Meander Valley Council v RMPAT - [2018] TASSC 9

[2018] TASSC 9

COURT: SUPREME COURT OF TASMANIA

CITATION: Meander Valley Council v RMPAT [2018] TASSC 9

PARTIES:  MEANDER VALLEY COUNCIL
  v
  RESOURCE MANAGEMENT

AND PLANNING APPEAL TRIBUNAL
TIMBER WORLD PTY LTD

FILE NO: 1805/2017
JUDGMENT

APPEALED FROM: Timber World Pty Ltd v Meander Valley Council

and Teen Challenge Inc [2017] TASRMPAT 37

DELIVERED ON:  2 March 2018
DELIVERED AT:  Launceston
HEARING DATE:  18 October 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Environment and Planning – Environmental planning – Development control – Consents, approvals and permits – Validity – Generally – Tribunal found a permit should be categorised in a different proposed use class – This finding did not warrant the conclusion that the permit was invalid.

Jackson v Building Appeal Board [2010] TASSC 29, 20 Tas R 1, cited.
Woolworths Limited v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707, distinguished.

Aust Dig Environment and Planning [207/211]

Environment and Planning – Environmental planning – Development control – Consents, approvals and permits – Applications – Notice and advertising – Notice – Form and contents – Whether an incorrect categorisation of use on a permit would render notice deficient.

Land Use Planning and Approvals Act 1993 (Tas), s 59(3).
Land Use Planning and Approvals Regulations 2014 (Tas), reg 9.
Aust Dig Environment and Planning [88]

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal and its predecessors – Powers and duties on appeal – Effect of an invalid permit on the Tribunal's jurisdiction – Failure to provide notice will not deprive the Tribunal of jurisdiction to determine an appeal which is otherwise competent – Tribunal erred when it determined that it was without jurisdiction.

Land Use Planning and Approvals Act 1993 (Tas) s 59(3).
Scurr v Brisbane City Council (1973) 133 CLR 242, cited.
Purton v Jackson [2016] TASSC 56, 223 LGERA 19, followed.
Dorset Council v Resource Management and Planning Appeal Tribunal [2014] TASSC 34, 23 Tas R 85, considered.

Aust Dig Environment and Planning [596]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine SC
             Respondent:  A Beeson
Solicitors:
             Appellant:  Shaun McElwaine + Associates
             Respondent:  Simmons Wolfhagen

Judgment Number: [2018] TASSC 9
Number of paragraphs: 65

Serial No 9/2018
File No 1805/2017

MEANDER VALLEY COUNCIL v RESOURCE MANAGEMENT AND PLANNING APPEAL TRIBUNAL and TIMBER WORLD PTY LTD

REASONS FOR JUDGMENT BRETT J

2 March 2018

This appeal concerns the proposed conversion and use of a property, formerly the Meander Primary School, as a rehabilitation centre for women and children. The site is located within the municipal area in respect of which the appellant, the Meander Valley Council (the Council), is the planning authority. The relevant planning scheme is the Meander Valley Interim Planning Scheme 2013 (the scheme), and the property is located in the Village Zone prescribed by that scheme. It is common ground that the property could only be used for the said purpose if a permit was issued by the planning authority pursuant to the provisions of the scheme. (Section 51 of the Land Use Planning and Approvals Act 1993 (the LUPA Act).)
On 21 April 2016, a planning consultant, Rebecca Green, applied for the relevant permit. She did so on behalf of the organisation that intends to operate the centre, Teen Challenge Tasmania. The application consisted of a short pro forma document, and was accompanied by some supporting documents. These consisted of plans of the proposed development, a planning submission prepared by Ms Green and a lengthy document prepared by Teen Challenge, which provided general information about the organisation and detailed information concerning the proposed operation of the centre. Under the scheme, each proposed use or development is to be categorised into a single use class as defined in the scheme. This categorisation would determine whether the proposed use or development fell into the permitted, discretionary or prohibited use class of the relevant zone. This was one factor in determining whether the Council was required to grant a permit, had a discretion as to the grant or refusal of a permit or was prohibited from granting a permit. The Council categorised the proposed use within the use class "Hospital Services", which is a permitted use in the Village Zone. Despite falling within this class, the grant of a permit also depended on the exercise of a number of discretions arising from the need for the use and development to comply with the scheme's standards by reference to performance criteria. Accordingly, the Council was required to deal with the application pursuant to the provisions of s 57 of the LUPA Act.
As part of the assessment process set out in s 57, the Council was required to provide prescribed notice of the application: (s 57(3)). In the notice, it described the nature of the application, presumably in partial reliance upon its categorisation as "Hospital Services (Rehabilitation Centre)". It also referred to the matters of discretion arising under the applicable scheme standards. In accordance with s 57(4), the notice provided appropriate details as to how the application and associated documents could be inspected by any interested person.
The notified application attracted a large number of representations. One of those representations was from the second respondent, Timber World Pty Ltd (Timber World). In due course, the Council granted a permit for the proposed use or development, subject to some conditions.
Timber World appealed to the first respondent, the Resource Management and Planning Appeal Tribunal (the Tribunal) against the grant of the permit. Teen Challenge, the true proponent of the application, was joined as a party to the appeal. After commencing the appeal, Timber World (despite being the appellant) made an application to the Tribunal in which it raised "jurisdictional issues" concerning its appeal. The procedure whereby these issues were raised seems to have been in accordance with practice directions issued by the Tribunal, which, I infer, provide the opportunity for the resolution of such issues by way of preliminary argument. The issues so raised included the following:
(a)Incorrect categorisation – It was argued that the Council's categorisation of the proposal as "Hospital Services" was incorrect, and that it should have been categorised as "Residential", which is a discretionary use category in the zone.
(b)Failure to notify – It was argued that because the categorisation of the use as "Hospital Services" was incorrect, the notice, which described the proposed use in those terms, was deficient, and accordingly there had been a failure to comply with s 59(3).
It was argued that these issues rendered the permit invalid. It was further argued that an invalid permit left the appeal without the requisite legal basis, and, accordingly, the Tribunal was without jurisdiction to determine it.
The Council argued that it was not appropriate to deal with these questions by way of a preliminary jurisdictional argument. Despite this, the Tribunal, constituted solely by its Chairman, Mr G Geason (as he then was), considered the application on the papers as a preliminary issue, determined that the categorisation was incorrect, and that, accordingly, the permit was invalid. The Tribunal held that, as a result, it was without jurisdiction to determine the appeal: Timber World Pty Ltd v Meander Valley Council and Teen Challenge Inc [2017] TASRMPAT 37.
The Council appeals from that decision to this Court pursuant to s 25 of the Resource Management and Planning Appeal Tribunal Act 1993 (the Tribunal Act). The appeal is resisted by Timber World. Neither the Tribunal nor Teen Challenge has chosen to actively participate in the appeal before this Court. Under s 25, an appeal must be "on a question of law". It must also be from a "decision" of the Tribunal "in the appeal". Neither party questioned the jurisdiction of this Court to determine the appeal. I am prepared to accept that the Tribunal's determination that it was without jurisdiction amounts to a "decision" amenable to appeal under s 25.

