Krulow v Glamorgan Spring Bay Council - [2013] TASFC 11

[2013] TASFC 11

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Krulow v Glamorgan Spring Bay Council [2013] TASFC 11

PARTIES:  KRULOW, Ronald
  KRULOW, Sarah
  v

GLAMORGAN SPRING BAY COUNCIL

FILE NO: 783/2013
JUDGMENT

APPEALED FROM: Krulow v Glamorgan Spring Bay Council [2013]

TASSC 33

DELIVERED ON:  22 October 2013
DELIVERED AT:  Hobart
HEARING DATE:  4 October 2013
JUDGMENT OF:  Blow CJ, Porter and Estcourt JJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Civil Enforcement Orders of the Resources Management and Planning Appeal Tribunal – Prosecution for failure to comply – Defence that orders invalid and cannot be basis for prosecution - Whether order affected by jurisdictional error remains valid and effective unless and until quashed and set aside in proceedings instituted for that purpose – Whether order of the Tribunal was open to collateral challenge.

Land Use Planning and Approvals Act 1993 (Tas), ss20(3), 20(3A), 20(4), 20(5), 20(6), 63, 64, 65.
Resource Management and Planning Appeal Tribunal Act1993 (Tas).
Purton v Jackson [2012] TASFC 2; Craig v South Australia (1995) 184 CLR 163; Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; R v Wicks [1998] AC 92; Kirk v Industrial Courtof New South Wales (2010) 239 CLR 531, considered.
Aust Dig Magistrates [1349]

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal and its predecessors – Other matters – Potential inconsistency between Civil Enforcement Order made by the Tribunal and pre-existing right under the Land Use Planning and Approvals Act 1993 – Whether there had been jurisdictional error - Whether order affected by jurisdictional error remains valid and effective unless and until quashed and set aside in proceedings instituted for that purpose – Whether order of the Tribunal was open to collateral challenge - Whether failure to raise pre-existing rights at the time the Civil Enforcement Order was made constitutes waiver of those rights.

Land Use Planning and Approvals Act 1993 (Tas), ss20(3), 20(3A), 20(4), 20(5), 20(6), 63, 64, 65.
Resource Management and Planning Appeal Tribunal Act1993 (Tas).
Supreme Court Rules 2000 (Tas), r664(3).
Supreme Court Civil Procedure Act 1932 (Tas), s47(3).
Purton v Jackson [2012] TASFC 2; Craig v South Australia (1995) 184 CLR 163; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 87 ALJR 131; Gray v Woollahra Municipal Council [2004] NSWSC 112; Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568; Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; R v Wicks [1998] AC 92; Kirk v Industrial Courtof New South Wales (2010) 239 CLR 531; Commonwealth v Verwayen (1990) 170 CLR 394; Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570, considered.
Aust Dig Environment and Planning [600]

REPRESENTATION:

Counsel:
             Appellants:  S B McElwaine SC and D Coombes
             Respondent:  M E O'Farrell SC and M Edwards
Solicitors:
             Appellants:  Shaun McElwaine + Associates
             Respondent:  Abetz Curtis

Judgment Number: [2013] TASFC 11
Number of paragraphs: 183

Serial No 11/2013
File No 783/2013

RONALD KRULOW and SARAH KRULOW v
GLAMORGAN SPRING BAY COUNCIL

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
PORTER J
ESTCOURT J
22 October 2013

Order of the Court

Appeal dismissed.

Serial No 11/2013
File No 783/2013

RONALD KRULOW and SARAH KRULOW v
GLAMORGAN SPRING BAY COUNCIL

REASONS FOR JUDGMENT FULL COURT

BLOW CJ
22 October 2013

I have read the judgment of Estcourt J in draft form. I agree that the appeal should be dismissed, for the reasons stated by him. On the basis of his reasoning, the following conclusions can be stated:

· If there was any inconsistency between any rights that the appellants had by virtue of s20(3) of the Land Use Planning and Approvals Act 1993 ("the LUPA Act") and the order made by the Resource Management and Planning Appeal Tribunal under s64(3) of that Act, there was no jurisdictional error by reason of any such inconsistency, and the tribunal's order was not a nullity by reason of any such inconsistency, but was a valid and effective order.
· When the application for the s64(3) order was before it, the tribunal was not obliged to initiate an investigation as to whether the appellants (the respondents to that application) had pre-existing use rights in relation to the subject land by virtue of s20(3).
· When a s64(3) order is affected by jurisdictional error, it remains a valid and effective order unless and until it is quashed or set aside in proceedings instituted for that purpose.
· Such an order is not open to collateral challenge.
· If the appellants had any pre-existing use rights by virtue of s20(3) of the LUPA Act, they must be taken to have waived those rights as a result of not asserting them during the proceedings before the tribunal when the s64(3) order was sought and obtained.
· On the hearing of a charge under s64(7) of the LUPA Act in the Magistrates Court, the complainant is not obliged to prove beyond reasonable doubt that the defendant had no pre-existing use rights inconsistent with the order whose contravention is alleged.

File No 783/2013

RONALD KRULOW and SARAH KRULOW v
GLAMORGAN SPRING BAY COUNCIL

REASONS FOR JUDGMENT FULL COURT

PORTER J
22 October 2013

I agree that the appeal should be dismissed for the reasons given by Estcourt J save as to the question of waiver, which I do not find necessary to decide. With that reservation, I also agree with the conclusions to be drawn from those reasons, as stated by Blow CJ.

File No 783/2013

RONALD KRULOW and SARAH KRULOW v
GLAMORGAN SPRING BAY COUNCIL

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
22 October 2013

The appeal

This appeal is against the decision of the learned primary judge, Wood J, who held that an order of the Resource Management and Appeal Tribunal ("the Tribunal"), made pursuant to the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s64, but made, potentially in breach of s20(3) of the LUPA Act, has effect until set aside by the Supreme Court on appeal and is capable of founding a prosecution in the Magistrates Court pursuant to the LUPA Act, s64(7). Her Honour also held that as a matter of statutory construction, collateral challenge to the orders of the Tribunal was not available by way of defence to the prosecution.

For the reasons that follow I am of the view that her Honour was correct.

Background to the appeal

The following summary of the planning history involved is taken from the learned primary judge's reasons for judgment Krulow v Glamorgan Spring Bay Council [2013] TASSC 33 at [3] - [8]:

"3 In November 2008, in proceedings before the Resource Planning and Development Commission, the applicants sought the granting of a permit under the LUPA Act, and an amendment to the Glamorgan Spring Bay Planning Scheme 1994. The amendment was to insert in a particular clause of the Scheme, a specified departure with respect to a single title at Cruttenden Street, Buckland, the site of the applicants' business, to allow the use of the land for general industry. The property is zoned Rural and without the amendment, general industry was prohibited under the Scheme. Processing, selling and distributing of sandstone is general industry. On 27 November 2008 the amendment to the Planning Scheme was made. It made discretionary the use of the land in question for the purpose of a general industry, processing, selling and distributing sandstone. The Commission granted a planning permit to the applicants to allow the use of the land as General Industry for the processing, selling and distribution of sandstone and for use or development subject to conditions and restrictions. One of the conditions, numbered 12, was that:
'The proposed sprinkler system and any other appropriate measures to eliminate dust shall be installed and fully commissioned within three (3) months of the date of this permit coming into effect to the satisfaction of Council's Environmental Health Officer and shall be maintained in effective operational order thereafter.'

4 The date of the permit was 4 December 2008.
5 The conclusion of the Commission's decision noted in part that:
'The sandstone works is operational and carries certain existing use rights having been established prior to the current planning scheme taking effect. The draft amendment and permit brings the activity under the planning scheme and a set of permit conditions regulating the activity that previously did not exist'.

…
7 Subsequently, civil enforcement proceedings were brought by the Glamorgan Spring Bay Council against the applicants to enforce the requirements of the planning permit. The proceedings were brought under s64 of the LUPA Act, and heard by the Appeal Tribunal. After the commencement of the hearing, agreement was reached between the parties. By consent of the applicants, orders were made by the Appeal Tribunal, as mentioned, on 9 December 2009. These are the orders the subject of the prosecution, and central to this review. These orders in part, are as follows:
'3         The Appeal Tribunal, by the consent of those parties, makes the following orders:
a)        That the Respondents undertake all works necessary to satisfy the requirements of the Planning Permit No DA08078 (the 'Permit') the subject of this application within the time frames set out in the Permit but:
i)         commencing from 1 January 2010; and
ii)        amended to extend the period of three (3) months prescribed for compliance with condition twelve (12) of the permit concerning installation of the proposed sprinkler system to a period of five (5) months.

b) In the event that the Respondents fail to comply with the first order, they must refrain from carrying on the use of General Industry (processing, selling and distributing sandstone) on the site until such time as all outstanding conditions of the Permit have been satisfied in full.'

8 The effect of Part 3(a) of the conditions was to extend a deadline previously set out in the permit for the applicants to install and commission sprinkler infrastructure on the site in accordance with the permit to no later than 31 May 2010."

The appellants were charged with breaching the orders made by the Tribunal, contrary to s64(7) of the LUPA Act. They pleaded not guilty to the charge.

At the hearing before the learned magistrate it was conceded that the appellants had breached the order by failing to install the sprinkler infrastructure and that they had continued to conduct their business in breach of the order. Their defence to the complaint was that the orders were invalid due to jurisdictional error which, in turn, raised the question of whether the Tribunal's order could be challenged in the prosecution.

The learned primary judge set out the following history of the proceedings before the learned magistrate:

"The proceedings before the magistrate
12 The defence led evidence concerning the issue of the applicants having had existing non-conforming use rights over the land that was the subject of the orders.
13 The defence argued that the Appeal Tribunal did not have jurisdiction to make orders which affected or purported to require the cessation of any existing use rights which the defendants had in respect of the land. There was reliance on s20(3) of the LUPA Act and it was submitted that there is no power for a council to make amendments to a planning scheme which prevents the continuance of any pre-exiting lawful use of land, building, or works which use existed before the planning scheme commenced.
14 It was submitted that the orders of the Appeal Tribunal were not valid and had no legal effect. It follows that no person may be guilty of an offence where what that person is doing is protected by the existing use right provisions of s20(3).
15 The learned magistrate did not make factual findings as to the existence or non-existence of such rights. She considered the preliminary question of whether there had been jurisdictional error. The learned magistrate applied the meaning of jurisdictional error in Craig v South Australia (1995) 184 CLR 163, at 176 - 179. She reached the view that the argument put by the applicants did not qualify as an argument that the orders were tainted by jurisdictional error. She attached significance to the fact that the applicants had consented to the orders. She stated that their consent is 'an implied acceptance by them that there is not a bar to the orders being made in the terms articulated i.e., they do not purport to have existing land use rights which may bar the orders being made'. She added, 'In my view this does not constitute or amount to an argument about jurisdictional error being made by the Tribunal. In these circumstances I consider the orders made by the Tribunal to be valid.' Various submissions by the applicants and authorities relied upon were considered by the learned magistrate in the course of reaching these conclusions." (Emphasis added)

After the passages above that I have italicised, the learned magistrate went on immediately to consider a further submission made on behalf of the appellants that she had to be satisfied that the Tribunal had made a legally effective order before she could consider whether there had been any breach of the order. Her Honour held that the cases relied upon for that proposition did not support it. She then said "[g]iven the above I am satisfied that this Court can consider the orders of the Tribunal as valid".

