspects of Mr Osterman's evidence pertinent to the question are not disclosed. Accordingly they have not been tested, and judgments cannot be made about them.
88The Tribunal cannot ignore the possibility that the excavation works could take a considerable time, and it will assume for the purposes of this assessment that it could take as long as Mr Moore suggests. The real question is not 'How long will this take?' rather it is wether the direct and indirect risk of environmental harm or effects, can be managed so that they are minimised to an acceptable level. …"
As the result of reasoning that I have referred to, the Tribunal went on to decide that the environmental risks should be managed through a construction management plan, that that plan was to incorporate a noise management plan based on Australian Standard AS 2436 and the New South Wales 2009 interim guidelines, and that the plan was also to include a vibration management plan based on the cosmetic damage standards of the same Australian Standard. It was after reaching those conclusions that the Tribunal made the comment in [132] which is complained of in Ground 5A(b). The paragraph in question reads as follows:
"132The Tribunal is satisfied that, through the adoption of these steps, best practice outcomes can be achieved and that through that process the requisite minimisation of direct and indirect environmental risk or effects, is achieved."
The Tribunal then decided to give effect to its conclusions by amending Condition 9 of the permit. It set out the full text of the revised Condition 9 in its reasons at [148], and then made the following concluding remarks:
"Concluding remarks
149The Tribunal accepts that the excavation phase of this project will have impacts. Such impacts are inevitable with any development, but these will occur in relatively close proximity to a hotel and offices. It is recognised in the evidence and in the publications pertaining to vibration management, that significant benefit accrues if people are warned before activities which will generate excessive noise and / or vibration occur. That practice must be observed in the carrying out of these works. Furthermore, the information should be distributed within a wide radius of the subject site, and not less than 2 kilometres therefrom.
150The Tribunal has adopted an approach which ensures that such work is undertaken in as short a period of time as is reasonable whilst ensuring that activities are controlled by reference to days of the week and hours of the day and subject to continuous monitoring. That is why it has limited the hours of work for excavation (drilling, blasting, and removal of materials). It cannot be more prescriptive. Implicitly, in the making of the requirement for these conditions it is intended that the excavation will proceed at such pace as is necessary to ensure the minimisation of impacts whilst assuring reasonable rates of progress and the overall development of the site. It is incumbent upon the Developer to carry out that work with appropriate regard to the interests of its neighbours and not with ambivalence towards them. Neighbours will be required to tolerate some inconvenience in the interests of the long term benefits which will flow from development of this site."
It is on the basis of the Tribunal's statements in [87], [132] and [150] that Ground 5A asserts that its decision was "irrational, illogical and not based on findings or inferences of facts supported by logical grounds". Those contentions have no merit at all.
The appellants are obviously aggrieved by the Tribunal's decision. Since they may only appeal on questions of law, the focus must be on the legality of the Tribunal's decision-making rather than the quality of its value judgments.
I have previously expressed the view that an assertion that reasoning on the part of the Tribunal was illogical or irrational does not raise a question of law within the scope of s 25(1) of the RMPAT Act: St Helen's Area Land Care & Coast Care Group Inc v Break O'Day Council [2007] TASSC 15, 16 Tas R 169 at [54]. However there is a developing body of case law that suggests that it may be an error of law "to make a decision which is irrational, illogical and not based upon findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21, 197 CLR 611 at [145]; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30, 77 ALJR 1165 at [37], [52], [173]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, 78 ALJR 992 at [37]-[38]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [40], [130]; Haritos v Federal Commissioner of Taxation [2015] FCAFC 92, 233 FCR 315 at [212]. In Osland v Secretary, Department of Justice [2010] HCA 24, 241 CLR 320 at [73], Hayne and Kiefel JJ took the view that an error of law would be made if the Victorian Civil and Administrative Tribunal made a decision that lacked a "factual substratum".
Minister for Immigration and Citizenship v SZMDS (above) concerned a decision of the Refugee Review Tribunal and provisions of the Migration Act 1958 (Cth). In that case Crennan and Bell JJ said at [130]:
"In the context of the Tribunal's decision here, 'illogicality' or 'irrationality' sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, … is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person."
In Minister for Immigration and Citizenship v Li [2013] HCA 18, 249 CLR 332, which concerned a decision of the Migration Review Tribunal, Hayne, Kiefel and Bell JJ said at [76]:
"As to the inferences that may be drawn by an appellate court, it was said in House v The King(1936) 55 CLR 599 at 505 that an appellate court may infer that in some way there has been a failure properly to exercise the discretion 'if upon the facts [the result] is unreasonable or plainly unjust'. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification."
It should be noted that Ground 5A relates only to findings by the Tribunal relating to the likely duration of the excavation and the appropriate means to achieve best practice outcomes and the minimisation of environmental risks and effects. The conclusions of the Tribunal as to those matters have a factual substratum. The reasons that led to those conclusions are clear and intelligible. Minds might differ as to whether the Tribunal's conclusions as to those matters were correct. But it cannot be said that the Tribunal's conclusions in relation to the issues to which Ground 5A relates lacked "an evident and intelligible justification", nor that those conclusions were illogical or irrational. If illogicality or irrationality in the Tribunal's decision-making does amount to an error of law, there was no such error in this case. Ground 5A must therefore fail.

