Purton v Jackson

[2016] TASSC 56

[2016] TASSC 56

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Purton v Jackson [2016] TASSC 56

PARTIES:  PURTON, Mark
  PURTON, Judith
  v
  JACKSON, Maureen Faye
  JACKSON, Athol Charles
  WARATAH-WYNYARD COUNCIL

FILE NO:  484/2011
JUDGMENT

APPEALED FROM:  M and J Purton v Waratah Wynyard Council

and A and M Jackson [2009] TASRMPAT 33

DELIVERED ON:  24 October 2016
DELIVERED AT:  Launceston
HEARING DATE:  11 March 2016
JUDGMENT OF:  Pearce J

CATCHWORDS:

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal and its predecessors – Powers and duties on appeal – Failure to exercise jurisdiction to hear and determine appeal – Jurisdiction to determine appeals from valid and invalid decisions of planning authority.

Resource Management and Planning Appeal Tribunal Act 1993 (Tas), ss 23(2), 25.
Land Use Planning and Approvals Act 1993 (Tas), ss 61, 62.
Jackson v Building Appeal Board [2010] TASSC 29, 20 Tas R 1, applied.
Aus Dig Environment and Planning [596]

REPRESENTATION:

Counsel:
             Appellants:  K Stanton
             First Respondents:  B McTaggart SC
             Second Respondent:   A Spence
Solicitors:
             Appellants:  McGrath & Co
             First Respondents:  FitzGerald and Browne
             Second Respondent:   Page Seager

Judgment Number:  [2016] TASSC 56
Number of paragraphs:  31

Serial No 56/2016

File No 484/2011

MARK PURTON and JUDITH PURTON
v MAUREEN FAYE JACKSON, ATHOL CHARLES JACKSON
and WARATAH-WYNYARD COUNCIL

REASONS FOR JUDGMENT  PEARCE J

24 October 2016

1. This is an appeal from a decision of the Resource Management and Planning Appeal Tribunal ("the Tribunal") made on 26 February 2009. The appeal has not come before this Court before now because, since the Tribunal decision, there has been a protracted dispute involving a series of proceedings: Jackson v Building Appeal Board[2010] TASSC 29, 20 Tas R 1; Jackson v Purton [2011] TASSC 28; Purton v Jackson [2012] TASFC 2, 21 Tas R 310; Purton v Jackson [2013] TASSC 46, 22 Tas R 333. Much of the factual and procedural history is explained by Porter J in his Honour's decision in 2010 and by Blow J (as he then was) in the Full Court in 2012. It is necessary that I set out only that which is relevant to the determination of this appeal, and much of the following narrative is extracted from the decisions to which I have just referred.

The factual and procedural history

1. On 25 September 2008 the first respondents, Mr and Mrs Jackson, applied to the Waratah-Wynyard Council ("the Council") pursuant to the Land Use Planning and Approvals Act 1993 ("the LUPA Act"), s 57, for a planning permit for the construction of a residence on rural land they owned at Moorleah, south of Wynyard. At the time the Waratah-Wynyard Planning Scheme 2000 ("the planning scheme") was in force. The appellants, Mr and Mrs Purton, own neighbouring land. They were notified of the application and made a representation to the Council objecting to the grant of a permit to Mr and Mrs Jackson. The objection was that the proposed dwelling was closer to the boundary than was permitted by the planning scheme and no setback waiver should be granted. On 17 November 2008 the Council granted the permit. Mr and Mrs Purton appealed to the Tribunal. The grounds of appeal were confined to the issue of the setback waiver. On 26 February 2009 the Tribunal, constituted by its then Chairman, Mr S Cooper, decided that the relevant planning scheme did not empower the Council to grant the permit at all and, because the Council had "no jurisdiction" to grant a permit, the Tribunal had no jurisdiction to hear an appeal. The learned chairman concluded that the Tribunal was "without jurisdiction to further hear and determine the matter" and made no other order.