It is thus clear that the learned magistrate based her decision as to the validity of the Tribunal's orders, in a large part, upon the fact of the appellants' consent to those orders. On the motion to review there was no challenge to her Honour's decision focussing on that part of her reasoning, although arguably such a challenge might be embraced by the first of the grounds set out in the notice to review.

The learned magistrate went on to find the complaint proved and recorded a conviction and ordered the appellants to pay court costs.

The appellants moved in this Court to review the magistrate's decision on the grounds first, that she erred in her determination that she could, without inquiry, consider the orders of the Tribunal as valid; and second, that in failing to determine whether the orders were valid "as a necessary precondition" to her finding that the appellants were in breach of the orders.

Before the learned primary judge, senior counsel for the appellants, Mr McElwaine, contended that the if the Tribunal's orders were not valid, in the sense that the Tribunal exceeded its jurisdiction, then the order is without legal effect and, as a consequence, the appellants cannot be guilty of having acted contrary to it.

He argued that the appellants could not, by consent, confer jurisdiction upon the Tribunal to make the orders if it lacked jurisdiction.

As to the question of whether the Tribunal's order could be challenged in the prosecution, counsel for the appellants argued that this Court did not need to be concerned with collateral challenge having regard to his primary submission that the orders of the Tribunal were invalid and of no effect because the validity of the Tribunal's orders was not merely an incident in determining other issues, it was the central issue in the prosecution.

In the alternative, counsel argued that the Tribunal's orders were to be characterised of an administrative nature, and open to collateral challenge.

The learned primary judge proceeded to identify four issues arising on the appeal at [23], as follows:

"Issues
23  The following issues arise for consideration:
(1)       A potential flaw in the orders
If the applicants have existing use rights, would that mean that the orders of the Appeal Tribunal were flawed because they were in breach of the Act? Put another way, do the terms of the Act oblige the Appeal Tribunal to not make orders that impinge on a person's existing use rights?
(2)       Jurisdictional error
Was the learned magistrate correct to regard the assertion of existing use rights as a matter which could not be characterised as an assertion of jurisdictional error?
(3)       Status and consequence of the orders
If the making of the orders may have been in breach of the Act, as set out in (1) above, an issue arises as to the status and consequence of the orders. Would the applicants have been entitled to treat the orders as if they did not exist, without a court order or declaration to that effect? Or was the status and consequence of the orders such that, notwithstanding any defect in the orders, they remained valid or effective, until set aside by a court of competent jurisdiction in competent proceedings?
(4)       Availability of collateral challenge
If the orders were effective until set aside, were the applicants permitted to challenge the validity of the orders by way of a defence in a prosecution for contravening those orders? Alternatively, was the only challenge that could be brought restricted to the appeal process, or an application for judicial review under the Judicial Review Act 2000 (Tas) or relief in the nature of certiorari and mandamus."

As to these four identified issues, her Honour decided, respectively; that depending on the evidence, and the findings to be made by the learned magistrate, the Tribunal may have been in breach of the LUPA Act, s20(3), in making the orders; that there was uncertainty about whether in fact the Tribunal's orders fell "on the jurisdictional error side of the line"; that an order of the Tribunal made pursuant to s64, but made in breach of the LUPA Act, has effect until set aside by the Supreme Court on appeal and is capable of founding a prosecution pursuant to the LUPA Act, s64(7); and that as a matter of statutory construction, collateral challenge to the Tribunal's orders was not available.

The legislation

Sub-sections 20(3), (3A), (4), (5) and (6) of the LUPA Act provide as follows:

"20 What can a planning scheme provide for?
…
(3) Subject to subsections (4), (5) and (6), nothing in any planning scheme is to –
(a)prevent the continuance of the use of any land, upon which buildings or works are not erected, for the purposes for which it was being lawfully used before the coming into operation of the scheme; or
(b)prevent the use of any building which was erected before that coming into operation for any purpose for which it was lawfully being used immediately before that coming into operation, or the maintenance or repair of such a building; or
(c)prevent the use of any works constructed before that coming into operation for any purpose for which they were being lawfully used immediately before that coming into operation; or
(d)prevent the use of any building or works for any purpose for which it was being lawfully erected or carried out immediately before that coming into operation; or
(e)require the removal or alteration of any lawfully constructed buildings or works; or
(f)prevent a development, which was lawfully commenced but not completed before the coming into operation of the scheme, from being completed within –
(i) 3 years of that coming into operation; or
(ii) any lesser or greater period specified in respect of the completion of that development under the terms of a permit or special permit granted before the coming into operation of the scheme.

(3A) Subject to subsections (4) and (6), nothing in a planning scheme is to prevent the reconstruction of a building, or restoration of works, destroyed or damaged, which was or were integral and subservient to a lawfully established existing use that does not conform to the scheme if –

(a)the destruction or damage was not caused intentionally by the owner of that building or those works; and
(b)the building or works was or were lawfully established before the coming into operation of the scheme.

(4) Subsections (3) and (3A) do not apply to a use of land–
(a) which has stopped for a continuous period of 2 years; or
(b)which has stopped for 2 or more periods which together total 2 years in any period of 3 years; or
(c)in the case of a use which is seasonal in nature, if the use does not take place for 2 years in succession.

(5) Subsection (3) does not apply to the extension or transfer from one part of a parcel of land to another of a use previously confined to the first-mentioned part of that parcel of land.
(6) Subsections (3) and (3A) do not apply where a use of any land, building or work is substantially intensified."

Section 63 of the LUPA Act provides as follows:

"63 Obstruction of sealed schemes
(1) …
(2) A person must not use land in a way, or undertake development or do any other act, that –
(a) is contrary to a State Policy, a planning scheme or special planning order; or
(b) impedes or obstructs the execution of any such scheme or order; or
(c)constitutes a breach of a condition or restriction of a permit imposed by a planning authority pursuant to any such scheme or order or a determination of the Appeal Tribunal; or
(d)constitutes a breach of section 60H(2) or of a condition or restriction imposed under section 60U, as amended, if at all, under section 60X, on a special permit granted in relation to the land.

(3) A person who contravenes subsection (2) is guilty of an offence punishable, on summary conviction, in accordance with subsection (4).
(4) A person convicted of an offence against subsection (3) is liable to a fine not exceeding 500 penalty units, and a person who is so convicted in respect of a continuing contravention of subsection (2) –
(a)is liable, in addition to the penalty otherwise applicable to that offence, to a fine for each day during which the contravention continued of not more than 50 penalty units; and
(b)if the contravention continues after the person is convicted, is guilty of a further offence against subsection (3) and is liable, in addition to the penalty otherwise applicable to that further offence, to a fine for each day during which the contravention continued after that conviction of not more than 50 penalty units.

(5) Where a person is convicted of an offence against subsection (3), the court may –
(a)in addition to any fine imposed under subsection (4), order that the person pay to the planning authority the reasonable cost incurred by the authority in carrying out any work so as to ensure that the use or development is in accordance with the relevant planning scheme, special planning order, permit, special permit or determination; and
(b)direct that payment of the amount so ordered to be paid may be enforced in the manner provided by section 44 of the Sentencing Act 1997 as if the person convicted had been adjudged to pay that amount in a conviction or order made by justices.

(6) The application of subsection (2) extends in relation to a permit or a condition or restriction attaching to a permit under a planning scheme or special planning order where the scheme or order was in force immediately before the commencement of this Act and notwithstanding that the permit or the condition or restriction, if any, was imposed before that commencement.
(7) Nothing in subsection (6) is to be construed as rendering unlawful any use or development that was completed pursuant to a permit in force before the commencement of this Act."

Section 64 of the LUPA Act provides as follows:

"64 Civil enforcement proceedings
(1) Where a person contravenes or fails or is likely to contravene or fail to comply with a provision of this Part, the Commission, a planning authority or a person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter may apply to the Appeal Tribunal for an order under this section.
(2) The application may be made ex parte and, if the Appeal Tribunal is satisfied that there are sufficient grounds, it must issue a summons requiring the respondent to appear before the Appeal Tribunal to show cause why an order should not be made under this section.
(2A)     If an application under this section is made by a person other than the planning authority in whose municipal area is situated the land to which the application relates, the planning authority is taken to be a party to the application.
(2B)     At any time after receiving an application made under this section by a person other than the planning authority in whose municipal area is situated the land to which the application relates, the Appeal Tribunal may direct that the planning authority be made an applicant in the application.
(2C)     At any time after receiving an application made under this section by a person other than the Commission, the Appeal Tribunal on the request of the Commission may direct that the Commission be made an applicant in the application.
(3) If –
(a) after hearing–
(i)   the applicant and the respondent; and
(ii) any other person who has, in the opinion of the Appeal Tribunal, a proper interest in the subject matter of the proceedings and desires to be heard in the proceedings–

the Appeal Tribunal is satisfied, on the balance of probabilities, that the respondent to the application has contravened or failed or is likely to contravene or fail to comply with a provision of this Part; or
(b)the respondent fails to appear in response to the summons or, having appeared, does not avail himself or herself of an opportunity to be heard –

the Appeal Tribunal may, by order –
(c)require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the contravention of, or failure to comply with, this Part; and
(d)preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates; and
(e)require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal.

(4) Any person with a legal or equitable interest in land to which an application under this section relates is entitled to appear and be heard in proceedings based on the application before a final order is made.
(5) If, in proceedings under this section, the Appeal Tribunal is satisfied that, in order to preserve the rights or interests of parties to the proceedings or for any other reason, it is desirable to make a temporary order under this section, the Appeal Tribunal may at any time during those proceedings make such an order.
(6) A temporary order –
(a)may be made on an ex parte application before a summons has been issued under subsection (2); and
(b)may be made subject to such conditions as the Appeal Tribunal thinks fit, including a condition that requires an undertaking by the applicant, not being a planning authority or the Crown, at whose instance the temporary order is granted to pay to the respondent any damages that the respondent may sustain because of the order; and
(c)is not to operate after the proceedings in which it is made are finally determined.