Finality (Ground 6)

Ground 6 reads as follows:
"6In varying the permit granted by the Second Respondent by amending condition 9 (which required a Construction Management Plan) the Tribunal erred in issuing a purported final approval of the proposal which impermissibly:
(a) Deferred determination of the impacts of excavation for subsequent consideration by the Second Respondent and thereby authorised a development without assurance of compliance with the scheme;
(b) Deferred for subsequent determination an essential element of the proposal therefore depriving the approval of finality."
In Mison v Randwick Municipal Council (1991) 23 NSWLR 734, the New South Wales Court of Appeal held that if a purported development consent leaves for later decision an important aspect of the development which would alter the proposed development in a fundamental respect, then the consent is not a valid exercise of the relevant statutory power. There is no doubt that the same principle applies to the granting of planning permits under the LUPA Act. The appellants contend that the Tribunal impermissibly left for later decision important aspects of the excavation which could or would alter Sultan's proposed development in a fundamental respect by making provision for a construction management plan and its contents. The respondents contend that the matters left for later decision were matters of detail, and that the principle discussed in Mison was therefore not offended.
Mison concerned the development of residential land facing a waterfront reserve in a beachside suburb of Sydney. The local council purported to give a development consent that was subject to certain conditions, including one that the overall height of the dwelling house was to be reduced to the satisfaction of the council's chief town planner. Priestley JA, with whom Clarke JA and Meagher JA agreed, held that that condition resulted in the invalidity of the purported consent. His Honour said at 739:
"The result of the imposition of the condition was to leave unknown what the height of the building would turn out to be. The appellants might well ask the question what that height would be if the development consented to went to completion. It is quite clear that a precise answer to that question is impossible. That, in my opinion, does not of itself mean that finality and certainty, in a substantial sense, were lacking. However, the further and more general question, within what range will the height of the building be, seems likewise to admit of no answer. This seems to me to be fatal to the contention that the consent was sufficiently final and certain in what was in my opinion an important aspect of it, to be regarded as a consent in fact to a particular application, and consequently, in the circumstances of the present case, as a consent in point of law."
That case was cited with approval in Winn v Director-General of National Parks and Wildlife [2001] NSWCCA 17, 130 LGERA 508. That case concerned a development consent permitting sand mining in an area near Newcastle. Condition 64 of the development consent permitted the subject area to be mined once only, "unless with the consent in writing of the Minister for Mines and the Board [the Hunter District Water Board] first had and obtained and subject to such conditions as they may stipulate". Condition 17 provided that mining was restricted to such depths as might be approved by the Minister and the Board, that mining was not permitted at levels below those stipulated by the Board, and that the mining company was each year to submit to the Board its proposals defining the extent of mining, and every six months resubmit plans for approval by the Board of the extent of mining proposed during the six monthly interval. The majority (Spigelman CJ and Powell JA, Stein JA dissenting) held that both the rider to Condition 64 and Condition 17 were valid.
In this case, the Tribunal's amended Condition 9 contains the following:
"Construction management plans for the excavation and construction works must be prepared. The construction management plan for the excavation works must be submitted to and approved by the Council's General Manager prior to the commencement of the excavation works.
The construction management plans must include:
…
(iii)A Dust Management Plan including an air quality protocol to outline measures to minimise impacts from the works on local air quality particularly regarding dust generated from the work and continuous continuous [sic] video monitoring;
(iv)a noise and vibration management protocol, Including a Vibration Management Plan established by reference to Cosmetic Damage Standards as provided for in the Australian Standard AS2436-2010; and details of measures to mitigate and manage noise and vibration during the works in accordance with AS 2436-2010 – Guide to Noise and Vibration Control on Construction, Demolition and Maintenance sites and New South Wales Department of Environment and Climate Change – July 2009 Interim Construction Noise Guidelines ('the Guidelines') including but not limited to:
(a)   Procedures to ensure that all reasonable and feasible noise and vibration mitigation measures are applied during operation of the construction management plan (any determination of what is reasonable and feasible is to be made by reference to the explanation of those two terms as appears at Section 1.4 of the Guidelines);
(b)   Details of all management methods and procedures that will be implemented to control individual and overall noise and vibration emissions from the site during the operation of the construction management plan;
(c)   Identification of potentially noisy works phases, such as operation of rock breakers, explosives or pile drivers if they are to be used, and proposed means to minimise impact on the amenity of neighbouring buildings;
(d)   Identification of potentially vibration causing activities, such as operation of rock drills, rock breakers, explosives or pile drivers if they are to be used and proposed means to minimise impact on the amenity of neighbouring buildings.
(e)   Identification of vibration limits for surrounding and adjoining properties and including 2 Salamanca Place.
(f)    Identification of sensitive equipment at surrounding and adjoining properties as per (e), and protocols for the protection of that equipment.
(g)   Identification of a radius within which notice of any blasting activity is to be given.
It is noted that the identification of noisy construction phases in (c) and vibration causing activities (d) does not infer an entitlement to undertake those activities if they cannot be satisfactorily managed; …".
In its reasons, the Tribunal considered Mison and Winn, and decided that it would be appropriate to provide for a construction management plan which, in its words at [137], "identified how something will be done, but does not leave unresolved what will be done". [Original emphasis.] At [139] it concluded:
"What will be done is known: there will be an excavation of land for the purposes of the construction of the development presented in the application. The minutiae of aspects of construction phase methodology, do not impact those matters." [Original emphasis.]
Counsel for the appellants made a submission to the effect that the Tribunal had erred in focusing on use, as distinct from development, for the purpose of applying the principles discussed in Mison and Winn. I disagree. It is clear from its reasons that the Tribunal was acutely aware of the applicability of the environmental requirements of the planning scheme to development activity. The amended Condition 9 left open, for later decision, questions as to the manner of excavation, as well as imposing requirements to be observed in addressing those questions. The amended condition did not leave open the possibility that the excavation would be significantly different from the excavation for which planning permission had been sought and given. Ground 6 must therefore fail.

