Launceston City Council v Tasmanian Water and Sewerage Corporation Pty Ltd

[2013] TASSC 71

[2013] TASSC 71

COURT:  SUPREME COURT OF TASMANIA

CITATION:Launceston City Council v Tasmanian Water and Sewerage Corporation Pty Ltd [2013] TASSC 71

PARTIES:  LAUNCESTON CITY COUNCIL
  v

TASMANIAN WATER and SEWERAGE

CORPORATION PTY LTD trading as TASWATER

FILE NO/S:  380/2013

381/2013

JUDGMENT

APPEALED FROM:  Tasmanian Water and Sewerage Corporation (Northern Region) Pty Ltd v Launceston City Council

[2012] TASRMPAT 147

DELIVERED ON:  19 November 2013
HEARING DATE:  22 July 2013
JUDGMENT OF:  Porter J

CATCHWORDS:

Environment and Planning – Environmental planning – Development control – Applications – When application duly made – Planning authority may by notice in writing require additional information before considering the application – Whether terms of email request amounted to a notice in writing requiring additional information within the meaning of the provision.

Land Use Planning and Approvals Act 1993 (Tas), s54(1).

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal – Costs – Failure of planning authority to determine an application for a permit within prescribed time deemed to constitute a decision to grant a permit on conditions to be determined – Application to the Tribunal to determine the conditions – Tribunal to direct the planning authority to pay certain costs after the hearing of such an application – Conditions settled by agreement – Whether power to order costs – Meaning of "hearing".

Land Use Planning and Approvals Act 1993 (Tas), s59(5).

Melbourne & Metropolitan Board of Works v Bevelon Investments Pty Ltd [1977] VR 473; Hadid v Lenfest Communications Inc (1996) 70 FCR 403, considered.
Aust Dig Environment and Planning [599]

REPRESENTATION:

Counsel:
             Appellant:  P L Jackson
             Respondent:  S B McElwaine SC
Solicitors:
             Appellant:  C N Dockray
             Respondent:  Shaun McElwaine & Associates

Judgment Number:  [2013] TASCCA 71
Number of paragraphs:  50

Serial No 71/2013
File Nos 380/2013

381/2013

LAUNCESTON CITY COUNCIL v TASMANIAN WATER
and SEWERAGE CORPORATION PTY LTD trading as TASWATER

REASONS FOR JUDGMENT  PORTER J
  19 November 2013

Introduction

1. The Launceston City Council (the Council) is the appellant in two associated appeals from decisions of the Resource Management and Planning Appeal Tribunal, constituted in each case by its then chairman.  The appeals were filed on 30 April 2013.  One appeal is from a decision of the Tribunal dated 5 October 2012.  I am also dealing with an application to extend the time in which to appeal from that decision, although the appellant's contention is that the application is unnecessary.  The second appeal is from a further decision dated 5 April 2013 and which relates to the same matter. 

1. The appeals have their origin in an application for a planning permit by the respondent corporation (TWS). (It then had a slightly different corporate name and traded as Ben Lomond Water.) On 22 March 2012 TWS applied for a permit in respect of a minor subdivision and construction of a reservoir.  By an email sent on 11 April 2012, a Council officer asked TWS for a fire hazard assessment as required by the relevant planning scheme, along with confirmation that certain easements would be maintained.  The easement issue was answered by letter of 16 April 2012. The fire hazard assessment was provided on 20 April 2012.  On the same day the Council unsuccessfully sought TWS's agreement for an extension of time to consider the application.  On 14 May 2012 the Council refused the application and notified TWS of that decision on 21 May.

1. In the meantime, because of the operation of s59(1) of the Land Use Planning and Approvals Act 1993[1], (the LUPA Act) and because the relevant period of 42 days which the Council had to determine the application had expired, the failure of the Council to determine the application meant that a permit was deemed to have been granted.  Accordingly, on 10 May 2012, TWS lodged with the Tribunal an application under s59(3)[2] for an order determining the conditions upon which the permit was granted.  Further, on 12 June 2012, TWS lodged an appeal to the Tribunal under s61 of the LUPA Act in respect of the actual decision of the Council to refuse to grant the permit. 

   [1]     Failure to determine an application for a permit

   (1)   The failure of a planning authority to determine an application for a permit to which section 57 or 58 applies before the expiration of the period, or, where applicable, the further period, referred to in section 57(6)(b) or 58(2) is deemed to constitute a decision to grant a permit on conditions to be determined by the Appeal Tribunal.

   [2]         (3)   If a planning authority fails to determine an application before the expiration of the relevant period referred to in section 57(6)(b) or 58(2), the applicant may apply to the Appeal Tribunal for an order determining the conditions on which the permit is granted.