(6A)     An application for an order for payment of damages is to be made to the Appeal Tribunal.
(6B)     The Appeal Tribunal may order the applicant at whose instance the temporary order is granted to pay all or part of the damages, as determined by the Appeal Tribunal, that the respondent may sustain because of the order.
(7) A person who contravenes, or fails to comply with, an order or a temporary order under this section is guilty of an offence.
Penalty:
Fine not exceeding 500 penalty units.
(8) Where the Appeal Tribunal makes an order under subsection (3)(e) and the respondent fails to comply with the order within the period specified by the Appeal Tribunal, the Commission or a planning authority may, by leave of the Appeal Tribunal, cause any work contemplated by the order to be carried out, and may recover the costs of that work, as a debt, from the respondent.
(9) The Appeal Tribunal may, if it thinks fit, adjourn proceedings under this section in order to permit the respondent to make an application for a permit that should have been but was not made, or to remedy any other default.
(10)     The Appeal Tribunal may, on an application under this section, exercise the powers conferred on it by section 62(1) in relation to any use or development of land as if the application were a hearing of an appeal.
(11) For the purposes of the Resource Management and Planning Appeal Tribunal Act 1993, an application under this section is deemed to be an appeal.
(12)     The Appeal Tribunal must make such orders in relation to the costs of proceedings under this section as it thinks fit and in making such orders must take into account –
(a) the result of the proceedings; and
(b) whether a party has raised frivolous or vexatious issues at the hearing; and
(c)whether any party has unnecessarily or unreasonably prolonged the hearing or increased the costs of it; and

(d) the capacity of the parties to meet an order for costs.
(13)     If the Appeal Tribunal is of the opinion that an application under this section is frivolous or vexatious, the Appeal Tribunal must dismiss the application and order the applicant to pay an amount determined by the Appeal Tribunal as being the costs of the proceedings in relation to the application and the costs of any person referred to in subsection (3)(a)(ii).
(14)     An order under subsection (12) or (13) may be registered in a court having jurisdiction for the recovery of debts up to the amount ordered to be paid by or under the order.
(15)     Proceedings for the enforcement of an order under subsection (13) may be taken as if the order were a judgment of the court in which the order is registered.
(16)     Proceedings under this section may be commenced at any time within 24 months after the date of the alleged contravention of, or failure to comply with, a provision of this Part."

Section 65 of the LUPA Act provides as follows:

"65 Appeal in respect of decision of Appeal Tribunal under section 64
(1) Subject to the Rules of the Supreme Court, an appeal lies to the Supreme Court against –
(a)an order of the Appeal Tribunal made in the exercise of the jurisdiction conferred by section 64; or

(b) a decision by the Appeal Tribunal not to make an order under that section.
(2) An appeal under this section must be instituted within 30 days of the date of the decision or order subject to appeal or such longer period as may be allowed by the Supreme Court."

A false premise underpinning the appellants' case

In his written submissions, on the present appeal, senior counsel for the appellants, Mr McElwaine SC, contended that:

" … the question for present purposes is whether an order, infected by jurisdictional error, has the character of an order made pursuant to section 64(3)? The jurisdiction of the Tribunal is only engaged where a person contravenes, fails or is likely to contravene or fail to comply with a provision of Part 4, which includes section 63. In substance this requires that a person must not use land in a way, or undertake development, that is contrary to a planning scheme. Self-evidently if the appellants enjoyed the benefit of an existing non-conforming use right, protected by section 20(3), then, and to that extent, no contravention is capable of being established. As a consequence the Tribunal, plainly, has no jurisdiction." (Emphasis added.)

In my view, that premise, restated in the written reply submissions of senior counsel for the appellants in only slightly different language, is unsustainable. It is a false premise that underpins the appellants' arguments before the learned magistrate, before the learned primary judge and before this Court.

It is correct to say that s63(2)(a) of the LUPA Act provides that "a person must not use land in a way, or undertake development or do any other act, that … is contrary to … a planning scheme …", but more relevantly to the present case and more importantly, s63(2)(c) provides that "a person must not use land in a way, or undertake development or do any other act, that… constitutes a breach of a condition or restriction of a permit imposed by a planning authority pursuant to any such scheme." (Emphasis added)

In the present case the appellants were, admittedly, in breach of a condition of PLANNING PERMIT NO DA08078 issued by the respondent in the form approved by the Resource Planning and Development Commission on 4 December 2008.

The condition breached was that numbered 12 in the permit and provided that:

"The proposed sprinkler system and any other appropriate measures to eliminate dust shall be installed and fully commissioned within three (3) months of the date of this permit coming into effect to the satisfaction of Council's Environmental Health Officer and shall be maintained in effective operational order thereafter."

On the respondent's application to the Tribunal for civil enforcement of condition 12 pursuant to s64 of the LUPA Act, the Tribunal, as has already been observed, made, relevantly, the following orders:

"3   The Appeal Tribunal, by the consent of those parties, makes the following orders:
a)   That the Respondents undertake all works necessary to satisfy the requirements of the Planning Permit No DA08078 (the 'Permit') the subject of this application within the time frames set out in the Permit but:
i)    commencing from 1 January 2010; and
ii)   amended to extend the period of three (3) months prescribed for compliance with condition twelve (12) of the permit concerning installation of the proposed sprinkler system to a period of five (5) months.
b)   In the event that the Respondents fail to comply with the first order, they must refrain from carrying on the use of General Industry (processing, selling and distributing sandstone) on the site until such time as all outstanding conditions of the Permit have been satisfied in full."

Those orders do not impermissibly infringe the pre-existing use rights asserted by the appellants.

Nor can it be said, as contended by senior counsel for the appellants, that because of the existence of the asserted pre-existing use rights, then, "to that extent, no contravention is capable of being established".

The reason is that, whatever pre-existing use right the appellants had that might be said to prevent them from being seen as using land in a way that is contrary to a planning scheme, within the meaning of s63(2)(a) of the LUPA Act, they were unarguably in breach of a planning permit within the meaning of s63(2)(c) of that Act and as such were amenable to the jurisdiction of the Tribunal under s64.

The relevant contravention for the purposes of the exercise of the Tribunal's jurisdiction was a contravention of the planning permit and not one of the planning scheme.

The Tribunal's orders were not in any way an abnegation of the appellants' pre-existing use rights. Order 3(b) of the Tribunal's orders was simply the embodiment of the Tribunal's express power under s64(3)(c), (d) and (e) to do any of the following:

" … by order –
(c) require the respondent to refrain, either temporarily or permanently, from the act, or course of action, that constitutes the contravention of, or failure to comply with, this Part; and
(d) preclude, for a period specified by the Appeal Tribunal, the respondent from carrying out any use or development in relation to the land in respect of which the failure to comply or contravention relates; and
(e) require the respondent to make good the contravention or default in a manner, and within a period, specified by the Appeal Tribunal." (Emphasis added)

Those coercive powers permit of orders recognised as being in the nature of injunctive relief and, in part, mandatory injunctive relief: Attorney General v Estcourt (1995) 4 Tas R 355 at 361 per Wright J, with whom Crawford J (as he then was) agreed.

Such powers were available to the Tribunal to, as it did, firstly, require the appellants to comply with condition 12 of their permit within a specified timeframe and, secondly, to secure obedience to that requirement and the fulfilment of the permit condition itself, by mandating the preclusion of the appellants' use of their land in the particular way specified if they failed to comply with the Tribunal's first order.

Put differently, order 3(b) of the Tribunal's orders was not in any way concerned with and thus could not have infringed the appellants' statutory pre-exiting non-conforming use rights. Rather, it was the utilisation by the Tribunal of its coercive powers to secure civil enforcement of a condition of the appellants' permit in a manner, no different in practical terms, to the issue of an injunction.

In those circumstances, there is no question of s20(3) of the LUPA Act being engaged or offended. The Tribunal was exercising clear express power wholly divorced from s20(3) and the exercise of its jurisdiction under s64(3) cannot be said to be tainted by error. It is not the case that contrary to s20(3), something "in [a] planning scheme" prevented the appellants' use of their land, such use was precluded as a result of order 3(b) of the Tribunal's orders operating in personam.

In my view, for this reason, the appeal cannot succeed. If I am wrong as to that however, there is an "antecedent question" and a "threshold question" to which I will turn shortly. First, however, it may be useful to set out the grounds of appeal to this Court and a summary of the respective arguments of the parties as to them.

The grounds of appeal to this Court

The grounds of appeal are that the learned primary judge:

"(a) erred in law in her determination that the appellants could not, as a matter of law, raise by way of defence in the prosecution proceeding brought by the respondent pursuant to section 64(7) of the Land Use Planning & Approvals Act 1993, a defence that the order the subject of the prosecution made by the Resource Management & Planning Appeal Tribunal, was made without jurisdiction and was as a consequence invalid;
(b) erred in law in her determination that the appellants could be successfully prosecuted for and convicted of an offence of failing to comply with an order made by the Resource Management & Planning Appeal Tribunal, contrary to section 64(7) of the Land Use Planning & Approvals Act 1993 even if such order was made without jurisdiction or was infected by jurisdictional error;
(c) erred in law in failing to find that a necessary element that must be established in a prosecution for the offence of failing to comply with an order of the Resource Management & Planning Appeal Tribunal, contrary to section 64(7) of the Land Use Planning & Approvals Act 1993, is that the order the subject of the prosecution was made within the jurisdiction conferred upon the Tribunal; and
(d) erred in law in her determination that the appellants could not, as a matter of law, mount that which is described by her Honour as a 'collateral challenge' to the validity of the orders made by the Resource Management & Planning Appeal Tribunal."

Appellants' submissions on the appeal grounds

Senior counsel for the appellants articulated his challenges to the learned primary judge's conclusions in two parts. The first part can be summarised as being a contention that a valid Tribunal order is a necessary element for a prosecution for its breach.

This contention rolls up grounds (a), (b) and (c) of the notice of appeal and challenges the conclusion of the learned primary judge at [63] of her reasons for judgment, where her Honour said:

"It follows that an order of the Appeal Tribunal pursuant to section 64, but made in breach of the LUPA Act, has effect until set aside by the Supreme Court on appeal. It is capable of founding a prosecution pursuant to the LUPA Act, section 64(7)."

The second part is an argument concerned with the learned primary judge's conclusion that it was not open to the appellants to raise a collateral challenge to the validity of the Tribunal's orders on the prosecution for a breach of those orders.

This contention relates to ground (d) of the notice of appeal. As to this ground senior counsel for the appellants noted in his written submissions:

"Neither counsel at the hearing before her Honour on 1 November 2011 put submissions on this point. Her Honour raised it with counsel in email correspondence from her Associate. Her Honour reconvened the hearing on 8 May 2012 to receive oral submissions on the point. The appellants submitted, consistently with the contempt cases, that collateral challenge is not a relevant consideration in this case. Alternatively that collateral challenge is permissible.
Her Honour's reasoning appears to be that, despite her conclusion at [63] (which must mean that a valid Tribunal order is not a necessary element of the offence), it was necessary to examine the jurisdiction of the Magistrates Court to determine the validity of the order.
With respect to her Honour, her conclusion precludes such inquiry. If the proper construction of the Act is that 'an order or a temporary order' is a factual one: that is on its face issued by the Tribunal and which has not been formally set aside then any inquiry as to its validity is irrelevant: R –v- Wicks (1998) AC 92 at 109, per Lord Nicholls, 117 and 122 per Lord Hoffmann."