Adequacy of reasons (Ground 7)

Ground 7 reads as follows:
"7The Tribunal erred in failing to give adequate written reasons as required by s 24 of Resource Management and Planning Appeal Tribunal Act 1993, including reasons for its findings on material questions of fact and reference to the evidence or other material on which those findings were based.
Particulars
(a) The Tribunal failed to refer to or address the evidence of Hylton White called by the Appellants in respect of the impact of blasting.
(b) The Tribunal failed to assess the evidence of Adrian Moore for the Retirement Benefits Fund Board and Hylton White for the Appellants against the evidence of Rauf Osterman and Aaron George for the First Respondent.
(c) In circumstances where, at paragraph 87, the Tribunal stated that it could reach no concluded view about the duration of the excavation, it held at paragraph 150 that 'the Tribunal had adopted an approach which ensures that such work is undertaken in as short period of time [sic] as is reasonable' and in so doing it failed to provide reasons as to this conclusion.
(d) At paragraph 132 the Tribunal stated that it was 'satisfied that, through the adoption of these steps, best practice outcomes can be achieved and that through that process the requisite minimisation of direct and indirect environmental risk or effects, is achieved' however it did not provide any adequate reasons for this conclusion."
Section 24(1) of the RMPAT Act requires the Tribunal to "give written reasons for its determination of an appeal". Section 24(2) requires those reasons to "include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based".
Section 24 requires the Tribunal only to set out the findings that it actually makes, as distinct from requiring it to make and then set out any findings additional to those which it actually made: Hobart City Council v Resource Management and Planning Appeal Tribunal [2007] TASSC 99, 17 Tas R 137, at [13]; Minister for Immigration and Multicultural Affairs v Yusuf (above) at [68].
It appears that the appellants are very much aggrieved by the fact that the Tribunal made little mention of one of their expert witnesses, Dr White. However it is not an error of law for the Tribunal not to refer to every piece of evidence that is put before it: Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294 at [57]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, 236 FCR 593 at [46]; Singh v Minister for Immigration and Multicultural Affairs [2006] FCA 1113 at [21]-[34].
The Tribunal reached conclusions as to the subject matter of Dr White's evidence without referring to him. Although he was not mentioned, there is no reason to think that the Tribunal failed adequately to reveal the reasoning that led it to revise Condition 9 in the way it did in relation to dust, noise and vibration. This ground must fail.