1. I will need to go into greater detail at a later point, but for present purposes simply note that between 22 May 2012 and 3 August 2012 a number of telephone conferences and directions hearings were held by the Tribunal.  In that time, the Tribunal published reasons for finding that the respondent's grounds of appeal in the s61 appeal were adequate. 

1. The parties resolved between themselves the terms on which a permit should issue, and a consent memorandum was filed.  Before orders were made, the Council raised the question of whether the orders were properly to be made under s59(3), and not under other provisions enabling the Tribunal to do various things on the determination of an appeal: see s62 of the LUPA Act and s23 of the Resource Management Planning and Appeal Tribunal Act 1993 (the RMPAT Act). The question raised by the Council involved a consideration of whether TWS's application under s59(3) was valid. In turn, that consideration involved determining whether the Council's request for a fire hazard assessment formally amounted to a "requirement to provide additional information" under s54(1)[3] of the LUPA Act.  The Council submits that the term is to be given its ordinary meaning as readily understood, that of a hearing on the merits of the matter at which the parties call evidence if necessary and make submissions.

   [3]     54   Additional information

1. If it did amount to such a requirement, by virtue of s54(2), the time in which the Council had to deal with the application for the permit did not run until the information was provided.  It is common ground that the timing of its provision means, assuming the request was one under s54(2) and time ceased to run as a result, that TWS's application under s59(3) was invalid. 

1. The jurisdictional question was raised because it had costs implications. Section 59(6) of the LUPA Act provides that an application under that section is deemed to be an appeal for the purposes of the RMPAT Act, and so both the application and the s61 appeal were "appeals" for the purposes of the RMPAT Act. If the Tribunal's orders were made by virtue of s59(3), then s59(5) applied. That section provides that (subject to an irrelevant exception):

"… after hearing an application under subsection (3), the … Tribunal must direct the planning authority to pay —

(a)   to the Appeal Tribunal an amount determined by the Appeal Tribunal as being the costs of the appeal; and

(b)   to each other party to the appeal an amount determined by the Appeal Tribunal as being the appeal costs of that party."

1. Were the orders to have been made otherwise, s28(1) of the RMPAT Act would have applied, to the effect that each party would pay its own costs.  Although s28(2) gives to the Tribunal the discretion to order a party to pay all or part of the costs of another party if it thinks it is fair and reasonable to do so, in the present case the parties had agreed that in respect of the s61 appeal, each should pay its own costs. 

1. On 5 October 2012, the Tribunal held that the email request of 11 April 2012 did not amount to a requirement to provide additional information under s54(1) of the LUPA Act. It determined that the application under s59 was accordingly valid and that the appropriate power which the Tribunal should exercise to dispose of the matter was that conferred by s59. As to costs, the Tribunal said that the circumstances seem to be such as to justify making orders under s59(5)(a) and (b), but invited submissions from the parties.

1. Having considered written submissions from the parties as to the proposed orders under s59(5)(a) and (b), on 5 April 2013, the Tribunal ruled that it had jurisdiction under s59 to make the orders as there had not been any "hearing of an application" as required by the subsection. Orders were made that the Council pay the Tribunal a specified amount, and ordered the Council to pay TWS's costs in accordance with 90 per cent of the highest scale of costs for the time being in force pursuant to the Supreme Court Rules 2000.

1. The first appeal before me relates to the determinations that TWS's application under s59(3) was valid, and that consequently the power as to costs to be exercised was that under s59. The second appeal also challenges the determination as to the s54(1) request, and the basis of making the orders. Further, it challenges the jurisdictional basis for the orders under s59(5), on the ground that the Tribunal had not "heard an application under [s59](3)".

The appeals

1. The first appeal contains two grounds. The first ground complains that the determination that the application under s59 was invalid, and that the appropriate power exercisable at the stage of the matter was that conferred by s59, was a finding that was not reasonably open. Ground 2 asserts that the Tribunal erred in law in finding that the email to TWS was not a requirement pursuant to s54(1) of the LUPA Act, and is in effect, the basis for the suggested invalidity raised in ground 1. The second appeal contains five grounds. Grounds 1 to 4, in their combined effect, assert an error of law in holding that the Tribunal had not conducted the hearing of an application under s59(3). Ground 5 is effectively a combination of grounds 1 and 2 of the first appeal; grounds 5(c)(i) to (iv) of the second appeal are effectively in the same terms as grounds 2(a) to (d) of the first appeal.

The issues

1. As argued, the issues for determination are as follows:

(a)Whether the determination of the Tribunal of 5 October 2012, was a "decision in the appeal" within the meaning of s25 of the RMPAT Act.  If it is not, there is no need to consider the application to extend time in respect of the first appeal.

(b)If that determination was a "decision", whether the Council is entitled to an extension of time in respect of the first appeal.