As to the first question senior counsel for the appellants focusses first on the learned primary judge's reliance on Purton v Jackson [2012] TASFC 2. He submits that the ratio of that case is that when the Tribunal rules it has no jurisdiction to determine an appeal lodged with it pursuant to s61(5) of the LUPA Act, it has no power at a subsequent point in time to vary or reverse that decision even when infected by jurisdictional error. He argues that the decision is not authority for any broader proposition.

Counsel argues that for the purposes of the present case the principle to be derived from Purton v Jackson and which is to be applied, is that identified by Blow J (as he then was) at [18]:

"A more lengthy analysis of the judgments in Bhardwaj was undertaken by Gray and Downes JJ in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (above) at pars[29] – [40]. Their Honours expressed the following conclusions at par[42]:
'In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute.'

Kenny J agreed at par[64]. The relevant comments in that case were obiter, since it was held that there had not been any jurisdictional error in that case. However their Honours' comments were authoritative and were supported by sound reasoning."

Counsel then notes that the learned primary judge considered the legislative provisions commencing at [50] of her Honour's reasons for judgment. He submits there are three essential steps disclosed by her Honour's reasoning.

The first step was, her Honour's observation that the power to make orders pursuant to s64 of the LUPA Act sits within a legislative regime which provides for orders "in the nature of injunctive relief" and where "statutory consequences" exist for non-compliance and that specifically her Honour gave the example of a prosecution pursuant to s64(7).

As to that step, counsel contends that whilst her Honour's observations are perfectly correct, they fail to address the fundamental issue. That being, absent an express provision which confers validity upon an invalid order, where does the statutory scheme confer validity, by implication, upon jurisdictionally flawed orders?

The second step was, that at [56] of her reasons her Honour concludes that the appeal right conferred by s65 "is a strong indication that orders cannot simply be ignored" and "they are effective and binding unless overturned by the Supreme Court".

As to that step, counsel contends that her Honour's reasoning does not disclose why a right of appeal pursuant to s65 determines that a person may be successfully prosecuted pursuant to s64(7) for breach of a jurisdictionally flawed order. Does it follow, counsel asks rhetorically, that a person may be successfully prosecuted for breach of an order purportedly made by the Tribunal where no s64 proceeding was commenced in the first place?

The third step was that at [60] her Honour engages policy considerations, namely, that if an order is "not necessarily binding and effective unless set aside by the Supreme Court" then the integrity of the enforcement of planning schemes and permits is undermined. This, in her Honour's view:

"Would lead to uncertainty as to their status and affect public confidence in those orders. Ultimately it would undermine compliance with the LUPA Act. These ramifications are a stark contrast to the purpose of the legislation and could not have been the intention of Parliament."

As to that step, counsel refers to the judgment of French CJ and Hayne J in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 87 ALJR 131 where at [25] - [26] their Honours warned that determination of a statutory purpose neither permits nor requires a search for what those who promoted or passed the legislation may have had in mind when it was enacted and that care must be taken to avoid identifying a statute's purpose by making some a priori assumption about its purpose. Counsel continued:

"Her Honour does not identify, from the statutory provisions, the 'purpose of the legislation' of relevance. Whilst her Honour identified the Part 2 Objectives of the Resource Management & Planning Appeal System, none of the objectives support a finding that the purpose of the legislation is to permit persons to be successfully prosecuted for breaching orders which are invalid."

Counsel then went on to identify seven reasons why he submitted that the learned primary judge's reasoning was wrong. These reasons, with some exceptions, in substance reiterate the submissions made to the learned primary judge on the hearing of the motion to review.

One exception appears to be a submission as to the consideration of legal coherence. Senior counsel for the appellants submits that not only is her Honour's conclusion at odds with the contempt cases that he had argued were decisive of the question before her Honour and which she distinguished at [46] – [56] of her reasons for judgment, but that her conclusion also conflicts with "basic res judicata law".

Counsel submits that a jurisdictionally flawed decision of an inferior court or tribunal does not engage res judicata or issue estoppel, unless a statutory provision otherwise provides: DPP v Edwards [2012] VSCA 293 at [37], Appleyard v Walker (2009) WASCA 141 at 20 and Spencer Bower and Handley, Res Judicata, 4th ed at [4.07]. The conclusion of her Honour, he argues, cuts across this fundamental principle and "without identifying the legislative purpose" elevates the status of the Tribunal's order to that of a superior court.

As to the second question arising on this appeal, namely that of the availability of collateral challenge, senior counsel for the appellants submits that her Honour at [87] of her reasons for judgment, correctly identified the curial task as one of statutory interpretation, but at [98] wrongly construed the statute as excluding collateral challenge by implication.

Senior counsel again sets out in his written submissions several reasons why he says that proposition is made good.

First, he argues, no relevant provision of the legislation expressly, or by necessary implication, makes a jurisdictionally flawed decision of the Tribunal valid.

Second, he argues, "there are strong policy reasons against a necessary implication construction of the Act which excludes collateral challenge". Counsel argues that although her Honour thought as persuasive the statutory scheme identified by her, including a time limited ability to bring an appeal, that does not answer the point, forcefully made, by Lord Irvine in Boddingtonv British Transport Police [1999] 2 AC 143 at 162, that:

"The proper starting point must be a presumption that an accused should be able to challenge, on any ground, the lawfulness of an order the breach of which constitutes is alleged criminal offence."

Third, counsel argues, the legislative scheme disclosed by the LUPA Act and the Resource Management and Planning Appeal Tribunal Act 1993 clearly marks out the jurisdictional limit of the decision making power of the Tribunal and that a person does not, relevantly, fail to comply with s63(2)(a) of the LUPA Act where section 20(3) of that Act applies. Thus, counsel says, the Tribunal has no jurisdiction to make a civil enforcement order where a person has the benefit of the protection of s20(3).

Fourth, he argues, if Parliament had sought to preclude the Magistrates Court from considering the legal effect of a Tribunal order, then it would have been a simple matter to have included it in the legislation.

Fifth, counsel argues, the interpretation which he contends is correct, "does not intersect, inappropriately, with the more general (and important) consideration that the decision has no consequences whatsoever: Purton v Jackson [2012] TASFC 2 at [18], adopting the views of Gray and Downes JJ in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care."

The reason, he explains is identified by Brennan J (as he then was) in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 where his Honour observed, in relation to a right of appeal conferred by the Administrative Appeals Tribunal Act 1975 (Cth):

"Where a decision is made beyond power, the legal effect which the decision-maker seeks to achieve is denied; but that says nothing as to whether the decision may be reviewed, quashed or otherwise affected by order of a court or of an appeal Tribunal ... where 'decision' is used in the provisions of the Administrative Appeal Tribunal Act relating to a right to apply for review, it is referring to a decision made in fact, and not the effect which the decision may have under the power in the intended exercise of which it was made."

Sixth, counsel argues, the reasoning in Gray v Woollahra Municipal Council [2004] NSWSC 112 is persuasive for present purposes at [109] - [112].

In that case, I note, that at [110] - [111] Whealy J said:

"First, unlike the legislation discussed in Wicks [[1998] AC 92] there is no statutory restriction on the ability to challenge the council order in proceedings arising otherwise than in the appeal contemplated by s 121N and provided for in s 121ZK. This, in my view, is a significant distinction between the situation discussed in Wicks and the present matter. If the legislature had wished to oust the ability of the local court to deal with such a defence, it would have been a simple matter to have included it in the legislation.
Secondly, it seems to me that only the clearest language in a statute should be held to have taken away the right of a defendant in criminal proceedings to challenge the lawfulness of an administrative decision made against him where the prosecution is premised on its validity. This point is made forcefully by Lord Irvine in Boddington's case at pages 161 lines C-F and 162 lines F-G. I am not by any means attracted to the proposition that this important right is to be excluded by implication, unless there is, as I have said, the clearest possible indication to that effect …".

Seventh, counsel argues:

"Finally and to the extent to which discretionary factors might be relevant her Honour at [85] referred to seven factors identified by Besanko J in Jacobs –v- OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568. The following observations are relevant:
1    the challenge in this case did not involve adducing substantial evidence;
2    the relevant parties, the planning authority and the land owners, were each before the court;
3    a problematic aspect of this case is that, without legal advice, the appellants consented to the making of the order by the Tribunal. In doing so, plainly, jurisdiction could not have been conferred but, and as her Honour observed at [97] the ability of the appellants to appeal an order made by consent, is problematic to say the least;
4    no;
5    yes, if the submissions above as to grounds (a) (b) & (c) are accepted;
6    not a relevant consideration in this case;
7    the expertise of the Magistrates Court is not a matter which troubled the House of Lords in Boddington.
For all of these reasons it is respectfully submitted that her Honour erred in construing the legislative scheme, by implication, as precluding the collateral challenge (if that is how it is to be described) of the appellants to the jurisdictional validity of the order."

Respondent's submissions on the appeal grounds

Counsel for the respondent, Mr O'Farrell SC and Mr Edwards, characterised the appeal as primarily concerned with two questions, which they expressed in the form of the following questions in their written submissions.

(a) Notwithstanding assumed invalidity, are orders made by the Tribunal pursuant to s64 of the LUPA Act binding and effective unless set aside by the Supreme Court on appeal?
(b) In a prosecution initiated pursuant to s64(7) of the LUPA Act, is collateral challenge to the validity of the relevant orders available as a defence?

Counsel noted that the first question is concerned with grounds (a), (b) and (c) of the notice of appeal, and the second question relates to ground (d).

Counsel for the respondent agree with the submission of counsel for the appellants that, if the answer to the first question is in the affirmative, it is not necessary for this Court to address the second question, and the notice of appeal can be dismissed.

Counsel submit that her Honour correctly turned to the decision of this Court in Purton v Jackson (supra) and found that that case has "decisively laid to rest" the law as to status and consequences of an invalid administrative decision of the Tribunal.

Counsel note that the appellants' submissions do not directly challenge the learned primary judge's observation that the decision in Purton v Jackson is binding authority and establishes the correct approach to be taken by this Court when considering the first question, unless this Court considers that that case was plainly wrong, a submission that the appellants do not make.

Counsel for the respondent submit that in the learned primary judge's reasons for judgment at [58] - [62] her Honour correctly identifies the objectives and purpose of the LUPA Act and the important role played by s64 orders. They submit that her Honour does so correctly with reference to both the text and structure of the relevant statute and highlights the problems that would arise if s64 orders were not considered to be necessarily binding and effective until set aside by the Supreme Court. In summary, they submit that her Honour correctly adopts and applies Purton v Jackson in all of the circumstances.