The development proposal

Ms Green's planning submission described the proposal in the following terms:
"The proposal is to convert the existing school to a Home of Hope rehabilitation centre for women and children. Home of Hope will be a 12-18 month residential AOD (alcohol and other drugs) rehabilitation program that provides women with children, pregnant women, and single women suffering from addictions and life controlling issues, access to a safe, stable environment. The program will follow the structure of the Teen Challenge program. In overview, the program consists of the following structure;
•6 week transitional group;
•12 month residential program; and
•6-12 month internship (optional)
The program is to cater for up to 12 students and their children as [sic] any one time. Students receive individual support and counselling via mentors, external clinical psychologists and/or onsite counsellors.
Two staff and two managers/co-ordinators will reside on site. Three additional staff will reside off-site. It is expected that two volunteers on average will also attend the facility on a daily basis."
The planning submission and the Teen Challenge document each contain a detailed description of the proposed operation, which includes many incidental aspects of its day to day operation, and the methodology to be employed to achieve the sought-after rehabilitation. It is clear that religious and/or spiritual values will underpin much of the interaction with persons engaged in the program. In the hearing of the review, each party pointed to various aspects of the contents of the documents which, it said, supported the categorisation of the use contended for by that party. I will refer to such aspects as necessary during the course of these reasons.

The planning scheme

The dispositive issue for the Tribunal was the decision of the Council to categorise the proposed use as "Hospital Services". The categorisation of a proposed use and/or development into an appropriate use category is fundamental to the operation of the planning scheme. The category will determine whether the proposed use does not require a permit, or is permitted, discretionary, or prohibited according to the Use Table of the relevant zone. Of course, the Use Table is not the end of the matter. A proposed use which falls within the permitted category of the Use Table may still require the exercise of discretion under some other provision of the scheme in order to achieve a permit. For example, the need to comply with an applicable scheme standard where the development must rely on performance criteria, rather than an acceptable solution, will require the exercise of discretion.
It follows that the categorisation of the use will determine the manner in which the proposal is assessed, both in terms of the LUPA Act and under the scheme. A use or development for which the planning authority is bound to grant a permit with, or without conditions, will be dealt with under s 58. A discretionary use, irrespective of the basis on which the discretion arises, is dealt with under s 57. Under that section, unless Council refuses to grant a permit, the application must be notified as prescribed, and the time limits applicable under that section will apply. Under the scheme, the assessment of a discretionary permit will engage applicable scheme standards and requirements (cl 8.10.1). The planning authority must also have regard to prescribed matters including the purpose of the zone, and applicable codes and plans (cl 8.10.2).
The process of categorisation is governed by cl 8.2 of the scheme. That clause reads:
"8.2 Categorising Use or Development
8.2.1Each proposed use or development must be categorised into one of the use classes in Table 8.2.
8.2.2A use or development that is directly associated with and a subservient part of another use on the same site must be categorised into the same use class as that other use.
8.2.3If a use or development fits a description of more than one use class, the use class most specifically describing the use applies.
8.2.4If a use or development does not readily fit any use class, it must be categorised into the most similar use class.
8.2.5If more than one use or development is proposed, each use that is not directly associated with and subservient to another use on the same site must be individually categorised into a use class."
Table 8.2 sets out the available use classes. It is of some importance that the Table does not include a miscellaneous or "catch-all" use class. Hence, it is necessary to apply a "best fit" approach, applying the rules set out in cl 8.2, in particular, cls 8.2.3 and 8.2.4. This interpretation was accepted by both parties on the hearing of the appeal to this Court.

The only use classes which are relevant to this appeal are defined in the Table as follows:
"Hospital services: Use of land to provide health care (including preventative care, diagnosis, medical and surgical treatment, rehabilitation, psychiatric care and counselling) to persons admitted as in-patients. If the land is so used, the use includes the care or treatment of out-patients.
ResidentialUse of land for self-contained or shared living accommodation. Examples include an ancillary dwelling, boarding house, communal residence, home based business, hostel, residential aged care home, residential college, respite centre, retirement village and single or multiple dwellings."