(c)If it is not entitled to an extension of time, whether those grounds of appeal in the second appeal which challenged the correctness of the determination of 5 October 2012 should be struck out as amounting to a collateral attack or an abuse of process.  In that event, the Council would be confined to the argument as to whether the Tribunal "heard an application under s59(3)".

(d)If an extension of time is granted in respect of the appeal, whether any of the grounds in either appeal is made out, which involves deciding:

(i)  whether the finding that the request of the Council for the fire hazard assessment was a requirement under s54(2) of the LUPA Act, was one reasonably open to the Tribunal;

(ii) if it was reasonably open, whether there had been a hearing of an application under s59(3).

1. Detailed arguments were addressed to the issues referred to in pars(a), (b) and (c).  The Council says that although it seeks an extension of time, that is as a matter of caution.  It argues that the first decision is part of, and subsumed within, the second decision.  The respondent argues that the first decision was a "decision … in the appeal" within the meaning of s25 of the RMPAT Act.  The respondent submits that as a consequence, the first appeal cannot be entertained unless the Council succeeds in its application to extend time.  The respondent says, relying on the list of considerations set out by Kirby J in Jackamarra v Krakouer (1998) 195 CLR 516 at 539 – 543 [66], that any application for an extension of time should be refused; in particular, because the Council has not put any material before the Court upon which the discretion could be exercised. There is no explanation as to why the first appeal was not lodged within time.

1. TWS further argues that if the Council is not entitled to an extension of time, the second appeal should be struck out as amounting to a collateral attack or an abuse of process.  It relies on the definition of a collateral challenge as stated by McHugh J in Ousley v R (1997) 192 CLR 69 at 98 - 99, and the list of discretionary considerations set out by Besanko J in Jacobs v OneSteel Manufacturing Pty Ltd (2006) 93 SASR 568 at 593 – 594 [93].

1. It seems to me, however, that all of those things can effectively be decided by examining the merits of the first appeal.  That appeal, of course, is effectively duplicated in ground 5 of the second appeal, on the basis that the determinations made on 5 October 2012 are subsumed within the final orders made on 5 April 2013.  If I decide that the the first appeal has no prospects of success, the application to extend time should not succeed, and there is no need to consider the respondent's consequential arguments.  I will now examine the Tribunal's reasons as to the issue raised by the first appeal and ground 5(c) of the second appeal.

The Tribunal's first decision

1. At par[3] of the reasons, the Tribunal identified the relevant issue as follows:

"[A]ll parties having reached an agreement as to the terms upon which a town planning permit may issue, is whether the Tribunal exercises power under Section 59 or Section 61 of the Land Use Act. [sic]  Central to a determination of that issue is whether or not an email sent on 11^th April 2012 by a Council planning officer amounted to a request under Section 54 of the Land Use Act."

1. After setting out s54 of the LUPA Act, the Tribunal reproduced the text of the email from the Council officer to the respondent.  The print out of of the email shows the sender as "Alex Noad [email address]" to "Adrian [email address]".  The text is as follows:

"Hi Adrian,

This DA is in advertising this Saturday.

One matter requires attention – could you please provide a fire hazard assessment as per Clause 8.2 and backed up by Clause 27.5.3 of the scheme.  GHD have done them recently for me, and I doubt it would be an issue for them on this side.

Also, could you please clarify that all the respective rights of way on the titles, particularly on the existing road title and right of way access to the WAG reserve would be maintained.

Regards

Alex."

1. "Adrian" seems to be a principal in the planning consultancy firm which prepared and submitted the development application on TWS's behalf.  Presumably the two people knew each other, but with this form of communication that may be an unsafe assumption.  As the Tribunal pointed out, although the email says one matter requires attention, it in fact sought clarification about two matters.  The reasons given for the finding as to the status of this email are as follows:

"6First, the email itself makes absolutely no reference to Section 54 of the Land Use Act. Now, whilst it is true that there is no prescribed form for a request, at the very least if it were intended that the email were to be a Section 54 request, then some reference should be made to the provision and the consequences for the application (ie that the clock stops), in the communication. Such an approach is, in the Tribunal's respectful view, critically important. The party seeking the town planning permit is entitled to know that it has a request under Section 54, that such a request gives rise to a separate right of appeal (see Section 61(3) of the Land Use Act) and has already been noted, the request itself has a temporal impact upon the consideration of the application. In this instance, the reader of the email dated 11^th April 2012 would be unaware that it was a request under Section 54 and thus unaware both of the right to challenge that request and that the Council's consideration of the application would simply stall while the request remained unanswered. To be a valid request under Section 54 the request must make it clear that it is, in fact, such a request by at least referring to the provision. Such an approach is, in the Tribunal's respectful view, entirely consistent with the text, context and purpose of Section 54 (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1988) 195 CLR 355 at paragraph 78, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at paragraph 47 and Nekon Pty Ltd v Commissioner of State Revenue [2010] TASSC 2 at paragraph 7 and following). It is also entirely consistent with the objectives of the Resource Management and Planning System of Tasmania (see Schedule 1, Part 1 of the Land Use Act in particular 1(b) and (c)). Indeed, to reach a conclusion that the email set out above was in fact a Section 54 request would be completely inconsistent with both the fair and orderly development of land and with encouraging public involvement in resource management and planning.

