Mekong Club v South Bank Corp

[1995] QSC 8

IN THE SUPREME COURT

OF QUEENSLAND

No. 562 of 1994

Brisbane

Before Mr Justice Ambrose

[Mekong Club v South Bank Corp.]

BETWEEN:

THE MEKONG CLUB (QLD) LIMITED (ACN 062 442 353)
  Applicant

AND:
  SOUTH BANK CORPORATION

Respondent

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered :  15/02/1995

CATCHWORDS:     CIVIL LAW - JUDICIAL REVIEW - Natural justice - Whether failure by the respondent to furnish the applicant with an independent report breached the rules of natural justice - Procedural fairness - Unfair not to give the applicant an opportunity to deal with contradictory opinions in an undisclosed report - Kioa & Ors v. West & Anor (1985) 159 CLR 550.

Interpretation of Approved Development Plan uses and preferred uses - Whether South Bank Corporation has discretion to refuse an application which may be a "preferred use".

Counsel:Mr I Hanger Q.C. with him Mr S Ure for the Applicant

Mr G Gibson Q.C. with him Mr M Plunkett for the Respondent  

Solicitors:Messrs Biggs & Biggs Francis & McGregor for the Applicant

Crown Solicitor for the Respondent

Hearing Date:   2 February 1995

IN THE SUPREME COURT

OF QUEENSLAND

No. 562 of 1994

Brisbane

Before Mr Justice Ambrose

[Mekong Club v South Bank Corp.]

BETWEEN:

THE MEKONG CLUB (QLD) LIMITED (ACN 062 442 353)
  Applicant

AND:
  SOUTH BANK CORPORATION

Respondent

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered :  15/02/1995

This is an application pursuant to s.20 of the Judicial Review Act 1991 for the review of the respondent's refusal of the applicant's application for consent to use property on the South Bank of Brisbane known as the "Ship Inn" as a licensed club.  That refusal was given in writing on 26 July 1994.
           The relevant part of the respondent's decision reads as follows:

"Town planning advice received by the Corporation indicates that the proposed use of The Ship Inn as a licensed private club would frustrate the general planning intentions of the Approved Development Plan, especially with regard to the resulting inherent restriction of public recourse and access to The Ship Inn.  The Approved Development Plan expressly recognises such public recourse and access as an important feature ... to the Southbank parklands."

The application for consent made by V.G. Feros a town planning consultant on 30 March 1994 is argumentative in form and lists various town planning considerations to support it.
           The applicant seeks to review the refusal on the following bases:

(a)The applicant was deprived of natural justice.

(b)The respondent took into account irrelevant considerations (specified in the written decision of 26 July 1994) which were not properly matters for consideration under the Approved Development Plan ("A.D.P.") made pursuant to the South Bank Corporation Act.

(c)Upon the proper construction of the Act and the A.D.P. no reasonable decision maker could refuse the application.

(d)Upon a proper construction of the South Bank Corporation Act the jurisdiction of the respondent was limited to determining whether or not the development was in accordance with the A.D.P. and if it was then it was obliged at law to approve the application.