Refusal to issue summons (Ground 9)

During the hearing of the appeal, the appellants applied to the Tribunal for the issue of a summons requiring Sultan and others to produce documents described as "the Orica Blast Management Plan" and "the Abergeldie Blast Management Plan". The presiding member of the Tribunal has the power to issue summonses for the production of documents under s 20(2) of the RMPAT Act. The application was refused. It was heard and refused by the Tribunal, constituted by three members, not by the presiding member alone as required by s 20(2), but no point has been taken as to that.
Ground 9 reads as follows:
"9In refusing an application for a summons pursuant to s 20(3) of the Resource Management and Planning Appeal Tribunal Act 1993 of the appellants seeking production of documents and witnesses in respect of a blast management plan the Tribunal erred:
(a)   by failing to bring about a merits based result and failed to exercise its powers to ensure that it had all materials relevant to its decision; or
(b)   by making a finding in the absence of probative evidence; or
(c)   by denying the appellant [sic[ procedural fairness with respect to a matter material to the Tribunal's decision."

Materials relevant to a merits based result?

In relation to Grounds 8(a) and 9(a), the appellants relied upon the decision of Wright J in Kain v Glamorgan/Spring Bay Council [1996] TASSC 28, 90 LGERA 326. That was another appeal from a decision of the Tribunal relating to an application for a planning permit under the LUPA Act. The developer in that case wanted a permit that would enable him to sell liquor from his premises, but did not provide the Tribunal with a floor plan or other evidence to designate the proposed take-away liquor sales area of the premises. The Tribunal concluded that it did not have sufficient material to make a decision in the developer's favour, and made a decision requiring the local council to refuse a permit. It did so without first inviting the developer to submit additional evidence. Wright J allowed the appeal and remitted the matter to the Tribunal. However that case does not stand for the proposition that the Tribunal sometimes has an inquisitorial duty to acquire evidence for the purpose of a merits based decision. I think it is clear from the judgment that Wright J concluded that the Tribunal had erred by assessing the evidence as inadequate, and bringing the matter to a conclusion on that basis, despite the fact that neither party bore an onus of proof.
Further, that was a case in which the Tribunal considered the developer's evidence to be inadequate. In this case, the Tribunal considered that it had sufficient evidence to make a decision in favour of the developer. For these reasons, Kain is of no assistance to the appellants. The first limb of ground 9(a) must therefore fail.

Inadequate materials or absence of probative evidence?

Prior to the application for the issue of a summons, the Tribunal directed Sultan to produce a document described as "the Abergeldie Blast Management Plan". As a result, certain material was produced, but it appeared to be incomplete. The Tribunal concluded that, if the documents referred to in the proposed summons were in existence, relevance had not been demonstrated, and it would not be assisted by the production of the documents. It was not persuaded that there were additional documents from "Abergeldie" that had not been produced. It was not persuaded that the company referred to as "Orica" had created a blast management plan. It noted that blast management plans were ordinarily revised as an excavation proceeded.
Ground 9 appears to involve a contention that the Tribunal somehow erred in law by making its decision without having seen the documents specified in the proposed summons. The Tribunal's conclusions as to the likelihood of the documents existing cannot be impugned because they were findings of fact. The Tribunal's assessment as to the likely significance of the documents, if they existed, was also based on findings of fact. There is simply no basis for concluding that the Tribunal erred in law in deciding not to issue the summons, nor in proceeding to make a decision without having issued it.

Procedural fairness

There is no suggestion that the Tribunal denied the appellants procedural fairness in relation to their application for the issue of the summons. Ground 9(c) appears to be directed to the fact that the Tribunal proceeded to make a decision without compelling the disclosure to the appellants of the documents described in the proposed summons. Given that the Tribunal made unimpeachable findings of fact to the effect that no relevance had been demonstrated, and that the production of the documents, if they existed, would be of no assistance, it cannot be said that the Tribunal denied the appellants procedural fairness by proceeding to make a decision without them. Ground 9 must fail totally.