Counsel for the respondent then address the seven reasons given by senior counsel for the appellants in his written submissions as to why he contends that her Honour's reasoning was wrong.

Counsel for the respondent note that those submissions reiterate the argument put before the learned primary judge that one ought to simply equate this matter with cases of contempt and apply the principles set out in the plethora of authority cited by the appellants. This approach, they submit, has already been rejected by her Honour with good reason, namely that to accept such an approach is to dispense completely "with the correct and binding principles laid down in Purton's case".

Counsel submit that the contempt cases are not helpful, for the reasons given by her Honour, and that the argument is not assisted by repeating that a citizen is at liberty to disobey an invalid order, when the enquiry is directed to the legal consequences that flow in the context of the particular statutory scheme.

As to the submission made by counsel for the appellants as to the importance of legal coherence in decision making and conflict with the concept of res judicata, counsel for the respondent submit that legal coherence in the present case is better judged against the principles in Purton v Jackson (supra).

Moreover, they submit, res judicata and issue estoppel are each founded on principles relating to the finality of litigation, whereas her Honour's judgment rather than equating the order of the Tribunal to a decision of a superior court, correctly identifies that the consequences of an invalid order depend on a proper construction of a statutory scheme, "in which an order made in the important sphere of resource planning and development has validity, subject to a properly mounted challenge in this Court".

As to the second question, that of the availability of collateral challenge, counsel for the respondent note that her Honour considers numerous decisions and concludes at [94] of her reasons for judgment, that determining whether or not collateral challenge is available involves the task of construing the legislation, having particular regard to the legislation governing the deciding body, the provisions that create the relevant offence and whether or not the legislation already provides a scheme for the determination of the issue that has been raised by way of collateral challenge.

They observe that her Honour concludes at [98] of her reasons that collateral challenge is not permitted because, on the proper construction of the LUPA Act, to allow collateral challenge of this type:

· ignores the clear and effective statutory pathways by which the validity of s64 orders can be challenged (ie by hearing upon return of the summons, or on appeal to the Supreme Court by way of s65 of the LUPA Act);
· is contrary to the scheme, purpose and intent of the LUPA Act insofar as the system of civil enforcement is concerned;
· incorrectly assumes that the existence of valid orders is an element of the offence to be proved by the prosecution in proceedings for breach of s64(7) of the LUPA Act.

Counsel note that her Honour concludes at [100] of her reasons that the seven factors identified by Besanko J in Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568 at 594 do not amount to statements of principle or discretionary considerations, however, nonetheless accepts that the seven factors offer guidance with respect to this issue, and may influence outcomes regarding the permissibility of collateral challenge.

Counsel submit that there is no error in the learned primary judge's reasoning as to the question of the availability of collateral challenge, that it is logical, properly founded in the authorities, and that her Honour's conclusions are correct.

No jurisdictional error

Counsel for the respondent submit that before this Court considers the issues arising from the grounds set out in the notice of appeal, it ought first to consider "an antecedent question" of whether the pre-existing use rights asserted by the appellants, whatever their content might be, are truly jurisdictional.

The learned primary judge observed that depending on the evidence, and the findings to be made by the learned magistrate, the Tribunal may have been in breach of the LUPA Act, s20(3), in making the orders it did. Her Honour posed for herself the question as to whether the making of orders that infringe a person's pre-existing use rights amount to jurisdictional error.

The learned primary judge considered Craig v South Australia (1995) 184 CLR 163 at 176 – 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351, and Kirk v Industrial Courtof New South Wales (2010) 239 CLR 531 at [73], and concluded that there was "uncertainty about whether in fact the orders of the Appeal Tribunal do not fall on the jurisdictional error side of the line". Her Honour said at [36]:

"The correctness of the learned magistrate's determination as to whether the applicants' argument amounts to jurisdictional error does not need to be decided by me in these proceedings because of the view I reach regarding the status and consequences of the orders, even if there was jurisdictional error. Having identified a potential flaw in the Appeal Tribunal's orders I turn to the inquiry of what are the consequences of such an error." (Emphasis added.)

If there was no error on the part of the Tribunal in making the orders it did, or if any error on its part was within jurisdiction that would be dispositive of the appeal and, in that sense counsel for the respondent is correct in their written submissions to describe this issue as "an antecedent question".

The Supreme Court Rules 2000 make no provision for the filing of a notice of contention in circumstances such as these and r664(3) has the effect that a notice of cross-appeal is not required.

The Supreme Court Civil Procedure Act 1932 s47(3) provides that "on the hearing of any appeal a Full Court, if it is satisfied that no injustice will thereby be done, may allow any party to raise any point of law which was not raised at the trial, and may determine the appeal on any such point".

I see no impediment to this Court determining this antecedent question. Indeed, to an extent the learned primary judge proceeded to determine the motion to review before her on an hypothetical basis and it is important at the outset of the present appeal to test the hypothesis involved.

Counsel for the respondent submit that the answer to the question depends on the correct construction of s64 of the LUPA Act which he notes, "prescribes not only the right of people with sufficient standing to seek an order, but also the remedy itself, the procedure to obtain it and the means for its enforcement" (emphasis added).

He notes that if s64(1) was a jurisdictional provision, the Tribunal would be required in every case to determine, as a matter of fact, the existence of a breach of Part IV of the LUPA Act before issuing a summons under s64(2), or making a temporary order under s64(5).

Moreover, counsel contend, if the existence of pre-existing use rights is a jurisdictional issue, the Tribunal would be required to determine, as a matter of fact, whether they existed before issuing a summons under s64(2) or making a temporary order under s64(5).

This is unlikely, counsel argue, because a summons is issued ex parte and a temporary order is made in the interlocutory sense "of not determining the facts and this must include existing use rights".

Counsel point out that the nature of the proceedings are inter partes, and are substantially, if not wholly, adversarial and that the statutory scheme does not suggest that pre-existing use rights, or more particularly their absence, are a necessary element of jurisdiction. They are more likely, he argues, to be a matter to be raised in defence to the application.

It would be absurd, they submit, to suggest that in proceedings under s64, the Tribunal is not entitled to embark on an inquiry into whether or not there are pre-existing use rights. If they are in issue, and if the Tribunal finds, as a matter of fact, that they do exist, it would then be required to refrain from making orders which adversely affect the use rights. Equally, the argument proceeds, that if the Tribunal finds they do not exist on the evidence before it, it would be entitled to make the orders. In the exercise of these powers the Tribunal could make an error of law, but it would be within jurisdiction.

Counsel submit further that s65 of the LUPA Act provides support for his contention, in that the Tribunal is amenable by virtue of that section, to appeal to the Supreme Court in respect of errors of law made within jurisdiction.

In their written submissions counsel for the respondent concluded:

"In the present case the appellants did not conduct their case before the Appeal Tribunal on the basis that they had existing use rights. Instead, they consented to orders entirely inconsistent with that position.
If that analysis is correct, the orders are of a kind within the Appeal Tribunal's power. While they exist they must be obeyed."

There is much to commend this analysis.

In Kirk v Industrial Court (NSW) (supra) the majority of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, with whom Heydon J agreed, on this reasoning, said at [70] - [73]:

"It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. Professor Aronson has collected authorities recognising some eight categories of jurisdictional error. It is necessary, however, to make good the proposition stated earlier in these reasons that the two errors that have been identified as made by the Industrial Court at first instance (and not corrected on appeal to the Full Bench) were jurisdictional errors. The Court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows.
First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error 'if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist' (emphasis added). Secondly, the Court pointed out that jurisdictional error 'is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers' (emphasis added). (The reference to 'theoretical limits' should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples:
(a) the absence of a jurisdictional fact;
(b)disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and
(c)misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.

The Court said of this last example that 'the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern' and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks' Union.
As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that – examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example."

I am conscious that in Kirk the majority were concerned with the position of an inferior court and not an administrative tribunal and that the extrapolation of the three examples from Craig was from that part of the Court's judgment in Craig at 377 - 379 where the court was also concerned with the position of an inferior court. The reasoning of the majority is nonetheless apposite to a consideration of the Tribunal when exercising jurisdiction pursuant to s64 of the Act.

Wright J in Attorney General v Estcourt (supra), with whom Crawford J agreed, noted at 363 - 364, the difficulty, absent considerations of Ch III of the Constitution, in drawing a distinction between a court and an administrative tribunal. He did so, presciently, with respect, in a manner not dissimilar to that of the majority in Kirk at 573 [69] - [70] where it concluded that the observation in Craig that courts can, but tribunals cannot "authoritatively" determine questions of law "is at best unhelpful".

Wright J concluded, at 364 in Estcourt, that an attempt to decide the question in that case by deciding whether or not the Tribunal exercises judicial power when it enters on the jurisdiction conferred by s64 of the Act would be "inconclusive and therefore unsuccessful". Importantly however, for present purposes, Wright J expressed the view at 367 that the power given to the Tribunal by s64 was similar to that "traditionally exercised only by superior courts" and that the "power is judicial in nature". His Honour concluded at 368 that the Act "contemplates that the Tribunal will itself determine questions of law, albeit that its determination will be subject to review in the Supreme Court".

Such considerations lead me to the view that it is appropriate in the present case to reason by reference to the examples distilled by the majority in Kirk from the relevant passages in the judgment of the Court in Craig, notwithstanding they relate to inferior courts and not administrative tribunals.

Recognising that the examples given in Craig are to be regarded only as examples, and recognising also that the line between "jurisdictional error" and "mere error" is difficult to discern where the relevant focus is upon a tribunal's possible misconstruction of the relevant statute, thereby misconceiving the extent of its powers, it is nonetheless, to my mind, only in this third category where jurisdictional error might conceivably be found in the present case.

As to the first two categories; the absence of pre-existing use rights is not a jurisdictional fact, nor is it a condition of jurisdiction. Neither can be discerned from the text, structure and purpose of ss64 and 65 of the LUPA Act, for the reasons articulated by counsel for the respondent.

It would be absurd to construe those sections as requiring, in every case, even at the ex parte stage, an inquiry into the presence or absence of pre-existing use rights, which are not of course a matter of any public record but are rights arising from usages known, often purely as a matter of intimate knowledge, to a landowner or occupier, or to neighbouring landowners or occupiers and/or his, her or their predecessors.

Nor, in the present case is the third category engaged. I can discern no relevant error. I can observe no misconstruction by the Tribunal of the LUPA Act causing it to misconceive the extent of its powers.