By letter dated 9 May 1994 the respondent requested from the applicant's town planning consultants any drawings which would indicate the extent of any proposed refurbishment or alterations etc. to the Ship Inn building which were associated with the proposed use.
           In that letter the respondent informed the applicant's consultants, inter alia, that it was proceeding to commission independent town planning advice with respect to the proposed change of use for the Ship Inn premises and the implications of that change for the future development of that part of the South Bank Corporation Area in which the Ship Inn building stood.
           In July 1994 the respondent obtained from planners "Urban Strategies" an assessment of the application and supporting assertions made by Mr Ferris on behalf of the applicant and after a long and detailed examination of the A.D.P. for implementation by the applicant recommended refusal of the application. It is agreed that the recommendation from Urban Strategies was considered by the respondent prior to its refusal of the application.  It is common ground that the respondent did not provide the applicant with a copy of the report and advice received from Urban Strategies nor did it inform the applicant or its town planning consultant of the essential points contained in the report which it thought relevant reaching its decision to refuse the application.
For the respondent it was conceded that in reaching its decision to refuse the application it was obliged to not breach the rules of natural justice (vide s.20(2)(a) of the Judicial Review Act).  However it was contended that in the circumstances of this case the South Bank Corporation Act upon its proper construction did not require that the respondent give to the applicant a copy of the report it had obtained nor was it obliged to inform it of the essential matters contained in it which the respondent considered prior to its decision.
           A copy of the planning report and assessment by Urban Strategies was obtained by the applicant pursuant to the provisions of the Freedom of Information Act 1992 after it was notified of the refusal of its application.  The applicant's planner has sworn in an affidavit to support this application that he disagrees with aspects of the report and contends that parts of the report relevant to the decision making of the respondent are unsound and not in accordance with town planning principles.
           In the course of argument counsel for the applicant indicated that should the decision of the respondent be set aside it was contemplated that further material would be placed before the respondent and indeed it was suggested that the respondent "would be required" to embark upon a hearing of the application which would enable the testing of the author of the Urban Studies report and recommendation by cross-examination.
           Before embarking upon a consideration of the facts of this case so far as they have yet emerged it is convenient to refer to provisions of the South Bank Corporation Act 1989 and as well the South Bank Corporation Area Approved Development Plan - Part A and Part B - published in the Queensland Government Gazette of 24 April 1990.
           The respondent Corporation is established under s.5 of the Act.  Under s.6 the Corporation represents the State of Queensland.
           Under s.16 it is provided:

"16. The objects of the Corporation are to promote, facilitate, carry out and control the development, disposal and management of land and other property within the Corporation Area in order to ensure that such development accords with the highest possible standards and is in the interests of the people of the City of Brisbane and of Queensland."

In the definition section (s.4) "development" includes, inter alia, "(c) the use of any land" within the 'corporation area' described in schedule 4 to the Act.
           The land to which this application relates is contained in schedule 4.
           The function of the Corporation under s.17(1)(b) is to "promote, undertake, facilitate and control the development of land within the Corporation Area in accordance with the Approved Development Plan".
           Under s.22(1) of the Act, it is provided:

"(1) The Corporation shall, in accordance with the Approved Development Plan, plan, encourage, facilitate, carry out and regulate development within the Corporation Area in order that the development, as proposed in the Approved Development Plan, be completed as soon as is reasonably practicable having regard to the objects and functions of the Corporation."

Under s.35(1) it is provided inter alia:

"(1) When the Corporation -

(a)receives an application for approval of a development within the Corporation Area under s.22; or

(b)determines that land within the Corporation Area should not be developed ...

the Corporation shall, after consultation with the Council and having regard to the town plan, submit to the Minister charged with the administration of the Local Government (Planning and Environment) Act 1990 an application to include the land in an appropriate zone under the town plan together with such developmental conditions as, in the opinion of the Corporation after consultation with the Council, are necessary or appropriate in relation to the land."

The obligation upon the respondent to make an application to the Minister for inclusion of the land in "an appropriate zone" seems to be imposed even if the application for a change in use is refused.

Under s.35(3A) it is provided:

"(3A)If there is an inconsistency between the town plan and the Approved Development Plan, the Approved Development Plan applies."

I refer to the following extracts from Part A of the South Bank Corporation Area Approved Development Plan.
           Clause 5 of the Plan relates to "Precinct 2 - International Hotel Precinct".  Clause 5.1 provides:

"5.1.This precinct is intended to provide a location for an International Hotel and accompanying residential, retail and recreational facilities.  The residential uses include those associated with the International Hotel and other permanent residential accommodation.  The Ship Inn is an integral component of the precinct and will be maintained."