2. At that time, no appeal against the Tribunal's decision was brought under the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), s 25(1). No application was made for the decision to be reviewed under the Judicial Review Act 2000. In May 2009, Mr and Mrs Jackson applied to the Council's permit authority under the Building Act 2000 for a building permit for the proposed dwelling. They did so in reliance on the permit, apparently on the basis that, although the Tribunal had decided that the permit was "plainly invalid", the permit remained in place because no order had been made setting the grant of a permit aside. The building permit authority refused the application. Mr and Mrs Jackson appealed to the Building Appeal Board ("the Board"). The Board took into account the Tribunal's finding that the permit was invalid, and rejected the appeal on the basis that the requisite planning permit had not been granted. Mr and Mrs Jackson then applied under the Judicial Review Act for review of the Board's decision. The Council and the Purtons were joined as respondents to that application. Porter J set aside the Board's decision, declared that the permit was valid in that it was within the Council's powers under the LUPA Act, and remitted the building permit appeal to the Board: Jackson v Building Appeal Board [2010] TASSC 29, 20 Tas R 1.

3. After Porter J gave judgment, Mr and Mrs Purton wrote to the Tribunal requesting that their appeal proceed. Mr and Mrs Jackson made written submissions to the effect that the Tribunal was functus officio and had no power to deal with the appeal. On 23 August 2010 the Tribunal delivered a second decision, determining that it had jurisdiction to hear and determine the appeal, thereby reversing its first decision. Mr and Mrs Jackson appealed to the Court against the Tribunal's second decision. Wood J heard the appeal, held that the Tribunal had no power to proceed to hear and determine the Purtons' appeal against the grant of the permit, and made an order setting aside the Tribunal's second decision: Jackson v Purton [2011] TASSC 28. On 19 July 2012 the Full Court unanimously dismissed Mr and Mrs Purton's appeal from that decision: Purton v Jackson [2012] TASFC 2, 21 Tas R 310.

4. On 29 June 2011, Mr and Mrs Purton instituted an appeal against the Tribunal's first decision and applied for an extension of the relevant time limit. When their appeal to the Full Court failed, it became necessary to pursue that application. On 22 August 2013, Tennent J allowed the application to extend time: Purton v Jackson [2013] TASSC 46, 22 Tas R 333. Consequently, what is now for determination is Mr and Mrs Purton's appeal against the Tribunal's first decision, made on 26 February 2009, that it was without jurisdiction to hear and determine the appeal.

Permit applications and appeals to the Tribunal

1. By the LUPA Act, s 51(1), a person may not commence any use or development which, under the provisions of a planning scheme requires a permit, unless the planning authority has granted a permit. Persons wishing a permit for a use or development which requires a permit may apply to the planning authority: s 51(2). Decisions of a planning authority on applications for permits must be by reference to the provisions of the planning scheme as in force at the date of the decision: s 51(3)(a). The LUPA Act deals with two different types of applications. Section 58 applies to applications which, according to the planning scheme, the planning authority is bound to grant, either unconditionally or subject to conditions or restrictions. In the planning scheme such applications are referred to as "permitted use or development". Section 57 applies to an application for a permit which the planning authority has a discretion to refuse or permit, or which requires the waiver, relaxation or modification of a planning scheme requirement. In the planning scheme such applications are referred to as "discretionary use or development".

2. The manner in which an application is to be dealt with by the planning authority depends on whether the use or development applied for is permitted or discretionary. An application for a permit for a discretionary use or development made under s 57 must, if not immediately refused under s 57(2), be notified in accordance with s 57(3), and persons may make representations to the planning authority relating to the application in accordance with s 57(5). Conversely, applications for a permit for a permitted use or development made under s 58 need not be notified, and no statutory provision is made to allow for representations.