The proceedings before the Tribunal

After Timber World made its application for the determination of "jurisdictional issues", both parties made written submissions to the Tribunal. Mr McElwaine SC for the Council, contended that the question of categorisation was a matter "for an evaluative judgment based on facts which are yet to be found by the Tribunal". He contended that the matter was not properly determined as a preliminary jurisdictional issue, but rather a question for the Tribunal to determine after hearing the appeal. In his initial submission, Timber World's counsel, Mr Beeson, argued that an incorrect categorisation invalidated the permit and deprived the Tribunal of jurisdiction. However, in written submissions in reply to those from the Council, Mr Beeson agreed that the question of categorisation was within the jurisdiction of the Tribunal, but argued that the matter could be determined by a limited consideration of the development application and the documents provided in support of it. He accepted that if the Tribunal determined, as a matter of fact, that the categorisation was incorrect, the appropriate order would be to uphold the appeal and order that the approval be replaced with a refusal. However, Mr Beeson also contended that the notice was deficient, and this deficiency was sufficient to invalidate the permit and deprive the Tribunal of jurisdiction.
The Chairman handed down a written decision after considering only the written submissions. It seems that he had before him the application and the supporting documents, as well as the report from the Council's planning officer, which had recommended the categorisation of the use as "Hospital Services". The Chairman concluded that the two issues before him, categorisation and the sufficiency of the notice by reference to that categorisation, were:
"… capable of being determined by reference to the development application. The issues raised fall for determination against the content of that document, essentially 'anchored' in time. A Tribunal hearing could not add to the content of that application."
The Chairman then considered whether the proposed use had been correctly categorised as "Hospital Services" by reference to the material contained in the development application and supporting documents. He considered whether the use would include the provision of services to "inpatients", and concluded that the "Council was required to accept that there would not be inpatients". This conclusion was based on a statement in the planning submission that "the students are not admitted as inpatients". On the basis of this statement, the Chairman reasoned that "it is an incontrovertible fact that the developer's submission contradicted an essential element of the Hospital Services use class". After considering in some detail other aspects of the proposed operation as set out in the supporting documents, the Chairman concluded as follows with respect to the categorisation issue:
"35Nor is there anything in the development documents which would afford the use the categorisation as a service providing alternative remedies or homeopathic solutions to medical problems. All of the content points to a service providing a program offering lifestyle support. The live in nature of the program does not morph the residents undertaking the program into in-patients receiving health services.
36This is not a matter of differences in interpretation of the term 'in-patient'. For the reasons given in relation to the definition of that term, the Tribunal finds that the proposal does not involve the admission of in-patients The Tribunal considers that reasonable minds provided with all of the facts submitted on the development application would so conclude, to the exclusion of the alternative hypothesis Council advances. An interpretation as wide as that adopted by the Council blurs the distinction between the categories of use contained in the Scheme to a point where it becomes meaningless.
37Accordingly the proposal is not for a use within the hospital services class, and Council was in error in adopting that categorisation. That error taints its assessment because such use follows a different assessment path. The Tribunal holds that the permit is invalid and the Tribunal is without jurisdiction to entertain an appeal on the merits."
The Chairman went on to consider the sufficiency of the planning notice. He concluded that the description of the development as "Hospital Services (Rehabilitation Centre)" was a misdescription of the use, and misleading:
"42The Tribunal is satisfied that the misdescription has the potential to disguise the true nature of the proposal with the result that persons who may have chosen to participate in the planning process, chose not to. Whilst there can never be absolute certainty around that proposition, the potential for that result is enough to defeat the purpose enshrined in the provisions of LUPA and the corresponding Regulations."
On the basis of these conclusions, the Tribunal concluded that the "permit is invalid". Further, it considered itself "without jurisdiction to proceed to deal" with the appeal: [54]. It made no further order disposing of the appeal, except for some directions on the issue of costs.

The appeal to the Supreme Court

The Council attacks the Tribunal's decision on a number of bases. These are:
(a)That the Tribunal erred by determining the question of jurisdiction on the papers and without conducting a merits hearing. In particular, the Tribunal was obliged to make findings of fact in order to underpin its conclusions with respect to jurisdiction, and it acted contrary to its obligations under relevant legislation by failing to conduct a full hearing into the said jurisdictional facts (ground (d)).
(b)That the Tribunal failed to make necessary findings of jurisdictional fact sufficient to justify its conclusion concerning the correct categorisation of the use and development (grounds (b) and (c)).
(c)That the Tribunal considered itself bound by statements of fact contained in the application, when it ought to have made its own enquiry and reached its own conclusions (ground (a)).
(d)That the Tribunal incorrectly determined jurisdictional facts and misapplied those facts to the provisions of the scheme, hence undermining its ultimate conclusion that it was without jurisdiction (grounds (e), (f) and (g)).

Timber World argues that the Tribunal acted correctly by conducting a preliminary hearing on the papers, because in determining the question of the correct categorisation and any consequent impact upon the validity of the permit and hence its jurisdiction, it was bound by and limited to the contents of the development application and supporting information. If any further information was required by the Council, then it could have exercised its right to seek further information under s 54 of the LUPA Act. It did not do so. Timber World argues that the Tribunal reached a decision which was factually and legally correct, having regard to the information contained in those documents.

Ground d – The Tribunal's jurisdiction and the process

I intend to deal firstly with the process adopted by the Tribunal, which is bound up in its enquiry as to whether it had jurisdiction.
There can be no dispute that the Tribunal had both the power and the obligation to determine its jurisdiction, once the challenge to that jurisdiction had been raised by a party: Attorney-General v Estcourt and the Wilderness Society Inc (1995) 4 Tas R 355. However, a question arises as to whether the Tribunal correctly assessed the nature of its jurisdiction, and whether it applied the correct principles in respect of that determination. There is also the closely related question as to whether the process employed to determine this question miscarried as a result of the incorrect application of principle. This question underpins all of the grounds of appeal, but is directly raised by ground (d).
The source of the Tribunal's jurisdiction in this case was s 61(5) of the LUPA Act. That section provides that if a planning authority grants a permit, a person who has made a representation may appeal to the Tribunal against the grant of the permit. Section 62 vests the Tribunal with the power to make orders "after hearing an appeal". These powers are in addition to those conferred by the Tribunal Act. That Act confers wide powers on the Tribunal for the purpose of the determination of an appeal. It is apparent from the provisions of both Acts that the foundation of the Tribunal's jurisdiction is the fact that the planning authority has granted a permit.
As has already been noted, the Tribunal concluded that the permit was invalid and, accordingly, it was without jurisdiction. It determined the question of validity by assessing whether, on the face of the application documents, the Council had correctly categorised the use, and properly notified the application in accordance with s 53. The question of the validity of the permit was an essential step in the Tribunal's chain of reasoning that it was without jurisdiction. Accordingly, I will first consider the question of the Tribunal's assessment of the validity of the permit.