Clause 6 deals with "Precinct 3 - Parkland Precinct".  Clause 6.3.1 provides, inter alia:

"Pedestrian access shall be provided in the Special Access Areas within Precinct Three as follows:

(a)Access from Vulture Street/Stanley Street into parkland through entrance court adjacent to The Ship Inn and between Precincts 1 and 2."

It is interesting to note that cl. 6.1, Intent, provides:

"The land included in this Precinct is primarily intended to for the provision of public open space by retaining all riverside land within this Precinct for informal and casual recreational pursuits.  This will provide maximum public accessibility for both residents and visitors alike.  Additionally the historical buildings, the Plough Inn and Allgas buildings will be retained."

In cl. 6 of the Development Plan Part A, a distinction is made between "the Plough Inn and Allgas buildings" and "The Ship Inn".
           Under cl. 6.5.2.1 dealing with the siting etc. of buildings in the South Bank area it is provided, inter alia:

"The form, scale and materials of the building in Building Envelopes 30A and 30B shall be sympathetic to the existing Plough Inn and Allgas buildings to the approval of the Corporation.  The Plough Inn and Allgas Building shall be renovated to suit their new uses."

Similarly in cl. 6.5.3(d) reference is made to the Allgas and Plough Inn buildings in the context of development.
           In cl. 13 definitions described as "purpose definitions" are set forth.  The term "hotel" is defined to mean:

"any premises to which a license under the Liquor Act 1912 - 1989 of the type -

(a) licensed victualler's license (b) tavern license or (c) historic inn license

is applicable and which are used or intended for use in a manner contemplated by their being such premises."

Under the same clause the use "food and beverage" is defined to mean, inter alia:

"(d)licensed club

(e)hotel"

Approved Development Plan Part B, cl. 2 deals with "site analysis".
Clause 2.2.1, Existing Land Uses, provides, inter alia:

"In addition to the existing land uses along Colchester Street, a number of other uses exist within the Corporation Area,  these include: South Bank House, Southpoint Office development, Maritime Museum incorporating the former Pavilion of Promise; the Ship Inn; and unused buildings on the site being the historic Collins Place, Plough Inn, Allgas Building and two other office buildings."

It is relevant to note that in this clause the Ship Inn is listed as one of the "uses" of land within the South Bank area.  In cl. 2.3.2, Significant Features of Cultural Heritage, it is stated, inter alia:

"At the southern curtilage of the Corporation Area is the Maritime Precinct including the Ship Inn, Maritime Museum and associated buildings and the former South Brisbane Library.  Architectural treatment and land use sympathetic to the retention of the Maritime Museum as a tourist attraction is considered desirable.  This Precinct is considered culturally significant and should be subject to a detailed conservation plan prior to any development proceeding.  The existing buildings of the Plough Inn, Allgas building and Collins Place will be retained within the Corporation Area."

Again in this clause, where the intent is to retain merely the buildings in the area, reference is made to retaining "existing buildings".  On the other hand, reference to the Ship Inn, Maritime Museum and associated buildings and the former South Brisbane Library seems to encompass reference to use as well as to the building being used.  Under cl. 2.3.3, South Bank Conservation Study, it is stated in the last paragraph:

"With the construction of the Cultural Centre in the early to mid eighties and the holding of World Expo '88, the South Bank has now taken on a new cultural significance within the city.  Three old buildings remained on the South Bank site after the Expo.  These are the Allgas Building and the Plough Inn, which mark where the original Stanley Street/Ernest Street intersection and Collins Place, which marks Grey Street's previous alignment.  The Ship Inn on Stanley Street also remains, having been renovated in 1986, but to such an extent that the National Trust now deems it 'demolished'.  Importantly, the Dry Dock precinct, which includes South Brisbane Library, South Brisbane Town Hall and Somerville House, remains in a relatively intact state."

Under cl. 2.3.7, Heritage Summary, it is stated, inter alia:

"Stanley Street will also be marked out between the new South Hotel and the Hotel apartments, and its intersection with Sidon Street still defined by The Ship Inn."