7The second reason for reaching the conclusion that the request was not a request under Section 54, and not intended to be, is to be drawn from the material on the Council's file itself. Nowhere in that material is support to be found for the proposition that it was intended to be a Section 54 request. The Council acknowledged in answer to the Tribunal questionnaire that it had made no request something, again, entirely inconsistent with the email dated 11^th April 2012 being a Section 54 request.

8Third the Council gave public notice on 14^th April 2012 of the fact of the application and called for representations in accordance with Section 57 of the Land Use Act. Such an approach was, and is, entirely inconsistent with the email dated 11^th April 2012 being a request for information under Section 54. The purpose of notification under Section 57 is to allow community participation in the planning system and the decisionmaking process. Part of that is the Council considering representations about the subject matter of the proposal. It is entirely inconsistent with that approach for a Council to call for representation about an application unless it is satisfied that it has all the material that it needs to determine that application. Representations received in alternative circumstances would be at least unhelpful.

9The final point is that when the fire hazard report was delivered on the 20^th April (the issue of the right of way having been addressed by an email of the 16^th April) the Council do not appear to have acknowledged that its request was satisfied and certainly did nothing at all, apart from seek an extension of time to determine the development application – something which would not have been necessary if the email dated 11^th April 2012 had in fact been intended to be, and was, a request under Section 54 of the Land Use Act.

10Everything points to it not being so. The Tribunal is satisfied that it was not."

1. By way of explanation, the questionnaire referred to in par[7] of the Tribunal's reasons is a Tribunal document which apparently is sent to planning authorities upon the institution of an appeal.  It requests information "in order to ensure that there is a valid appeal before the Tribunal, and to ensure that the Tribunal is informed about certain matters prior to the appeal hearing".  Question number 2 is to be answered if a request for further information was made under s54.  In that event, the planning authority has to provide details of the date of service of the request, the date upon which the request was answered, and "the number of days counted as 'stop clock' time".  The Council officer has written "N/A" against that question. 

1. The reference in par[8] to the giving of public notice on 14 April 2012 is a reference to the obligation on a planning authority under s57(3) of the LUPA Act, to give notice of an application, unless it requires the applicant to give notice. The giving of notice is governed by reg8 of the Land Use Planning and Approvals Regulations 2004[4]. 

   [4]     "8    Notification of application for permit

1. The allegation is that the Tribunal erred in law in finding that the email sent to the developer on 11 April 2012 could not constitute a requirement pursuant to s54(1) of the LUPA Act. The particulars of ground 2 of the first appeal and ground 5 of the second appeal are in the following terms.

"• The email made no reference to s54 (par 6). In so holding, the Tribunal purported to impose formal pre-conditions to a valid notice for the purposes of s54(1) that do not exist under the Act, or under any regulations made under the Act.

·There was no evidence from which an intention could be found or infer that the email was to constitute notice under s54(1) (par 7). The Tribunal should have found that it was not the Council's intention in sending the email that determined whether it amounted to notice for the purposes of s54(1), but whether, viewed objectively, the email communicated to the developer a requirement for the provision of additional information.

·The Council had conducted itself in a manner inconsistent with the email being intended to be a notice under s54(1) (par 8). Again, the Tribunal should have found that it was not the Council's intention in sending the email that determined whether it amounted to notice for the purposes of s54(1). But whether, viewed objectively, the email communicated to the developer a requirement that provision of additional information.

·The Council did not notify the developer that it was satisfied that the 'request' made in the email was satisfied after a fire hazard report was delivered to the Council by the developer on 20 April 2012 (par 9). In so holding, the Tribunal purported to impose a formal requirement to give notice of satisfaction and requirements imposed by notice under s54(1) that did not exist under the Act, or under any regulations made under the Act."

1. First, the Council argues that it is not essential for a notice to comply with s54(1), that it expressly state that it is given pursuant to the provision, or that it make any reference to the section. Barnett v Cleary and Vallance 33/1987[5],[1987] TASSC 39 is relied on for that proposition. In that case, the Full Court considered the adequacy of a trial judge's directions to a jury about a notice to fence under the Boundary Fences Act 1908. At 8, Neasey J (with whom Cosgrove J and Cox J (as he then was) agreed) said that a failure to set out in the notice the fact that it was intended to be given pursuant to the particular provision of the Act, would not invalidate the notice as long as the simple essentials were observed. Those simple essentials were that the notice needed to specify the boundary fence in question and "to require" the adjoining owners to assist in repairing or making sufficient the fence.