The validity of the permit

The grant of a planning permit is an administrative act, authorised and regulated by legislation, including the delegated legislation which is the planning scheme. As with any administrative act, it will only have effect if it is lawful. To be lawful, it must have been made pursuant to, and within, the power conferred by the relevant law. In this case, the relevant law consists of the LUPA Act and the scheme.
In Jackson v Building Appeal Board [2010] TASSC 29, 20 Tas R 1, Porter J was required to consider the question of the validity of a permit issued by a planning authority in the context of a determination of the jurisdiction of another body, which depended, in part, upon that validity. In describing the task which the other body had to undertake in order to determine the validity of the permit, his Honour referred to a decision of Evans J in R v Resource Management andPlanning Appeal Tribunal; ex parte Calvary Hospital Hobart Inc [2000] TASSC 19, 107 LGERA 196, and in particular to the following statement:
"[16] In order for the Tribunal to establish whether Calvary had undertaken a development contrary to a planning scheme in contravention of the Act, s63(2)(a), it was necessary for the Tribunal to determine whether the development had been carried out in accordance with a valid permit. This involved considering:
·whether it was open to Calvary to obtain a permit for the development under the Scheme; and
·whether, pursuant to the Scheme, it was competent for the council to grant Calvary a permit for the development."
Applying those comments, his Honour described the task which the other body was required to undertake in order to determine the validity of the permit, at [38]:
"[38] That seems to me to describe the task which the Board in this case was required to undertake. A permit for the development in fact had been issued. As the point had been raised, in order to properly exercise its jurisdiction the Board was required to determine whether it was competent for the Council to grant to the applicants the permit. That is, whether the grant of the permit was, on the material before the Council and in light of the provisions of the Scheme, within the Council's powers. In order to make that determination, the Board would have had to examine the material which was before the Council and apply the provisions of the Scheme. It was only if the grant of a permit was not open on any legal basis, or not properly made on any legal ground, could the Board have determined that a permit "had not been granted".
In other words, the crucial question in respect of validity is whether the Council was acting within its legal power in making a determination.
Under the scheme, the Council was authorised to grant a permit if the use and development was permitted or discretionary within the meaning of cls 8.7 and 8.8. In order to determine whether the permit would be granted, the Council is required to undertake an assessment of the development in accordance with the provisions of the planning scheme. This included categorising the proposal in accordance with cl 8.2. However, this was only one part of a complex, multiple step assessment. The components of the assessment are interconnected, and often interdependent. An assessment of one component will invariably affect and direct the balance of the assessment process. This is certainly the case with the categorisation of the use, but also applies to many other components of the assessment.
In this case, there was no question that it was open to the Council to categorise the proposal into a use category which would, at the very least, confer a discretion to grant a permit. The question of whether a permit should be granted depended upon the whole of the assessment, including the categorisation of the use. Accordingly, I do not think that the categorisation by the Council of the use or development for the purposes of and as part of an assessment process ought to be regarded differently to any other part of the assessment. In particular, I do not think that a categorisation of that nature can be regarded as a "jurisdictional fact" of the nature discussed in City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135; Woolworths Limited v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707. Those cases were concerned with the categorisation of a development for the purposes of legislation which confined the power of the planning authority to deal with the development application. The appropriate classification was a fact which went directly to the legislative limits of the Council's jurisdiction. In Woolworths v Pallas Newco, Spigelman CJ (who wrote the primary judgment of a bench of five) said, at [5]-[6]:
"[5] The case law and legal literature contains a great deal of terminological confusion about the concepts of 'jurisdiction' and 'jurisdictional facts'. The authoritative statement of the relevant concept for Australia is set out in the joint judgment of the High Court in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (1999) 199 CLR 135 at [28]:
'The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.'
[6] The issue is one of statutory construction. What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional."
Those cases can be distinguished from this case. In this case, there is no question that upon receipt of a valid development application, the Council was acting within power in assessing the proposal against the provisions of the scheme, and, subject to that assessment, granting a permit. Part of that assessment involved categorisation under cl 8.2. While at least three categories were suggested as appropriate in the application, and two were discussed in this appeal, a permit was able to be granted in each case. The overall legislative scheme provides for the Council to conduct such an assessment, and then to grant a permit, grant same with conditions, or refuse to grant a permit, as the case may be. But the legislative scheme also provides for a de novo review of the entire assessment process by the Tribunal. A finding by the Tribunal after a hearing that the proposal should be categorised in a different way would have required the Tribunal to proceed along a different path of assessment of the application to that adopted by the Council. For example, a finding that the proposal ought to have been categorised as Residential would give rise to discretion in terms of the use class, and not just arising in respect to applicable scheme standards. That is the function and duty of the Tribunal which acts as a specialist tribunal to review on a de novo basis the decision of the planning authority. A finding that the assessment should have resulted in a different outcome, including refusal because the appropriate use category was prohibited in the zone, or because the proposal could not satisfy an essential scheme standard, is a possible outcome of an appeal, contemplated by the legislative scheme.
However, such a finding, of itself, does not justify a conclusion that the permit was invalid. The proper construction of the legislation supports a conclusion that a permit granted after compliance with the procedures set out in the LUPA Act, and after an assessment process contemplated by the scheme, will be validly granted within the legal authority of the planning authority. On appeal, that decision is then subject to a de novo redetermination by the Tribunal. It follows that a finding by the Tribunal that the proposal should have been categorised into a different use class did not warrant a conclusion that the permit was invalid. The Tribunal was in error to so find.

Notification under s 57(3)