Under cl. 6, Built Form, Table 6.2 - Optimum Gross Floor Areas and Maximum storeys for Buildings, refers to building numbers 8 and 9 in the legend and plan part of that table as follows:

"8 being The Ship Inn, and 9 being the site for the proposed International Hotel."

It is interesting to note that in this Part of the part B plan, Ship Inn is regarded as a place that provides and will provide "food and beverage".
           I refer to cl. 7, Landscape Architecture, and in particular to cl. 7.2 - Interactivity Planning.  In cl. 7.3.3 there is an explanation of the various landscape zones in the South Bank area and in particular to the "interactivities" of various parts of the "Entry Zone".
           With reference to the activities in the vicinity of (c) South Entry it is provided, inter alia:

"Access into the site from Vulture Street and Stanley Street is provided via this zone and links with the International Hotel, Grey Street Boulevard and Boardwalk/Aquarium areas."

Then the "interactivities" are defined as:

"Grey Street Boulevard
           Ship Inn Hotel

International Hotel ..."

It is notable therefore that in table 6.2, building number 8 - i.e. Ship Inn - is described as having a land use of "food and beverage" while in cl. 7.3.3.1(c) the "Ship Inn Hotel" is specified to be one of the interactivities with various other areas and various other types of building - including the "International Hotel".  It is instructive to note the third paragraph in cl.7.2, Interactivity Planning, which reads:

"A range of recreational activities considered suitable for the Corporation Area and the compatibility or otherwise of activities with each other have been identified for the Corporation Area.  These activities are outlined in the matrix titled, Compatibility of Recreational Activities (see Figure 7.1)."

In my view, those parts of the Approved Development Plan Part B, to which I have referred, indicate a contemplation that Ship Inn will continue in its present use, whether that use be described as "hotel" use or "food and beverage" use.
           In my judgment the references which I have made to the Approved Development Plan Parts A and B, certainly are at least consistent with the planning intent The Ship Inn will retain its present character as a place where food and beverage is available and indeed, continue on its present use as a "hotel".  At least it is so described although perhaps it could have been as well described as a tavern.
           The essential argument presented on behalf of the applicant is that a reference to cl.5.2.3 shows what the "preferred development" is within Precinct 2 of the plan.  In table 5.2 an international hotel and a licensed club are both specified as "preferred development".  However, under "other suitable development" is specified "hotel".
           Although the term "development" is defined to include "use", in my view it is not correct to infer having regard to cl.5.2.3 that a club of the sort proposed for the Ship Inn building by the applicant is so clearly a development preferred to the current use of those premises as a hotel, which only comes within the term "other suitable development" as to require the respondent to approve the application. In my view, it cannot be successfully contended that the respondent had or has no discretion to decline to consent to a change of use for the Ship Inn building, or as it is described in part of the plan, the "Ship Inn Hotel", to use as a licensed club.
           Under s.22(1) the respondent is obliged, inter alia, to "regulate development" within the area in its domain.  It is clear on the facts of this case that the current use of the Ship Inn building for the purpose of "hotel" or for the purpose of selling "food and beverage" may only be changed with the consent of the respondent.  That is the way in which the respondent performs it statutory obligation of "regulating" the use of that land and building.
           The provisions of the two parts of the Approved Plan to which I have referred in detail, in my view clearly exhibit an intent based upon the Ship Inn's proximity to the southern entrance to the whole South Bank area and to the strategic position it occupies with respect also to the Maritime part of the area and its location adjacent to the site of the proposed International Hotel to be constructed there, that the Ship Inn building continue with its current use unless the respondent otherwise permits.  In my view, there is nothing in any part of the plan or in the Act to support the proposition that on the facts before it the respondent was obliged to consent to a change of use of that building from its current use as a hotel - food and beverage supplier, to one of a private licensed club to which the public presumably would not have access except by invitation.
           I have dealt with the principal contention of the applicant at some length because of the arguments advanced to support its effort to have the decision reviewed.
           I find it difficult upon the material to determine whether by failing to provide the applicant with a copy or resumé of the contents of the report it obtained from planners it retained to consider the applicant's application before it made its decision the respondent in fact breached the rules of natural justice in the circumstances.
           There are many authorities touching on the matter.  I am assisted by characterising the South Bank Corporation Act as being in the nature of planning legislation which requires a person seeking to make use of or to develop premises within the Corporation Area to obtain the consent of the respondent before it may lawfully do so.  The function of the respondent in this respect is demonstrated by the fact that the applicant chose a town planner to make the application on its behalf.  That application was supported by what were essentially town planning contentions.  Similarly before considering the application the respondent desired to obtain "independent" town planning advice.