   [5] [1987] Tas R 190 (NC 13); a note of the case which does not refer to the passage relied on.

1. The Council further argues that to the extent that its intention might be relevant to the exercise of construing the email, in the absence of evidence, such intention could only be objectively discerned from the terms of the email read in the context of the surrounding circumstances. It is argued that the email plainly required that the fire hazard assessment be provided because it was a requirement of cl 8.2 of the planning scheme, it being obvious that without that document the application was being treated as incomplete, albeit one which it chose to accept rather than rejecting as it might have under s51(1AB) of the LUPA Act. The Council says that it is objectively clear that the email amounts to a requirement for the provision of additional information, and accordingly it takes effect as a notice within the meaning of s54(1).

1. Contrary to the view expressed by the Tribunal, it is submitted that there is no inconsistency between the email amounting to a s54(1) notice, and the Council giving public notice of the application. The Council submits that the obligation under s57(3) of the LUPA Act to give notice, as prescribed, of an application for a permit is not affected by anything contained in s54. The time in which the planning authority has to consider the application is suspended pending the receipt of requested information, but there is nothing to suggest that other obligations of the authority are suspended.

1. Lastly, the fact that the Council did not acknowledge compliance with the requirement is said to be of no significance at all.  A planning authority is under no such obligation. Time begins to run again when the information is provided, not when any advice is given to the applicant that the requirement for information has been satisfied. 

1. Section 25 of the RMPAT Act confines appeals to this Court to questions of law.  When there is an issue of whether a thing falls within the description of a word or phrase in a statute, a question of law is shown if, on the facts found, only one conclusion is open; if different conclusions are reasonably possible, the determination of the correct conclusion only involves a question of fact: Attorney-General (Tas) v Cameron (2007) 152 LGERA 45 per Blow J (as he then was) at 65 [71] and the cases cited. On that basis, the question is whether the conclusion was one that no tribunal, acting judicially and properly instructed as to the relevant law, could have reached: Protective Security Pty Ltd v Bedelph (2004) 13 Tas R 354 per Crawford J (as he then was) at 363 –364 [22] – [23], per Blow J at 381 [69] – [70].

1. Whether or not the email amounts to a requirement for additional information within the meaning of s54(1) has to be determined on an objectively reasonable construction of its terms: Barnett v Cleary and Vallance (above) at 9. The terms of any disputed s54(1) notice would have to be considered from the perspective of a reasonable recipient. Failure to comply with a s54 requirement relieves the obligation of the planning authority to consider the application, and so a requirement has significant consequences. While the perception of a reasonable recipient might be fashioned by surrounding circumstances, such as the public notification of the application, I do not see that the subjective intention of a planning authority has any real relevance.

1. Confining the consideration to the actual terms of the email, I am not persuaded that it necessarily falls within the description of a requirement for additional information. I do not think that the only conclusion reasonably open to the Tribunal was the contrary conclusion to the one it reached. That is, the view that the email was not capable on any reasonable construction of being regarded as a s54(1) notice was reasonably open. I have reached these views for the following reasons.

1. First, the email is obviously an informal communication, person to person, in which first names are used. In the first sentence, the recipient is notified that the development application is being publicly advertised. Whatever the merits are of the argument that a planning authority's obligations in that regard are not suspended pending a s54(1) notice, a reasonable recipient would understand that the Council was proceeding to deal with the application. Next, the email makes no reference to the fact that the request to provide the fire hazard assessment and to clarify the other issue, comes from the Council as the planning authority dealing with the application.

1. Further, although it is not determinative, the email contains no reference to s54 nor to the consequence of failing to provide the information, which is the suspension of the approval process. Additionally, given that s61(3) of the LUPA Act provides for an appeal from a s54(1) requirement, there is particular importance in making sure that any request can be reasonably easily understood as a statutory requirement. That is absent in this case.

1. It follows that I am satisfied that the first appeal has no merit.  (Of course, the same is to be said in relation to ground 5(c) of the second appeal.)  That obviates the need to do anything other than consider the balance of the second appeal. 

The Tribunal's second decision and the second appeal

1. Grounds 1, 3 and 4 of this appeal all raise the essential point.  Ground 2 raises a question of the Tribunal's approach to its previous decisions, and there is no need to consider it.   The real issue is best encapsulated in ground 4, which provides as follows:

"The Tribunal erred in law in failing to find that because there had been no hearing of the application made by the developer under s59(3) of the LUPAA the power conferred on the Tribunal under s59(5) to direct the payment of costs by the planning authority was not enlivened."