3. Neither the LUPA Act, nor the planning scheme, contain any express provision about how an application for a permit for a use or development which the planning authority has no discretion to grant, commonly referred to as a prohibited use or development, is to be dealt with. The reason is obvious. By necessary implication from the provisions of the LUPA Act and the planning scheme, the planning authority must refuse to grant a permit for a use or development which, under the provisions of the planning scheme, may not be approved on any basis.

4. Appeals from a decision of a planning authority to grant or refuse a permit are dealt with by the LUPA Act, s 61. The applicant for a permit may appeal to the Tribunal against a refusal to grant a permit, or the imposition of conditions or restrictions: s 61(4). Persons, like Mr and Mrs Purton, who made representations to the Council concerning an application to which s 57 applies, are given a right of appeal to the Tribunal by s 61(5). Section 62 deals with the determination of appeals including appeals against the grant of a permit. It relevantly provides that the Tribunal, after hearing such an appeal, and in addition to its powers under the RMPAT Act, may direct the planning authority to grant the permit, to grant the permit and direct the planning authority that the permit must or must not contain any specified conditions, or to not grant the permit: s 62(1)(c)(ii) and (iii). In determining the appeal the Tribunal has the same obligations as the planning authority at the time the authority determined the application: s 62(4).

5. The RMPAT Act, Pt 5, provides for the conduct of appeals. Appeal procedure is within the Tribunal's discretion: s 16(1)(a). It is to conduct appeals with as little formality and technicality, and with as much expedition, as a proper consideration of the matters before the Tribunal permits: s 16(1)(b). It is not bound by the rules of evidence and may inform itself on any matter in any way that it considers appropriate: s 16(1)(c). It must observe the rules of natural justice: s 16(1)(d). It is entitled to hear matters afresh and take account of new evidence not considered by the Council: s 16(1)(e). The Tribunal may take evidence: s 20(1)(a). It may do all things necessary or convenient to be done for or in connection with the hearing and determination of the appeal: s 22(1). It may exercise all the powers conferred on the planning authority: s 23(1). The terms of s 23(2) state the alternative orders open to the Tribunal on determination of an appeal. Because the terms of the provision assume some importance in this appeal I will set that provision out in full:

   "23 — (2)  The Appeal Tribunal must make a decision in writing —

   (a)  affirming the decision appealed against; or

   (b)  varying the decision appealed against; or

   (c)  setting aside the decision appealed against and —

   (i)making a decision in substitution for the decision appealed against; or

   (ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Appeal Tribunal."

6. As was noted by Blow J in the Full Court in Jackson v Purton [2012] TASFC 2, 21 Tas R 310 at 319 [25], an appeal proceeding may also come to an end by an appellant abandoning an appeal, or by the Tribunal concluding that it does not have jurisdiction.

Appeals to the Supreme Court from decisions of the Tribunal

1. The RMPAT Act provides for appeals to the Supreme Court. Such appeals are confined to questions of law: s 25(1). On hearing and determining an appeal, the Supreme Court may make such orders as it considers appropriate, including affirming the decision of the Tribunal or setting aside a decision of the Tribunal, and either making a decision in substitution for the decision set aside, or remitting the matter for reconsideration in accordance with directions: s 25(5) and (6).

The application and the Tribunal decision

1. Under the planning scheme, Mr and Mrs Jackson's land was in the Primary Industries Zone. Whether an application was to be treated as for a permitted use or development, or a discretionary use or development, or was a prohibited use, partly depended on whether a residence was within the "primary" or "secondary" use class for that zone. The scheme listed primary and secondary use classes for each zone. According to the provisions of the scheme, if the dwelling was categorised as within the Residential use class, it was a secondary use in the Zone, and it had to comply with Issue 9.0 of Part 9.4.1, "Location of Secondary Uses".  If it could only be so categorised and could not satisfy the Scheme Standards (Acceptable Solutions ("AS") or Performance Criteria ("PC"), it had to be refused because of cl 3.3.5.  On the accepted construction of those Standards, the development did not qualify. However, the scheme also provided for "ancillary use and development" in cl 3.4.1 in the following terms:

   "Where a use or development constitutes an integral and subservient part of an existing use and development, it will be treated as part of that use or development categorized (sic) in Part 4 of the planning scheme."