Power to obtain additional information (Ground 8)

Under s 54 of the LUPA Act, when an application has been made for a planning permit, the planning authority may require the applicant to provide it with additional information. The appellants contend that the Tribunal can exercise that power for the purposes of an appeal, standing in the shoes of the planning authority appealed from, pursuant to s 23(1) of the RMPAT Act. They also contend that the Tribunal erred in law by failing to exercise that power in relation to blast management plans.
Ground 8 reads as follows:
"8In failing (and/or refusing) to use its powers pursuant to s 54 of the Land Use Planning and Approvals Act 1993 to obtain documents and evidence in respect of a blast management plan the Tribunal erred:
(a) by failing to bring about a merits based result and failed to exercise its powers to ensure that it had all materials relevant to its decision; or
(b) by making a finding in the absence of probative evidence."
Ground 8(a), like Ground 9(a) asserts that the Tribunal had a duty to bring about a merits based result. That contention must fail, for the reasons stated above.
Section 23(1) of the RMPAT Act provides as follows:
"(1) For the purpose of determining an appeal, the Appeal Tribunal may exercise all the powers that are conferred by the relevant legislation on the person who made the decision that gave rise to the appeal."
It is significant that this subsection confers powers for "the purpose of determining an appeal". A distinction needs to be drawn between decision-making powers and interlocutory or investigative powers. Section 23 goes on to provide, in subs (2), that the Tribunal must make a decision in writing either affirming the decision appealed against, varying it, setting it aside and making a substituted decision, or setting it aside and remitting the matter for reconsideration. Section 23(1) and (2) are virtually identical with s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth).
In Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1978) 1 ALD 167, Brennan J, sitting as the President of the Administrative Appeals Tribunal, said at 175-176:
"Section 43(1) grants the original powers and discretions to the tribunal, but it does not require the tribunal to exercise them unless the tribunal is making a fresh order the effectiveness of which depends upon their exercise."
In West Tamar Council v Resource Management and Planning Appeal Tribunal [2015] TASFC 12, Porter J, with whose reasons Pearce J agreed, cited that paragraph and held that s 23(1) of the RMPAT Act operated in the same way. It must follow that s 23(1) conferred on the Tribunal only those powers that the council could exercise as a planning authority at the decision-making stage, and not the power to require additional information, which is exercisable only at an earlier stage.
In that case, Porter J went on to hold, at [12], that the Tribunal is bound by the limitations and conditions imposed on a planning authority when its source of power is s 23(1). It follows that if, as asserted by the appellants, the Tribunal was entitled to exercise the powers conferred by s 54(1) of the LUPA Act, then it was bound by the limitations and conditions imposed by that subsection. The subsection reads as follows:
"(1) A planning authority that receives an application for a permit (other than a permit referred to in section 43A) may —
(a) if the permit sought is a discretionary permit, by notice in writing served on the applicant within the period of 21 days from the day on which it receives the application; or
(b) if the permit sought is not a discretionary permit, by notice in writing served on the applicant within the period of 14 days from the day on which it receives the application —
require the applicant to provide it with additional information before it considers the application."
When the proceedings were before the Tribunal, the time limit imposed by s 54(1)(a) had expired. Further, it was not the Tribunal that had received the application for a permit. That application was received by the council. It follows that, even if I am wrong about the effect of s 23(1) of the RMPAT Act, the Tribunal could not require the provision of additional information pursuant to s 54(1). Ground 8 must therefore fail.

Mr Osterman's trade secrets (Ground 11)

This ground reads as follows:
"11The Tribunal erred in law in having regard to the evidence of Mr Rauf Osterman in respect of blasting in circumstances where the material on which his opinion was based was not disclosed to the Tribunal, or the other parties, so that it, and his opinion, could be properly tested."
Mr Osterman, one of Sultan's expert witnesses whom I have earlier referred to, was an engineer whose evidence related to blasting and vibrations. In the course of the hearing, after he had completed his evidence, he was recalled to give further evidence in response to some unproofed evidence from one of the appellants' witnesses. A further witness statement by him was prepared. Some parts of that statement were objected to by counsel for the appellants. The Tribunal embarked upon the process of ruling upon the objections. Counsel for Sultan elected not to rely upon portions of the witness statement that related to trade secrets. The objection was taken no further. No attempt was made to cross-examine about the so-called trade secrets. The Tribunal did nothing to restrict cross-examination.
Ground 11 therefore does not raise any issue relating to procedural fairness. The Tribunal simply made a decision on the basis of the evidence that had been presented to it, including such evidence as was elicited by the cross-examination of Mr Osterman. There was no error of law in the Tribunal so proceeding when the disclosure of certain material had neither been offered nor sought. Ground 11 must therefore fail.

Conclusion

Only ground 4 has succeeded. Because it has succeeded, I have decided to allow the appeal, set aside the decision of the Tribunal, and remit the matter to the Tribunal for reconsideration with a direction that there is to be a new hearing of appeal 20/15P before different members, or a different member, of the Tribunal.