Of course, the Tribunal has gone on to make a further finding that the incorrect categorisation has resulted in a failure to give proper notice of the application, pursuant to s 57(3) of the LUPA Act. The Tribunal found that the failure to give notice was sufficient, in itself, to invalidate the permit and deprive the Tribunal of jurisdiction.
It is well settled that in a case in which a planning authority has failed to properly provide notice of the permit as required by s 57(3), it has no lawful power to grant a permit, irrespective of the provisions of the relevant planning scheme and that, accordingly, any purported decision to grant a permit will be invalid: Scurr v Brisbane City Council (1973) 133 CLR 242; Dorset Council v Resource Management and Planning Appeal Tribunal [2014] TASSC 34, 23 Tas R 85. In such a case, the time for making representations under s 57(5) will not have commenced, and the combined provisions of ss 57(6) and 59 will not operate to effect a deemed approval: Dorset v Resource Management and Planning Appeal Tribunal. Further, as a council does not have power to grant an approval, neither will the Tribunal be in a position to do so: Break O'Day Council v Resource Management and Planning Appeal Tribunal [2004] TASSC 122, 13 Tas R 207.
In this case, the planning authority purported to give notice in accordance with s 57(3). Whether the notice complied with the requirements of that section is not answered solely by reference to whether the Council made the correct categorisation. The question which was correctly posed to the Tribunal by the second respondent, was whether a description of the content of the application was such that it might "mislead or deflect attention from the substantive proposal" and not convey sufficient information to enable readers to make an informed decision as to participation in the planning process. The Tribunal answered this question by concluding that there was a misdescription of the proposal because "there is a relevant difference in the way in which the notice describes a proposal and the way the proposal itself is described in the application". The Tribunal was satisfied that the "misdescription has potential to disguise the true nature of the proposal". However, in arriving at this conclusion, it is apparent form the Tribunal's reasons that it has relied heavily on the inclusion of the words "Hospital Services" in the description of the proposed use in the notice, and its conclusion that this was not the correct use category for the purposes of cl 8.2.
Section 57(3) requires a planning authority to give notice "as prescribed, of an application for a permit". The relevant prescription is contained in reg 9 of the Land Use Planning and Approvals Regulations 2014. Regulation 9(3) provides that a notice is to "specify the content of the development proposal specified in the application". In construing this provision, the requirement to specify the content of the development application must be considered in the context of the balance of the regulation, which includes a requirement that the notice be displayed as near as possible to each public boundary of the land "in a size not less than A4". It must also be advertised in a daily newspaper. It is also relevant that s 57(4) of the LUPA Act provides that the notice must name a place where a copy of the application and of all plans and other documents submitted with the application will be open to inspection by the public during the representation period.
It is clear, therefore, that a requirement that the notice "specify the content of the development proposal specified in the application" cannot be read literally. Having regard to the form of, and available space on, the contemplated notice, the notice will not be able to set out in detail the entire "content of the development proposal specified in the application". What is required is a brief description of the proposal sufficient to convey enough information to "excite an interest in those persons who may wish to find out more about the proposal": Hobart City Council v Tasmanian Heritage Council [2010] TASRMPAT 213.
In this case, the proposal was complex and not easily described in brief words. It may not have been necessary or even prudent to describe the proposal by reference to its use category. However, in addition to the reference to Hospital Services, the description in the notice also included the words "Rehabilitation Centre". This was significant because on any view of the application documents, these words most succinctly described the complex operation detailed in the application documents.
Mr Beeson criticised the notice on the basis that a reader would think of a hospital and that this did not accurately characterise the proposal. I do not agree with this submission. The actual description was Hospital Services, which suggests a use of wider ambit than the traditional notion of a hospital. In any event, by also including reference to a "Rehabilitation Centre", the notice accurately specified the content of the development proposal. A reader would understand that, whatever "Hospital Services" meant, the proposal was actually for a rehabilitation centre and would then, if interested, have been able to inspect the application documents and plans.
The Tribunal based its determination that the notice misdescribed the application on its conclusion that there was a difference between the way the notice described the proposal, and the way the proposal is described in the application. The basis for this conclusion is difficult to understand. The application describes the proposal as "Home of Hope. Rehabilitation Centre for women and children". Each of the documents which accompanied the application, the planning submission and the document provided by Teen Challenge, also contain that description. The only reasonable conclusion that one could draw from reading those documents is that the applicant is intending to operate a rehabilitation centre for women and children. This is consistent with the description of the development in the notice, which includes reference to a rehabilitation centre.
Even if the Tribunal's focus was on the use of the term "Hospital Services" in the notice, it is not accurate to say that the application described itself differently. In the brief application document, under the heading "Use of Building", there is written "residential/education/hospital services". This is consistent with the planning submission, which notes that the proposed use fits within three separate use categories: residential/educational and vocational care/hospital services. The Council included only the use category it had selected, as well as noting that the application was for a rehabilitation centre. Even if the Council was incorrect in its categorisation and a better fit was residential, it was not accurate to say that the application described itself in different terms to the notice. Further, it is doubtful that a notice which described the content of the application as "Residential (a rehabilitation centre)" would have been any more consistent with the application, or made any discernible difference in terms of the utility or effect of the notice.
Accordingly, the Tribunal's determination that the Council had not complied with the requirements of s 57(3) and that, accordingly, the permit was invalid, was not justified as a finding of fact. If such a finding was essential to the existence of the Tribunal's jurisdiction, then as a jurisdictional fact, this Court is entitled and required to determine that matter for itself and, factual error will amount to an error of law: see City of Enfield v Development Assessment Commission. However, for the reasons which follow, a finding that the permit is invalid because of a failure to correctly provide notice in accordance with s 57(3) will not deprive the Tribunal of jurisdiction, at least in the circumstances of this case. It follows that this error will have little effect in respect of the determination of this appeal, although it may influence the question of disposition in the event that the appeal is upheld.

The effect of an invalid permit on the Tribunal's jurisdiction

In Purton v Jackson [2016] TASSC 56, 223 LGERA 19, the permit under consideration was the same as had been dealt with by Porter J in Jackson v Building Appeal Board (above). However, Pearce J considered an appeal from a Tribunal decision that has close parallels to the decision in this case. In that case, the Tribunal, constituted by its then Chairman, had before it an appeal from a decision of a planning authority to grant a permit, in circumstances where the authority had characterised the proposal as falling within a permitted category, but with a discretion arising because of the proposed waiver of a scheme standard. The Tribunal initially determined that the planning authority had incorrectly applied the scheme, that the whole development was in fact prohibited under the scheme, and, accordingly, that the planning authority was not authorised to grant a permit. The Tribunal determined, on that basis, that the authority had "no jurisdiction" to grant a permit, and, therefore, the Tribunal had no jurisdiction to hear the appeal.

