Oakley v Chief Executive Administering the Coastal Protection and Management Act 1995

[2014] QPEC 58

[2014] QPEC 58

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E No 2084 of 2014

SAMANTHA OAKLEY  Appellant

and

CHIEF EXECUTIVE ADMINISTERING
THE COASTAL PROTECTION &
MANAGEMENT ACT 1995  Respondent

BRISBANE

10.43 AM, TUESDAY, 14 OCTOBER 2014

JUDGMENT

CATCHWORDS: 

PLANNING AND ENVIRONMENT – Appeal under s 159 of the Coastal Protection and Management Act 1995 – where appeal by “rehearing” – where that is to be construed as a hearing “de novo” – where appeal instituted out of time by reason of an error in the notice which informed the appellant of her appeal rights

COUNSEL: 

SOLICITORS:

S Keliher (Solicitor, Milne Legal) for the appellant

L Body for the respondent

Milne Legal for the appellant

Department of Environment and Heritage Protection for the respondent

HIS HONOUR:   By her Notice of Appeal filed on 3 June 2014 the appellant (Oakley) challenges the decision of the respondent (the Chief Executive) to give her a Coastal Protection Notice under section 59 of the Coastal Protection and Management Act 1995 (CPMA).  That notice required Oakley to do certain things in relation to land to the rear of her property at Currumbin Waters. 

The question which was set down for determination at a preliminary stage was as follows:

"Are parties to an appeal under section 159 of the Coastal Protection and Management Act 1995 permitted to adduce fresh evidence?" 

An answer to that question requires an analysis of the nature of the appeal. 

The right of appeal is conferred by section 159 of the CPMA which provides as follows:

"A person who is dissatisfied with the chief executive's decision to give the person a coastal protection or tidal works notice may appeal against the decision to the Planning and Environment Court." 

The nature of the appeal is described in section 163(2) of the CPMA as follows:

"An appeal is by way of rehearing, unaffected by the chief executive's decision." 

By reason of section 495 of the Sustainable Planning Act, appeals to this court generally proceed by way of a hearing anew.  In this case however, the nature of the appeal is to be determined by reference to the proper construction of section 163(2) of the CPMA. 

That the appeal is described as proceeding by way of rehearing makes it clear that the appeal is not one stricto sensu, but does not specify the type of rehearing nor, itself, provide an answer to the question raised for determination at a preliminary stage.  That is so because, as has been pointed out on a number of occasions, the word “rehearing” is one to which different meanings may be attached (Clarke & Walker Pty Ltd v Secretary Department of Industrial Relations & Anor (1985) 3 NSWLR 685 at 692). It may, depending upon the context, be referring to:

(i)        an appeal by rehearing limited to the evidence below;          

(ii) an appeal by way of rehearing on the evidence below, together with such other evidence as the appeal court permits to be adduced pursuant to the statutory power to do so;  or

(iii)      a hearing “de novo”. 

As Mason J (with whom Barwick CJ and Stephen J agreed) in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 622 said, determining what type of rehearing is involved is primarily a question of elucidating the legislative intent, a question which is not greatly illuminated by the "delphic utterance that the appeal is by way of rehearing".

In the case of section 163(2), that description is added to by the words, "unaffected by the chief executive's decision".  That is at least consistent with a hearing de novo, but is not conclusive. 

The appeal which is provided for by section 159 of the CPMA is against an administrative decision. Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to that effect (see Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd supra at 621). As Mason J observed:

"There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo ... the nature of a decision before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority.  There may be no provision for a hearing at first instance or for a record to be made of what takes place there.  The authority may not be bound to apply the rules of evidence or the issues which arise may be non‑justiciable.  Again, the authority may not be required to furnish reasons for its decision.  In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction for a hearing de novo. 

On the other hand, the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed.  The authority may be required to determine justiciable issues formulated in advance;  to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross‑examination, to keep transcript records;  to apply the rules of evidence;  and to give reasons for its determination.  In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance." 

Similarly, in Clarke & Walker Pty Ltd v Secretary Department of Industrial Relations & Anor (supra) Kirby P (as he then was) said at 692:

"(e)Natural Justice:  Where an appeal is provided from a body which has no obligation to afford a hearing or to give reasons for its decision, nor even to give the grounds for its decision, it will more readily be inferred that the facility of appeal is intended to provide, effectively, for the first time, a full hearing of evidence.  In such a case, the provision of an appeal will attract a right to start again, calling evidence and making submissions on the matters then proved." 

And at 697: 

" ... But where they do appeal, a real facility of reviewing the secretary's decision must be provided.  As the secretary is not obliged to conduct a hearing and may be expected to proceed without the formality of a transcript, examination of witnesses and formal determination, the appeal limited to that envisaged by Macken J would be an empty right in most cases, because the record, largely under the control of the secretary, might disclose nothing or little of the considerations which had led to his decision.  It should not be inferred that the valuable provision of an appeal, provided by Parliament conferred upon this independent body acting in the open, was to be so circumscribed." 

And per Glass JA (with whom Hope JA agreed) 699: 

"It is the disparity between the absence of due process in the proceeding before the administrative body and the presence in the proceeding before the appellate body of the conventional safeguards of due process which point to the legislative intention when it provides here for an appeal without specifying what kind of appeal.  The disparity here is such as to persuade me that the appeal to the tribunal is the first judicial or quasi‑judicial hearing which is vouchsafed to the applicant for exemption.  It involves, therefore, a hearing de novo or an exercise of original non‑appellate jurisdiction." 