           Under the provisions of the Act any rezoning of the South Bank land under the City of Brisbane Town Planning Act depends upon the approbation of the respondent.
           On the one hand if the report upon which the Corporation relied had been produced either verbally or in writing by somebody with planning experience who was a member of the Corporation, it would not in my judgment, amount to a breach of the rules of natural justice should the Board, relying upon that report or advice, refuse the application without first notifying the applicant of its content.  Whether or not such advice or report was obtained under the Freedom of Information Act it seems to me that the applicant would have little prospect of success upon an application for review.  No doubt having received such material under the Freedom of Information Act the applicant might proceed to make another application and submit material contradicting or pointing out errors in the report of the member and seek to deal with those errors in the second application.
           There seems no reason why in the present case the applicant might not simply make a fresh application and put town planning and/or other reports or arguments before the respondent directed to persuading it that the matters contained in the report it obtained from Urban Strategy studies is unreliable and misleading.
           On the other hand in fact the members of the respondent did not so inform themselves but instead after notifying the applicant of its intention, the respondent proceeded to obtain an independent town planning opinion and report upon which it relied without giving the applicant the opportunity to meet or comment upon the matters asserted in that report before it made its decision.
           On balance I have come to the conclusion that it was unfair on the part of the respondent to decide the matter obviously on the basis of the report it had obtained from Urban Strategy without at least giving the applicant or its planner an opportunity to deal with the matters which contradicted the bases and assumptions contained in the applicant's report.  In this respect I refer to the following authorities: Kioa & Ors v West & Anor (1985) 159 CLR 550, and in particular to the following passages in the judgment of Brennan J.
At 609:

"At base, the jurisdiction of a court judicially to review a decision made in the exercise of a statutory power on the ground that the decision-maker has not observed the principles of natural justice depends upon the legislature's intention that observance of the principles of natural justice is a condition of the valid exercise of the power. That is clear enough when the condition is expressed; it is seen more dimly when the condition is implied, for then the condition is attributed by judicial construction of the statute.  In either case, the statute determines whether the exercise of the power is conditioned on the observance of the principles of natural justice.  The statute is construed, as all statutes are construed, against a background of common law notions of justice and fairness and, when the statute does not expressly require that the principles of natural justice be observed, the court construes a statute on the footing that 'the justice of the common law will supply the omission of the legislature', Cooper v Wandsworth Board of Works (1863) 143 ER 414, at p. 420. The true intention of the legislature is thus ascertained. When the legislature creates certain powers, the courts presume that the legislature intends the principles of natural justice to be observed in their exercise in the absence of a clear contrary intention ...".

At page 610:

"Observance of the principles of natural justice is a condition attached to the power whose exercise it governs.  There is no free-standing common law right to be accorded natural justice by the repository of a statutory power.  There is no right to be accorded natural justice which exists independently of statute and which, in the event of a contravention, can be invoked to invalidate executive action taken in due exercise of a statutory power.  There is no 'right' except in the sense that a person may be entitled to apply to have a decision or action taken in purported exercise of the power set aside if the principles of natural justice have not been observed or to compel the repository of a power to observe procedures which statute obliges him to follow."