Pearce J noted that the LUPA Act provides for the assessment of applications in which the planning authority is bound to grant a permit (s 58), and those in which it has a discretion to refuse or permit a development (s 57), but does not provide for how a planning authority should deal with a prohibited use or development. His Honour concluded that the necessary implication was that in such a case, the planning authority must refuse to grant the permit. His Honour then considered the effect of ss 61(5) and 62 of the LUPA Act, and the relevant provisions of the Tribunal Act, in respect of such cases. His Honour applied the reasoning of Porter J in Jackson v Building Appeal Board (above) and concluded that, because it was open as a matter of law for the council to have granted the permit, it could not be said to be invalid. Accordingly, there was no basis for a finding that the Tribunal did not have jurisdiction to determine the appeal.
His Honour went on to consider a submission that the determination by the Tribunal as to whether the use applied for amounted to a residential or secondary use under the planning scheme was a determination of jurisdictional fact "the result of which was that a permit must have been granted for a prohibited use and was invalid". His Honour rejected this submission for other reasons arising from the circumstances of the case, but went on to say, at [24]-[25]:
"[24] … In other words, if the Tribunal decides that the use and development which is the subject of an application for a permit is one which the planning authority had no discretion to grant, the Tribunal is not thereby deprived of jurisdiction to determine the appeal and direct the planning authority to not grant the permit in terms of the LUPA Act, s 62(c)(iii), or set aside the decision to grant the permit and substituting a decision to refuse it in terms of the RMPAT Act, s 23(2). That conclusion follows from a proper construction of the text, context and purpose of the statutory scheme. The LUPA Act and the RMPAT Act form part of the integrated statutory scheme for the Tasmanian resource management and planning system. The objectives of the system are stated in schedules to each Act. The Tribunal deals with a range of statutory appeals, not just appeals under the LUPA Act, but it is a specialist tribunal. The chairperson and deputy chairperson must be experienced legal practitioners, and the remaining members must each possess expertise in at least one of a number of specified areas, including planning and resource management.
[25] The powers and functions of the Tribunal to which I earlier referred are consistent with the legislative intention that it is the primary body to which the task of determining disputed decisions of planning authorities is entrusted by Parliament. On a proper construction of the legislation, the Tribunal is not deprived of jurisdiction to hear and determine appeals when the Tribunal concludes that the application relates to a use or development which, under the planning scheme, the planning authority may not permit. That is so whether the application for a permit is one to which s 57 or s 58 of the LUPA Act applies. A contrary construction would not advance the purpose of the LUPA Act or the resource management and planning system objectives. Determination of whether a use or development may or may not fall within the power of the planning authority to approve, frequently involves questions of both fact and law. The questions of law commonly involve construction of the provisions of planning instruments. Whether a use or development is permitted, discretionary or prohibited is not always easy to determine. The Tribunal is invested with the power and expertise to determine such questions. It is one of its primary purposes."
I respectfully agree with and adopt his Honour's comments. The reasoning is consistent with the decision of Brennan J (sitting as the President of the Administrative Appeals Tribunal) in Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167. Further, as Spigelman CJ said in Woolworths v Pallas Newco, questions of jurisdiction must commence with the construction of the relevant statute. The analysis by Pearce J makes it clear that the Tribunal has jurisdiction to determine an appeal from the grant of a permit, even if the permit has been granted because the planning authority has incorrectly applied the provisions of the planning scheme, whether or not this arises from an incorrect categorisation of the proposed development within the terms of the scheme. As I have already discussed, if, after a hearing, the Tribunal had determined that the categorisation was incorrect, then in accordance with its de novo jurisdiction, it would have been entitled to proceed to determine the question in accordance with the proper application of the scheme, having regard to the evidence presented to it. If, having applied the provisions of the scheme, it determined that a permit should not be granted, whether because the development fell within a prohibited use category or failed to comply with any other scheme standard, or because that was the result of a proper exercise of discretion, then it had power to direct the planning authority not to grant the permit: the LUPA Act s 62(1)(c)(iii), or to refuse the permit itself: the Tribunal Act, s 23(2).
Of course, in this case, it was not open to the Tribunal on any view of the facts to find that the proposal was prohibited. The permit had been granted, and the legislation charged the Tribunal with the function of reviewing that decision. By declining to exercise jurisdiction, the Tribunal has left in place a permit which it considers to be invalid, but which is still in existence, and has not been reviewed as intended by the legislation. The Tribunal's conclusion about validity is not binding, except that it might be applied if an application were made pursuant to s 64. However, a permit holder might take the view that the permit is in existence and proceed to act in accordance with it. The practical difficulties and complexities which might arise in such circumstances are obvious. In any event, such a scenario demonstrates the difficulties which arise from the failure of the Tribunal to properly exercise its jurisdiction to review the grant of the permit, in accordance with its legislative function.
Further, the invalidity of a permit granted by the Council in circumstances in which a failure to give adequate notice renders the permit invalid, will not deprive the Tribunal of jurisdiction to determine the appeal. The reasoning of Pearce J in Purton v Jackson (above) is apposite. There is nothing in the decisions which have been cited by counsel as authority for the proposition that a failure to notify will result in the invalidity of the permit, which support the proposition that the Tribunal is deprived of jurisdiction to determine the appeal in such a case. On the contrary, in Scurr (above), Stephen J, who wrote the principal judgment, said:
"[27]     … However, neither the formation of a proposal by the council nor the prior giving of public notice is qualified by reference to those acts having been 'duly' performed; so that, under sub-s (3), an appeal to the Court lies only where a person has 'duly objected' but will, I think, lie regardless of whether or not the giving of public notice by the council or the formation by it of a proposal has been effected duly, that is, in accordance with law; a purported giving of public notice or a purported formation of a proposal will suffice.