1. In its reasons of 5 April 2013 dealing with this issue, the Tribunal noted the Council's submission that there had been no hearing of an application under s59(3), and that therefore the Tribunal had no jurisdiction to give any direction as to costs under s59(5). That submission was rejected. The Tribunal said:

"There are several reasons for reaching this conclusion. First, … the Tribunal is not duty bound to conduct a full or formal merits based hearing in every single case. Were that to be so, then Section 17 of the Resource Management and Planning Appeal Tribunal Act 1993 would be otiose. In this case the Tribunal made a direction under s17. The parties in fact subsequently had discussions pursuant to that Section. Those discussions resulted in the resolution of the matter. The result of those discussions were [sic] reduced to writing and provided to the Tribunal which then made a decision in accordance with Section 17(2). It would be legally absurd to contend that because the Tribunal exercised jurisdiction and power under Section 17 of the Appeal Tribunal Act [sic] that no power exists under Section 59(5) since a full merits based hearing has not been conducted. The point might also be made that the matter was actually the subject of several hearings before the Tribunal on various dates when all parties appeared and various directions were made. This, in the Tribunal's view, would seem to amount to a hearing in any event.

To the extent that this discussion is inconsistent with earlier decisions of the Tribunal (see McGregor v Break O'Day Council [1995] TASRMPAT 152 and Dann v Devonport City Council [1996] TASRMPAT 172 this Tribunal merely observes those decisions are administrative in nature and not binding. 

The Tribunal also observes that there is no decision of the Supreme Court which deals directly with the point."

1. As noted by the Tribunal, it had held directions hearings before agreement was reached, the terms of which were then submitted to the Tribunal under s17. It should be said however, that the Tribunal seems to have put together the two separate proceedings; the s59(3) application and the s61 appeal. Although given separate numbers, they were effectively treated as one. When conferences and directions hearings were held they seem to have been regarded as common to both. Two telephone conferences were conducted which dealt with the identity of the parties. Mediation was attempted at one point without successfully resolving the matter, but resulting in an agreed timetable. A directions hearing was subsequently held, followed by a decision of the Tribunal concerning the adequacy of the grounds of the s61 appeal which dispute was argued by correspondence. A further directions hearing was held at which a hearing date was apparently set, and it was a few days before that hearing date when the terms of the agreement were lodged.

1. A "hearing" is not defined in either the LUPA Act or the RMPAT Act.  The word does not appear in Div3 of Pt4 of the LUPA Act in which ss61 and 62 deal respectively with appeals against planning decisions and the determination of appeals.  Technically, the making of procedural orders is not traditionally regarded as part of the hearing of a matter, but the word "hearing" may have that narrow meaning or a broader one: Green v Lord Penzance (1881) 6 App Cas 657 per Lord Selbourne LC at 669, Lord Blackburn at 678; Brooks on Behalf of the Mamu People v State of Queensland (No 3) [2013] FCA 741 at [18]. See also Anon 2 v XYZ [2008] VSC 466 at [18] – [19]. It is trite to observe that the word must be construed according to its context and having regard to the apparent purpose of the provision in which it appears.

1. The Council relies on the meaning apparent from Pt5 of the RMPAT Act which Part is entitled "Conduct of Appeals before Appeal Tribunal".  The relevant provisions, with what I regard to be the important parts italicised, are as follows:

16       Procedure of Appeal Tribunal

(1)   In an appeal before the Appeal Tribunal —

…

(f)  the Appeal Tribunal must hear and determine the appeal within 90 days after it is instituted or within such further period as may be granted under subsection (6).

(2)   For the purposes of subsection (1), directions as to the procedure to be followed at or in connection with the hearing of an appeal before the Appeal Tribunal may be given —  

(a)  if the hearing of the appeal has not started – by the chairperson or by a presiding member authorized by the chairperson to give procedural directions; and

(b)  if the hearing of the appeal has started – by the member presiding at the hearing or by another member authorized by the member presiding to give procedural directions.

…

16A     Mediation

(1)   Before hearing an appeal, the Appeal Tribunal –

(a)  must consider whether the appeal could be settled expeditiously by the use of mediation; and

(b)  may, on its own motion or on the motion of a party to the appeal, direct the parties to the appeal to mediation using the services of a mediator approved by the Appeal Tribunal.

…

(3)   At the hearing of an appeal before the Appeal Tribunal, evidence about anything that happens at mediation held under subsection (1) in relation to the appeal is inadmissible.

17       Conferences

(1)   If an appeal is made to the Appeal Tribunal, the chairperson may direct the holding of a conference of the parties presided over by a presiding member or another person performing duties on behalf of the Appeal Tribunal.