It is true enough to say that the Tribunal lacks jurisdiction to make orders that would enforce the provisions of a planning scheme in a way that prevented the continued use of land or buildings or works which attracted pre-existing use rights under s20(3) of the LUPA Act. However, as I have already noted in dealing with the appellants' "false premise", the Tribunal did not do that. It merely used its injunctive powers to enforce the conditions of the appellants' planning permit by making an order allowing further time and by imposing contingent sanctions for non-compliance with the Tribunal's own order.

Moreover, and again, in the event that I am in error as to that conclusion, the appellants, as pointed out by counsel for the respondent, did not conduct their case before the Tribunal on the basis that they had pre-existing use rights. They consented to orders entirely inconsistent with that position, and the Tribunal had no knowledge or means of knowledge of the existence of any such use rights.

In these circumstances it could not be sensibly said that the Tribunal was guilty of misconstruction of the LUPA Act, thereby misconceiving the "nature of its function" or "the extent of its powers in the circumstances of the particular case".

If, however, the law allowed for a contrary conclusion in this case, then I am of the view, for the reasons that follow, that the appellants by their consent to the Tribunal's orders, waived their pre-existing rights for any purpose connected with the making of the Tribunal's orders or their enforcement.

Such a waiver is not properly characterised as the conferral by consent of jurisdiction upon the Tribunal to make orders that it lacked jurisdiction to make. It is properly characterised as a legally permissible waiver of rights which, if they had been asserted and relied upon, would have prevented the Tribunal from making orders of a kind that removed protections afforded by s20(3) of the LUPA Act.

Waiver of pre-existing use rights

As has been noted, the learned magistrate observed that the appellants' consent to the civil enforcement order made by the Tribunal was "an implied acceptance by them that there is not a bar to the orders being made in the terms articulated ie, they do not purport to have existing land use rights which may bar the orders being made". She added, as has already been noted, "[i]n my view this does not constitute or amount to an argument about jurisdictional error being made by the Tribunal. In these circumstances I consider the orders made by the Tribunal to be valid."

There was no challenge to her Honour's decision on the motion to review before the learned primary judge on the basis of that reasoning, although arguably such a challenge might be embraced by the first of the grounds set out in the notice to review.

In any event, it is clear that this question of the appellants' consent to the Tribunal's orders was central to the learned magistrate's decision and, to my mind, rightly so. Although her Honour did not characterise the effect of the appellants' consent as a waiver of their pre-existing use rights, that was clearly the relevant legal issue underlying her analysis of the question of jurisdictional error and this "threshold question" assumes, to my mind, critical importance on the present appeal. I detect no "loss of forensic advantage", as claimed by senior counsel for the appellants in his written reply submissions, as arising from the failure of the respondent to explore before the learned magistrate, the circumstances of the appellants' consent.

Counsel for the respondent confine their submissions on this point, made at my invitation, to the fact of consent to the Tribunal's orders. They do not contend that the appellants obtaining of a planning permit by means of their application to the Resource Planning and Development Commission amounted to a relevant waiver. Had they so contended, the question of the appellants' intention would be relevant, and had such a contention been raised before the learned magistrate evidence could have been led as to that. As was submitted by senior counsel for the appellants in his written supplementary submissions, it could not necessarily be inferred that the appellants, in applying to the Resource Planning and Development Commission intended to abandon any other right to lawfully use the land.

So confined, as will be apparent from the reasons that follow, my view is that the waiver point, if specifically articulated before the learned magistrate could not have been affected by further evidence or submission advanced by the appellants. The principles to be derived from the cases set out in Water Board v Moustakas (1994) 180 CLR 491 at [13] are not engaged. I do not accept senior counsel for the appellants' submissions to the contrary, as set out in his written supplementary and reply submissions.

The point is essentially one of law and, notwithstanding that only the question articulated as one of consent, and not waiver, was a live issue before the learned magistrate, the question of waiver requires, for present purposes, nothing more than the bare fact of the appellants' consent to the Tribunal's orders. Evidence of the appellants' reasons for so consenting, or as to the absence of legal representation, is not relevant to a determination of the question. I take no account of the use by counsel for the respondents of the word "deliberate", when describing, in their written submissions, the appellants' "act of consenting" as a "deliberate act of consenting to the s64 orders".

Equally, the question could not admit of evidence as to non-abandonment by the appellants of their pre-existing use rights, as abandonment is not in issue. The question is confined, to my mind, simply to one of waiver by the appellants of their pre-existing use rights, solely for purposes connected with the making of the Tribunal's orders and the enforcement of those orders.

Nor do I accept the submission of counsel for the appellants that the provisions of s20(4) of the LUPA Act constitute a code and thus exclusively regulate when a protected non-conforming use right ends. How such rights may be lost by statute is controlled by s20(4), but there is nothing in the text or context or purpose of the provisions of that section that compels a conclusion that such rights may not be waived. As will be seen, I am of the view that the appellants' pre-existing use rights are properly characterised as private rights, and are therefore capable of waiver. I accept the submission of counsel for the respondent in that regard.

The learned primary judge noted at par[32] of her reasons for judgment:

"The parties could not, by consenting to the orders, confer jurisdiction upon the Appeal Tribunal if it lacked jurisdiction to make the orders: Thompson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150, at 163. The Appeal Tribunal derives its jurisdiction from the governing statute, not from the consent of the parties."

That is undoubtedly correct, but the majority of Gibbs CJ, Stephen, Mason and Wilson JJ were in that case concerned with a situation where the Federal Court had granted injunctions restraining particular conduct where it had no statutory power to do so. The majority said at 163 that, "the parties by consent cannot confer power upon the Court to make orders which the Court lacks power to make".

In the present case the Tribunal had power to make orders of the kind that it did. The relevant question is, as has already been discussed in these reasons, whether the Tribunal exceeded its jurisdiction by making orders which could be said to conflict with s20(3) of the LUPA Act.

That section is not one which creates a jurisdictional fact or operates as a condition of the Tribunal's jurisdiction under s64 to make civil enforcement orders.

Rather, by specifying that nothing in a planning scheme may prevent certain use and/or development of land or works or buildings, it creates statutory protections for individuals who fall into the relevant categories. Those protections are often referred to as "pre-existing use rights" or "pre-existing non-conforming use rights".

The Tribunal could only exceed its jurisdiction by reference to s20(3) if it misconstrued that section and made orders against a party to proceedings before it which removed that party's statutory protections (other than by way of temporary suspension of the relevant right as a consequence of the imposition of contingent sanctions for non-compliance with an otherwise valid order of the Tribunal under s64, as was done in the present case).

Even in such circumstances however, there would be no jurisdictional error where, as here, the situation is that the party possessed of the pre-existing use rights not only does not assert or rely upon them before the Tribunal, but consents to the orders made.

It is not correct to characterise that situation as an impermissible attempt to confer power or jurisdiction upon the Tribunal by consent. What is involved is a waiver by the appellants of their pre-existing use rights.

I cannot think of a clearer case of approbation and reprobation than to consent to orders whilst not asserting pre-existing rights that might conceivably deny relief to the party applying for the making of the orders, and then later seeking against the same party to assert the invalidity of the consent orders on the basis of the existence of those same rights.

This is particularly so when one considers that the orders made by the Tribunal were made for the benefit of the appellants in the sense that it relieved them in effect, from the consequences of non-compliance with a condition imposed on their permit with the approval of the Resource Planning and Development Commission, and extended by several months the time for the fulfilment of the requirements of that condition.

Whether such conduct by the appellants amounts to a waiver of their statutory rights under s20(3) of the LUPA Act, or an election not to rely on them, and if the latter which species of election is involved, are questions not without some difficulty. As senior counsel for the appellants correctly submitted, "waiver as a doctrine is a difficult concept".

In Commonwealth v Verwayen (1990) 170 CLR 394, Mason CJ said at 406:

"But, granted that some statutory rights can be waived, the mere existence of cases in which statutory rights have been held to be susceptible to waiver does not signify that those cases are all exemplifications of one concept or doctrine. As often as not, the term 'waiver' is used to describe the result of the application of various principles rather than to designate a particular legal concept or doctrine. The consequence is that the expression 'waiver' has been the subject of robust criticism, notably by Dr Ewart in his work Waiver Distributed (1917); see also Bysouth v Shire of Blackburn and Mitcham [No 2]; Larratt v Bankers & Traders' Insurance Co; Kammins, per Lord Diplock . This is because 'waiver' is an imprecise term capable of describing different legal concepts, notably election and estoppel." (Footnotes omitted)

Nonetheless, eighteen years on, in a joint judgment, the plurality of Gummow, Hayne and Kiefel JJ, with whom Heydon J agreed, in Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570, observed at 587 - 588, [53] - [54]:

"53 The uncertainties and difficulties which attach to the use of the term 'waiver' have been recognised in judgments of this Court. Yet 'waiver' remains firmly embedded in the lawyer's lexicon. For example, in Osland v Secretary to the Department of Justice this Court considered the circumstances in which by its conduct a party entitled to legal professional privilege against the production of documents is to be taken to have 'waived' that privilege.
54 The uncertainties and difficulties which attach to the use of the term have prompted attempts to construct a taxonomy of waiver in which distinctions are drawn between 'waiver by election' and 'pure waiver' or between 'waiver by election' and 'unilateral waiver'. It is not necessary to consider whether such classifications are useful. Rather, it is important to identify the principles that are said to be engaged in the particular case." (Footnotes omitted.)

As to election and the allied equitable concept of approbation and reprobation, Brennan J (as he then was) said in Verwayen (supra) at 421:

"Election consists in a choice between rights which the person making the election knows he possesses and which are alternative and inconsistent rights: Evans v Bartlam; Tropical Traders Ltd v Goonan; Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd. A doctrine closely related to election, and sometimes treated as a species of election, is the doctrine of approbation and reprobation. This doctrine precludes a person who has exercised a right from exercising another right which is alternative to and inconsistent with the right he exercised as, eg, where a person 'having accepted a benefit given him by a judgment, cannot allege the invalidity of the judgment which conferred the benefit': Evans v Bartlam, per Lord Russell of Killowen." (Footnotes omitted)

As to waiver generally, see Verwayen per Brennan J at 422 - 425, Dawson J at 456 citing Brown v R (1986) 160 CLR 171 at 208, and at 457 - 458, citing Wilson v McIntosh [1894] AC 129, and Phillips v Martin (1890) 11 NSWLR 153 at 158 - 159, Toohey J at 471-472 and McHugh J at 491ff canvassing the English and Australian cases which he said appear to hold that a party may waive a statutory condition conferred for his or her benefit and which, at least as to some of them, cannot accurately be categorised as cases of contract, estoppel or election.

I infer that the appellants knew of their pre-existing use rights as they were expressly referred to by the Resource Planning and Development Commission in its written decision, and the clarification of the status of the appellants' activities on their land was noted by the Commission as the reason for their combined application to the respondent for amendment of the planning scheme and a permit.