[28]     The fact that once an appeal is instituted by an objector the Court assumes from the council the task, initially the council's, of considering an application and the objections to it raises a strong inference that the Court should, in undertaking that task, be directly concerned to assure itself that all the requirements of the giving of public notice in due form have been complied with. Their non-observance will effectively prejudice the Court's proper consideration of the matter in a number of respects; first, it will result in it having before it a council proposal to which it would no doubt ordinarily wish to pay some regard as to the expression of the views of the responsible planning authority but which it will know has been arrived at without necessarily having benefited from a proper presentation to the council of objectors' views; this is an aspect to which I have already referred. Secondly, it will know that there may be persons who might have objected but who have, by reason of defective public notice, been deprived of the opportunity of qualifying as objectors. Thirdly, it will be aware of the fact that the objections which have been lodged come in response to a defective public notice of the application and may accordingly be misconceived in their grounds or in the facts and circumstances set out in support of those grounds.
[29]     In those circumstances and faced with what I conclude were defective advertisements the substance of which did not comply with the statutory requirements of public notice the Court should, in my view, have acted in the same way as it would have been proper for the council to act had it appreciated the true effect of the defective notices; it should have rejected the application, not because of any particular objections based upon considerations of a town planning nature but rather because the public notice requirements of s 22 had not been observed. Such a rejection would not, of course, prejudice the making of a further application in the same terms immediately after that rejection, to be followed by fresh public notice, objection and the remainder of the s 22 procedure."
These comments would suggest that, at least in terms of the legislation with which the court was then dealing, the jurisdiction of the Local Government Court did not depend upon valid notice and consequent objection. However, the court was obliged to consider whether the public notice was adequate, and, if not, then the proper course was to refuse the application. Nothing said by Blow CJ in Dorset Council v Resource Management and Planning Appeal Tribunal (above) is inconsistent with this proposition. In that case, his Honour found that the Tribunal was without jurisdiction, but that was in respect of an application under s 59(3) in circumstances when the preconditions of such an application had not then arisen. In this case, the Council has in fact granted a permit, and an appeal has been lodged from that permit. If the Council was not entitled to grant the permit because it had not complied with the statutory precondition of giving notice under s 57(3), then the Tribunal would, at the very least, be in a position to determine the appeal by directing the planning authority not to grant the permit, or alternatively setting aside the decision to grant the permit and substituting a decision to refuse it. It may well be that the Tribunal would also be in entitled under s 23(2) to remit the application to the Council to determine the same in accordance with law, perhaps with a direction requiring proper notification before doing so. Provided that the Council was still in a position to lawfully grant a permit, then it seems to me that there would be nothing to prevent such an order. It is noted that the time under s 57(5) does not commence to run until notice is given. It may well be that the Council might be prevented from doing so by the provisions of s 57(6)(b), but having regard to the reasoning of Blow CJ in Dorset Council, particularly in respect of the proposition that s 57(6)(a) takes precedence over s 57(6)(b), and having regard to the provisions of s 59(7), it may well be that the planning authority is still able to make such a determination. This would include giving proper notice before doing so. However, this question was not fully argued before me and does not need to be determined by me. The pertinent point is that failure to provide notice pursuant to s 57(3) will not deprive the Tribunal of jurisdiction to determine an appeal which is otherwise competent.
It follows that the Tribunal erred when it determined that it was without jurisdiction in this case. The incorrect denial of jurisdiction amounts to jurisdictional error, which is an error of law: Kirk v Industrial Court (NSW) [2010] HCA 1, 239 CLR 531, cited with approval by Pearce J in Purton v Jackson at [22].
It is clear also that this error caused a fundamental miscarriage of the hearing and determination undertaken by the Tribunal. This miscarriage affects the whole of the Tribunal's decision, including the determination of factual questions, such as the adequacy of notice. The Tribunal was obliged to hear and determine the appeal. While the Tribunal has wide latitude in the determination of its procedure (the Tribunal Act, s 16(1)), its failure to ask itself the correct questions in relation to jurisdiction, led to a process which confused a merits based de novo hearing with the determination of jurisdictional fact. The jurisdictional facts which were relevant were whether there had been an application for use and development to a planning authority which had authority to consider that application, and whether the planning authority had issued a permit in respect of the application. As the appeal had been commenced by a representor, it was also relevant to determine that the person who commenced the appeal had made a representation in respect of the application. None of these matters was in dispute, and the question of jurisdiction could easily have been determined without the process engaged in by the Tribunal.
The requirement contained in s 16(1)(d) of the Tribunal Act that the Tribunal must observe the rules of natural justice has implications in terms of the manner in which it conducts a hearing. I am aware from my own experience in practice and on the bench, that the traditional approach of the Tribunal, from its inception, has been to conduct hearings by accepting evidence, often in written form, and then to have that evidence tested by cross-examination. There are many conflicting authorities as to whether a tribunal with rules of procedure similar to that provided by s 16 must, as a matter of natural justice, permit cross-examination. See, for example, O'Rourke v Miller (1985) 156 CLR 342; Mayor of Brighton v Selpam Pty Ltd [1987] VR 54. The connecting principle of these authorities seems to be that the matter will depend on the nature of the evidence and whether in the circumstances of the particular case, and having regard to the nature of the particular jurisdiction, cross-examination is actually necessary to render natural justice to the parties. I would be inclined to the view that in matters dealt with by this Tribunal, cross-examination is a necessary component of the process. In arriving at this conclusion, I am largely influenced by the Tribunal's history of permitting the testing of evidence by cross-examination.
In any event, it is clear that, in this particular case, the Tribunal decided to conduct a confined hearing on the papers as a result of an erroneous appreciation and understanding of its function and the matters relevant to its determination of the existence of jurisdiction. The Tribunal ought to have determined that it had jurisdiction and then proceeded to a proper hearing which allowed for the full presentation and testing of evidence. The Tribunal was required to determine the application afresh in accordance with the relevant provisions of the planning scheme. This necessarily required a reconsideration of the question of categorisation based on the evidence before the Tribunal. It would also have been required, if the issue was raised, to consider whether the notice gave sufficient and accurate information to readers to fulfil the functions contemplated by s 57(3). I have also already discussed the consequences of a determination that this was not the case.
The Tribunal did not take this approach. It was not purporting to hear and determine the application standing in the shoes of the planning authority on a de novo basis. It was not purporting to do so even in respect of limited questions. It was engaging in a preliminary hearing to determine the question of jurisdiction and in doing so incorrectly considered matters which were not relevant to that question. It follows that at the very least, ground (d) has merit. The appeal will be upheld.