(2)   If a conference is held under subsection (1) and —  

(a)  at or after the conference, agreement is reached between the parties as to the terms of a decision of the Appeal Tribunal in the appeal that would be acceptable to the parties; and

(b)  the terms of the agreement are reduced to writing, signed by the parties and given to the Appeal Tribunal; and

(c)  the Appeal Tribunal is satisfied that —  

(i)a decision in those terms would be within the powers of the Appeal Tribunal; and

(ii)that it would be appropriate to make a decision in those terms –

the Appeal Tribunal may, without holding a hearing, make a decision in accordance with those terms.

(3)   At the hearing of an appeal before the Appeal Tribunal, evidence about anything that happens at a conference held under subsection (1) in relation to the appeal is inadmissible.

…

18       Procedure at hearings of appeals

(1)   Subject to this section, a hearing of an appeal must be held in public.

(2)   If —  

(a)  a person appearing to give evidence at a hearing objects to doing so in public; and

(b)  the Appeal Tribunal considers —  

(i)that the evidence is of a confidential nature; and

(ii)the interest in confidentiality is greater than the interest in having the evidence taken in public —

the Appeal Tribunal may take the evidence in private.

(3)   If the Appeal Tribunal considers –

(a)  that evidence to be given at a hearing is of a confidential nature even though the person appearing to give the evidence has not objected to doing so in public; and

(b)  the interest in confidentiality is greater than the interest in having the evidence taken in public —

the Appeal Tribunal may take the evidence in private.

1. The Council submits that these provisions draw a clear distinction between the hearing of an appeal in its ordinary sense, and hearings for the purposes of giving procedural directions in respect of such a hearing. 

1. TWS submits that there in nothing in the legislation which expressly confines the scope of a hearing to a contested proceeding resembling a trial in the orthodox sense. The meaning of "hearing" in s59(5) has to be construed in its context and having regard to its purpose. The overriding purpose of s59 is to enable development applications to proceed where a planning authority has failed to make a determination within the allowed time. TWS argues that he sanction of costs provided for in s59 is an incentive for planning authorities to expeditiously deal with applications. Once a s59(3) application is made, a hearing of whatever description triggers the costs sanction.

1. Counsel for TWS referred to Melbourne & Metropolitan Board of Works v Bevelon Investments Pty Ltd [1977] VR 473 and Hadid v Lenfest Communications Inc (1996) 70 FCR 403, as authorities for supporting the proposition advanced. In the Melbourne & Metropolitan Board of Works case, Anderson J considered s78 of the Supreme Court (Interest on Judgments) Act 1962 (Vic), which provided that upon all debts or sums certain recovered in any action, the judge "at the hearing" shall upon application and unless good cause was shown to the contrary, allow interest at a certain rate.  The plaintiff sued the defendant for monies owed and interest.  The debt due was paid but not the interest, and the plaintiff sought the interest by way of an application for summary judgment. 

1. The argument was that the hearing of the application was not a "hearing" within the meaning of s78, and that the provision referred to a formal hearing of the action.  At 477, Anderson J said he was firmly of the opinion that an application for interest pursuant to s78 may be made at the hearing of an application for summary judgment.  It is, however, clear from the discussion at 475 – 476 that his Honour reached that view because of the nature of such an application.  His Honour pointed out that an affidavit was required, and there may be an affidavit in reply with cross-examination of the deponents.  Both parties were entitled to be heard.  The proceedings were judicial and deliberative in nature.  His Honour said:

"[T]here has been a hearing appropriate to the nature of the proceedings and in a form required by the Rules.  There has been a determination of the issues between the parties and it is evident to me that what transpires before the judge in such circumstances takes place 'at the hearing'."

1. That case was referred to in Hadid v Lenfest Communications Inc (above). The substantive action was one in respect of s52 of the Trade Practices Act 1974 (Cth). The issue was the production of documents the subject of a confidentiality order made by consent. These were in the possession of companies which were not parties to the proceedings, but were recipients of subpoenas. Section 50 of the Federal Court of Australia Act 1976 (Cth) provided that the Court may, at any time during or after the hearing of a proceeding, make an order forbidding or restricting the publication of particular evidence or the name of a party or witness. The respondents to the application resisted access in reliance on this section, arguing that the matter was still at an interlocutory stage and it had not yet come to trial. Hill J rejected the argument. At 407 his Honour said:

"The narrow interpretation sought to be given to the word 'hearing' in s 50 is, in my view, not warranted. The word 'hearing' is equally apt to refer to a 'directions hearing' or an 'interlocutory hearing' (emphasis added), as it is to a hearing on the merits: cf Melbourne & Metropolitan Board of Works v Bevelon Investments Pty Ltd [1977] VR 473 at 477. Indeed, the Federal Court Rules 1979 (Cth) refer, for example, in O 10, r 1 to 'Directions Hearing'. Order 4, r 9 of the same rules refers to a 'hearing' in the context of a claim for interlocutory relief. Had the word 'hearing' been used in s 50, together with the words 'on the merits' or some such expression, the submission might have had more force. The word 'hearing' in s 50, in my view, is not limited to the trial of a proceeding. It will include the hearing of any motion or application before a judge or registrar from the first directions hearing to the final determination of the application to the Court. The power to suppress the name or names of parties and witnesses conferred by s 50 would be somewhat hollow if restricted to the period during and after the trial and not capable of exercise at the earliest possible time."