The subject matter of the present appeal is a decision to give a notice under section 59 of the CPMA, which relevantly provides: 

"(2) The chief executive may give a notice (a coastal protection notice) to a person directing the person, within the reasonable time stated in the notice—

(a)       to take the reasonable action stated in the notice to
                      protect land;  or

(b) to stop, or not start, an activity stated in the notice, if the chief executive is satisfied the activity is causing, or is likely to cause—

(i)        an adverse effect on coastal resources;  or

(ii)       wind erosion."
...

"(4)      Without limiting subsection (2), the notice may require the person—
           (a)       to build or maintain works; or

(b) to plant, cultivate or preserve, or not damage, vegetation native to the coastal management district;  or

(c)       not to alter the geographical features of land;  or

(d) to do anything else necessary to protect land from wind erosion;  or

(e)       to restore land;  or
           (f)       to remove stock from land."

There is no judicial or quasi‑judicial process or hearing which results in the decision to give or not to give a notice under section 59.  The statute provides no right for the intended recipient of the notice to: 

(i)    be informed of the proposal to issue a notice;

(ii)   show cause why such a notice ought not issue;

(iii)  adduce evidence for consideration by the chief executive; 

(iv)   be afforded a hearing in relation to whether a notice will issue;  or

(v)be given reasons for the decision to give a notice (notwithstanding that, in this case, the notice did contain grounds, including findings). 

The appeal, on the other hand, is to a judicial body, namely this court.  The Planning and Environment Court is a court of record[1] constituted by certain District Court Judges[2] (subject to the power to order that a particular matter be heard and determined by the ADR registrar).  It conducts its hearings in open court[3] and takes evidence on oath, affirmation or declaration which is recorded.[4]  Parties have a right to be represented.[5]  Reasoned decisions are given. 

[1]            s 435 of the Sustainable Planning Act 2009 (SPA).

[2]            s 443 of SPA.

[3]            s 437 of SPA.

[4]            s 442 of SPA.

[5]            s 448 of SPA.

An examination of the process provided for the initial decision and the nature of the court to which the appeal lies leads comfortably to the conclusion that the rehearing provided for is one which is to proceed by way of a hearing de novo.  Indeed, that is the position for which each of the parties contended. 

The CPMA does not state which party is to bear the onus.  While it is the person who is dissatisfied with the decision to give the notice who brings the appeal, it does not necessarily follow that that person bears the onus.  In conducting a de novo hearing, the Court will be concerned with whether a notice ought issue.  That notice disturbs the pre‑existing status quo, by requiring the recipient to comply with a notice.  Failure to do so is punishable by a maximum penalty of 3000 penalty units.[6] 

[6]            s 59(6).

Prior to the issue of the notice it was for the chief executive to determine whether such a notice should issue.  Such a notice ought not have issued unless the chief executive was satisfied that it was appropriate in the circumstances.  Similarly, the Court, on a de novo hearing, ought not dismiss the appeal unless it is so satisfied.  In such circumstances the onus properly falls upon the respondent, as the authority contending that it is appropriate that the notice be given.  The respondent properly accepts that it bears the onus in such appeals. 

Before the appeal can proceed, however, there are other difficulties which need to be addressed and which arise from the terms of the notice which was issued and the time when the appeal was instituted. 

Section 160 of the CPMA provides as follows: 

"160     How to start appeal. 
            (1) An appeal is started by—

(a) filing written notice of the appeal with the registrar of the court;  and

(b) complying with the rules of court applicable to the appeal.

(2)       The notice of appeal must—

(a)       be filed within—

(i) if the coastal protection or tidal works notice is given under section 59(3) or 60(2) or (4)—60 days after the notice is given;  or

(ii) if subparagraph (i) does not apply—30 days after the person receives the coastal protection or tidal works notice; and

(b) state fully the grounds of the appeal and the facts relied on." 

The person who receives the notice is to be informed of both the right of appeal and the time for appeal.  In that regard section 59(5) of the CPMA provides: 

"(5) The notice must state that the person may appeal against the decision to give the notice within the period stated in the notice". 

It is to be implied that the period stated in the notice is that provided for in section 160. 

The appellant, in reliance upon the 60 day period stated in the notice, initiated this appeal more than 30 days after receipt of notice but within the 60 days referred to in the notice.  Unfortunately, the notice itself was in error. The true appeal period was 30 days pursuant to section 160(2)(a)(ii). 

Arguments were addressed to me as to whether, in those circumstances, the decision to give the notice was invalid, whether the appeal period was able to be extended, notwithstanding an absence of any express power to extend time, and/or whether the failure to appeal within time could somehow be remedied by section 440 of the Sustainable Planning Act, or could be waived by the respondent. 

Ultimately, however, I was asked not to deal with those issues at this stage.  The respondent, recognising that this difficulty has arisen by reason of its notice not complying with the statutory requirement, has indicated a willingness to withdraw the current notice with the intention of issuing a new notice in the same terms.  The parties will then ask the court to permit the notice of appeal to be amended so that it relates to the new notice. 

Accordingly, there is no need for me to make any rulings on those matters at this stage.  I'll simply adjourn the matter for review

ADJOURNED  [11.01 am]