2. If the dwelling could have been characterised as "ancillary", as an integral and subservient part of the existing use, which fell within the Resource Development use class, then by virtue of cl 3.4.1 it would be treated as part of that use class.  On that basis, it was permitted as of right, subject to the setback issue. 

3. Before the appeal proceeded to a formal hearing, the Registrar of the Tribunal raised with the parties what was referred to as a "fundamental question on the application". The Council was prompted to obtain legal advice from its solicitor, Mr McElwaine. His letter of advice to the Council dated 14 January 2009 was conveyed to the Tribunal. The substance of the Council's contention to the Tribunal, as expressed in the letter, was that:

   ·     Mr and Mrs Jackson disclaimed any suggestion that the dwelling will be incidental to a primary use activity on the land;

   ·     the application was for a residence which is a secondary use class in the zone;

   ·     the relevant scheme standards for the location of a residence in the zone could not be met and the application had to be refused;

   ·     the decision of the Council to approve the application and issue a permit was not a valid decision;

   ·     accordingly, there was "no valid appeal" and the Tribunal had no jurisdiction.

4. On receipt of the letter the Registrar of the Tribunal directed the other parties to make written submissions in response. Counsel for Mr and Mrs Purton submitted that the Council's decision was "invalid" for the reasons articulated by the solicitor for the Council. The solicitor for Mr and Mrs Jackson, Mr Wright, made a written submission which, amongst other things, put in issue the Council's contention that his clients had disclaimed the suggestion that a dwelling was an incidental use.

5. The Tribunal made a decision without proceeding to a formal hearing. The Tribunal accepted the submission of the Council. Its decision is based on the proposition that, according to the planning scheme, construction of a residence in the Primary Industries Zone is a "secondary use", and because the standards for use or development in that zone contained in Issue 9.0 of Part 9.4.1 of the scheme could not be complied with, it had to be refused. The Tribunal said that Mr Wright's submission that Mr and Mrs Jackson had, in the application, raised issues of "animal husbandry, crop maintenance and weed control, being agricultural activities", was "not to the point" and that "a residence, which is what is applied for, is a secondary use". The Tribunal continued:

   "It follows that the Council must as a result of the operation of Clause 3.3.5 refuse this application. That it purported to permit the application is not to the point. It was not empowered so to do; it had no discretion so to do. It follows that the permit purportedly issued by the Council, contrary to the express advice of its professional planning officer, was plainly invalid. From this the only consequence is that the appeal is invalid and the Tribunal enjoys no jurisdiction to further hear and determine the matter."

Grounds of appeal

1. The notice of appeal contains three grounds:

   "1The Tribunal erred in law by holding that the permit granted by the council was invalid;

   2The Tribunal erred in law by holding that the appeal by Mr and Mrs Purton was invalid;

   3The Tribunal erred in law by holding that it had no jurisdiction to further hear and determine the appeal."

Ground 1

1. The issue of the validity of the permit issued by the Council was determined by Porter J in Jackson v Building Appeal Board [2010] TASSC 29, 20 Tas R 1. The appellants submit that his Honour's determination raises an issue estoppel. I agree. The requirements for, and effect of, an issue estoppel were considered by the Full Court in Quarmby v Qasair Investments Pty Ltd [2014] TASFC 11. In short summary, what is required is that the first decision was final, the same question has been decided, and that the decision involves the same parties. Porter J's decision was final in the relevant sense. Mr and Mrs Jackson, Mr and Mrs Purton and the Council were parties to that proceeding, as well as all of the other proceedings to which I have referred. Counsel for Mr and Mrs Jackson submitted that Porter J decided a different question. I do not accept that submission. The proceeding before Porter J was an application under the Judicial Review Act to review a decision of the Building Appeal Board, the effect of which was to refuse Mr and Mrs Jackson's application for a building permit to construct the dwelling. Pursuant to the relevant legislation, the Board was required to refuse the application if not satisfied that a permit required by the LUPA Act had not been granted. The exercise of determining whether a permit had been granted involved a determination of whether the permit purportedly granted by the Council was validly granted as a matter of law. As his Honour pointed out at [38], 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'."