There are however, other considerations affecting the operation of the doctrine. In Verwayen at 404 Mason CJ said:

"Undoubtedly, some statutory rights are capable of being extinguished by the person for whose benefit they have been conferred: Sandringham Corporation v Rayment; Wilson v McIntosh. However, some statutory rights may also operate as a condition precedent to a court's jurisdiction: Park Gate Iron Co v Coates; Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd. More importantly, some rights may be conferred for reasons of public policy so as to preclude contracting out or abandonment by the individual concerned: see Lieberman v Morris. It is therefore necessary to examine the relevant statutory provision in this case in order to ascertain whether it is susceptible to extinguishment in this way." (Footnotes omitted.)

Section 20(3) of the LUPA Act is, as I have already noted, is not a statutory pre-condition to the exercise by the Tribunal of its jurisdiction under s64. It is a personal right, no more conferred for reasons of public policy than was the statutory limitation section under consideration in Verwayen. As to that Brennan J said at 425 - 426:

"However, a defence under s 5(6) of the Limitation Act does not create a condition precedent to jurisdiction. It is merely a right conferred on a defendant to defeat a claim brought outside the time limited by the Limitation Act.
…
As the right created by s. 5(6) is introduced solely for the benefit of a defendant, who must plead the right before it is effective, the right is capable of waiver by a defendant."

Waiver or election need not involve an intention to bring about the consequences of waiver. Toohey J said in Verwayen at 474:

"Waiver, in the sense used for the purposes of this appeal, may be found in the deliberate act of a defendant not to rely upon a defence available to him. That is not to say that there must be an intention to bring about the consequences of waiver; rather, the conduct from which waiver may be inferred, must be deliberate."

Finally, as to the distinctions between election and waiver, it should be noted that whilst an election is one between two mutually exclusive rights, waiver is not. This is relevant to the extent that it might be argued that the appellants' pre-existing use rights, and their right to a permit under the amended planning scheme or to consent to civil enforcement orders, are not mutually exclusive.

As to this Toohey J in Verwayen noted at 471 - 472:

"In my view, waiver, by that name, has a role to play. And it is a role which involves no confusion with variation of contract or promissory estoppel. It may be seen as a form of election between inconsistent rights, in the former of the categories mentioned by Mason J in Sargent. Election implies that a choice must be made between two rights which are mutually exclusive. 'Obviously there can be no election, choosing one course to the exclusion of another, when in fact there is only one course to take, or where the two courses are such that the adoption of one of them does not necessarily indicate a final intention to abandon the other': Spencer Bower and Turner, p 342. But, in the second of those categories, 'the legal grounds on which a person is precluded from raising a particular defence ...', an election is involved, only in the sense that a defendant may choose to take a jurisdictional point, rely upon an irregularity in the proceedings, plead a particular defence, or take some other step in the adjudicative process, or he may choose not to do so. But he may not take up 'two inconsistent positions', the language used in Craine. It may be, therefore, that 'election' is best reserved for the former of Mason J's categories and 'waiver' for the latter." (Footnotes omitted)

Toohey J's reference to the two categories mentioned by Mason J (as he then was) in Sargent v ASL Developments Ltd (1974) 131 CLR 634 is a reference back to an earlier passage in Toohey J's judgment in Verwayen at 467 where he said:

"Nevertheless, usage has sanctioned waiver as apt to signify 'the legal grounds on which a person is precluded from asserting one legal right when he is entitled to alternative rights inconsistent with each other' and 'the legal grounds on which a person is precluded from raising a particular defence to a claim against him': Mason J in Sargent v ASL Developments Ltd." (Footnotes omitted.)

The appellants' conduct in the present case in consenting to the civil enforcement orders made by the Tribunal without asserting or relying on their pre-existing use rights is able, in my view, to be considered as either a waiver, or an equitable or common law election, or as falling within that species of election known as the doctrine of approbation and reprobation and described in Agricultural and Rural Finance Pty Ltd v Gardiner (supra) at 589 [58], "as but a synonym for the equitable doctrine of election".

There is however yet another species of waiver or unilateral divestiture of a right not characterised necessarily as election, into which the appellants' conduct may be said to fall. It involves the maxims "every person may renounce a right introduced for his benefit" and "everyone has liberty to renounce those things which are granted for his benefit".

In Verwayen, Toohey J said at 468 - 469:

"Waiver, as a notion applicable both to the loss of a right and the loss of a defence, has a respectable lineage. The maxim Quilibet potest renunciare juri pro se introducto (a person may renounce a right introduced for his benefit), referred to in Wilson v McIntosh, is mentioned by Coke in Beawfage's Case, as 'the old rule'.
…
There is another maxim Omnes licentiam habere his quae pro se indulta sunt renunciare (everyone has liberty to renounce those things which are granted for his benefit) which is also of considerable age: see Rumsey v North-Eastern Railway Co. Like most Latin maxims, these two, which are discussed in Broom's Legal Maxims, 10th ed (1939), pp 477-478, assert rather than explain. The observation of Windeyer J in Smith v Jenkins (though in a different context) holds good:
'The intrusion of this Latin maxim into learned commentary, and also into judgments, has caused a confusion which would not have occurred if the writers had condescended to translation and had not taken the maxim into territory where it does not belong.'

The point of referring to the maxims and to the early decisions is to illustrate the means by which the courts have grappled with the notion to which the label of waiver has been attached and to show that a combination of the two maxims is reflected in the general proposition that a person may waive both a substantive right and an available defence, in the sense that he may agree or choose not to rely upon the one or the other. The maxims embody concepts and that is their value. They are not definitions and, of course, they involve translations. There are translations of the maxims in Jowitt's Dictionary of English Law, 2nd ed (1977), pp 1283, 1488. Broom's translation of the second maxim reads: 'every man may renounce a benefit or waive a privilege which the law has conferred upon him': p 478. Nothing in the maxims limits the terms 'introduced', 'granted' or 'conferred' to a benefit arising in some formal way, for example by statute." (Footnotes omitted)

In my opinion, however one characterises the appellants' failure to assert or rely on their pre-existing use rights in the proceedings before the Tribunal under the LUPA Act, s64, they relinquished or waived those rights for the purposes of those proceedings and for the purposes of any prosecution for a breach of the orders made by consent in those proceedings, brought pursuant to s64(7). The present case is unlike that of Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, referred to by senior counsel for the appellants in his written submissions in reply. The waiver point in that case turned, at [39], on the relevance of the exercise of the discretionary power of the District Court when possessed of jurisdiction and with its procedural rules engaged. The present case concerns the waiver of a statutory right which, if asserted, may have deprived the Tribunal of jurisdiction.

It follows that the appellants were precluded from relying on their pre-existing use rights by way of defence on the hearing before the learned magistrate.

As Jordan CJ pointed out in O'Connor v SP Bray Ltd (1936) 36 SR (NSW) 248 at 257, "since the days of the Year Books it has been recognised that you cannot have the egg and the halfpenny too".

I recognise, as was pointed out by the plurality in Agricultural and Rural Finance Pty Ltd v Gardiner (supra) at 590 [61] - [62], that the setting in Verwayen was provided by the adversarial litigious process and the existence of proceedings between the parties, and that situations may differ radically. It was not found necessary or appropriate however, in Agricultural and Rural Finance Pty Ltd v Gardiner to canvass the correctness of what was said in Verwayen, and the observations of Gaudron J in that case at 484 - 485 are apposite to analogous proceedings involving the making of civil enforcement orders and a prosecution for their breach involving the same parties. Those observations reflect an underlying reason for the conclusion I have reached. Her Honour said:

"Given that the position deliberately adopted by one party has brought about a change in the relationship of the litigants, a doctrine which holds the parties to that relationship may be seen as resting either on general policy considerations or on principles analogous to those of estoppel. Such a doctrine, by ensuring fair dealing in the conduct of litigation and by promoting the finality of litigation, aids the efficient administration of justice."

Consideration of the appeal questions

My conclusion as to the "false premise" underlying the appellants' arguments as to the Tribunal's exercise of power and on the "anterior" and "threshold" questions of jurisdictional error and waiver dispose of the appeal. However, in the event that I am wrong as to all of those conclusions, I proceed to deal with the challenge to the learned primary judge's findings as to the question of the status and consequence of the Tribunal's orders, and as to the question of whether the appellants were permitted to challenge the validity of the orders by way of defence in the prosecution for their contravention.

As I have already noted as to those questions, her Honour decided firstly, that although the Tribunal may have been in breach of the LUPA Act, s20(3), in making the orders, and thus there was uncertainty about whether in fact the Tribunal's orders fell "on the jurisdictional error side of the line", an order of the Tribunal made pursuant to s64, but made in breach of the LUPA Act, nonetheless has effect until set aside by the Supreme Court on appeal, and is capable of founding a prosecution pursuant to the LUPA Act, s64(7). Secondly her Honour decided that as a matter of statutory construction, collateral challenge to the Tribunal's orders was not available.

For the reasons that follow, I detect no error in her Honour's reasoning.

On the first of these questions, the learned primary judge followed and applied the decision of this Court in Purton v Jackson [2012] TASFC 2.

The question in that case was whether the Tribunal had jurisdiction to re-visit an earlier decision made by it if that decision was invalid. It was argued that Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 had the effect that the status of the earlier invalid decision was that of being no decision at all because it was tainted by jurisdictional error and could be treated as if it had never been made.

Blow J (as he then was), with whom Evans J and Crawford CJ agreed, considered the effect of Bhardwaj, and concluded at [11], that it does not stand as authority for a universal proposition that jurisdictional error will lead to a decision having no consequences whatsoever. Rather, that the case is authority for the proposition that, when there is jurisdictional error, the legal and factual consequences of the decision, if any, will depend on the relevant legislation.

Blow J noted that in Plaintiff S157 the High Court was concerned with the status, for the purpose of proceedings for judicial review and relief under s75(v) of the Constitution, of a decision that involved jurisdictional error, not with the status of such a decision for the purpose of a legislative regime.

His Honour held, at [20], that Plaintiff S157 did not undermine the force of the judgments in Bhardwaj and that an examination of the legislation relating to such an administrative decision is critical for the purpose of determining its status and consequences.

The provisions of the LUPA Act and the Resource Management and Planning Appeal Tribunal Act 1993 ("RMPAT Act") were considered in Purton v Jackson (supra) for the purpose of determining whether it was contrary to the scheme of that legislation for the Tribunal to be held to have power to vary or reverse its decisions. It was decided that it was.

In the present, case the learned primary judge posed for herself the analogous question of whether it would be contrary to the scheme of the legislation for orders of the Tribunal, that did not accommodate the rights established under s20(3) of the LUPA Act, to have no legal effect or factual consequences, such that they may be ignored.

As was noted by counsel for the respondent, the appellants' submissions do not directly challenge the learned primary judge's observation that the decision in Purton v Jackson was binding authority, and establishes the correct approach to be taken by this Court when considering this first question, unless it is considered that that case was plainly wrong. The appellants do not submit that Purton v Jackson was plainly wrong, they submit that once its ratio is identified, it is distinguishable.