The other grounds

The remaining grounds of appeal purport to identify a number of errors in reasoning on the part of the Tribunal. Insofar as these grounds criticise the failure to properly engage in jurisdictional fact-finding, they are somewhat otiose. However, some of the grounds raise alleged error, which amounts to an incorrect interpretation and application of the scheme to the facts as found. Such errors, if established, would constitute discrete errors of law. I will therefore consider some of them.
A fundamental problem with the Tribunal's reasoning in respect of the question of categorisation is that by merely determining that the use described in the development application did not properly fall within the category of Hospital Services, and regarding that as a concluded fact, it has not conducted the categorisation process that was required by the scheme. The Tribunal went no further than the conclusion that the proposal did not properly fall within that category. But that conclusion alone could not achieve the characterisation intended by cl 8.2. By cls 8.2.3 and 8.2.4, such a finding was only the first step in the process. Those provisions required an assessment of the "best fit". It was necessary to assess whether the proposal readily fitted any use class and, if not, then as required by cl 8.2.4, determine the most similar use class. In such a case, notwithstanding the Tribunal's view as to the applicability of the Hospital Services class, it may still have amounted to the "best fit". The Tribunal did not undertake that assessment. Although Timber World contended that the appropriate use class was Residential, the Tribunal did not conduct an assessment of the proposed development against that, or any use class other than "Hospital Services". Accordingly, it left open the possibility that, although in its opinion, the use did not readily fit within the Hospital Services use class, it may well be that that was still the appropriate categorisation on the basis that it was "the most similar use class".
It follows that in respect of its dispositive conclusion concerning categorisation, the Tribunal has erred by failing to properly conduct the assessment in accordance with the provisions of the scheme. In my view, this constitutes an error of law, irrespective of whether the conclusion is properly described as a jurisdictional fact.
A further issue concerns the Tribunal's approach to the question of whether the proposed use related to the provision of services to inpatients. This was a matter which the Tribunal regarded as fundamental to its reasoning in relation to the suitability of the Hospital Services use class. In its reasoning on this question, the Tribunal concluded that the proposed development would not provide health care "to persons admitted as in patients". This was relevant to an important aspect of the definition of that class. In his submissions to me, Mr Beeson valiantly attempted to characterise the Tribunal's conclusion that there would be no inpatients as a logical extension of its assessment that the services to be provided could not properly be described as health services. However, while I acknowledge that the Tribunal also analysed this latter question, it undoubtedly placed considerable emphasis on a determination that residents of the proposed use were not properly described as "inpatients". An essential link in the Tribunal's chain of reasoning is contained in [26] and [27] of the decision:
"[26] Indeed Councils determination contradicts the Proponent's application documents which specifically exclude any prospect of the use offering places to in-patients. (Rather it repeatedly describes participants as students, and even refers to their graduation). This is the Applicant's submission in its development application:
'The proposed use fits the use class of "Residential" of which [sic] is a discretionary use within the Village Zone as the proposal is for a communal residence. The proposed use could also fit the use class of 'Education and Occasional Care of which [sic] is a permitted use within the Village Zone, and of which [sic] has current use rights as the Meander Primary School ceased operating than two years ago.
The proposed use could also fit the use class of "Hospital Services" of which [sic] is a permitted use within the Village Zone, although the facility provides for rehabilitation, psychiatric care and counselling, the students are not admitted as in-patients.' (Emphasis added)
[27] As such Council was required to accept that there would not be inpatients. That matter is a factual assertion and solely within the Applicant's knowledge. Council ignored that material and put its own gloss on the unambiguous submission of the developer as to what was proposed."

I agree with Mr McElwaine's submission that these comments display a fundamental error in the approach of the Tribunal. Firstly, a full reading of the quoted passage from the planning submission suggests that the reference to students not being admitted as inpatients was an opinion expressed by the planner, based on the semantics of the definition, rather than a condition or limitation intended to be placed on the proposed use by Teen Challenge, the true proponent of the development. There was no basis on which it was reasonable for the Tribunal to regard that statement as a statement of fact or intention. In the event that there is any doubt about that question, it provides a good example of the benefit of a properly focussed hearing, with cross-examination.
In any event, the Council was not bound by such statements on the part of the proponent. On the contrary, it was obliged to consider the substance of the application and form its own conclusions as to the use category, and in doing so as to whether the proposed use would involve the provision of health services to inpatients: City of Springvale v Heda Nominees Pty Ltd (1982) 57 LGRA 298; Jackson v Building AppealBoard. It cannot possibly be the case that the Council was bound to accept the opinion of the planning consultant of the proponent in making its categorisation assessment, about a factual question which was important to that assessment. If this were the case, then an applicant could simply direct the path of assessment by using a word to describe what was intended, irrespective of how inappropriate or inaccurate that word might be. That is not the law, nor the effect of the planning scheme, and the Tribunal was in error to so conclude
Finally, the Tribunal, upon a de novo consideration of the material, was required to make its own assessment of the appropriate categorisation and, in doing so, was required to consider for itself how closely the proposed use fits the definition of the provision of health services to persons admitted as inpatients. In making this assessment, the Tribunal was required to take into account the complex material presented to the Council, but also to consider the whole of the evidence relevant to this question, and make relevant factual findings. It was certainly not bound by the opinion of the applicant or the applicant's planning consultant. As Porter J said in Jackson v Building Appeal Board (above) at [60], in respect of the question of categorisation, the appropriate approach was to "look beyond the statements" in the application and consider the whole of the material. Of course, a full hearing would have provided the proper opportunity for this consideration and assessment to take place, but even on the limited enquiry undertaken by the Tribunal, it is apparent that error is demonstrated.
It is not appropriate for me to further consider the grounds raised by the Council. Those grounds effectively challenge a number of other factual conclusions reached by the Tribunal, related to the nature of the proposed use or development. These are challenged on the basis that they constitute errors in the determination of jurisdictional fact, and hence errors of law because they go to the question of jurisdiction. However, as I have demonstrated, the decision of the Tribunal cannot stand because of a fundamental misapprehension of the nature of its task, and an incorrect denial of jurisdiction. The decision is also effectively impugned by the errors in respect of the application of the scheme which I have just discussed. The only appropriate order is that the matter be remitted for determination by a differently constituted Tribunal. It would be inappropriate for me to express any further views in respect of matters which will undoubtedly form the basis of the Tribunal's assessment. Any such observations would simply amount to my opinion about those questions. Accordingly, I decline to further consider the grounds of appeal.

Conclusion

I uphold the appeal. The decision of the Tribunal that it was without jurisdiction in respect of the appeal, is set aside, and the matter is remitted to the Tribunal for determination according to law. I will hear counsel as to any further or consequential order.