At page 612:

"Two distinct but closely related questions can be perceived in the cases relating to the exercise of a statutory power:  the first, or threshold, question is whether the exercise of the power is conditioned upon observance of the principles of natural justice; the second question, arising when the exercise of the power is so conditioned, is what the principles of natural justice require in the particular circumstances.  It is seldom possible to say that the legislature intends to exclude observance of the principles of natural justice in the exercise of a statutory power which is apt to affect individual interests and the more difficult and more frequently addressed question is what the principles of natural justice require in the particular circumstances."

At page 627:

"What the principles of natural justice require in particular circumstances depends on the circumstances known to the repository [of the power] at the time of the exercise of the power or the further circumstances which, had he acted reasonably and fairly, he would then have known ...

In this case, the letter sent by the Director of the Legal Aid Commission on Mr Kioa's behalf was considered by the Minister's delegate.  He did not conduct an oral hearing, but a repository of a power who is bound to hear an individual before exercising a power is not necessarily bound to hear him orally ..."

And finally at p. 628:

"A person whose interests are likely to be affected by the exercise of power must be given the opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding its exercise. ...  The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance.  Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made.  Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. ...

Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.  It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it.  Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information ..."

Broussard v Minister for Immigration, Local Government and Ethnic Affairs 19 ALD 477 and particularly the helpful summary of the cases dealing with denial of procedural fairness at pp. 482-483, and particularly at p. 483 where Gummow J said:

"In the present case, as matters transpired, a critical issue or factor, to use the expression of Mason J, on which the administrative decision was likely to turn was the absence of corroboration of claims and assertions made on various matters by the applicant.  There was a need to bring that critical issue or factor to the attention of the applicant or his solicitor.  This was not a case of clogging the decision-making process by inviting a response to an allegation by a third party which was of little significance to the decision to be made; cf Kioa v West, supra, at CLR 628-9 per Brennan J. Rather, this case demonstrates the point made by his Honour in the same case (supra, at CLR 612-13) that the principles of natural justice are of variable content and have a flexible quality which evokes a different response from the repository of a statutory power according to the circumstances in which the repository is to exercise the power.  In the present case, the attitude of the delegate as to what would be required by way of probative material on a number of issues was of central importance to the decision-making process she adopted in deciding to accept the recommendations of the panel to maintain the decision refusing the application for the grant of resident status ...

In the circumstances, I conclude that the applicant was denied procedural fairness because it was not drawn to his attention or to the attention of his solicitors that the delegate, with regard to the matters in paras (9), (10) and (11), was minded not to treat what the applicant 'claimed' as sufficiently probative material in the absence of other material;  the result was that no opportunity was provided to supply any of that other material which might have remedied the perceived deficiency."