Her Honour gave detailed consideration to the legislative regime, and to the provisions of the LUPA Act. She concluded at [60]:

"60 If orders under s64 of the LUPA Act are not necessarily binding and effective unless [sic] set aside by the Supreme Court, it would entirely undermine the regime of enforcement of planning schemes and permits in s64. It would lead to uncertainty as to their status and affect public confidence in those orders. Ultimately it would undermine compliance with the LUPA Act. These ramifications are a stark contrast to the purpose of the legislation and could not have been the intention of Parliament."

Her Honour adopted similar reasoning to that of Blow J in Purton v Jackson and concluded at [62] that the Tribunal's work in relation to s64 of the LUPA Act, the purpose of the legislation and the scheme provided for, including the specific provision in s65 for appeals to the Supreme Court from these orders, compelled a conclusion that the legislature intended that the orders would be binding and effective unless overturned by the Supreme Court.

Senior counsel for the appellants contended in his written submissions that:

" … [t]here is no express provision in any of the relevant legislation which makes valid and binding a jurisdictionally flawed decision of the Tribunal made pursuant to section 64. Thus unless a necessary implication to this effect is to be derived from the text, context and purpose, a jurisdictionally flawed decision of the Tribunal must be invalid."

In my view the necessary implication stems firstly, from the fact that the Tribunal's orders made under s64 of the LUPA Act are open to appeal to this Court under s65 of the Act, and secondly, from the fact that the legislation gives the Tribunal no power to enforce its own orders made under s64, but rather, requires enforcement to be by way of summary prosecution. The result of that seems to me, sensibly to be, that the text, context and purpose of the Act allow that a person may exercise the right to appeal against an order directed to him or her, but require that in the event of failing to do so the order is to be presumed valid for enforcement purposes. Such reasoning does not involve "some a priori assumption" about the legislative purpose of the LUPA Act; cf Certain Lloyd's Underwriters v Cross (supra) at [25] - [26].

Such a result does not give rise to any unfairness, as even in the event that a time limited appeal against an invalid order under the LUPA Act was not possible under s65 of the Act, or was precluded by the passage of time, declaratory relief, or relief in the nature of certiorari, would still be available to a person aggrieved by the order, at least in the case of jurisdictional error, if not for error within jurisdiction. Given those avenues, and the scheme of s64 and s65 of the Act, I see no room to allow for another "mechanism for scrutiny" as suggested by senior counsel for the appellants in his written reply submissions. That phrase was employed by counsel with reference to the "real question" posed by Whealy J in Gray v Woollahra Municipal Council (supra) at [108], namely, whether it was intended that issues of validity be only determined on an appeal to the Land and Environment Court and not on a prosecution before a magistrate. The answer to that question in the case of the LUPA Act, in my opinion, is "yes".

Senior counsel for the appellants posed the rhetorical question as to this result, "does it follow that a person may be successfully prosecuted for breach of an order purportedly made by the Tribunal where no section 64 proceeding was commenced in the first place?" The answer to that question appears to me to be that it would follow that any Tribunal order made in such circumstances would show invalidity on its face, and I do not regard the scheme of the legislation as permitting an order invalid on its face as capable of founding a prosecution simply because no proceedings were taken to set it aside.

With respect, I agree with the learned primary judge's conclusion that an order of the Tribunal pursuant to s64, but made in breach of the LUPA Act, has effect until set aside by the Supreme Court on appeal, and until such time is capable of founding a prosecution pursuant to the LUPA Act, s64(7). I do not accept the submissions of counsel for the appellants that her Honour failed to address the fundamental issue before her or failed to identify the legislative purpose justifying the implication that the legislature intended that the orders would be binding and effective unless overturned.

Nor do I accept the submission of counsel for the appellants that the learned primary judge's conclusion on this first question offends principles of legal coherence and res judicata. Counsel for the respondent are correct, in my view, in their submission that considerations of legal coherence are better referenced in this case to the principles embraced in Purton v Jackson (supra), and that her Honour's judgment, rather than equating the order of the Tribunal to a decision of a superior court, correctly identifies that the consequences of an invalid order depend on a proper construction of a statutory scheme. Her Honour did not fail to identify the legislative purpose that justified a conclusion that the orders of the Tribunal would be binding and effective unless overturned.

Finally, in my view, the learned primary judge was entitled to distinguish the various contempt cases urged upon her by senior counsel for the appellants as analogous to the circumstances before her. Whilst recognising their force, I nonetheless do not accept the submissions to the contrary made by senior counsel for the appellants in his written reply submissions. The considerations in those cases were at odds with the approach required to be taken by her Honour consistent with the principles underlying Purton v Jackson (supra). Those principles, to my mind, are determinative of this appeal.

On the second question of the availability of collateral attack on the validity of the Tribunal's orders on the hearing of the prosecution before the learned magistrate, the learned trial judge canvassed in considerable detail the English, Canadian and Australian authorities.

Her Honour concluded that a magistrate presiding over a prosecution has no constraints on his or her power to decide the validity of an order of the Tribunal if properly required to make such a determination for the purpose of deciding whether a breach of s64(7) had been committed.

The learned trial judge then went on to say that she drew from the cases to which she had regard, including Attorney-General (Cth) v Breckler (1999) 197 CLR 83; Jacobs v OneSteel Manufacturing Pty Ltd (supra); R v Wicks [1998] AC 92; Boddington v British Transport Police (supra), and Director of Housing v Sudi [2011] VSCA 266, that a determination in a given case as to whether collateral challenge was available, involved the task of construing the relevant legislation.

This, her Honour said, would include consideration of the legislation governing the deciding body and constraints that it may be subject to the statutory provision creating the offence, and whether the legislation establishes a scheme for the determination of the specific issues that have been raised.

She concluded, having considered the legislation, that the construction of the LUPA Act provided a clear indication that collateral challenge of orders of the Tribunal in a prosecution for breach of s64(7) was not intended. I respectfully agree.

In reaching her conclusion, her Honour said at [97]:

"97 Consideration of the LUPA Act reveals, as I have mentioned, a comprehensive scheme providing for civil enforcement, the making of orders by the Appeal Tribunal, an appeal process to the Supreme Court against an order or the refusal to make an order, and in the event of non-compliance, prosecution and a penalty regime. Parliament has provided for rights of appeal as the mechanism for challenge in the context of that scheme which includes prosecution. The time limit that is imposed for instituting appeals is consonant with the objectives of the legislation to provide certainty of outcome for the individual and others affected by the orders. Of course, the fact that the appeal mechanism may arguably not be available for consent orders, peculiar to this case, does not advance the task of statutory construction".

In taking the view that legislation may provide clear indications as to the availability of collateral challenge, the learned primary judge placed, with respect, correctly in my view, considerable reliance on the speech of Lord Hoffman, with whom Lords Browne-Wilkinson, Jauncey and Hope agreed, in R v Wicks (supra). Lord Hoffman emphasised the importance of statutory context and objectives in determining the availability of collateral challenge in a prosecution.

R v Wicks was a case concerning a prosecution in respect of a breach of an enforcement notice issued by a local planning authority. The defendant sought to defend the proceedings on the basis that the enforcement notice was ultra vires. Lord Hoffman emphasised that the ability of a defendant in criminal proceedings to challenge the validity of an act done under statutory authority, depended on the construction of the statute in question. Significantly in that case, the legislation contained a code, including provision for appeals against notices, and it was held by the House of Lords that on the proper construction of the statute all that was required to be proved in the criminal proceedings was that the notice issued by the local planning authority was formally valid, that is to say, that on its face it complied with the requirements of the statute and had not been quashed on appeal or by judicial review.

Lord Hoffman described the criminal proceedings as forming part of the general scheme of enforcement of planning control contained in the Act, and his Lordship opined that the Act "should be interpreted to give effect to the overall policy of the enforcement procedures".

The learned primary judge took up Lord Hoffman's reasoning and said of s64(7) of the LUPA Act at [95]:

"In fact, the offence provision is being used as an 'instrument of coercion', an expression used by Lord Hoffman in Wicks at 121, to promote compliance with the planning scheme, to give force to the mechanism of civil enforcement proceedings and to complement other powers of the Appeal Tribunal."

On this question of "collateral challenge", I note the following written submissions of senior counsel for the appellants:

"Her Honour's reasoning appears to be that, despite her conclusion at [63] (which must mean that a valid Tribunal order is not a necessary element of the offence), it was necessary to examine the jurisdiction of the Magistrates Court to determine the validity of the order.
With respect to her Honour, her conclusion precludes such inquiry. If the proper construction of the Act is that 'an order or a temporary order' is a factual one: that is on its face issued by the Tribunal and which has not been formally set aside then any inquiry as to its validity is irrelevant: R –v- Wicks (1998) AC 92 at 109, per Lord Nicholls, 117 and 122 per Lord Hoffmann."

Those submissions appear to me to be correct. It may be however that the question of the status and consequence of the Tribunal's orders, and the question of whether the appellants are permitted to challenge the validity of the orders by way of a defence in a prosecution for their contravention, although not separate questions, are nonetheless separate ways of approaching the same question. It may be that the question of the availability of collateral challenge is merely one way of answering the question of whether an order of the Tribunal made in excess of jurisdiction, but valid on its face and not set aside, remains sufficient to found a complaint for an offence under s64(7)? It is unnecessary for me to consider these questions given the decision I have reached.

I have agreed with the learned primary judge's conclusion that s64(7), in the context of the scheme of s64 and s65 of the LUPA Act, does not suggest that the validity of a civil enforcement order is an element of the offence to be proved by the prosecution. Rather, it is the mere existence of the order, extant, and valid on its face that is the relevant element. I also respectfully agree with her Honour's answer to the second question she posed as to the availability of collateral challenge to such an order in a prosecution for its breach. That answer, based largely on her Honour's reasoning as to the implication to be drawn from the legislative scheme of the LUPA Act with respect to the first question of the validity of the orders, was that, "the construction of the LUPA Act provides a clear indication that collateral challenge of orders of the Appeal Tribunal in a prosecution for breach of s64(7) was not intended". It follows that I do not accept the submission of senior counsel for the appellants made in his written reply submissions, that her Honour's reasoning on the first question does not support her conclusion on the second question.

I do not accept the submission of counsel for the appellants that the seven considerations identified by Besanko J in Jacobs v OneSteel Manufacturing Pty Ltd (supra) compel a conclusion that the learned primary judge erred in construing the legislative scheme in the way in which she did. Her Honour was mindful of those considerations and the conclusion she reached was one that was both open to her, and, in my view, correct, on the numerous authorities that she had considered in detail.

Disposition

For the reasons I have given I would dismiss the appeal.