1. Hadid is also distinguishable.  It is readily understandable that in the context of a provision dealing with the suppression of information, the concept of a hearing would be broadly construed.  I also note that in Baxendale's Vineyard Pty Ltd v Geographical Indications Committee (2007) 156 FCR 444 at 447 [14], Mansfield J pointed out that Hill J's view "was reflected in, and consistent with the definition of 'hearing' in O 1, r 4 of the [Federal Court] Rules [1979], namely that 'hearing includes any hearing before the Court, whether final or interlocutory, and whether in open court or in chambers'."

1. There is a principle of statutory interpretation that in the absence of any context indicating a contrary intention, it is to be presumed that Parliament intended to give the same meaning to the same words when used in a subsequent statute in a similar connection: Lennon v Gibson & Howes Ltd (1919) 26 CLR 285 at 287; Ramaciotti v Federal Commissioner of Taxation (1920) 29 CLR 49 at 53; generally, Pearce and Geddes, Statutory Interpretation in Australia, 7^th ed at [3.36]. 

1. The RMPAT Act is no 66 of 1993; the LUPA Act is no 70 of 1993.  Both received Royal Assent on 9 November 1993.  The LUPA Act might be properly described as subsequent to the RMPAT Act, but in any event, and perhaps more importantly, it is the connection between the two statutes which is important.  They were intended to be complementary pieces of legislation dealing with reforms to the planning process.  The RMPAT Act established the Tribunal and provided for its functions and powers, along with ancillary matters.  The LUPA Act replaced the relevant provisions of the Local Government Act 1962, and made provision for the regulation of land use and development.  The LUPA Act provided for appeals to the Tribunal.

1. There is every reason to think that when the word "hearing" is used in s59 of the LUPA Act in respect of the Tribunal's proceedings, it has the same meaning as emerges from an analysis of the provisions under the RMPAT Act which regulate the Tribunal's procedure.  I do not think there is any doubt that those provisions show a clear distinction between procedural and interlocutory functions, and the hearing of an appeal on the merits. 

1. Section 17 is critical in this respect. It enables the terms of an agreement to be reduced to writing and a decision made in accordance with those terms, without holding a hearing. That is, without hearing evidence or receiving submissions. The parties are not called together to formally proclaim the effect of their agreement, although it seems that the Tribunal would have a discretion to call the parties together to clarify some aspect of the matter: Brooks on Behalf of the Mamu People v State of Queensland (No 3) (above) at [19].  That applies to a s59(3) application by way of it being an appeal.

1. There may be some force in the argument that in order to encourage planning authorities to expeditiously deal with applications, it is the happening of a hearing of whatever nature which enlivens the power under s59(5). That argument though, faces the high hurdle of the clear distinction between merely procedural hearings and hearings on the merits, made in Pt5 of the RMPAT Act. The intention to encourage expedition by way of the more substantial costs involved in a hearing, in the narrow sense, can be easily discerned. In my view, the earlier decisions of the Tribunal, differently constituted on each occasion, referred to in the Tribunal's reasons of 5 April 2013 were correct.

1. I hold that the words "after hearing an application" in s59 of the LUPA Act refer to the hearing of an appeal as that concept is established by reference to ss16 – 18 inclusive of the RMPAT Act; that is, a hearing of the merits of the appeal in the ordinary sense. I hold that in this case, there had not been a hearing of the application within the meaning of s59(5). It follows that grounds 1, 3 and 4 of the second appeal are made out. As I have said, there is no need to consider ground 2.

Outcome

1. To the extent that it might be necessary, the application to extend time is refused, and to the extent that it is necessary to deal formally with the first appeal, it is dismissed.  The second  appeal is allowed.  Otherwise, I propose simply making an order that the orders in relation to costs made by the Tribunal on 5 April 2013 be set aside, but I will hear counsel first.

(1)   A planning authority may, by notice in writing served on the applicant within the period of 21 days from the day on which it receives an application for a permit, require the applicant to provide it with additional information before it considers the application.

(1)   For the purposes of section 57(3) of the Act, notice by a planning authority of an application for a permit is to be —  

(a)advertised in a daily newspaper circulating generally in the area relevant to the application; and

(b)displayed at the planning authority's office; and

(c)given to the owners and occupiers of all properties adjoining the land that is the subject of the application; and

(d)displayed on the land that is the subject of the application —  

(i)    in a size not less than A4; and

(ii)   as near as possible to each public boundary."