I do not propose to embark upon a detailed analysis of the matters advanced on behalf of the applicant through its town planning adviser to support its application for a change in use of the Ship Inn site.  Essentially the contention was that because within the Precinct 2 of the Development Plan the "preferred use" was for the purposes of a "licensed club" whereas within that Precinct a "hotel use" was described only as "other suitable development", the respondent was bound to grant the application for the change of use sought. 
           In my view, this argument is insupportable when the whole of the A.D.P. Part A and Part B is considered.  It cannot stand upon the express wording of those parts of the Plan to which I have referred.  Furthermore the logical consequence of such a construction would be to significantly inhibit the function of the respondent in considering an application for a development within the category of "other suitable development".
           It is not possible to draw an analogy between the distinction at law between a "preferred development" and "other suitable development"  and the distinction between a "use as of right" and a "consent use" which was the argument of the applicant.
           In my view, considering the references to the Ship Inn hotel in the A.D.P. it is not correct to say that the expressed intent of the Plan "reflects primarily upon retention of the structure and also to an extent retention of a use identical with or similar to that of 'inn'.  Such a use presumably would include 'licensed club'".
           That was the planning opinion expressed in support of the application.
           In the report obtained by the respondent from an independent planning expert this contention was vigorously contested and indeed in my view it cannot be contended - as it was for the applicant - that the Development Plan does not contemplate a continuation of the use of that Ship Inn site which existed at the date of the application.
           Even though the term "development" is defined to include "use", it does not logically follow that in a case where there is, and has been for some time a use of a building within Precinct 2 for a "suitable purpose" as listed for Precinct 2 it follows automatically that at the whim of a developer that use can be discontinued and another "preferred use" made of the land without the respondent having any power to regulate or control the proposed "development" provided it is listed as one of the "preferred uses".
           In my view there is no constraint imposed upon the respondent's exercise of discretion upon an application made for development of a site within Precinct 2 of the  South Bank land area when an application is made for a Precinct 2 preferred development.  In any event not merely does the Ship Inn hotel or tavern come within the category of "suitable development" for the site, but cl. 5.1 expressly provides that the Ship Inn is an integral component of the Precinct "and will be maintained".
           With respect to land within Precinct 2 which is undeveloped or which is ripe for redevelopment having regard to the fact that no use is currently being made of it, it may well be that upon an application for a new development on some occasions land which can be developed for another suitable development may be given preference by the respondent, depending upon the nature of the possible preferred developments and other suitable developments.
           The "intent" of the Precinct is stated in cl. 5.1.  Whatever else may be said of "other uses compatible with the intent of the Precinct" under table 5.2 - Other Suitable Development - it cannot be contended that the maintenance of the Ship Inn as an integral component of the Precinct will not clearly be in accord with the intent specified in cl. 5.1.
           I am unpersuaded that the provision in 5.1 and 5.2.3 of the A.D.P. Part A when read in the context of the other provisions of Part A and Part B of that Plan required the respondent to exercise its discretion in favour of the applicant when considering its application.
           In my view the basic planning contentions of the applicant based upon cl. 5 are insupportable.
           Having regard to the content of the town planning matters contained in the application made for a change in use of the Ship Inn site and the town planning report and other matters made available to the applicant upon its Freedom of Information application, it was open to the respondent in the exercise of its discretion to refuse the application.
           However, for the reasons I have already given procedural fairness required that the respondent make available to the applicant the material which it obtained - and in particular the town planning report and recommendation it obtained from Urban Strategies before finally determining the matter. I have some reservations as to the validity of some of the fundamental planning points made in the application sent for consideration of the respondent.  However, as a matter of procedural fairness I set aside the purported decision of the respondent under attack and intimate to the respondent that before making a final and valid decision upon the application made by the applicant it should formally place before the applicant the report and advice it obtained from Urban Strategies and indeed matters arising from any other report or advice received from anybody else which it considers relevant to the determination of the application.
           On the facts of this case, it seems apparent that the applicants have in fact obtained copies of relevant material of which they were not given particulars before the purported decision was made.
           In my view, however, it is important that procedural fairness be maintained by the respondent in considering applications of this kind and of course it is incumbent upon the respondent to so conduct itself between the receipt of an application for planning permission and its making its decision upon that application as to ensure that it proceeds with fairness.
           Upon this application for judicial review therefore:

1. I declare that the respondent's refusal of the applicant's application given in writing on 26 July 1994 was not a valid or effective decision by reason of lack of procedural fairness.

2. I declare the purported refusal in writing dated 26 July 1994 to be void and of no legal effect.

3. I order and direct that before deciding the application made by the applicant on 30 March 1994, the respondent provide to the applicant copies of the reports and other documents which it made available to the applicant pursuant to the Freedom of Information Act and inform it of all matters it considers relevant to any refusal of that application.

4. Before finally deciding the application it permit the applicant to deal with the content of that material and matters it considers relevant to any refusal of the application by receiving further reports and/or contentions relating to the content of such reports and other documents and the matters considered relevant to any refusal.

5. Should the respondent obtain further information whether verbal or written concerning matters relevant to the making of its decision upon the application, it should take steps to ensure that the applicant is notified of such matters before they are taken into account in deciding the application.