2. Porter J found that the Tribunal was wrong to conclude that the permit was not validly granted. His Honour gave detailed reasons and undertook a comprehensive analysis of the provisions of the planning scheme. It is not necessary that I repeat all of that analysis here. His Honour concluded that it was open, as a matter of law, for the Council to have granted the permit. That was so because, on all the material before the Council, even if the Tribunal was correct to determine that the Council could not approve an application for a dwelling as a secondary use, it was entitled to determine that the dwelling could properly be treated as part of the existing use within the Resource Development use class. His Honour noted, at 19 [48], that there was no dispute that the material was at least capable of establishing an ancillary use or development, and thus a grant of a permit was open. In other words, it was open to treat the proposed use as "ancillary", as an integral and subservient part of the existing Resource Development use class, which included use of land for primary production.  On that basis the use would have been treated as part of that use class and was permitted, as of right, subject to the setback issue.

3. Although in a different legislative context, the question determined by his Honour was the same as the question raised in this appeal, that is, was the Tribunal's determination that the permit was invalid an error of law? His Honour's determination of that question was a necessary legal foundation for his conclusion: Quarmby v Qasair Investments Pty Ltd at [15]. It is the inevitable consequence of his Honour's determination that the Tribunal erred when it determined that, because the Council had no power to grant the permit, the permit was invalid. This ground is made out.

Grounds 2 and 3

1. I will deal with these grounds together. Ground 2 contends that the Tribunal erred by holding that Mr and Mrs Purton's appeal was "invalid". Ground 3 asserts that the Tribunal erred by holding it had no jurisdiction to further hear and determine the appeal. Both grounds are made out for reasons closely related to ground 1. If the permit was not invalid, the appeal could not have been invalid. The permit was valid and the Tribunal had power to determine an appeal from the grant of the permit. By mistakenly denying the existence of jurisdiction, the Tribunal committed jurisdictional error: Kirk v Industrial Court (NSW) [2010] HCA 1, 239 CLR 531 at 573-574 [72]. Mr and Mrs Jackson advance no other reason why the appeal may be invalid. The appellants were persons who, having made a representation to the Council about the application, were entitled to appeal against the decision to grant a permit. It is not suggested that the appeal did not otherwise comply with all of the statutory and administrative requirements. Both grounds are made out.

2. Appeals from a decision of the Tribunal are confined to errors of law. Counsel for Mr and Mrs Jackson submits that the Tribunal did not err in law because, in effect, a determination that the use applied for by the appellants was residential and secondary under the planning scheme, was a determination of a jurisdictional fact, the result of which was that the permit must have been granted for a prohibited use and was invalid. I do not accept that submission. In accordance with the analysis conducted by Porter J, even if the Tribunal correctly determined that the Council could not approve the application as a secondary use, the material before the Council was at least capable of establishing that the proposed use was ancillary to an existing use within the primary use class for that zone. Had such a contention been established, then the proposed use would have been permitted. The discretion arose concerning the setback issue. Although the Tribunal asserted that the proposed use was not permitted, it did so without consideration of the contention, which Porter J found was open, that the permit may be granted for a use which was ancillary. The Tribunal did not address the question of ancillary use. It was in error to dismiss relevant issues of fact advanced on behalf of Mr and Mrs Jackson as "not to the point". It erred in law by concluding that the Council "must" refuse the permit application, and that the Council had no power or discretion to grant it, without addressing the issue and making the necessary findings of fact and law.

3. For reasons which I will later explain, I do not propose to determine the planning application. The proper order is to remit it the Tribunal to be re-heard. One possible conclusion open to the Tribunal, on such a rehearing, is that Mr and Mrs Jackson's application was not for a use or development which was ancillary to a primary use class, nor could it be approved as a secondary use. In my view, the Tribunal's jurisdiction to hear and determine the appeal is not affected by such a conclusion. 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.

4. 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.

5. The approach I have adopted is consistent with the approach taken in R v Resource Management andPlanning Appeal Tribunal; ex parte Calvary Hospital Hobart Inc [2000] TASSC 19, 107 LGERA 196, also applied by Porter J in Jackson v Building Appeal Board [2010] TASSC 29, 20 Tas R 1. In Calvary Hospital Evans J dealt with the Tribunal's jurisdiction to make an order under s 64 of the LUPA Act if satisfied that the hospital had contravened the Act. His Honour held that the Tribunal had jurisdiction to make findings of direct relevance to the jurisdiction the Tribunal was called on to exercise.

6. In my view, a proper construction of the legislation leads to the conclusion that the Tribunal had jurisdiction to determine the question before it in the appeal, whether or not the decision of the Council is properly described as "invalid": Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, referred to by Blow J in the Full Court in Jackson v Purton [2012] TASFC 2, 21 Tas R 310, and applied by his Honour in Dorset Council v Resource Management and Planning Appeal Tribunal [2014] TASSC 34. A contrary interpretation of the legislation would deprive the Tribunal, in an appeal, of the ability to act on a finding that an application is for a prohibited use. It results in the undesirable situation in which the Tribunal does not have jurisdiction to direct a refusal or substitute its own refusal, thereby leaving in place a permit which the Tribunal has concluded was wrongly issued. The Tribunal is a creation of statute and its powers extend only to those granted by the terms of the legislation. It has no declaratory power. Proceedings are thereby potentially fragmented. An appellant or potential appellant is compelled to determine the nature of an application for relief, and the jurisdiction in which it is sought, according to the uncertain nature of the error the appellant contends. Persons in the position of the appellants would be confined to the expense, delay and uncertainty of an application to this Court under the Judicial Review Act, or for relief in the nature of a prerogative writ: Tasman Quest Pty Ltd v Evans [2003] TASSC 110. This case is a good example of the difficulty a contrary construction creates.

7. That the appellants, as well as the Council, urged the Tribunal to take the course which first led to error should not prevent this Court from now determining this appeal in accordance with the law.

The proposed ground 4

1. Application was made for leave to amend the notice of appeal by adding a fourth ground of appeal. It was agreed by the parties that I should hear argument on the proposed ground and rule on the application to amend in these reasons. The proposed ground is in these terms:

   "The Tribunal erred in law by failing to set aside the Council's decision to grant a permit and replace it with either a refusal or a direction to the Council not to grant a permit when it had determined that the proposed use and development was not permitted by the Waratah-Wynyard Planning Scheme 2000."

2. For the following reasons I consider that the ground is unmeritorious, and leave to amend will therefore not be granted. As I earlier explained, the Tribunal failed to address, and make the necessary findings of law and fact, about whether the permit may be granted for a use which was ancillary to a primary use. This Court is not in a position to resolve the necessary issues of fact which were not resolved by the Tribunal. The appropriate course is to remit the appeal to the Tribunal so that it may exercise its jurisdiction to hear and determine the appeal under Pt 5 of the RMPAT Act.

Conclusion and orders

1. For the foregoing reasons grounds 1, 2 and 3 of the appeal are made out. The application to amend the notice of appeal by inserting ground 4 is refused. The determination of the Tribunal that it had no jurisdiction to hear and determine the appeal is quashed. I think that the appropriate order is that the appeal should be remitted to the Tribunal for hearing and determination in accordance with law, and in accordance with these reasons, but I will not make final orders without hearing further from the parties. I am aware that, by reason of the passage of time, the Tribunal can no longer be constituted as it was at the time the appeal first came before it.